Chandigarh

StateCommission

A/174/2023

M/S CHANDIGARH ROYALE CITY PROMOTERS PVT. LTD., THROUGH ITS AUTHORISED SIGNATORY - Complainant(s)

Versus

ABHISHEK GOEL - Opp.Party(s)

JATIN BANSAL ADV.

22 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

[ADDL. BENCH]

 

 

Appeal No.	:	174 of 2023
Date of Institution	:	20.07.2023
Date of Decision	:	22.04.2024

 

M/s Chandigarh Royale City Promoters Pvt. Ltd., through its Authorised Signatory, Registered Office at Village Karala, Tehsil Derabassi, District Mohali, Punjab.

….. Appellant

 

V e r s u s

 

Abhishek Goel S/o Sh. Vinod Goel, Resident of House No. 2267, Sector 35 (Top Floor), Chandigarh.

….Respondent

 

BEFORE:

MRS. PADMA PANDEY, PRESIDING MEMBER PREETINDER SINGH, MEMBER

 

ARGUED BY:    Sh. Jatin Bansal, Advocate for the Appellant.

Sh. Sandeep Bhardwaj, Advocate for the Respondent.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

1]                This appeal is directed against the order dated 01.05.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. District Commission”), vide which, it partly allowed the Consumer Complaint bearing no.CC/1018/2019 in the following terms: -

 

“4.     In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under:-

 

i)        to refund total deposited amount of ₹8,00,000/- to the complainant alongwith interest @ 9% per annum from the respective date(s) of payment/receipt, as mentioned above, till realization of the same.

ii)       to pay an amount of ₹30,000/- to the complainant as compensation for causing mental agony and harassment to him;

 

iii)      to pay ₹10,000/- to the complainants as costs of litigation.

 

5.       This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

 

 

2]             For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. District Commission.

 

3]                Before the Ld. District Commission, it was the case of the Complainant/Respondent that the OPs had launched their integrated residential project under the name and style of “Chandigarh Royale City” on Zirakpur-Patiala Highway, Village Karala, District Mohali, Punjab and had made various assurances through newspapers, marketing emails and telemarketing about the said project.  On the basis of the said assurances, complainant, in order to get a residential house for his own use and for his family members, approached the OPs through their Broker (OP-3), who was authorised to receive applications from the consumers on behalf of OPs.  At that time, it was assured to the complainant that the OPs were having all the requisite permissions and approvals required for selling the plots in their project and there was no condition barring them from receiving consideration for the sale of the plots in their project.  Accordingly, by believing the assurances of the OPs, complainant had agreed to purchase a unit from them by paying booking amount of ₹4,00,000/- with registration form, which was duly acknowledged by the OPs through receipt.  Thereafter, the complainant was again asked to pay an amount of ₹4,00,000/- and the same was also paid by him vide receipt dated 08.02.2014. Accordingly, OPs issued letter dated 06.11.2014 through which the complainant was informed that flat No.104, Tower No.01, Floor 4th on the wide road has been allotted to him and was also informed that the amount already paid by him has been adjusted against the said flat and two fresh receipts dated 06.11.2014 and 18.03.2015 were also issued.  At the time of booking of the aforesaid flat, as well as receipt of the aforesaid amount from the complainant, OPs had assured that they were having all the permissions and approvals from the concerned authorities. However, later on the complainant came to know from one Sh. Ankit Dhull that OPs had only obtained licence on 31.12.2012 and prior to that they were not having any such licence and the said information was obtained by the customer under the RTI Act.  In this manner, as the OPs were not having the requisite permissions and approvals from the concerned authorities for the completion of the project as well as sale of the flats/plots to their customers and the OPs had received the aforesaid amount from the complainant for the sale of the subject flat in contravention to the PAPRA Act, the said act amounts to unfair trade practice on the part of OPs.  Not only this, even provisional NOC was issued by the Highway Administration to the OPs vide letter dated 18.11.2014. Thus, when it is clear on record that the OPs were not having the required approvals and permissions from the concerned authorities before launching the project or selling the flat to the complainant, they have cheated the complainant by assuring him that they were possessing the requisite permissions at the time of receiving the amount from him.  OPs were requested several times to admit the claim, but, with no result.  Hence, the aforesaid Consumer Complaint was filed before the Ld. District Commission, alleging deficiency in service and unfair trade practice on the part of Opposite Parties.

 

4]                The OP No.1/Appellant contested the claim of the Complainant before Ld. District Commission by filing its written version, inter alia, taking preliminary objections of maintainability, concealment of facts and limitation. It was pleaded that the OPs were having requisite permissions and approvals before launching of the project and the complainant has made false allegations against the OPs.  It was asserted that the external development work of the project was to be completed by GMADA on payment of certain amount from the OPs which had already been paid by the OPs to them regarding which agreement was also executed between GMADA and the OPs.  It was submitted that the allegations as made by the complainant cannot be adjudicated upon in a summary proceedings and this Commission has no jurisdiction to try the consumer complaint. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant was denied.  The consumer complaint was sought to be contested on these lines.

