Chandigarh

DF-I

CC/452/2023

GURMEET KAUR - Complainant(s)

Versus

GEETU CONSTRUCTION PVT LTD - Opp.Party(s)

TARUN GUPTA

04 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

(1)

 

Consumer Complaint No.	:	CC/452/2023
Date of Institution	:	19.09.2023
Date of Decision	:	4/11/2024

Gurmeet Kaur w/o Sh. Satvir Singh, R/o 10 Bucksaw Street, 784R1, Brempton ON Canada through General power of Attorney Smt. Jaspinder Kaur Basati w/o Late Sh. Gurmeet Singh, R/o Village Kambala, P.O- Manauli, Tehsil and District Mohali.

…..Complainant

Versus

1.     Geetu Construction Pvt. Ltd., SCO 219, 2nd Floor, Sector-37C, Chandigarh through its Directors/Authorized Representatives.

2.     Amarjeet Singh S/o Sh. Sarwan Singh, Director M/s. Geetu Construction Pvt. Ltd., Site at Sector-113, Mohali.

3.     Pardeep Kumar S/o Sh. Rameshwar Dass, Director Geetu Construction Pvt. Ltd., SCO 219, 2^nd  Floor, Sector-37C, Chandigarh.

….. Opposite Parties

 

(2)

 

Consumer Complaint No.	:	CC/453/2023
Date of Institution	:	19.09.2023
Date of Decision	:	4/11/2024

Gurmeet Kaur w/o Sh. Satvir Singh, R/o 10 Bucksaw Street, 784R1, Brempton ON Canada through General power of Attorney Smt. Jaspinder Kaur Basati w/o Late Sh. Gurmeet Singh, R/o Village Kambala, P.O- Manauli, Tehsil and District Mohali.

…..Complainant

Versus

1.     Geetu Construction Pvt. Ltd., SCO 219, 2nd Floor, Sector-37C, Chandigarh through its Directors/Authorized Representatives.

2.     Amarjeet Singh S/o Sh. Sarwan Singh, Director M/s. Geetu Construction Pvt. Ltd., Site at Sector-113, Mohali.

3.     Pardeep Kumar S/o Sh. Rameshwar Dass, Director Geetu Construction Pvt. Ltd., SCO 219, 2^nd  Floor, Sector-37C, Chandigarh.

….. Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                                                       

ARGUED BY	:	Sh. Neetu Gupta, Advocate for complainant
	:	Sh. Naveen Kumar, Advocate for OPs.

Per Pawanjit Singh, President

1.         By this order, we propose to dispose of the captioned consumer complaints, filed by the respective complainants, in which common questions of law and facts are involved. The facts, apart from minor variation here and there, are also almost analogous. The complainant(s) in the above complaints have sought the relief of refund of the deposited amount alongwith interest and compensation etc. As such, during arguments, it was agreed upon by the parties that captioned consumer complaints can be disposed of by passing a consolidated order.
2.         For the sake of brevity, relevant details, necessary for the disposal of the aforesaid consumer complaints i.e. amount deposited with the developer-OPs and  date of its payment in respect of each consumer complaint, are tabulated as under:-

1	2	3	4	5
S. No.	CC No.	Complainant’s Name	Amount Deposited	Date of Deposit
1	452/2023	Gurmeet Kaur	7.50 lakhs (Annexure C-2)	16.04.2012
2.	453/2023	Gurmeet Kaur	7.50 lakhs (Annexure C-2)	16.04.2012

