Chandigarh

DF-II

CC/607/2022

SHWETA SURI - Complainant(s)

Versus

EMAAR INDIA LIMITED - Opp.Party(s)

SAVINDER SINGH GILL

30 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	CC/607/2022
Date of Institution	:	16/08/2022
Date of Decision	:	30/07/2024

 

                                       

                       

 

 

Shweta Suri w/o Sh. Jatin Suri, resident of 2/78, Punjabi Bagh, New Delhi 110028.

                                ...  Complainant

Versus

Emaar India Limited (Formerly known as Emaar MGF Land Ltd.), Mohali Hills, Office No.40, Central Plaza, Sector-105, Mohali, Punjab through its Directors Sh. Hadi Mohd Taher Badri and Smt. Shivani Bhasin.

…. Opposite Party

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
ARGUED BY:-
	Sh. Savinder Singh Gill, Counsel for complainant
	Sh. Rana Gurtej Singh, Counsel for OP

       

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.        The complainant has filed the present consumer complaint alleging that she had applied for allotment of an apartment in the project being developed by the OP in the name and style of “The Views Mohali” situated at Sector  105, SAS Nagar, Mohali and paid booking amount of Rs.7,00,000/- vide receipt dated 11.8.2006 (Annexure C-1).  However, even after receiving substantial amount, OP neither issued allotment letter nor buyer’s agreement was ever executed between the parties and OP even did not give any definite timeline for possession of the apartment.  The complainant repeatedly followed with the OP regarding the development at the project site, but, all her requests fell on deaf ears of the OP.  It is further alleged that even the basic amenities like sewerage treatment plant, water supply and permanent electricity connection etc. were not available and applied for by the OP from the competent authority.  Alleging that the aforesaid acts of omission and commission on the part of the OP amount to deficiency in service and unfair trade practice, complainant has filed the instant complaint seeking refund of the amount paid alongwith interest, compensation and litigation expenses.
2.        In its written version, OP admitted the factual matrix of the case, but, has pleaded that the total sale price of the apartment was Rs.51,42,750/- out of which the complainant had paid Rs.7,00,000/- as booking amount on 11.8.2006.  It is alleged that thereafter the complainant was called upon to make payment of the installment of Rs.7,92,575/-, but, even after service of numerous reminders, she failed to pay the same.  It is further alleged that as the complainant was unable to pay the outstanding amount of Rs.24,35,152/- the provisional allotment in her favour was cancelled vide letter dated 21.2.2011. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on its part, OP prayed for dismissal of the complaint.
3.        The parties filed their respective affidavits and documents in support of their case.
4.        In replication, complainant controverted the stand of the OP and reiterated her own.
5.        We have heard the learned Counsel for the parties and have gone through the documents on record.
6.        It is observed from the record of the file that the complainant had paid an amount of Rs.7,00,000/- to the OP on 11.8.2016. When the OP collected money, they had not obtained the required sanctions, permissions and approvals etc. from all the concerned competent authorities from where they were legally bound to take the same.  Thus, collection of amount from the consumers without having such sanctions, permissions and approvals etc. from all the concerned quarters is not only illegal and wrong but also amounts to unfair trade practice as per the Consumer Protection Act, 2019.  The relevant provisions of the PUDA Act mandates that the OP should have obtained all the necessary sanctions, permissions and approvals etc. from the concerned authorities before collection of the amount from the consumers and thereafter they are legally bound to execute the buyer’s agreement therein specifically mentioning that such and such date should be the date of delivery of possession to the consumers, failing which a reasonable time is considered to be just and fair to deliver the agreed apartment to the complainant/consumer as upheld in many cases by the higher authorities from the date of buyer’s agreement between the parties.  In the present case,       complainant was provisionally allotted the apartment in question by the OP and she paid the booking amount of Rs.7,00,000/- vide receipt dated 11.8.2006 (Annexure C-1).  The possession of the apartment in question, complete in all respects, has not been delivered to the complainant by the OP so far despite of requests by the complainant nor the deposited amount has been refunded to the complainant. Not only this, OP has also failed to prove on record that it was having all the necessary permissions/sanctions required for launching the project in question before accepting the deposit from the complainant.
7.        The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed as under:-

“The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

              The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/ complainants is entitled to?”

              Further, the Hon’ble National Commission in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 held that 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.

                     The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed as under:-

       “It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/ apartments, invites offers and collects money from the buyers. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

8.        Hence, the act of the OP to collect the money before getting all the necessary approvals for the project and not handing over possession of the apartment in question within the stipulated period certainly proves deficiency in service and indulgence in unfair trade practice on its part. 
9.        The buyers/complainants to have a comfortable life and having paid their hard earned money to have an apartment are not supposed to wait indefinitely for possession. Thus, the complainant cannot be made to wait indefinitely for the possession of the apartment and the complainant is entitled to seek the refund of the amount paid along with interest.
10.        The OP accepted the money, but failed to honour the commitment/promise made with complainant, therefore, the deficiency in service as well as unfair trade practice adopted by the OP, is clearly established, which not only caused financial loss to the complainant, but also caused immense harassment & mental agony.
11.        In view of the above discussion, the present consumer complaint deserves to be partly allowed and the same is accordingly partly allowed. The OP is directed to refund the deposited amount i.e. Rs.7,00,000/- to the complainant alongwith interest @ 10% per annum from the date of its respective deposits till the date of its actual realization. 
12.        This order be complied with by the OP within 60 days from the date of receipt of its certified copy, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this Commission.
13.        The pending application(s) if any, stands disposed of accordingly.
14.        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

 

Announced in open Commission 30/07/2024
hg	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (B.M.SHARMA) MEMBER