BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 233 of 2020
Date of Institution : 12.10.2020
Date of Decision : 15.05.2024.
Mahesh Kumar, aged 51 years son of Shri Mohan Lal, resident of Gali Bawri Wali, Nohria Bazar, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Era Landmarks Ltd., B-24, Sector 3, Near HCL, Noida 201301, Uttar Pradesh through Managing Director.
2. ADEL Landmarks Ltd., B-24, Sector 3, Near HCL, Noida 201301, Uttar Pradesh through Managing Director.
3. Era Landmark India Ltd., 153, Okhla Industrial Estate, Phase-III, New Delhi – 110 020 through its Managing Director.
4. Laurel Garden Ist, Sector 21, Barnala Road, Sirsa 125 055 through its Manager Incharge/ Authorized Person.
5. M/s. IFCI Venture Funds Capital Limited, 61 IFCI Tower, Nehru Palace, New Delhi- 110 019 through Managing Director.
6. M/s. Hi-Point Investment and Finance Pvt. Ltd., SCO 370-371/2, Sahi Hospital Road, Jungpura, Bhogal, New Delhi – 110 014 through its Managing Director.
7. Director General, Town and Country Planning, Sector 18, Chandigarh.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
BEFORE: SH. PADAM SINGH THAKUR……..…PRESIDENT
SMT. SUKHDEEP KAUR………. …… MEMBER.
SH. OM PARKASH TUTEJA………….MEMBER
Present: Sh. N.K. Daroliya, Advocate for the complainant.
Opposite parties already exparte.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred as OPs).
2. In brief the case of the complainant is that complainant wanted to purchase a house from the hard saving whereas ops no.1 to 4 are firm/ company engaged in the business of development of infrastructure and commercial and residential colonies etc. and are developer of the project namely Era Laurel Garden-II- Row Housing at Sirsa and it was Group Housing Colony which is being developed pursuant to license granted by op no.7 as claimed by ops no.1 to 4 and as per their claim, Building Plan of the project has been approved by Director General Department of Town and Country Planning, Haryana. The complainant applied for allotment of flat under the said scheme in ops’ project vide customer ID No. 422/M0004 and in the year 2012 complainant was allotted a flat/ unit no. E-04 FF in Block/ Tower No. LG-II/RM/E-04-FF and as per allotment letter the basic price of the flat was fixed as Rs.18,50,000/- approximately which included EDC and IDC charges and other taxes and charges and they called the complainant to deposit the amount of the flat as per schedule. It is further averred that as per agreement, interest at the rate of @18% per annum is/ was payable on the delayed payment. The complainant also deposited 20% of price etc. as per call letter in time and thereafter also paid approximate price of the flat and other charges whatever ops no.1 to 4 claimed time to time as per schedule and same has already been accepted by ops’ office, however complainant every time requested the ops no.1 to 4 that the taxes i.e. service tax and some other charges are not applicable on the said project including the flat allotted to the complainant but ops always told that they had no such information and compelled to pay the tax and charges to the complainant and same were paid under protest. That as per bye laws, instruction/ directions of Government and as per agreement, ops no. 1 to 4 had to issue the call letter to propose and to offer possession of the allotted unit to the complainant within four years from the date of approval of building plan i.e. prior to November, 2018, but till date the complainant has not received any such letter and even complainant visited on the site of the project but on the spot project was not running and no one is present on the site to explain anything. It is further averred that from the beginning till today, the complainant was only assured that ops shall provide all the basic amenities as detailed in the agreement and their officials also declared that no maintenance charges will be claimed by ops before obtaining completion certificate from department. That now complainant found that no basic amenities are available and colony is not fit to reside and there was no completion of structure even and only column and pillar were/ are standing there and no security system, 24 hours x 7 days water and electricity facility alongwith fully developed public park and sites for school and hospital alongwith other facilities are available on the site and even there is no sign of starting such development on the site whereas ops have to install the water harvest plant, sewerage and water treatment plant, power sub station for colony, community centre, shopping mall and other requisite necessary facilities as per the norm of the HUDA department and Town Planning department as well as their own promises but same were/ are also not there. That complainant also enquired about the working and activities of the ops and complainant