3.         To dictate the order, facts are being taken from Consumer Complaint No.452 of 2023-Gurmeet Kaur Vs. Geetu Construction Pvt. Ltd. & Others.
4.         The present consumer complaint has been filed by Sh.Jaspinder Kaur Basati, General Power Attorney holder of complainant 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 the complainant was willing to own a residential apartment/flat for family and personal use and as such she booked a plot measuring 125 sq. yards (hereinafter referred to as the ‘subject plot’) with the OPs in their project Sector 113, Mohali for total sale consideration of ₹16,87,500/- @ 13,500/- sq. yards on payment of ₹7,50,000/- being earnest money vide receipt dated 16.04.2012 (Annexure C-2). It was assured by the OPs that the possession of the subject plot will be offered within a period of 3 years from the date of payment of earnest money i.e. 16.04.2012 and allotment shall be confirmed by executing the sale deed of the plot in the favour of the allottee (complainant) and sale deed has to be executed and got registered in the favour of the complainant within 45 days from the date of intimation given after the completion of the development works.  In this manner, the OPs have to deliver the possession of the subject plot to the complainant within three years from the date of receipt of the earnest money i.e. on or before 15.04.2015.   It was also agreed upon by the OPs that the Buyers Agreement (hereinafter referred to as the ‘agreement’)  would be executed in few months of the receipt of the earnest money but till date the OPs have not executed any such agreement and rather they stopped correspondence with the complainant with regard to the status of the project. The complainant approached the OPs several times to provide payment schedule and to execute the agreement  but with no result. Since the OPs have failed to execute the agreement, sale deed or to deliver the possession of the plot to the complainant within the stipulated period and have failed even to complete the development works at the site till February, 2023  as is clear from photographs (Annexure C-3), the aforesaid act of OPs amounts to unfair trade practice on their part.  In the first week of Oct.2022, the husband of the complainant personally visited the OPs and requested them to refund the deposited amounts but they refused to refund the same. 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 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, jurisdiction, cause of action, limitation, non-joinder of necessary parties as old directors of OP No.1-Company and the person who issued the receipt has not been impleaded as party, concealment of facts and the present complaint has been filed after 11 years of the alleged transaction and the same is liable to be dismissed being barred by limitation.    Even the general power attorney holder  does not authorize the GPA holder to file any complaint or sign any affidavit. It is further alleged that even the alleged receipt (Annexure C-2) was never issued by OPs No.2 and 3 since they have become the directors of OP No.1 from 2014-15 and they are not aware of the alleged transaction, the complaint is liable to be rejected. Moreover the adjudication of the present complaint is not possible in summary procedure since the receipt (Annexure C-2) itself is not genuine one. On merits, the facts as stated in the preliminary objections have been re-iterated.  It is further alleged that the complainant herself has taken the contradictory stands as she has alleged in the complaint that she was looking for a residential plot/apartment and for that she had booked the plot with the OPs but the person who allegedly issued the receipt has not been impleaded as a party by the complainant.  Moreover, in the year 2012 when the alleged receipt was issued, OPs No.2 and 3 were not the directors of OP No.1. Since they have appointed as Directors in the year 2014-15 and in this manner, the complaint of the complaint is not maintainable qua them. Moreover, the photographs (Annexure C-3 Colly.) do not depict anything in favour of the complaint. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   3. The complainant chose not to file the rejoinder.
5.         In order to prove their respective claims the parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
6.         We have heard the learned counsel for the complainant and also gone through the file carefully, including the written arguments on record.
   1. At the very outset, as per the case of the complainant, on 16.04.2012, OP No.1-Company through its authorized person had agreed to sell the subject plot to her by receiving an amount of ₹7.50 lakhs, being the earnest money out of the total sale consideration of ₹16,87,500/- @ ₹13,500/- sq. yards and as the OPs have neither developed the area nor executed the subject agreement nor have delivered the possession of the subject plot, the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice on their part and the complainant is entitled to the reliefs prayed for in the consumer complaint.
   2. On the other hand, it is the defence of the OPs that as the OPs No.2 and 3 have become Directors of OP No.1-Company only in the year 2014-15 and the alleged receipt (Annexure C-2) was executed on 16.04.2012 and since the complainant has not impleaded the old directors of OP No.1-Company or its authorized signatory as a party, the complaint of the complainant, being not maintainable, is liable to be dismissed.
   3. However, as it is not denied by the OPs that OP No.1-Company had not launched the project at Sector 113, Mohali in the year 2012 and the complainant has proved on record that the receipt (Annexure C-2) having been printed and issued by OP No.1 and bears the signature of the authorized signatory of OP No.1-Company and in order to rebut the aforesaid document, OPs No.2 and 3 have not led any evidence in order to deny that the authorized signatory who signed the receipt (Annexure C-2) was never authorized signatory of OP No.1-Company nor they have disclosed about the names of the earlier directors who were managing the affairs of the Company and also that there is no rebuttal evidence by the OPs that the said receipt is false and fabricated document and the same has never been issued by OP No.1-Company of which OPs No.2 and 3 are the Directors who are looking after and managing the affairs of OP No.1-Company, it is safe to hold that even OPs No.2 and 3 cannot escape from their liability being Directors of OP No.1-Company, who had received an amount of ₹7.50 lakhs from the complainant being the earnest money out of the total sale consideration.
   4. Learned counsel for the complainant submitted that when it has come on record that the OPs have failed to develop the site and to hand over possession of subject plot and further OPs have not obtained requisite approvals from the competent authorities before receiving the aforesaid amounts from the complainant, it is clear that the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice.
   5. We find force in the submission of learned counsel for the complainant, especially when there is nothing on record that the OPs had obtained necessary approvals from the competent authorities before receiving amount from the complainant as partial sale consideration for the sale of subject plot. 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 held 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. Learned counsel for the complainant has also relied upon the judgment of 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 2.4.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
7. Further, 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 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.”

In the present case also, complainant has prayed for refund of the amount paid alongwith interest etc. and not for possession. 

8. Not only this, when it has come on record that the possession of the subject plot has not been offered to the complainant, till date, there is continuing cause of action in favour of the complainant. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
9. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed against the OPs.

7. In the light of the aforesaid discussion, both the consumer complaints succeed, the same are hereby partly allowed and the OPs are directed as under :-

1. to refund ₹7,50,00/- in each complaint (totaling ₹15,00,000/-) to the complainant alongwith interest @ 9% per annum (simple) from the date of its deposit i.e. 16.04.2012 onwards.  However, it is further clarified that on receiving the entire amount by the complainant from the OPs, the complainant shall have no right, title or interest over the subject plot.
2. to pay an amount of ₹15,000/- to the complainant as compensation for causing mental agony and harassment.
3. to pay ₹10,000/- to the complainant as costs of litigation.

8. 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 amounts 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
9.         Pending miscellaneous application(s), if any, also stands disposed off.
10.        A certified copy of this order be also placed on the file of the connected consumer complaint, mentioned above, which shall form part and parcel of that file.
11.         Certified copies of this order be sent to the parties free of charge. The file be consigned.

4/11/2024			[Pawanjit Singh] President
			[Surjeet Kaur] Member