Chandigarh

DF-I

CC/163/2024

SURINDER KUMAR KAUSHAL - Complainant(s)

Versus

INDIAN COOPERATIVE HOUSING BUILDING SOCIETY LTD. - Opp.Party(s)

VISHAL GUPTA

30 Aug 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/163/2024
Date of Institution	:	20.3.2024
Date of Decision	:	30/08/2024

 

1. Surinder Kumar Kaushal son of Sh.Jai Kishan, resident of Ward No.2, Tehsil Baddi, Sitalpur, District Solan, H.P.-173205.
2. Kewal Sachdeva son of Sh. Murari Lal, resident of #21, Ward No.1, Near Sheetla wali Street, Nalagarh, Tehsil Nalagarh, District Solan, H.P.-174101.

Complainants

 

Versus

 

1. Indian Cooperative Housing Building Society Ltd, SAS Nagar Mohali, SCO No. 156-157, Sector 37-C, Chandigarh through its President.
2. The President, Indian Cooperative Housing Building Society Ltd., SAS Nagar Mohali, SCO No. 156-157, Sector 37-C, Chandigarh.
3. Secretary, Indian Cooperative Housing Building Society Ltd., SAS Nagar Mohali, SCO No. 156-157, Sector 37-C, Chandigarh.
4. Vice President, Indian Cooperative Housing Building Society Ltd., SAS Nagar Mohali, SCO No. 156-157, Sector 37-C, Chandigarh.

… Opposite Parties

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

 

                                                                               

ARGUED BY	:	Sh. Abhishek Sharma, Advocate for complainants
	:	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 the complainants intended to purchase a plot in and around Chandigarh in order to enable their children to get quality education in Chandigarh for  which they initiated process for some suitable property and they came across the scheme floated by OPs to provide residential plot/house to the members of the  society in R Zone of Village Mullanpur, New Chandigarh. The said scheme has been floated by the OPs under the name and style of Suntec City, Mullanpur for which applications were invited for booking of the plot. It was assured by the OPs that the possession of the plot  would be given within 3 years from the date of formal booking. The OPs had formed society in the year 2011 and the same was registered in the same year. When the complainant approached the OPs, they promised to carve  out residential plots and develop the said complex by providing basic facilities like roads sewerage etc after obtaining all the necessary sanction from the government and other competent authorities. In pursuance to the joint application by the complainants,  they were allotted membership of the society after surrender of membership by original members Sh. Anil Verma and Deepak Girdhar   which was subsequently transferred in the name of the complainant vide Annexure C-3 dated 9.3.2011.  The OPs received membership-cum-share fee  to the tune of Rs.5,62,500/- vide  No. 106368 and 286054 and the receipt of the same was duly acknowledged by the OPs vide receipt Annexure C-1 towards the booking of plot measuring 250 Sq. yards (hereinafter referred to be subject plot). Thereafter the complainants duly filled membership application form  of the OPs society which specifically mentioned that the complainants shall  be liable to pay all installments, license fee, CLU, EDC, IDC and other development charges, failing which the society will transfer/cancel the membership or charged appropriate interest  on the delayed payment. Thereafter the OPs further asked the complainants to pay Rs.5,62,500/-  towards the second installment which was also paid by the complainants to the OPs on 2.6.2011  vide cheque No. 626713 and 286068, which was duly acknowledged by the OPs vide receipt Annexure C-4. Again the complainants paid a sum of Rs.2,25,000/- to the OPs on 10.8.2011 vide cheque No.106321 and 527065, being the third installment which was also acknowledged by the OPs vide receipt Annexure C-6. In this manner, the complainants paid a total sum of Rs.13,50,000/-  to the Ops out of the total sale consideration of Rs.22,50,000/-  in respect of the plot measuring 250 sq. yards.  The OPs had also issued the payment schedule Annexure C-7 to the complainants and as per payment schedule, the complainants had paid more than 50%  of the total sale consideration to the OPs. As per provision provisions of Section 6(1)  of the Punjab Apartment and Property Regulation Act 1995 (PAPRA)  as well as section 13 of the Real Estate Regulation Act (RERA),  the Ops were required to sign an agreement for sale of the plot in consonance with the provisions of the said act. Not only this  as per section 6(1) of the PAPRA, the OPs were required to sign the agreement on the deposit of 25% of the total sale consideration but the Ops have failed to execute the sale deed and agreement in favour of the complainants.  Even the OPs were required to maintain separate account with respect to the amount deposited by the buyer as per section 9  of PAPRA but the OPs has not done the same.  As the OPs have also failed to deliver the possession of the subject plot within 3 years, they further violated the provision of section 12  of PAPRA. Later on when the complainants visited the site they were shocked to see that there was no development at the site and the same was lying barrel  land. It has also been found    that the OPs  have not been granted license to develop the colony till date. In fact the license has been granted by GMADA to the Ops for setting up residential colony  in  the year 2018 only and copy of public notice issued by GMADA is annexed as Annexure C-8. Not only this even it was unearthed during further enquiry that certain permissions and approvals were given by the competent authorities in the year 2016, 2018, 2021 and 2022, making it clear that at the time of booking of the subject plot and receiving huge amount from the complainants, the OPs  were not having any of the aforesaid approvals from the competent authority and thereby cheated the complainants. However, the complainants were shocked to receive a letter Annexure C-12 dated 29.12.2023 from OPs  intimating the complainants that their membership has been cancelled by the society on 31.5.2023. Thereafter the OPs called the complainants to receive an amount of Rs.13,50,000/-  deposited by the complainants after making deduction as per the society rules and had refused to refund the whole of the amount alongwith interest.  It is alleged that  the Ops have wrongly cancelled and withheld the deposited amount and the Ops are defaulter as number of complaints are pending against them. 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 20.5.2024.

