Chandigarh

DF-I

CC/527/2023

GIRDHARI LAL JINDAL - Complainant(s)

Versus

EMAAR MGF LAND PRIVATE LIMITED - Opp.Party(s)

RAMNIK GUPTA

04 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/527/2023
Date of Institution	:	7/11/2023
Date of Decision	:	4/11/2024

 

1. Sh. Girdhari Lal Jindal s/o Sh. Shanti Lal Jindal

2. Mr. Vishal Jindal son of Sh. G.L. Jindal

Both residents of House No. 3141, Sector 20-D Chandigarh.

....... Complainants.

Versus

 

1. M/s Emaar MGF Land Pvt. Ltd., Office No. 40, Central Plaza, Sector 105, Mohali 160062 through its director.

2. M/s Emaar MGF Land Pvt. Ltd. Regd. Office: 306-308, Square One, C-2, District Centre, Saket, New Delhi-110017 through its director.

3. Mr. Anil Harish, Director, M/s Emaar MGF Land Pvt. Ltd, c/o 306-308, Square One, C-2, District Centre, Saket, New Delhi-110017.

4 Mohammad Ali Rashed Alabbar, Director, M/s Emaar MGF Land Pvt. Ltd. Regd. Office: 306-308, Square One, C-2, District Centre, Saket, New Delhi-110017.

5. Ms. Shivani Bhasin, Director, M/s Emaar MGF Land Pvt. Ltd. having its Regd. Office: 306-308, Square One, C-2, District Centre, Saket, New Delhi-110017.

Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Ramnik Gupta, Advocate for complainant
	:	Sh. Vishal Singal, Advocate for Sh. Sanjeev Sharma, Advocate for OPs .

