Chandigarh

StateCommission

A/338/2023

M/S FORTUNE MULTITECH PRIVATE LIMITED - Complainant(s)

Versus

ADARSH GUPTA - Opp.Party(s)

SHIVAM GROVER

24 Jul 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

==================

Appeal No.

:

A/338/2023

Date  of  Institution 

:

26/12/2023

Date   of   Decision 

:

24/07/2024

 

 

 

 

 

M/s Fortune MultiTech Pvt. Ltd., SCO 404, 2nd Floor, Sector 20, Panchkula, Haryana, through its Director.

 

….Appellant

Vs.

 

1.     Adarsh Gupta son of Sh. Surender Nath Gupta, Resident of House No. 144, Sector 46-A, Chandigarh – 160047.

 

2.     Rakesh Kataria, Resident of House No. 114, Platinum Tower, Adj. Sector 20, Peer Muchalla, Zirakpur, the dealer/Real Estate Agent who is not registered with RERA. Punjab. 

…. Respondents

 

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH     MEMBER

 

PRESENT

:

Sh. Shivam Grover, Advocate for the Appellant.

 

 

Sh. Mukesh Kumar Verma, Advocate for the Respondent No.1.

 

 

Respondent No.2 already given up.

 

PER PREETINDER SINGH, MEMBER

 

 

 

  1.         The present appeal has been filed by M/s Fortune MultiTech Private Limited (for brevity hereinafter to be referred as “‘the Appellant”’) challenging the impugned order dated 03.11.2023 vide which the Learned District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. District Commission”), allowed the Consumer Complaint bearing no.CC/533/2020, in the following terms:-

“13.   In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OP No.1 is directed as under:-

i]        to refund Rs.16,42,488/- to the Complainant with interest @9% P.A. from the respective dates of receipt of payment till onwards.

ii]       to pay Rs.50,000/- to the Complainant as compensation for causing mental agony and harassment to him.

iii]      to pay Rs.10,000/- to the complainant as costs of litigation. 

14.    This order be complied with by the OP No.1 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) and (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.”

 

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

 

  1.         Before the Ld. District Commission, it was the case of the Complainant that he book Flat No.G-301 in the Project of Opposite Party No.1 on the allurement of Opposite Party No.2 on 15.01.2019 and Agreement to Sell was executed between the parties on 09.02.2019. The Complainant made a total payment of ₹16,42,488/-. After making above payment the Complainant came to know that the flat in question was unauthorizedly constructed since the Developer had raised the construction in violation of the provisions of Punjab Apartment and Property Regulation Act, 1955; in violation of Master Plan of Zirakpur; in violation of Section 14 of the Real Estate Act, 2016 and in violation of the Punjab Municipal Act, 1911. Accordingly, the Complainant stopped further payments and asked the Opposite Parties to refund the amount paid. However, the Opposite Parties cancelled the allotment of the flat in question and forfeited the amount deposited. Even though a legal notice was served by the Complainant upon the Opposite Parties, but the same failed to fetch the desired results. Hence, the aforesaid Consumer Complaint was filed before the Ld.District Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties.

 

  1.         In the reply filed before the Ld. District Commission, while admitting the factual matrix of the case, Opposite Party No.1 pleaded that the Complainant after making payment of booking amount was required to make next payment by July 2019, but he did not make payment thereafter despite reminders sent through registered post. Since despite repeated request when the Complainant did not come forward, the Opposite Parties cancelled the unit vide letter dated 07.02.2020 as per terms & conditions of the agreement. Denying all other allegations and pleading no deficiency in service, the Opposite Party No.1 has prayed for dismissal of the Complaint.

 

  1.         Despite due service, Opposite Party No.2 did not turn up, hence it was proceeded against ex-parte by the Ld. District Commission vide order dated 25.03.2022. 

 

  1.         On appraisal of the pleadings of the parties and the evidence adduced on the record, Ld. District Commission allowed the Complaint of the Complainant as noticed in the opening para of this order.  

 

  1.         Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellant/Opposite Party No.1.

