Chandigarh

DF-I

CC/988/2022

SANDEEP SOOD - Complainant(s)

Versus

EMAAR INDIA LTD - Opp.Party(s)

RAKESH BAJAJ

27 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/988/2022
Date of Institution	:	21/12/2022
Date of Decision	:	27/5/2024

 

1. Mr. Sandeep Sood S/o Mr. Vinay Kumar Sud, resident of EC19, May, Enclave Hari Nagar, New Delhi-110064 presently residing at DW14, ground floor Nirvana Country, Sector 50 South City-2, Gurgaon, Haryana-12201834.
2. Sh. Vinay Kumar Sood S/O Sh.Sadhu Ram Sud resident of EC19, May, Enclave Hari Nagar, New Delhi-110064 presently residing at Sood Villa, A-1/302 Safdarganj Enclave, New Delhi-110029.

complainants.

Versus

1. EMAAR MGF Land Ltd. presently known as EMAAR INDIA LTD C- 2, Distt. Centre 306-308, 3RD FLOOR, Square One, Saket, New Delhi- 110017 through its Director/Office Head/ Authorized Signatory.

2. EMAAR MGF Land Ltd. presently known as EMAAR INDIA LTD, Central Plaza Sector 105, Mohali Hills SAS Nagar, Punjab through its Director/Office Head/ Authorized Signatory. 160062.

3. Hadi Mohd,. Taher, Director of EMAAR MGF Land Ltd. presently known as EMAAR MGF Land Ltd. C-2, Distt. Centre 306-308, 3RD FLOOR, Square One, Saket, New Delhi-110017.

Opposite Parties

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Sh. Rakesh Bajaj, Advocate for complainants.
	:	Sh. Vishal Singal, Advocate for OPs.

Per surjeet kaur, Member

     Briefly stated  the complainant on the allurement of the OPs purchased a flat bearing No.K1/403 in the project of the OPs. The total cost of the flat  is Rs.47,27,150/-  including PLC charges, car parking charges etc.  The complainant has deposited an amount of Rs.8,81,330/- towards the partial payment of the flat with the OPs. It is alleged that the Ops have failed to show necessary permission from the competent authorities to the complainant after receiving huge money from the complainant.  The OPs also executed Buyer’s Agreement Exhibit C-1  in 2008 with the complainants.  As per agreement the possession of the flat was to be delivered within 36 months from the date of allotment/agreement. But no offer of possession has been offered till date. It is alleged that since Ops have not raised any construction at the spot therefore, the complainant stopped the payment to the OPs. It is alleged that the despite of numerous requests made by the complainants the Ops neither offered possession of the flat nor refunded the amount paid by the complainant. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Parties  in their reply stated that the complaint is not maintainable as the complainant has concealed the factum of cancelation of the flat in question due to non payment of outstanding amounts towards the price of the plot. It is averred that out of total price of Plot amounting to Rs 47,27,150/ the complainants made a payment of Rs 8,69,325/- only and the complainants failed to make any further payments. The opposite sent numerous demand letters/ reminders/notices to complainants to make the payment of due amounts however the complainants miserably failed to make the payment of due amounts. It is alleged that the complainants are chronic and habitual defaulter, the OPs after providing him with numerous opportunities, constrained to finally cancel the allotment and the money was forfeited as per the agreed terms and conditions of the buyer agreement. All other allegations made in the complaint has been  denied being wrong.
3. Rejoinder was filed and averments made in the consumer complaint were reiterated.
4. Contesting parties led evidence by way of affidavits and documents.
5. We have heard the learned counsel for the contesting parties and gone through the record of the case.
6. It is evident from, Annexure C-2  that the OPs received booking amount of Rs.7,00,000/-  on 12.8.2006 from the complainant and thereafter first installment of Rs.1,52,500/- was paid by the complainant on 10.11.2006. Also it is an admitted fact that another amount of Rs.16,825/- was further paid by the complainant on 5.8.2010. Hence, total amount paid comes to Rs.8,69,325/-.  Thereafter Apartment Buyer’s Agreement  was executed  in the year 2008 and as per Clause 21 of the aforesaid agreement at page 39 of the paper book,  the possession of the unit question was to be handed over within 36 months  with grace period of another 3 more months. Meaning thereby, the  possession of the unit in question was to be handed over by the Ops in the year 2011 but till date neither the possession of the unit has been handed over to the complainant nor the deposited amount has been refunded to him.
7. After going through the documents on record it is abundantly clear that firstly the Ops were failed to handover the possession of the unit in question within stipulated period after receiving huge amount from the complainant. Even the OPs failed to place on record any documentary evidence that they have collected the money from the complainant after obtaining all the necessary permissions from the competent  authorities.
8. In case Kamal Sood Vs. DLF Universal Ltd., reported as  III(2007) CPJ-7 (NC),   the Hon’ble National Commission held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, and schematic building plan. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/building.
9. It is apparent from the record that despite receiving huge amount from the complainant the OPs did not raise any construction at the spot and have failed to offer possession of the unit in question and have been using the hard earned money of the complainant to gain profit and they cannot make the complainant wait for indefinite period for possession of the unit in question.  It is the inactive approach of the Ops due to which the complainant stopped making further payment with a fear of indefinite wait.  Thus, we are of the considered view that the hard earned money of consumer/complainant cannot be forfeited by taking shelter of unilateral terms and conditions.
10. Keeping in view the facts and circumstances of the present case, we are of the considered view that the complainant cannot be made to wait for an indefinite period and the OPs, who are not in a position to deliver the possession of the unit(s) as promised, have no right to retain the hard earned money of the complainants. 
11. 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 observed that 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.
12. Further 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: “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.”
13. The ratio of law laid down in the aforesaid cases is squarely applicable to the facts and circumstances of the instant case. Hence, the OPs are liable to refund the deposited amount to the complainant.
14. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under:-

1. to refund Rs.8,69,325/- with interest @9% P.A.from the respective dates of deposit till realization.
2. to pay Rs.1,00,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

15.      This order be complied with by the OPs within 45 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.
16. Pending miscellaneous application(s), if any, also stands disposed off.
17.      Certified copies of this order be sent to the parties free of charge. The file be consigned.

			sd/- [Pawanjit Singh]
			President
			sd/-
			[Surjeet Kaur] Member sd/-
27/5/2024			[Suresh Kumar Sardana]
mp			Member