2. In order to prove their claims the complainants have tendered/proved their evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the complainants 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 original member Anil Verma and Deepak Girdhar  surrendered their membership  in favour of the complainant as is also evident from Annexure C-3 copy of transfer memo dated 9.3.2011 and after becoming member of the said society the complainants  booked the subject plot measuring 250Sq. yards  with the OPs’ society by depositing an amount of Rs.5,62,500/- as is also evident from Annexure C-1  dated 23.3.2011 and thereafter  second installment of Rs.5,62,500/-  was paid by the complainant  on 2.6.2011 as is evident from Annexure C-4 and  subsequently complainant paid third installment  of Rs.2,25,000/-  on 10.8.2011 as is evident from Annexure C-6 and the OPs had received the total amount of Rs.13,50,000/-  out of the total amount of Rs.22,50,000/- from the complainants i.e. more than 50% of the total sale consideration and later on the OPs had cancelled  the membership of the complainants  vide letter Annexure C-12  on 31.5.2023, the case is reduced to a narrow compass as it is to be determined if  the  OPs are unjustified in not handing over the possession of the subject plot or refund the deposited amount to the complainants and the complainants are entitled for the relief as prayed for and for that purpose the documentary evidence led by the complainants is required to be scanned carefully.
   2. Perusal of receipt Annexure C-1, C-4 and C-6  clearly indicates that the complainants had paid a total sum of Rs.13,50,000/-  to the OPs towards the partial payment of the subject plot out of the total sale consideration of Rs.22,50,000/-., which was collected by the OPs from the complainants when they were not in having of requisite permissions and approvals from the  competent authorities and even have not executed  sale agreement as per PAPRA  Act within the stipulated period and thereby violated certain conditions provided under PAPRA  Act by not handing over the possession of the subject plot to the complainant after developing the same.  Perusal of Annexure C-8 and C-9 the public notices issued by GMADA    clearly indicate that  the OPs had applied for necessary approval of the GMADA for obtaining license in the year 2018 and thereafter the GMADA authority had issued public notices  inviting objections from the public if any, further making clear that in the year 2011 the OPs had collected huge money from the complainant without having any necessary permissions and approval for their project.
   3. Not only this, 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 authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject plot.  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…..”

4. 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…………”

5.  
6. Not only this, it has come on record that neither sale deed nor sale agreement executed in favour of the complainants  by the OPs and no offer of possession has been made to the complainant till date, which is clear cut deficiency on the part of the OPs as the complainants cannot be made wait for indefinite period.
7. 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 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.
8. 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.”

9. In view of the foregoing discussion it is proved on record 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 complainants 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 and the OPs are liable to refund the deposited amount.

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 ₹13,50,000/- to the complainants alongwith interest @ 9% per annum (simple) from the date of deposit till onwards
   2. to pay ₹75000/- to the complainants as compensation for causing mental agony and harassment;
   3. to pay ₹10,000/- to the complainants 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 30/08/2024 mp			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member