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that OP No.1 is the developer and developing various housing projects including 'Augusta Park, Morni Hills, Sector 109, SAS Nagar; (hereinafter referred to subject project ) and Opposite Party No. 2 is local office at SAS Nagar; whereas Opposite Parties No. 3 to 5 are the directors of Opposite Party No. 1 who are in-charge and are looking after day to affairs of the Opposite Party No. 1 and hence are liable and responsible for all the acts and conduct of Opposite Party No.1. Being allured and tempted by rosy advertisements and tall claims of the Opposite Parties about the world-class development of Mega integrated Residential Township and early possession of the plots in  the subject project, the Complainants booked one plot of 300 square yards for their personal use in the subject project of the Opposite Parties somewhere in September 2006 vide booking Application Annexure C-1 and deposited booking amount of
      Rs.10,35,000/- which was acknowledged by OPs vide  receipts Annexure C-2. The OPs had also assured that allotment of the plot would be made by 1.1.2007 and for payment, options were made  i.e. down payment and installment payment plan. As per letter Annexure C-2  and C-3 the tentative price of the plot was Rs.34,50,000/-, out of which  30% of the total  value payable was booking amount and the remaining amount was payable as per payment plan. The complainants were also allowed to mortgage the subject plot with assurance that allotment of plot in the names of Complainants would be completed by 01.01.2007 and undertook to send the original allotment letter, stamped agreement to sell and other documents to the bank directly. The Complainants availed the loan of Rs.7,24,500/- from the HDFC Ltd. on execution of Short Term Loan Agreement dated 20.10.2006 and Tripartite Agreement Annexure with Opposite Parties and HDFC Ltd. Copies of request for loan and agreements with regard to loan is annexed as Annexure C-4 to C-6.  As per terms and conditions of the Tripartite Agreement, the OPs had undertaken that in case allotment of the said plot is cancelled for any reason then Opposite Parties shall repay the entire amount of loan to HDFC Ltd. Thereafter, OPs allotted plot no. 615, having approximate area of 300 sq. yds. (hereinafter referred to be as subject plot) in Augusta Green, Sector 109, SAS Nagar, @ Rs 11,500/- per sq. yd. with additional payment of Rs. 1,69,104/- towards External Development Charges vide Provisional Allotment Letter dated 11.05.2007 Annexure C-8.  The complainant made further payment of Rs.5,17,500/- on different dates, which was also acknowledged by the OPs vide receipts Annexure C-9 to C-13.  Thereafter  Plot Buyer Agreement  (PBA) was also executed between the parties and the OPs had agreed to deliver the possession of the subject plot with all basic amenities within two years  but not later than three years from the date of execution of PBA. Even after receiving the amount of Rs.15,52,500/-  from the complainant out of the total sale consideration of Rs.36,19,104/-,  the OPs have failed to commence development at the site.  Later on the OPs issued letter Annexure C-14 dated 6.7.2009 vide which they demanded arrears of installments,  failing which the penal interest @15% per annum will be charged.  The complainants were not having the copy of Plot Buyer Agreement and they  vide letter dated 16.9.2009 Annexure C-15 requested the OPs to send  copy  of PBA  but to no effect.  Thereafter the complainants repeatedly requested the OPs to intimate about the development  on the site but the same had not been disclosed. Even HDFC had also not supplied copy of PBA  despite of repeated requests. On 18.4.2023  when the complainants visited the office of OPs they were informed that the subject plot is not available as the same has been allotted to some third person since the complainants had failed to make the remaining payment. Thereafter again  the complainants visited the site and found that there was no development at the site for 13-14 years  since no internal roads, infrastructure, water supply or sewerage or electricity  or other work have been completed  on the site and due to that reason they have failed to offer possession of the subject plot to the complainants.  Despite of this fact the OPs have failed to deliver possession of the subject plot to the complainants and have cancelled allotment  and as per agreement they were required to pay the loan amount to the HDFC Ltd., which was paid by the complainants.  Since the OPs have failed to make payment of the installments to the HDFC Ltd.,  the complainants were compelled to pay the same to the said bank and accordingly NOC Annexure C-21  was issued by the said bank.  Not only this even it was unearthed that the OPs  were not having necessary approval and sanction  at the time of launching the subject project and collected huge money from the complainants. In this manner, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of fact and also that the complainants are not consumer. However, it is admitted that the subject plot was allotted to the complainants with tentative price of Rs.34,50,000/-, out of which the complainant had remitted a sum of Rs.10,35,000/- as booking amount and the complainants have also obtained loan from HDFC Ltd., regarding which the Tripartite Agreement  was also executed between the parties and the bank. However, it is alleged that as the complainants have failed to pay the entire sale consideration of Rs.34,50,000/- with additional charges to the OPs despite of repeated requests  by the OPs and as such the allotment of the subject plot was cancelled vide letter dated 4.12.2016 Annexure R-1. It is further alleged that Annexure C-15  is fabricated document, which was prepared by the complainants only to get favour from this Commission.  It is further alleged that various reminders sent to the complainants to make the remaining payment failing which the allotment will be cancelled and as the complainants have failed to make the remaining payment the provisional allotment was cancelled.  On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   3. Despite grant of numerous opportunities, no rejoinder was filed by the complainant to rebut the stand of the OP.
2. In order to prove their respective claims the parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that  the subject plot No.615 was booked by the complainants for total sale consideration of Rs.34,50,000/-, out of which the complainants have paid an amount of Rs.15,52,500/-  to the OPs  i.e. Rs.10,35,000/- as booking amount as is also evident from Annexure
      C-2 and Rs.5,17,000/- was also paid by the complainants thereafter as is evident from receipts Annexure C-9 to C-13, which have been duly admitted by the OPs in the statement of account Annexure R-15  annexed with the final cancellation letter and the possession of the subject plot was never offered to the complainants  by the OPs and the allotment was also cancelled by the OPs vide final allotment letter Annexure R-15, the case is reduced to a narrow compass as it is to be determined if  the OPs are unjustified in cancelling the allotment of the  subject plot and the complainants are entitled for the relief as prayed for, as is the case of the complainants or if the OPs are justified in cancelling the subject plot and the complaint being not maintainable is liable to be dismissed.
   2. Perusal of provisional allotment letter dated 11.5.2007 Annexure C-8 clearly indicates that the OPs had provisionally allotted plot NO.615 to the  complainants in their subject project and acknowledged payment of Rs.10,35,000/- towards booking amount. Annexure C-9  to C-13 are  receipts which further indicate that the OPs had further acknowledged  receipt of amount of Rs.5,17,000/-   on different dates from the complainants. In this manner an amount of Rs.15,52,500/- has been paid by the complainants to the OPs. Annexure C-15 and C-16 clearly indicate that  the complainant No.2 sent letter to the Ops requesting to provide copy of agreement duly signed by  complainant No.2 and even after that the complainants  No.2 sent reminders Annexure C-18 to C-20  requesting  to provide agreement and details of dues pending against the subject plot  but the said letters were not responded by the OPs. Annexure C-21  is No Due Certificate  issued by HDFC Ltd. which indicates that the complainants have discharged entire loan liability and accordingly NO Due Certificate was issued to the complainants  despite the fact that as per Agreement Annexure C-6 on cancellation of allotment of the subject plot,  the OPs were liable to pay the outstanding amount  directly to the bank which has not been paid by the OPs in the present case.
   3. The defence of the OPs that as the complainants have failed to make remaining payment through installment despite of repeated requests made by the OPs vide various mails/reminders Annexure R-8 to R-13, the allotment was cancelled vide letter Annexure R-15, which was duly conveyed to the complainants also
   4. However, there is no iota of evidence in the shape of any postal receipt, acknowledgment and email details on record, to prove that the aforesaid  reminders with regard to payment of remaining amount  or final cancellation of allotment of the subject plot was in fact conveyed to the complainants by the OPs, making it clear that the OPs have created/ prepared  the   aforesaid documents in order to defeat/frustrate the rights of the complainants.
   5. Moreover, the OPs have failed to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainant knowing fully well that necessary clearances have not been given by the competent authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject plot.  If the OPs chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are only themselves to blame for the same as the purchaser of the subject floor/flat/plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                             “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