was shocked to know that ops are still under the supervision/ control of the Town Planning department who have not issued the completion certificate in their favour and a cut short method in collusion with them have been adopted and renewal of the licence has been got issued from the authority but the authority refused for issuing any completion certificate. It is further averred that they have also failed to hand over the possession within four years from the date of approval of building plan rather so many years have elapsed and ops no.1 to 4 have also failed to complete the construction work even and even no unit/ flat is ready on the site and project seems to be dead stop since long and they also failed to provide basic amenities. That the site is not fit for residence till date and no possession can be delivered actually on the spot which amounts to deficiency in service on the part of ops no. 1 to 4 and moreover no possession has been offered by ops no.1 to 4 to the complainant till date. It is further averred that complainant was directed to pay the service tax whereas he requested so many times to the ops that project work is exempted under the Government Policy and Gazette Notifications and service tax is not applicable on the project work but ops compelled the complainant to deposit the service tax which was deposited under protest. That ops no.1 to 4 made themselves liable to refund the entire amount received by them from complainant alongwith interest at the rate of @24% per annum from the date of payment till realization. The complainant number of times approached the ops regarding refund of deposited entire amount as well as refund of service tax charged from him illegally alongwith interest and they had promised to refund the entire deposited amount and service tax alongwith interest @15% per annum from the date of deposit till realization but now they have been avoiding the requests of complainant with one false pretext or the other and now finally about few days ago they have flatly refused to make the payment. It is further averred that op no.5 is the subsidiary of IFCI Ltd. and is under the control of Finance Ministry, Central Govt. and working for providing loan to the various projects but some official of this authority conspired with some infrastructure company and fraudulently provided the huge amount of approximately 1000 crore without any legal formalities on the basis of properties which the company had already sold out by receiving full consideration. That complainant also came to know that Era Group formed many companies fraudulently i.e. op no.6 i.e. High Point Investment Finance Pvt. Ltd, Era Landmark, Era Infra, Era Laurel etc. near about Noida, Delhi, Gaziabad, as well as in other states in India and this company on account of development of residential cum commercial colony collecting the money from innocent people and after collecting total sale consideration mortgage the same properties to the above said Govt. companies and in this conspiracy some officer of IFCI, Dena Bank may also be involved. It is further averred that complainant was surprised to know that in the month of October 2018 ops no.5 and 6 issued a notice to take over the possession of various plots, flats, shop etc. whereas after receiving the entire sale consideration, the company has no right to do so and as per revenue records the area of the plot/ unit in question within the Municipal Limits of Sirsa i.e. part of Laurel Garden IInd and as per revenue records there is/ was nothing in respect of any lien/ charge, mortgage or lease etc and as such how the company can mortgage property to op no.6 and now ops no.1 to 4 are taking excuse that due to above dispute they are unable to hand over the possession of the unit to the complainant and also show their deficiency that they are unable to execute and got registered the title deed in his favour. It is further averred that like the complainant, other allottee/ owners also filed their representations but no action was taken rather Era Group is keeping mum and the act and conduct of the ops clearly amounts to deficiency in service and unfair trade practice and have violated the provisions of law and have also caused unnecessary harassment to the complainant. Hence, this complaint seeking direction to the ops to make refund of the entire payment of Rs.18,50,000/- paid by complainant alongwith interest at the rate of @24% per annum from the date of payment till realization, to pay a sum of Rs.5,00,000/- as compensation for harassment, to pay a sum of Rs. two lacs as penalty on account of deficiency in service and unfair trade practice and also to pay litigation expenses.
3. On notice, ops no.1 to 6 failed to appear despite delivery of notices sent through registered covers and as such ops no.1 to 6 were proceeded against exparte.