5]                OPs  2 & 3 were properly served and when none turned up on their behalf, despite proper service, they were proceeded against ex-parte by the Ld. District Commission vide order dated 31.12.2019.

 

6]                After hearing the counsel for the parties and going through the record, the Ld. District Commission partly allowed the complaint, in the manner, as stated above.

 

7]                Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellant/ OP No.1 (M/s Chandigarh Royale City Promoters Pvt. Ltd.).

 

8]                We have heard Learned Counsel for the contesting parties and have also gone through the evidence and record of the case, with utmost care and circumspection.

 

9]                The core question that falls for consideration before us is as to whether the Ld. District Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

 

10]              After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be dismissed for the reasons to be recorded hereinafter.

 

11]              It is the case of the Appellant that the Ld. District Commission while passing the impugned order has failed to appreciate the documentary evidence available on record and also not passed a speaking order, which resulted into perverse finding. It has been also submitted that the Ld. District Commission failed to determine on what basis/grounds there was an unfair trade practice or deficiency in service.  It has been argued that by not appreciating the aforesaid factual aspects, the Ld. District Commission accepted the Complaint thereby committed a grave error and thus, the impugned order is liable to be set-aside. Conversely, it has been contended on behalf of the Respondent/ Complainant that the order passed by the Ld. District Commission is quite just & right and does not call for any interference.

12]              Per material available on record, the Respondent/ complainant had paid an amount of ₹8,00,000/- (₹4,00,000/- as booking amount on 06.11.2014 and ₹4,00,000/- on 18.3.2015) to the OPs towards partial payment of the flat. Indisputably, the possession of the flat was not offered by the OPs.  It was the categoric case of the Complainant that the OPs were not having requisite permissions/approvals from concerned authorities before launching of the said project as well as before receiving the aforesaid amount from him. To substantiate the same, Complainant had placed on record Annexure C-6 which was a copy of information sought by one Sh.Ankit Dhull under the RTI Act from the GMADA regarding the project in question which showed that licence for the construction of the colony in Village Karala was issued to OP-1 on 31.12.2012 and OP-1/promoter had not applied for completion certificate of the colony even on the said date.  In this backdrop, the Ld. District Commission has thus rightly observed that on 19.5.2014 when the said information was given to the applicant, OP-1 had not applied for completion certificate of the colony.  Furthermore, the Ld. District Commission after taking into account the letter dated 18.11.2014 of the Highway Administrator cum Executive Engineer, Central Works Division, Mohali whereby it asked the OPs that the final approval shall only be given after construction work is completed, and vide para No.20 of the said letter, applicant was asked not to sell, transfer or dispose of the premises without obtaining clearance from the highway authority, had correctly held that on the day when OPs had received an amount of ₹4,00,000/- as booking amount from the complainant, they were not even having requisite permissions/sanctions from the concerned authorities. Placing reliance on M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018, the Ld. District Commission has recorded a categorical finding that the aforesaid act of the OPs amounts to unfair trade practice as they started receiving sale consideration for the flat from the consumer before obtaining the required permissions/ sanctions from the concerned authorities.

13]              Learned Counsel for the Appellant raised a plea that the Ld. District Commission has failed to take cognizance of the inordinate delay in filing the consumer complaint. However, per material on record, there is no merit in the same, in as much as, when it has come on record that the OPs were not having the requisite permissions/sanctions from the concerned authorities for the sale of the subject flat, the cause of action continued against the OPs.  Even otherwise also, non delivery of possession of plots/ units in a developed project by the promised date is a material violation on the part of the builder and in those cases allottees are well within their rights to seek refund of the amount paid.  To this effect, lending support from Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442, the Ld. District Commission has rightly held OPs have indulged in unfair trade practice and are deficient in providing service to the complainant.

14]              To cap it all, in the present case, no buyers agreement was executed as such there was no occasion for the Appellant/OP No.1 to collect the amount and also to retain the hard earnings of the Complainant. Since the consideration has been received without executing the agreement and also without obtaining the requisite permissions and approvals as such the Appellant was rightly held liable to refund total deposited amount along with interest, besides payment of compensation and costs of proceedings. To our mind, no case is therefore made for any interference in the well reasoned findings recorded by the Ld. District Commission.

15]              No other point was urged, by the Learned Counsel for the parties.

 

16]              It is demonstrable from a reading of the impugned Order of the Ld. District Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made. It also does not appear to be an order passed without taking into account the available evidence.

 

17]              In the wake of the position, as sketched out above, we are dissuaded to interfere with the impugned order rendered by the Ld. District Commission. The appeal being bereft of merit is accordingly dismissed and the order of the Ld. District Commission is upheld.

 

18]              All the pending application(s), if any, also stands disposed off accordingly.

 

19]              Certified Copies of this order be sent to the parties, free of charge.

 

20]              The file be consigned to Record Room, after completion.

Pronounced

22.04.2024.

                                                                                                  Sd/-

Sd/-

[PADMA PANDEY]

PRESIDING MEMBER

 

 

Sd/-

 (PREETINDER SINGH)

MEMBER

“Dutt”