Chandigarh

DF-I

CC/103/2024

MEENU DHAWAN - Complainant(s)

Versus

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

KAVITA ARORA

07 Oct 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/103/2024
Date of Institution	:	22.2.2024
Date of Decision	:	7/10/2024

 

Meenu Dhawan wife of Ashwani Kumar # 52A, Agar Nagar, Dashmesh Nagar Block-A, Near Drain Ludhiana High Way Road Jagraon.

Complainant

Versus

 

1. Emerging Valley (P) Ltd a unit of Emerging India Housing Corporation (P) Ltd Emerging Heights 3. Kharar Landran Road, Sector 115, Mohalı, Punjab 140501

2. Emerging Valley (P) Ltd a unit of Emerging India Housing Corporation(P) Ltd through its authorized Signatory Emerging Heights 3, Kharar Landran Road, Sector 115 Mohali, Punjab 140501

3. Managing Director, Gurpreet Singh Sidhu, C/o M/S Emerging Valley (P) Ltd. a unit of Emerging India Housing Corporation(P) Ltd, Emerging Heights 3. Kharar Landran Road, Sector 115, Mohali, Punjab 140501

… Opposite Parties

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

 

                                                                               

ARGUED BY	:	Sh. Mandeep Kanwar, Advocate proxy for Ms. Kavita Arora, 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  in the year 2012,  the OP had given an advertisement sale of residential flats in the project namely Emerging Valley Pvt. Ltd.  at Sector 115, SAS Nagar, Mohali.  After going through the said advertisement the complainant moved one application dated 13.9.2022 for allotment of one BHK flat  bearing docket No. DOC-E-430 for a total sale consideration of Rs.16,15,000/-  and the same was allotted to the complainant vide draw held on 26.9.2012  and accordingly the complainant had paid an amount of Rs.1,26,250/-  on 6.10.2012 and the copy of allotment  as well as the payment receipt  is annexed as Annexure C-1. In the year 2013, the complainant visited the spot and it was found that  there was no development  and on this complainant had issued one letter Annexure C-2 dated 10.2.20234  to the OP asking about the status of the project.  On receiving the said letter, the Ops asked the complainant to make payment of balance amount and assured that she will get guaranteed rental income on the amount deposited by her.  Not only this the Ops also issued a letter Annexure C-3 dated 19.2.2013  to the complainant assuring her about the payment of guaranteed rental income to her. On this the complainant paid an amount of Rs.7,03,550/- in cash to the OPs on 27.2.2014. As the OPs did  not start any construction  work for the allotted flat the OPs asked the complainant that they will give another 2BHK flat in their ongoing project namely Premium Trinity Homes located at the same locality.  Being allured by the flashy  advertisement of the Ops the  complainant  booked 2BHK  flat  with the OP in the Premium Trinity Homes  (hereinafter referred to be as subject flat) vide TRUP 1095 dated 13.9.2012 for sale consideration of Rs.16,15,000/-. At that time the OPs had adjusted the earlier payment made by the complainant for the earlier flat and again had asked the complainant to pay  the remaining amount. On this the complainant paid another amount of Rs.3,50,000/-  vide receipt dated 10.3.2016 and Rs.3,00,000/- vide receipt dated 30.3.2016. Copies of receipts are annexed as Annexure C-4. Thereafter the final allotment letter Annexure C-5 dated 8.4.2016 was issued to the complainant by the OPs  and as per clasue ‘S’ of the same, the possession of the subject flat was to be handed over within 36 months from the date of customer deposited the 90% of the sale price of the flat.  As the complainant has already deposited more than 90% amount of Rs.14,79,800/- of the total sale consideration  with the OPs and only an amount of Rs.1,35,200/-  was payable by the complainant, the Ops were supposed to hand over the possession of the subject flat to the complainant on or before 8.4.2019. In the month of  March 2018, the complainant visited the spot where the subject flat was allotted to the complainant and shocked to see that there was no development work at all.  Thereafter the complainant went to the office of Ops for clarification  about the project but with no positive response from them. On this the complainant sent letter Annexure C-6 dated 12.8.2019. Thereafter the complainant again visited the site on 5.2.2020 and on finding that there was no progress on the spot, sent letter Annexure C-7 to the OPs and on receiving the said letter the representative of the OPs   informed the complainant that  due to Covid-19  no funds were being deposited by other allottee and the OPs were not in a position to complete the construction. Not only this even till date no street light/electric connection   or other development work has been started by the OPs on the spot.  On further enquiry, the complainant was informed that  even no CLU  or permission for development is given to the OPs for the said project. In this manner, the  Ops have cheated the complainant and they have even not obtained the approval from the competent authorities and started collecting huge amounts from the buyers. Photographs of the site Annexure C-9 showing that no development work has been done by the OPs on the spot. 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  were properly served and when OPs did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 12.7.2024.