4. Initially op no.7 appeared and filed short reply submitting therein that issues raised by complainant are to be decided in accordance with the terms and conditions of the Builder Buyer’s agreement executed by and between the complainant and ops no.1 to 3. The answering op cannot interfere in such matters in view of the law laid down by the Hon’ble Supreme Court in the case of DLF Universal Ltd. and others vs. Director, Town and Country Planning, Haryana and others Civil Appeal No. 550, 551 of 2003 and 1611 of 2003 decided on 19.11.2010. It is further submitted that license no. 1194-1197 of 2006 dated 29.09.2006 was granted for development of residential plotted colony over an area measuring 25.45 acres in the revenue estate of village Khairpur & Vaidwala, Sector 21, Sirsa under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 in favour of VPN Management and Construction Pvt. Ltd. in collaboration with individual land owners, which was later on transferred in favour of Era Landmarks Ltd. (now known as Adel Landmarks Ltd.) vide order dated 09.07.2009 under provisions of Section 17 of Act of 1975. It is further submitted that above said license was initially valid up to 28.09.2008 and it has to be got renewed as per provisions of Act 8 of 1975 and Rules framed there under till final completion certificate as per provisions of Rule 16 of Rules 1976 is granted after completing all development works in the colony as per approved scheme. Accordingly, the licensee company has got renewed the license up to 28.09.2023 and obtained part completion certificate for the entire licensed area vide memo dated 30.12.2010. It is further submitted that company has submitted application on 11.04.2014 and then on 04.10.2016 for further renewal of license up to 28.09.2017 which were examined and deficiencies noticed were conveyed to the company for rectification from time to time. The company has failed to remove the deficiencies conveyed by the department. It is further submitted that Corporate Insolvency Resolution Process (CIRP) has been initiated against the developer company i.e. Adel Landmarks Ltd. (formerly known as Era Landmarks Ltd.) by the National Company Law Tribunal under provisions of Section 7 of IBC, 2016 in the company petition no. IB-1083 (PB)/ 2018 titled as Edelweiss Asset Reconstruction Company Ltd. Versus Adel Landmarks Ltd. Further, moratorium in terms of Section 14 of the code ibid has also been declared vide order dated 05.12.2018 of Hon’ble Tribunal and the matter is now listed for hearing on 02.05.2023. It is further submitted that any coercive action against the developer company cannot be initiated during the moratorium period as per the provisions of IBC, 2016 and that no relief has been sought from answering op in the instant complaint. With these averments, dismissal of complaint qua op no.7 prayed for.
5. The complainant in evidence has tendered his affidavit Ex.C1 and documents Ex.C2 to Ex.C15.
6. When the case was fixed for evidence of op no.7, none appeared on behalf of op no.7 and ultimately vide order dated 01.04.2024 op no.7 was proceeded against exparte.
7. We have heard learned counsel for complainant and have gone through the case file.
8. The complainant in order to prove his complaint has furnished his affidavit Ex.C1 in which he has reiterated all the contents of his complaint. He has also placed on file demand letter dated 27.06.2012 issued by the ops no.1 to 4 to the complainant as Ex.C3 whereby demand of the amount of Rs.1,92,872/- was made by ops no.1 to 4 up to 16.07.2012. The complainant has also placed on file receipts/ cheques of the amounts deposited by him with ops no.1 to 4 as Ex. C4 to C15 which also prove the fact that complainant has deposited amount of flat in question as agreed between the parties. According to the complainant as the ops no.1 to 4 have failed to hand over the possession of the flat/ unit within time as per agreement and period of more than four years have already elapsed and they have also failed to provide any basic amenities at the site and even ops no.1 to 4 have stated that no possession can be delivered actually on the spot and even completion certificate has not issued by concerned department in favour of ops no.1 to 4, therefore, complainant is entitled to refund of the deposited amount alongwith interest. The pleadings as well as evidence led by complainant goes as unchallenged and unrebutted as ops no. 1 to 6 have failed to appear despite notices and opted to be proceeded against exparte. Although op no.7 cannot be held responsible for any illegal act of ops no.1 to 4 but the version of op no.7 regarding moratorium against ops no.1 to 4 is not supported through any documentary evidence as op no.7 at the time of evidence of op no.7 has failed to appear and has failed to lead any evidence and ultimately op no.7 was proceeded against exparte. Moreover, the ops no.1 to 4 who have received huge amount from complainant and who promised to refund the entire deposited amount alongwith interest at the rate of 15% per annum from the date of deposit till realization have failed to appear and opted to be proceeded against exparte. As such they are liable to make refund of the amount of complainant as non delivery of possession of allotted flat despite receiving sale consideration and non refund of the amount of complainant clearly amounts to deficiency in service and unfair trade practice on their part and complainant has been unnecessarily harassed by them.
9. In view of our above discussion, we allow the present complaint and direct the opposite parties no.1 to 4 to make refund of the amount of Rs.18,50,000/- alongwith any extra amount charged by them from complainant to the complainant alongwith interest at the rate of @15% per annum from the date of deposit of last installment towards sale consideration of Unit in question till actual realization within a period of 45 days from the date of receipt of copy of this order. We also direct the ops no.1 to 4 to further pay a sum of Rs.50,000/- as compensation for harassment to the complainant and also to pay a sum of Rs.10,000/- as litigation expenses to the complainant within above said stipulated period. However, no liability of remaining ops no. 5 to 7 is made out and as such complaint qua them stands dismissed. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member Member President,
Dated: 15.05.2024. District Consumer Disputes
Redressal Commission, Sirsa.
