Chandigarh

DF-II

CC/989/2021

Ravinderjit Kaur - Complainant(s)

Versus

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

Adv. Hemender Goswami

17 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	989 of 2021
Date  of  Institution	:	27.12.2021
Date   of   Decision	:	17.05.2024

 

 

 

 

 

Ravinderjit Kaur, aged about 42 years D/o Sh.Amarjit Singh, now R/o 239, Hemri Angers, Lavl, Qubec, Canada, through her Special Power of Attroney Sh.Gurjeet Singh s/o Sh.Balwinder Singh, R/o H.No.B13/1176, Mehal Magar, Barnala, Punjab 148101

             …..Complainant

Versus

1]  Emerging Valley Pvt. Ltd., SCO No.46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh 160009 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

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

  ….. Opposite Parties

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA,                 MEMBER

                               

Argued by:-     Sh.Navkesh Singh Goraya, Counsel for complainant

                None for OPs

 

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

1]       By dint of this common order, we propose to dispose of 02 connected consumer complaints in which common questions of law and fact are involved i.e. the present consumer complaint No.989/2021 – Ravinderjit Kaur Vs. Emerging Valley Pvt. Ltd. & Ors. as well as CC No.294/2022 – Mamta Sehgal vs. Emerging Valley Pvt. Ltd. & Ors.

 

2]       The facts are gathered from C.C.No.989/2021 – Ravinderjit Kaur Vs. Emerging Valley Pvt. Ltd. & Ors.

 

3]       The complainant has filed the present complaint pleading that the complainant booked a 2 BHK Flat in the project of OPs namely “Prabh Homes”, Emerging Valley, Landran Banur Road, Mohali, Punjab in the year 2013 for Rs.27.50 lacs.  Accordingly, the complainant was issued allotment letter provisionally allotting Flat as PH-02, FF-05 (Ann.C-2).  It is pleaded that the complainant had paid an amount of Rs.27,27,664/- to OPs and only Rs.22,336/- remains to be paid at the time of getting possession, out of the total sale consideration of Rs.27.50 lacs.  The Ops also confirmed the Payment vide letter dated 16.10.2017 (Ann.C-3) and executed a Sale Deed in favour of the complainant on 24.10.2016 (Ann.C-4). The Possession Letter dated 01.02.2018 was also issued to the complainant (Ann.C-5) but the possession was not delivered as the basic facilities were not complete.

 

         It is submitted that later the complainant came to know in Dec., 2020 that the OPs have started the project and collected the amount without obtaining necessary permissions, approval and sanctions from the concerned competent authorities, as a result, the GMADA had demolished the building of the OPs where the complainant had been allotted flat after issuing notice (Ann.C-6).  As such, the hope of the complainants to get the flat has been shattered and the complainant also suffered heavy loss.  It is pleaded that the complainant approached the OPs to get the refund as well as compensation but to no avail.  It is submitted that there is deficiency in service and unfair trade practice on the part of OPs as they collected the money from the complainant for the flat in question without having requisite sanctions, approvals, permissions etc. from the concerned authorities for the said project. Therefore, the present complaint has been preferred seeking refund of the entire amount, compensation and litigation cost etc.

 

4]       After the service of notice, the OPs No.1 to 3 appeared, filed their written version and took preliminary objections of maintainability, cause of action and also that the complainant is not consumer and he is required to approach the arbitrator as per the arbitration agreement.  It is stated that the flat was allotted and the total amount paid by the complainant in only Rs.25,90,000/-.  It is stated that the complainant failed to make payment as per payment schedule and he is a defaulter.  Denying all other allegations made in the complainant a prayer for the dismissal of the complaint has been made by the OPs.

 

5]       Replication has also been filed by the complainant controverting the assertions of OPs made in their written version.

 

6]       Parties led evidence in support of their contentions.

7]       We have heard the ld.Counsel for the complainant and have gone through the documents on record including written submissions.

 

8]       It is observed that from Ann.C-3 dated 16.10.2017 issued by the OPs, it is established that the OPs had received an amount of Rs.27,27,664/- from the complainant against the flat No.PH-02 FF-05 allotted by them in Prabh Homes against total cost of Rs.27.50 lacs.  It is also observed that the OPs have not disputed that the subject project of the OPs in which the flat in question allotted to the complainant has been demolished by Govt. Authority i.e. GMADA being raised illegally without obtaining necessary permissions & sanctions from the concerned Authorities.  The OPs have also failed to justify collection of amount by them from the complainant and booked the Unit in question without having necessary approvals to do so from the concerned authorities.  They neither gave legal possession nor refunded the amount to the complainant.   

9]       It is settled law by 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:

“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.

         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:-

    “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.”

          Hence, the act of the Opposite Parties to collect the money before getting all the necessary approvals for the project and not giving the confirm date of handing over possession of the plot in question certainly proves deficiency in service and their indulgence in unfair trade practice. 

10]      In Narne Construction P. Ltd., etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it is held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act.  Similar principle of law was laid down by the Hon’ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

         The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: -

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.

 

11]      Under above mentioned facts, the deficiency in service as well as unfair trade practice resorted to by OPs, is clearly established, which not only caused huge financial loss to the complainant but also caused him immense harassment & mental agony.

12]      Similar facts have been pleaded in other connected complaints and similar evidence has been led in it. Therefore, both in complaint cases, deficiency in service as well as unfair trade practice on the part of the OP(s) is proved.

13]      Resultantly, the present consumer complaint is partly allowed and the OPs is directed to refund the deposited amount i.e. Rs.27,27,664/- to the complainant alongwith interest @ 10% per annum from the date of its respective deposits till the date of its actual realization, subject to the condition that after receipt of the above awarded amount, the complainant shall be legally bound to execute registered Sale Deed in respect of the plot in question in favour of the OPs-Company on account of receiving sale consideration from it. 

14]      Similarly, the connected C.C.No.294/2022-Mamta Sehgal  vs. Emerging Valley Pvt. Ltd., also stands partly allowed and the OPs are directed to refund the deposited amount i.e. Rs.11,25,790/- (Ann.C-1 & C-2) to the complainant alongwith interest @10% per annum from the date of its respective deposits till the date of its actual realization, subject to the condition that after receipt of the above awarded amount, the complainants shall be legally bound to execute registered Sale Deed in respect of the plot in question in favour of the OPs-Company on account of receiving sale consideration from it. 

        This order be complied with by the OP(s), within 90 days from the date of receipt of its certified copy.

15]      The pending application(s) if any, stands disposed of accordingly.

         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

17.05.2024                                                                      Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER