Chandigarh

DF-II

CC/343/2022

Raghubir Singh, S/o Sh. Ujagar Singh, R/o Village Daduwal P/o Barian Kalan Tehsil Garshankar, Distt. Hoshiarpur - Complainant(s)

Versus

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

Adv.Navkesh Singh Goraya

03 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	343/2022
Date of Institution	:	25.04.2022
Date of Decision	:	03.08.2023

 

                       

             

Raghubir Singh son of Sh. Ujagar Singh son of Diwan Singh resident of village Daduwal Post Office Barian Kalan Tehsil Garshankar, District Hoshiarpur, Punjab now resident of 21. Kempsons Grove Sedgemore Park Bilston Wolverhampton, UK, WV 14 9YD through Power of Attorney Bhupinder Singh son of Jagat Singh resident of H. No. 70, Barewal Road, Bhai Daya Singh Nagar, Rajguru Nagar, S.O. Ludhiana, Punjab.

.....Complainant

Versus

1.   Emerging Valley Pvt. Ltd. SCO No. 46-47, First Floor, Sector 9- D, Near Matka Chowk, Madhya Marg, Chandigarh-16009, through its Managing Director.

2.   Emerging India Pvt. Ltd. SCO No. 46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh-160009 through its Managing Director.

3.   Sh. Gurpreet Singh Sidhu, Managing Director, Emerging Valley Pvt. Ltd. R/o H. No. 317, Sector 21-A, Chandigarh. -160022.

…. Opposite Parties.

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Navkesh Singh Goraya, Counsel for the complainant OPs No.1 to 3 exparte.

    

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

1.      The brief facts of the case as pleaded by the complainant is that he initially booked a two bedroom apartment vide No.EV/TRP/1-13 with covered area of 720 sq. ft. in the project “Premium Trinity Homes” in “Emerging Valley”, Landran –Banur Road, Mohali, Punjab in the year 2014 for Rs.18.25 lakhs plus paid club membership charges Rs.50,000/-, fire fighting charges Rs.20/- per sq. ft. (Rs.14,400/-), car parking charges Rs.1 lakhs, power back up charges Rs.20000/-  per KW. Further, the complainant booked another 2 BHK Flat, Tower No.25, Ground Floor 73 vide booking application No.TRP-73 dated 11.02.2014 in the same Premium Trinity Homes for Rs.18.25 lakhs plus paid club membership charges Rs.50,000/-, fire fighting charges Rs.20/- per sq. ft. (Rs.14,400/-), car parking charges Rs.1 lakhs, power back up charges Rs.20000/-  per KW. The OPs changed the flat numbers on various occasions and ultimately the flat No.PT-10-GF-28 and PT-11-GF-31 were allotted to complainant, which was also changed in the final allotment.  It has further been pleaded that some of the receipts were not given with the promise to send the same on the registered address but till date no receipts were sent.  On 03.02.2014, Gurtek Singh received the cheques of Rs.1,00,000/- in each for booking of the flats (Annexure C-1 colly.), which were encashed by the OPs. On 04.03.2014, two provisional allotment in respect of the flats were issued (Annexure C-3 Colly.). The complainant paid Rs.36.50 lakhs in respect of the flats in question. The receipts for the period from 12.02.2014 to 11.02.2016 for payment of Rs.28,68,000/- were annexed as Annexure C-2 Colly  and the rest of the receipts are not traceable. The OPs also issued the final allotment letters in respect  of the flats on 05.07.2016 (Annexure C-4 colly.).  In December, 2020, the complainant was shocked to know that the building where the flats were allotted was demolished by the GMADA in Aug/Sept. 2020. It has further been pleaded that the project of the OPs is in violation of the provisions of the Section 50 of the Punjab Regional and Town Planning and Development Act, 1955 and the provisions of the Punjab New Capital (Periphery) Control Act, 1952 and the Ops have not taken the necessary permissions/sanctions to raise the construction and the GMADA issued various notices to the OPs.  The OPs have not delivered the possession of the flats in question to the complainant despite receipt of Rs.36.50 lakhs. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to refund the deposited amount with interest, rental amount with interest, compensation for mental agony and physical harassment as well as litigation expenses.
2.      Despite due service through publication, the Opposite Parties failed to put in appearance and as a result thereof they were ordered to be proceeded against exparte vide order dated 16.11.2022.
3.      The complainant filed his affidavit and documents in support of his case.
4.      We have heard the Counsel for the complainant and have gone through the documents on record
5.      In exparte evidence, the complainant has placed on record his duly sworn affidavit reiterating the averments made in the complaint along with the supporting documents.  The complainant was also issued provisional allotment letters dated 04.03.2014 and the final allotment letters dated 05.07.2016  qua the units in question by the OPs. The complainant has specifically deposed in the affidavit that the project/building where the flats were situated had already been demolished by the GMADA. The complainant has specifically deposed in the affidavit that  the OPs had violated the provisions of the Punjab Regional and Town Planning and Development Act, 1955 and the provisions of the Punjab New Capital (Periphery) Control Act, 1952 and they have not taken the requisites permissions/approvals from the concerned authorities for selling the units/floors.    In our view, 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 units in question within the stipulated period certainly proves deficiency in service and its indulgence in unfair trade practice.
6.      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”.

7.            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.”

8.      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?”

9.      Keeping in view the facts and circumstances of the case, we are of the considered view that the complainant cannot be made to wait for an indefinite period and the OPs who are not in a position to develop the project have no right to retain the hard earned money of the complainant.     A buyer to have a comfortable life and having paid his/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 him and the complainant is entitled to seek the refund of the amount paid along with compensation.
10.      The complainant pleaded to have deposited a sum of Rs.36.50 lakhs qua the units in question along with other charges and sought the refund of that amount. However, the complainant has been able to place on record the photocopies of the receipts to the tune of Rs.28.35 lakhs only and as such he is held entitled to refund of that amount instead of the claimed amount.
11.      In the light of above observations, the present complaint deserves to succeed against the OPs.  Accordingly, the present complaint is partly allowed with following directions to the OPs to:-

1.   refund Rs.28,35,000/- (Rupees Twenty Eight Lakhs and Thirty Five Thousand only) along with interest @ 9% p.a. from the dates of respective deposits till the date of its actual payment to the complainant.
2.   pay Rs.20,000/- 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 by the OPs jointly and severally within a period of 60 days from the date of receipt of copy of this order.

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

Announced in open Commission 03/08/2023                                         sd/-
	(AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(B.M.SHARMA) MEMBER