Chandigarh

DF-I

CC/284/2023

RISHI PAL - Complainant(s)

Versus

MONA CITY Homes PRIVATE LIMITED - Opp.Party(s)

AMIT KUMAR DHIMAN

05 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/284/2023
Date of Institution	:	30.5.2023
Date of Decision	:	5/12 /2023

 

Rishi Pal  son of Sh. Satbir resident of House No.2599/1, Badheri, Sector 38-C, Chandigarh 160036.

… Complainant(s)

V E R S U S

1. Mona City Homes Private  Limited at 399, Ground floor, Bher Enclave, Paschim Vihar, New Delhi, 110087 through its Director/ authorized signatory Mr. Vikas Madaan.
2. Vikas Mandaan, Director/Authorized Signatory, Mona City Homes Private Limited at 399, Ground floor, Bher Enclave, Paschim Vihar, New Delhi, 1100087.
3.      Akash Setia, Director/ authorized signatory, Mona City Homes Private Limited at 399, Ground floor, Bher Enclave, Paschim Vihar, New Delhi, 1100087.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	None for complainant
	:	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 in the year 2018 when the complainant was in search of certain flat for residential purpose of himself and his family, he came in contact with the representative of OPs who informed the complainant that the OPs have started a project under the name and style of Mona City Homes Private Limited  situated at JTPL City, Sector 115, SAS Nagar, Mohali, Punjabh (hereinafter to be referred as subject project).  The representative of OPs further informed the complainant that OPs have already invited application on 7.3.2018 for residential apartment in the subject project and on the assurances given by the OPs No.2&3 who are the representative of OP No.1, the complainant paid token amount of Rs.50,000/- to the OPs vide cheque No.000001.  On this a letter of allotment 
   Annexure C-1 dated 5.7.2018  was issued to the complainant by the OPs  in respect of the residential apartment No.F-1203, 3 BHK,  having super area of 1588 sq. ft. and carpet area of 950 sq. ft. (hereinafter to be referred as subject flat). The total cost of the subject flat was Rs.37,52,000/-. Alongwith the allotment letter Annexure C-1, the payment plan was also supplied by the OPs to the complainant. At the time of allotment, it was assured to the complainant that the project will be completed within time and the possession will be handed over to the complainant within prescribed period. Thereafter,  the complainant and his wife deposited an amount of Rs.3,75,200/-  i.e. 10% of the basic Sale price as per payment plan. Annexure C-2 dated 17.7.2018 an Agreement for Sale was executed by the OPs through their authorized signatory OPs No.2&3 in favour of the complainant and his wife. On the advice of the OPs, the complainant had also applied for loan with the India Bulls Housing Finance Limited i.e. IBHFL (hereinafter to be referred as subject financer)  and got sanctioned loan of Rs.28,00,000/-. The complainant and his wife kept  on paying  regularly the installment of the loan amount to the subject financer. However, vide Annexure C-3 dated 13.3.2021 the OPs sent demand letter regarding loan case  of the flat with demand of Rs.4,20,000/- against the commencement of the 14^th floor roof stab. However, the OPs had not provided detail information qua the completion of the work. On 31.3.2022 through  their representative, OPs approached the complainant regarding extension of delivery date of the subject flat and on this when the complainant visited the construction site, it was found that the construction work was not completed regarding which the OPs were also informed. Vide Annexure C-4 dated 31.5.2022, the OPs sent alleged offer of possession of  the subject flat to the complainant and his wife by intimating that the subject flat is completed and near to possession and asked the complainant and his wife to clear all the pending dues  and it was also mentioned in the letter that the final coat of paint, polishing, sanitary fittings and other fixture etc. are not done and shall be completed within 45 days after clearance of the pending dues. As per Annexure C-4 an amount of Rs.5,75,210/-  had been received by the OPs from the complainant and Rs.23,98,324/- from the subject financer  and in total the Ops have received Rs.29,73,534/-  from the complainant and his wife out of the total same price of Rs.37,52,000/- and the OPs were again asking the complainant to pay Rs.6,39,316/-  despite of the fact that the subject flat was not complete in all respect. After receiving the aforesaid letter Annexure C-4, the complainant informed the OPs that they have already paid more than 75% amount  of the total cost of the subject flat and despite of that the construction work has not been completed by the OPs and the OPs have violated the provisions of RERA. Even as per clause 7.2 of Agreement for Sale Annexure C-2,  the promoter upon obtaining the occupancy certificate from the competent authority shall offer in writing  the possession of the subject flat to the allottee in terms of this agreement  to be taken within three months from the date of issue of such notice  and the promoter shall give possession of the subject flat. Due to non submission of completion certificate to the subject financier by the OPs, despite of repeated requests the PMAY subsidy has not been given to the complainant. Moreover,  the OPs have not provided completion certificate even after more than three years and have not completed the work of the subject flat. 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. In order to prove his case, complainant has tendered/proved his evidence by way of affidavit and supporting documents.
3. We have 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 subject flat was allotted by the OPs to the complainant and his wife vide allotment letter Annexure C-1 dated 5.7.2018,  having basic sale price of Rs.37,52,020/-,  out of which the complainant has already paid an amount of
      Rs. Rs.29,73,534/-   i.e. Rs.5,75,210/-  had been received by the OPs from the complainant and Rs.23,98,324/- from the subject financer by  way loan amount as is evident from Annexure C-4 the copy of  offer of possession   containing Annexure-A and further that the Ops could not obtain the completion certificate of the subject flat nor have completed the construction of the subject flat till date, the case is reduced to a narrow compass as it is to be determined if there is deficiency of service on the part of the OPs and the complainant is  entitled for the relief as prayed for and for that purpose the documentary evidence led by the complainant is required to be scanned carefully.
   2. Annexure C-1,  the copy of allotment letter indicates that the OPs allotted the subject flat to the complainant and his wife  on 5.7.2018 and the agreement is silent about the specific period within which the possession will be handed over to the complainant. Annexure C-2 is the copy of Agreement for Sale vide which the OPs agreed to sell the subject flat on the acceptance of certain terms and conditions of the agreement.  However, this agreement for sale clearly indicates that the OPs agreed to handover the possession of the  subject flat on 30.6.2020 unless there is force majeure conditions.
   3. Annexure C-3  is the copy of  demand letter through which the Ops have asked the complainant to pay an amount of Rs.4,20,967/-. Annexure C-4 dated 31.5.2022 is the copy of letter of offer of possession which clearly indicates that the OPs had asked the complainant to clear all the dues and other charges within 25 days from the date of the letter and has given the status of the subject  flat  on the date when the said letter dated 31.5.2022  was issued and the relevant para of the same is reproduced as under:-

