Chandigarh

DF-I

CC/144/2024

VARUN SHARMA - Complainant(s)

Versus

EMERGING VALLEY PRIVATE LIMITED THROUGH ITS MANAGING DIRECTOR - Opp.Party(s)

SANDEEP CHOPRA AND PUJA CHOPRA

04 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/144/2024
Date of Institution	:	11/3/2024
Date of Decision	:	04/09/2024

 

Varun Sharma aged about 32 years son of Shri. Srishti Paul Sharma resident of House No.1, Ekta Nagar, Ferozepur City, Tehsil and District Ferozepur and present residing at 55, Interlude Drive, Brampton, Ontario, Canada L6 x 381, through his father and Special Power of Attorney Sh. Sristhi Paul Sharma resident of House No.1, Ekta Nagar, Ferozepur City, Tehsil and District Ferozepur.

...Complainant.

Versus

 

Emerging Valley Pvt. Ltd., SCO NO. 46-47, First Floor, Sector-9 D, Near Mattka Chowk, Madhya Marg, Chandigarh, through its Managing Director.

 

...Opposite Party

 

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

 

                                                                               

ARGUED BY	:	Sh. Sandeep Chopra, Advocate for complainant
	:	OP exparte.

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 OP). The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that  on  5.3.2013 the complainant booked 2BHK residential flat  measuring 610 sq. feet  on the first floor in trinity homes located at Emerging Valley (P) Ltd. (hereinafter referred to be as subject flat). The provisional allotment Annexure C-2 was issued on 31.7.2013  with respect to allotment of provisional allotment number EV/TH/131. The total sale consideration  of the subject flat was Rs.13,40,000/-, out of which the complainant as per payment plan paid a total amount of Rs.10,50,000/- and  the said amount was acknowledged by the OP vide receipts Annexure C-4 to C-13. As per provisional allotment letter Annexure C-2, possession of the subject flat was to be delivered by the OP to the complainant within 3 years from the date of allotment i.e. on or before 1.8.2016 and on the delivery of the possession the remaining amount was to be paid by the complainant. However, after that the father of the complainant who is power of attorney of the complainant visited the office of the OP several times with the request to deliver the possession of the subject flat but with no result.  The complainant made several requested to the OP repeatedly either to hand over possession of the subject flat  or to refund the amount but with no result. Finally the OP refused to handover the possession of the subject flat on 10.2.2024. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OP. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OP  was properly served and when OPs did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 7.8.2024.
2. In order to prove his claim the complainant have tendered/proved his evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the complainant and also gone through the file carefully, including the written arguments on behalf of complainant.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that the complainant has booked the subject flat with the OP in trinity homes located at Emerging Valley (P) Ltd. and thereafter the provisional allotment letter Annexure C-2 was issued on 31.7.2013  with respect to allotment of provisional allotment number EV/TH/131 to the complainant for the total sale consideration  of the subject flat as Rs.13,40,000/- ,out of which the complainant paid an amount of Rs.10,50,000/-, which was duly acknowledged by the OP vide receipt Annexure C-4 to C-13 and as per the provisional allotment letter possession of the subject flat was to be delivered by the OP to the complainant within 3 years  but despite of repeated requests of the complainant the OP  refused to hand over the possession of the subject flat finally on 10.2.2024, the case is reduced to a narrow compass as it is to be determined if the aforesaid act of the OP amounts to deficiency in service and the complainant is entitled for the relief as prayed for, as is the case of the complainant and for that purpose the documentary evidence led by the complainant is required to be scanned carefully.
   2. Perusal of the provisional allotment letter Annexure C-2  indicates that OP provisionally allotted independent floor in their project trinity Homes to the complainant with basic sale price of Rs.13,40,000/-  and as per clause K of the said allotment letter, the possession of the subject flat was to be delivered within three years after allotment. The relevant portion of the same is reproduced as under:-

“K. In case the company fails to give possession of the property to you by the maximum time-limit of three years after allotment, then the company shall be liable to pay you interest at the rate of 12 percent per annum on the installments paid by you till the date of delivery of actual possession, statutory/legal impediments and force majeure reasons excepting.”

3. Annexure C-4 to C-13  are the receipts which indicate the payments made by the complainant towards the subject flat, which have been duly acknowledged by the OP.  
4. As it is proved on record that despite of repeated requests made by the complainant the OP  has failed to handover possession of the subject flat till  date despite  of receiving huge amount from the complainant, which is a material violation on the  part of the OP, in our opinion the complainant cannot  be made wait for indefinite period for the possession of the subject flat despite payment of huge amount.
5. 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 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.
6. 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.”

 

7. In view of foregoing discussion, it is safe to hold that the  aforesaid act of OP amounts to deficiency in service and unfair trade practice on its part, especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OP. Hence, the instant consumer complaint deserves to be allowed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP  is directed as under:-
   1. to refund ₹10,50,000/- 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 OP 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 4/09/2024			[Pawanjit Singh] President
mp
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member