 

  1.         In the present proceedings, when Respondent No.2 could not be served, on the submission of Learned Counsel for the Appellant that he wished to gave up Respondent No.2 not being a contesting party, service upon Respondent No.2 has been dispensed with by this Commission vide order dated 13.02.2024.

 

  1.         We have heard the Learned Counsel for the Parties and have gone through the evidence and record of the case with utmost care.

 

  1.         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. 

 

  1.         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.

 

  1.         It is the case of the Appellant/Opposite Party that the Ld. District Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding. Also, the impugned order was passed without taking into consideration the facts of the case and without appreciating the correct legal position which resulted into gross miscarriage of justice and thus deserves to be set aside. The learned counsel further argued on the similar lines and prayed for acceptance of the present appeal.

 

  1.         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. The detailed finding of facts has already been recorded by the District Commission while rejecting the stand of the Appellant/Opposite Party. The learned counsel further argued on the similar lines as stated in the complaint filed before the Ld. District Commission and prayed for dismissal of the present appeal. 

 

  1.         The basic facts of the case with regard to booking of the flat, execution of agreement to sell and payments made by the Complainant have not been disputed before us. Learned counsel for the Appellant submitted that the Appellant has all lawful approvals, license & permits obtained by following due process of law and since the Complainant himself was a defaulter, Appellant was very much within its right to cancel his allotment of the apartment in question vide letter dated 07.02.2020. The agreement to sell placed on record by the Complainant established that in view of Clause 8 (ii) & (v), the Appellant represented to the Complainant that it has all lawful rights, requisite approvals from the competent authorities to carry out development of the Project and all approvals, licenses and permits issued by the competent authorities with respect to the project are valid and subsisting and have been obtained by following due process of law. On the other hand, it has been submitted on behalf of the Complainant/Respondent that the Appellant does not have license to develop the colony required under the PAPRA Act and once it has no license, no approval of any kind can be granted to the project under the said Act. In support of this, learned counsel for the Respondent while pointing out at the notification dated 06.12.2021 issued by the Department of Housing & Urban Development has submitted that the layout plan of the colony was approved by the M.C. Zirakpur which is not competent to sanction the same, in as much as earlier it was the Regional Deputy Director, Local Government, Punjab and at present, it is Additional Deputy Commissioner (Urban Development) as the colony falls in the municipal limit. The Appellant has failed to produce the license to develop the colony. Moreover, the Ld. District Commission after going through the record has recorded a categorical finding that Appellant has not placed on record any approval and occupation certificate obtained by it from the competent authority to corroborate its defence.      

 

  1.         Once it is conceded position on record that the Appellant does not have the requisite approvals and certificates from the competent authorities and the layout plan got approved by it was from an authority not competent to pass the same, whether the Complainant could stop paying the further payments to the Appellant on account of the  said compelling circumstances. The answer to the question posted is in affirmative. As the Appellant was itself is in default as per the conditions stipulated in the agreement to sell, in terms of Clause 9.2(i) thereof, the Complainant/ Respondent No.1 was entitled to stop further payments as demanded by the Appellant and further, per clause 9.2(ii) the Complainant/Respondent No.1 is entitled to refund of entire money paid along with interest. This leads to an irrefutable conclusion that the Appellant by no stretch of imagination could forfeit the amount deposited by the Complainant.  The Ld. District Commission in its finding has rightly observed so in the light of Section 6(2) of the PAPRA Act, which provides that the promoter shall not cancel unilaterally the agreement to sale entered into under sub-section (1) and of he has sufficient cause to cancel it, he shall given due notice to the other parties to the agreement and tender a refund of the full amount collected together with interest at the rate as may be prescribed. In other words, the Appellant cannot cancel the allotment of the flat in question and thereafter forfeit the entire consideration paid. At any rate, the Appellant is liable to refund the total amount received along with interest, along with other reliefs granted by the Ld. District Commission. To our mind, no case is therefore made for any interference in the well reasoned findings recorded by the Ld. Lower Commission.

 

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

 

  1.         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.

 

  1.         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.

 

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

 

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

 

  1.         The file be consigned to Record Room, after completion.

Pronounced

24th July, 2024                                                                  

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

Sd/-

(PREETINDER SINGH)

MEMBER

 “Dutt”  

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