2. In order to prove her claim the complainant has tendered/proved her 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 complainant that the complainant initially booked 1BHK flat  bearing docket No. DOC-E-430 for a total sale consideration of Rs.16,15,000/-,   by paying booking amount of Rs.1,26,250/-  on 6.10.2012  as is evident from Annexure C-1 and later on the OPs exchanged the said flat with 2BHK flat  in their project namely Premium Trinity Home located in the same area  in lieu of earlier 1 BHK flat  and asked the complainant to pay remaining amount and accordingly the complainant paid Rs.7,03,550/- in cash on 27.2.2014 and thereafter paid Rs.3,50,000/- on 10.3.2016 and Rs.3,00,000/- on 30.3.2016 as is evident from Annexure C-4 and thereby paid a total amount of Rs.14,79,800/-  as is evident from Annexure  C-5 payment plan at page 30 annexed with Final allotment letter, but till date the OPs have not offered the possession of the subject flat, 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 the complainant is entitled for the relief as prayed for and for that purpose the documentary evidence led by the complainant is required to be scan carefully.
   2. Perusal of Annexure C-1 indicates that the complainant initially booked 1BHK flat  with the OPs  on payment of booking amount of Rs.1,26,250/-   Annexure C-2  indicates that the complainant sent letter dated 10.2.2013 seeking clarification  about the said project  and in response to that the Ops issued letter Annexure C-3  to the complainant assuring her about the guaranteed rental income from the deposited amount. Annexure C-4 indicates that the complainant  has paid payment of Rs.3,50,000/- and Rs.3,00,000/- to the Ops  on 10.3.2016 and 30.3.2016 respectively. Annexure C-5  is the final allotment letter and as per Clause ‘S’ of the same  the OPs had agreed to hand over the possession of the subject flat within 36 months from the date the  customer deposited 90% of the net sale price of the subject flat.  Payment schedule annexed with the final allotment letter indicates that the OPs have received Rs.14,79,800/-  from the complainant.
   3. Thus one thing is clear on record that the complainant has already paid more than 90% amount i.e. Rs.14,79,800/- to the OPs out of the total sale consideration of Rs.16,15,000/-.
   4.   The case of the complainant is that the OPs have collected huge money from the complainant without obtained necessary permissions from the competent authorities.  The OPs have  not come forward 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 authorities, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking of 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…..”

 

5. 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…………”

6. It is also the case of the complainant that till date possession of the subject flat has not been handed over despite of receiving huge amount from the complainant. 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.
7. 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.”

 

8.  In view of the foregoing discussion, it is safe to hold that  the aforesaid act of OPs amounts to deficiency in service and unfair trade practice on their 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 OPs. Hence, the instant consumer complaint deserves to be allowed.
9. So far as the quantum of relief is concerned, the counsel for the complainant during the pendency of the complaint vide her separate statement forgo the prayer for possession of the unit in question and only press for refund of the amount with interest and other reliefs, hence, the complainant is entitled for refund of Rs.14,79,800/- with interest alongwith compensation.   

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 refund ₹.14,79,800/- to the complainant alongwith interest @ 9% per annum (simple) from the respective dates of deposit till onwards.
   2. to pay ₹75,000/- to the complainant/s 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 7/10/2024 mp			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member