Chandigarh

DF-I

CC/430/2023

Devender Sharma - Complainant(s)

Versus

M/s Ansal Lotus Melange Project Ltd. - Opp.Party(s)

Ishant Khangwal

04 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/430/2023
Date of Institution	:	4/9/2023
Date of Decision	:	4/09/2024

 

Davender Sharma R/o House no. 83, ward no. 10, Rohtak, Haryana

 

Versus

 

1. M/s Ansal Lotus Melange Project Limited situated at SCO 183-184 Sector 9C, Chandigarh.

Another address:-

 M/s Ansal lotus melange project pvt ltd. At village sante majra, kharar, sas nagar Mohali.

2. M/s Ansal Lotus Melange Project Limited situated at 1/18B, Asaf Ali Road, New Delhi-110002.

Another address:-

a. 4648/21, ROOM NO. 302 THIRD FLOOR SHADUMAL BUILDING, DARYAGANJ NEW DELHI Central Delhi DL 110002 IN

… Opposite Parties

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

 

                                                                               

ARGUED BY	:	Sh. Atul Goyal, Advocate proxy for Sh. Ishant Khangwal, Advocate  for complainant
	:	OPs exparte.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Devender Sharma 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 booked a flat bearing No.801, tower No.1, floor-8 having super area 1664 Sq. feet (hereinafter referred to be as subject flat), in the residential project known as Orchard County situated at village Sante Majra, Khara SAS Nagar, Mohali. On 14.11.2013 the parties entered into an agreement to sell in respect of the subject flat  and the OPs agreed to sell the same to the complainant for a total sale consideration of Rs.47,25,760/- (2840 per sq. feet). At the time of execution of the agreement the complainant paid an amount of Rs.1,45,504/- to the OPs. The copy of agreement is Annexure C-1. The complainant has made a total payment of Rs.24,44,504/- to the OPs towards the sale consideration of the subject flat out of the total sale consideration of Rs.47,25,760/-  through various cheques. The copies of payment receipts are annexed as Annexure C-2 to C-6.  The OPs promised the complainant to handover the possession of the subject flat within 24 months from the date of agreement but despite numerous requests made by the complainant to the OPs, the OPs have failed to handover the possession of the subject flat to the complainant. 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 2.4.2024.

2. In order to prove his claim the complainant has tendered/proved his evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the complainant 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 parties that  the OPs had agreed to sell the subject flat to the complainant for a total sale consideration of Rs.47,25,760/-  as is also evident from Agreement  Annexure C-1 out of which the complainant has paid Rs.24,44,504/- as is evident from receipts Annexure C-2 to C-6  and the OPs had agreed to hand over the possession of the subject flat within two years from the date of execution of the agreement dated 14.11.2013, the case is reduced to a narrow compass as it is to be determined if  the act of OPs by not raising construction of the subject flat as per agreement and further not handing over possession of the subject flat amounts to deficiency in service 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. Perusal of Annexure C-1 copy of  Agreement clearly indicates that the OPs had agreed to sell the subject flat to the complainant for a total sale consideration of Rs.47,25,760/-.   Perusal of Annexure C-2 to C-6 indicate that  the complainant has made payment of Rs.24,44,504/- towards the sale consideration of the subject flat.
   3. As per complainant the OPs promised to handover the possession of the subject flat within 2 years from the date of Agreement but till date the OPs have failed to offer possession of the subject flat. As it has come on record that the OPs have failed to offer possession of the subject flat to the complainant, we are of the  considered view that the complainant cannot be made to wait for an indefinite period and the OPs, who are not in a position to deliver the possession of the unit(s) as promised, have no right to retain the hard earned money of the complainant. 
   4. 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 held as under:-

“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 x x x x x”

5. 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.”

 

6.  Not only this, OPs have not come forward to prove by leading any evidence or making any defence that they have obtained all the necessary permissions from the competent authorities and 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.  Hence, from 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 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 ₹24,44,504/- to the complainant alongwith interest @ 9% per annum from the date of each deposit made by the complainant with the OPs till onwards.
2. to pay an amount of ₹60,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant/s 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 04/09/2024 mp			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member