Chandigarh

DF-II

CC/112/2019

Sharda - Complainant(s)

Versus

Emerging Valley Pvt. Limited - Opp.Party(s)

Varun Katyal Adv.

05 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	112/2019
Date of Institution	:	01.03.2019
Date of Decision	:	05.04.2023

 

                   

           

 

Sharda wife of Sh.Rajesh Kumar r/o House No.250, Bigar Road, R.K.Colony, Fatehabad, Haryana.

                ...  Complainant.

Versus

1.  Emerging Valley Pvt. Ltd., Registered Office at SCO No.46-47, Sector 9-D, Chandigarh through its Managing Director Sh.Gurpreet Singh Sidhu.

2.  Harvinder Singh Behal, Additional Director, Emerging Valley Pvt. Ltd., Registered Office at SCO No.46-47, Sector 9-D, Chandigarh.

3.  Sushil Kumar, Director, Emerging Valley Pvt. Ltd., Registered Office at SCO No.46-47, Sector 9-D, Chandigarh.

 

…. Opposite Parties.

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Bhannu Choudhary, Adv. Proxy for Sh.Varun Katyal, Counsel of complainant None for OP No.1 OP No.2 exparte. None for OP No.3.

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

1.     The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986, as amended up-to-date alleging therein that being influenced by the representatives of the OPs, she agreed to purchase one bedroom apartment in their ongoing projected located at Emerging Valley (P) Ltd., Landran Bannaur Road, Mohali and the possession of which was to be delivered within the maximum period of 2 years. According to the complainant, she deposited in all a sum of Rs.2,60,000/- against receipts [Annexure C-1 (Colly.)] with the OPs as under:

Sr. No.	Date	Amount In    Rs.
1	02.09.2014	50,000/-
2	22.12.2014	10,000/-
3	20.01.2015	50,000/-
4	10.08.2015	70,000/-
5	25.01.2016	50,000/-
6	02.04.2016	30,000/-
	G.Total	2,60,000/-

        After the receipts of the aforesaid amounts, she was issued provisional allotment letter dated 17.02.2016 for total sale price of Rs.10.50 lakhs for the apartment and allotment number given to the complainant was OBA/2089. Thereafter, neither any demand was raised by the OPs nor any communication was made regarding possession of the unit. The complainant came to know that the OPs decided not to build one-bedroom apartment and instead have taken a decision to build two-bedroom flat.  However, the complainant refused to purchase two-bedroom flat and requested to refund the deposited amount to which initially the OPs agreed but subsequent refused to pay. The complainant got served a legal notice dated 25.09.2018 through his advocate upon the OPs but to no effect. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed this complaint seeking directions to the OPs to refund the deposited amount along with interest, compensation and litigation costs.

2. OP No.1 contested the consumer complaint and filed the written version by way of affidavit inter alia taking the preliminary objections that the complainant is not consumer and the present complaint is not maintainable as the complainant booked the flat for investment/commercial purposes, therefore the complainant is not covered under the definition of the “Consumer” as per Consumer Protection Act of 1986; the present complaint is liable to be dismissed as it is hopelessly time-barred and beyond the period of limitation as prescribed in the Consumer Protection Act 1986. The provisional allotment was issued on 17.02.2016, however, the complainant has approached the Commission in 2019.  It has further been stated that the construction works on the site have been delayed due to non-payment of dues by a huge number of allottees including the complainant who had invested in the project for reselling their respective units and making huge amounts of profits. Denying all other allegations and stating that there is no deficiency in service on its part, OP No.1 has prayed for dismissal of the complaint.
3. Since, OP No.2 was not interested to defend the case, therefore, he was proceeded against exparte vide order dated 24.06.2019.
4. In its short written version by way of affidavit, OP No.3-Sh.Sushil Kumar has stated that he submitted his resignation vide resignation letter dated 16.04.2019 and the same was accepted by the Board of Directors of M/s Emerging Valley Pvt. Ltd.  and as such no cause of action has arisen to the complainant to file the present compliant against him.  He further stated that he was a non-executive director in the company and has never participated in the day to day affairs of the company nor he was ever in charge and control of the business affairs of the company in any manner whatsoever. Denying all other allegations and stating that there is no deficiency in service on his part, OP No.3 has prayed for dismissal of the complaint.
5. We have heard the proxy Counsel for the complainant and gone through the documents on record.
6. The submission of OP No.1 is that the complaint is barred by limitation. However, the Hon’ble National Commission in “Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr.” 2016(2) CLT 457 has also held that unless or until the Complainants get possession of the flats, complete in all respects, they have got continuous cause of action. In Para-8 of the said judgment, it has been observed as under:-

“8.     The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in “Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association” Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012.”

        So in view of availability of recurring cause of action in favour of complainants till refusal, certainly the complaint is not barred by limitation and submission of Counsel for OP No.1 to the contrary has no force and the same is rejected accordingly.

7. The  next objection of OP No.1 is that the complainant does not falls within the definition of a consumer, as defined by Section 2 (1) (d) of the Act, or not. It may be stated here that the mere objection of OP No.1 that the investment in the property by the complainant is purely for commercial investment does not carry any weight and the same is liable to be rejected because there is nothing on record that the complainant is property dealer, and deals in the sale and purchase of property. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d) of the Act. Such an objection, taken by OP No.1, in its written version, therefore, being devoid of merit, is rejected. 
8. As far as plea taken by OP No.1 to the effect that the complainant was defaulter in making payment towards price of the said unit, it may be stated here that once it has been proved on record that the OPs are guilty of delay in completing the project and even as on today the complainant is empty handed, as such, in those circumstances, it is not expected from the complainant to keep on making payments to them. Still, the complainant had paid Rs.2.60 lakhs out of total sale consideration of Rs.10.50 lakhs against the unit in question.  If the complainant has not made the remaining amount towards price of the said showroom, in our considered opinion, the was well within her right, to do so, in view of principle of law laid down in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments can be stopped by the purchaser. As such, plea taken by the OP No.1, in this regard, stands rejected. 
9.     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”.

         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?”

10.     Hence, the act of the OPs to collect the money before getting all the necessary approvals for the project and not handling over possession of the unit in question within the stipulated period certainly proves deficiency in service and its indulgence in unfair trade practice. 
11.     A buyer/complainants to have a comfortable life and having paid their/her hard earned money to have a house, are not supposed to wait indefinitely for possession. Thus, the complainant cannot be made to wait indefinitely for the possession of the flats allotted to them and the complainant is entitled to seek the refund of the amount paid along with compensation.
12.     The OPs 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 OPs, is clearly established, which not only caused financial loss to the complainant, but also caused them immense harassment & mental agony.
13.     In the light of above observations, we are of the considered view that the OPs are found deficient in rendering proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint deserves to succeed against the OPs.  Accordingly, the present complaint is allowed with following directions to the OPs to:-

1.   refund the amount of Rs.2,60,000/- to the complainant along with interest @ 12% p.a. from the date of respective deposits till the date of its actual realization.
2.   pay Rs.15,000/- as lump sum compensation to the complainant on account of mental tension and harassment as well as litigation expenses.

         The above said order shall be complied with jointly and severally by the OPs within a period of 60 days from the date of receipt of its copy.

14.     The pending application(s) if any, stands disposed of accordingly.
15.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced 05/04/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (B.M.SHARMA) MEMBER