6. It has thus been proved on record that money had been collected from the prospective buyers including the complainant, without obtaining statutory approvals/ clearances. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required licence/approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

7. Moreover, it is proved on record despite repeated requests the OPs failed to offer possession of the subject plot after receiving huge amount from the complainant rather cancelled the allotment arbitrarily. The Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 in which it was 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 above view is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as 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.
8. Recently, the Hon’ble National Commission in Sanjiv Kumar Jain & Anr. Vs. Lodha Crown Buildmart Private Limited, II (2023) CPJ 271 (NC) has held that inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund on this ground alone and if unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined.  The relevant headnote of the order is reproduced below for ready reference :-

“(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Housing — Booking of duplex flat — Non-delivery of possession — Deficiency in service — Inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund, on this ground alone — If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined — As there was unreasonable delay in offer of possession, complainants are entitled for refund of full amount under Clause 11.3 of agreement — Home buyer cannot be made to wait for possession of flat for indefinite period — Opposite party is directed to refund entire amount deposited by complainants with interest @ 9% per annum from date of respective deposit till date of payment.”

 

9. As far as the question as to how the cause of action has arisen to the complainants is concerned,  it has come on record that the OPs  has failed to deliver the lawful possession of the subject plot after obtaining necessary approvals/completion certificate from the competent authority. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
10. In view of the aforesaid discussion, it is safe to hold that the complainants have successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed

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 :-
   1. to pay ₹15,52,500/- to the complainant alongwith interest @ 9% per annum (simple) from the respective dates of  deposit  till onwards
   2. to pay ₹50,000/- to the complainant as compensation for causing mental agony and harassment;
   3. to pay ₹10,000/- to the complainant as costs of litigation.
5. This order be complied with by the OPs jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
6. Pending miscellaneous application(s), if any, also stands disposed off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 4/11/2024			[Pawanjit Singh] President
mp
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member