Chandigarh

DF-I

CC/591/2023

RAJESH KUMAR - Complainant(s)

Versus

EMERGING VALLEY PVT LTD. - Opp.Party(s)

NAVKESH SINGH

04 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/591/2023
Date of Institution	:	21/12/2023
Date of Decision	:	4/11 /2024

 

1. Rajesh Kumar son of Om Parkash resident of H.No. 152, Ward No. 11, Ahmedgarh, Tehsil Malerkotla District Sangrur through special power of attorney Tajinder Singh son of Labh Singh resident of H.No. 198, Sector 2-A, Sham Nagar, Opp. Shiv Mandir, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib, Punjab.

2. Kamaljeet Kaur wife of Tajinder Singh resident of H.No. 198, Sector 2-A, Sham Nagar, Opp. Shiv Mandir, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib, Punjab through special power of attorney Tajinder Singh son of Labh Singh resident of H.No. 198, Sector 2-A, Sham Nagar, Opp. Shiv Mandir, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib, Punjab.

......Complainants

VERSUS

1. Emerging Valley Pvt. Ltd. SCO 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director, 160009 now resident and care of Emerging Height-3, Sante Majra, Sector 115, SAS Nagar, Mohali, Punjab-140307.

2. Emerging India Pvt. Ltd., SCO 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. 160009 now resident and care of Emerging Height-3, Sante Majra, Sector 115, SAS Nagar, Mohali, Punjab- 140307.

3. Gurpreet Singh Sidhu, Managing Director, Emerging Valley Pvt. Ltd. Resident of H. No. 317, Sector 21-A, Chandigarh now resident and care of Emerging Height-3, Sante Majra, Sector 115, SAS Nagar, Mohali, Punjab-140307.....

… Opposite Parties

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

 

                                                                               

ARGUED BY	:	Sh. Navkesh Singh, Advocate for complainant
	:	OPs 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 OPs). The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that the complainant No.1 is running a construction business in name and style of D.S. Contractor at Channa Road, Mandi Ahmedgarh, District Sangrur .  The OP No.3  being the Managing Director of OPs No.1&2 approached the complainant No.1 for construction  and furnishing of flats built by them in their company namely Emerging Valley Pvt. Ltd. and the proposal of OP No.3 was accepted by complainant No.1 . Thereafter the complainant No.1 started construction work of the flats for the Ops and after completing construction and furnishing work,  5 flats were handed over by complainant No.1 to OPs alongwith bills of each flat totaling to Rs.37,20,938/-. After receiving bills of the constructed flats, the  OPs made the payment to complainant No.1 for the same.  At that moment, the OP No.3 offered complainant No.1 one flat for the same price i.e. Rs.37,20,938/- and as the complainants were also interested to settle near Chandigarh, they accepted  the offer given by OP No.3. Accordingly OP No.3 vide allotment letter Annexure C-2 alloted flat No. GF-34 measuring 150Sq. yds. (hereinafter referred to be subject flat) to complainants in their project  Emerging Valley Pvt. Ltd. in Prabh Homez and the complainants have paid entire amount of  Rs.37,20,938/- being the sale consideration of the subject flat  to OP No.3.  After issuing the allotment letter, the OPs also issued possession letter Annexure C-3 on the same day, which was accepted by the complainants.  However it is alleged that the actual possession of the subject flat was never given to the complainants as the project was not complete nor any permission from GMADA, Mohali was obtained. Moreover, facilities of sewerage, STP, electricity connections, drainage system, power backup, fire fighting system etc were not completed on the site. Since the OPs had never obtained necessary permissions from the authorities concerned including GMADA for their project for raising construction nor they had obtained completion certificate from the appropriate authority and at the time of launching of the project, the Ops had claimed that they had all the necessary permissions, 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 were properly served and when OPs did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 13.6.2024.

2. In order to prove their claims the complainants have tendered/proved their 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.
   1. At the very outset, it may be observed that when it is an admitted case of the  complainants that the OPs had engaged the  complainant No.1 for construction of 5 flats in their project Emerging Valley Pvt. and  the complainant No. 1 handed over the 5 flats to the OPs alongwith bills thereof vide Annexure C-1(colly) to the tune of Rs.37,20,938/-  and the OPs had paid the said amount to the complainant no.1  and at that very moment the OPs had offered the subject  flat to the complainants on the same consideration amount of Rs.37,20,938/- , and the said offer was accepted by the complainants and accordingly allotment letter Annexure C-2 was issued to the complainants and the complainants paid the sale consideration Rs.37,20,938/- towards the subject flat to the OPs who also issued possession letter Annexure C-3 on the same day  but did not hand over the actual physical possession of the subject flat to the complainants, the case is reduced to a narrow compass as it is to be determined if the aforesaid act of OPs amounts to deficiency in service and unfair trade practice and the complainant is entitled for the relief as prayed for and for that purpose the documentary evidence led by the complainants is required to be scanned carefully.
   2. Perusal of allotment letter Annexure C-2 indicates that the OPs had received the entire sale consideration from the complainants against the subject flat and thereafter the same was allotted to the complainants.  As per case of the complainants the OPs have not obtained requisite permission from the competent authorities before collecting huge money from the them.
   3. Since the OPs are already exparte, the aforesaid assertion of the complainants has not been rebutted by the OPs by leading evidence that they are having necessary permissions  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 authorities, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject flat.  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…..”

 

4. It has thus been proved on record that money had been collected from the prospective buyers including the complainants, 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…………”

5. The  complainant has alleged that till date actual physical possession of the subject flat has not been handed over by the OPs. 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.”

 

1.  As far as the question as to when 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 actual physical 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.
2.  In view of the foregoing discussion the  it is safe to hold that there is deficiency  of service & unfair trade practice on the part of the OPs , 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 OPs. 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 OPs are directed as under :-

1. to pay ₹ Rs.37,20,938/- to the complainants alongwith interest @ 9% per annum from the respective dates of deposit till onwards.
2. to pay an amount of ₹40,000/- to the complainants as compensation for causing mental agony and harassment to them;
3. to pay ₹10,000/- to the complainants 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 mentioned at Sr.No. (i )& (ii) shall carry penal interest @12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% (mentioned at serial no.(i)), till realization, apart from compliance of direction at Sr.No.(iii) above.
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 mp			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member