“Presently your flat has been kept in “Pre Possession Stage” which means that the final finishing work i.e. final coat of paint, polishing, sanitary fittings & other fixtures, etc are not done, which shall be taken up within 45 days after clearance of all your pending dues and before handing over of possession, so that you get the flat in absolute new condition.”

 

4. Annexure C-5 is legal notice through which the complainant asked the OPs to provide the completion certificate and also to pay compensation.
5. Perusal  of the entire documentary evidence led by the complainant as discussed above, which has gone  unrebutted by the OPs, clearly indicates that the OPs neither could complete the subject flat in all respect even at the time of issuance of letter of offer of possession Annexure C-4  nor they have handed over the possession of the subject flat by 30.6.2020 as had been agreed upon by them vide Agreement for Sale Annexure C-2 and also even till date the OPs could not offer the physical possession of the subject flat to the complainant.
6. Not only this, OPs have failed 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 flat.  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…..”

 

7. 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…………”

8. 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 02.04.2019.
9. 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.”

 

10. Thus,  in view of foregoing, 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 complainant 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.

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 ₹29,73,534/- to the complainant(s) alongwith interest @ 9% per annum w.e.f. 30.6.2020 till onwards.
2. to pay an amount of ₹50,000/- to the complainant(s) as compensation for causing mental agony and harassment to her/him/them;
3. to pay ₹10,000/- to the complainant as costs of litigation.

       However, it is made clear that the financier i.e. India Bulls Housing Finance Limited i.e. IBHFL from whom  admittedly the  complainant availed loan shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainant towards the discharge of loan liability, if any.

5. This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
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 5/12/2023 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member