Chandigarh

DF-I

CC/190/2024

Sh. Vinay Kumar Nag - Complainant(s)

Versus

M/s ATS Estates Pvt. Ltd. - Opp.Party(s)

Deepak Aggarwal

18 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/190/2024
Date of Institution	:	4/09/2023
Date of Decision	:	18/7/2024

 

 

Sh. Vinay Kumar Nag, son of Sh. P.L. Nag, resident of House No. 131-A, Sector 32-A, Near Saupin's School, Chandigarh, Pin Code-160030.

 

......Complainant

 

Versus

 

1. M/s ATS Estates Pvt. Ltd., Site Office:-Ambala-Chandigarh Highway, Near Sadashiv Complex, Derabassi, District SAS Nagar, Mohali, Punjab-140507, through its Managing Director/Director/Authorized Signatories

 

Registered Office:- M/s ATS Estates Pvt. Ltd., Registered Office 711/92, Deepali, Nehru Place, New Delhi-110019, through its Managing Director/Director/Authorized Signatories

2. Sh. Sanjay Sethi, Director, M/s ATS Estates Pvt. Ltd., Ambala-Chandigarh Highway, Near Sadashiv Complex, Derabassi, District SAS Nagar, Mohali, Punjab-140507

Contact No:- 01203811500

3. Sh. Nayan Gupta, Director /s ATS Estates Pvt. Ltd. 711/92, Deepali, Nehru Place, New Delhi-110019.

 

.....Opposite parties

 

4. HDFC Limited, SCO No.153-155, Sector B-C, Madhya Marg, Chandigarh-160008, through its Authorized Signatories.

 

.....Proforma Parties

ARGUED BY	:	Sh. Deepak Aggarwal, Advocate for complainant
	:	Sh.Sukhandeep Singh, Advocate for OPs No.1 to 3.
	:	Ms. Neetu Singh, Advocate for OP No.4.

 

[2]

Consumer Complaint No.	:	CC/191/2024
Date of Institution	:	5/10/2023
Date of Decision	:	18/7/2024

 

 

1. Mr. Himanshu Kumar Gupta S/o Mr. Dharmender Kumar Gupta

2. Mr. Dharmender Kumar Gupta S/o Late Sh. Rattan Lal, Both residents of # 3563, Sector 23-D, Chandigarh

 

......Complainants

Versus

 

1. M/s ATS Estates Pvt. Ltd., Site Office:-Ambala-Chandigarh Highway, Near Sadashiv Complex, Derabassi, District SAS Nagar, Mohali, Punjab-140507, through its Managing Director/Director/Authorized Signatories

 

Registered Office:- M/s ATS Estates Pvt. Ltd., Registered Office 711/92, Deepali, Nehru Place, New Delhi-110019, through its Managing Director/Director/Authorized Signatories

2. Sh. Sanjay Sethi, Director, M/s ATS Estates Pvt. Ltd., Ambala-Chandigarh Highway, Near Sadashiv Complex, Derabassi, District SAS Nagar, Mohali, Punjab-140507

3. Sh. Nayan Gupta, Director /s ATS Estates Pvt. Ltd. 711/92, Deepali, Nehru Place, New Delhi-110019.

.....Opposite parties

 

4. PUNJAB NATIONAL BANK, BO Dhakoli, Old Ambala Road, Dhakoli Distt. Mohali Punjab, through its Branch Manager/Authorized Signatories.

.....Proforma Parties

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR	MEMBER

                       

ARGUED BY	:	Sh. Deepak Aggarwal, Advocate for complainant
	:	Sh.Sukhandeep Singh, Advocate for OPs No.1 to 3.
	:	OP No.4 already exparte.

Per surjeet kaur, Member

1.  By this order, we propose to dispose of the captioned consumer complaints in which common questions of law and fact are involved.

    The facts, for convenience, have been culled out from Consumer Complaint No. 190 of 2024  titled as Vinay Kumar Nag vs. M/s ATS Estates Pvt. Ltd. and Ors.

     Briefly stated the complainant on the allurement and misleading advertisement of the Ops purchased  plot  No.170 measuring 145.83 sq. yrds having total cost of Rs.23,33,280/- which was paid by the complainant by availing loan of Rs.18,66,624/- After payment of sale consideration sale deed was executed on 2.4.2017. After payment and execution sale deed the complainant started construction of the plot in question by availing construction loan of Rs.48,00,000/-. The construction process continued till August 2019  but towards the end of August 2019 the construction was stopped following receipt of notice from Municipal Council Derabassi at the residence of complainant  for maintaining status quo on the orders of the Punjab and Haryana High Court.  Resultantly the complainant had to stop the construction  for no fault of his and even after getting all the due permissions. It is alleged that the Ops No.1 to 3 have never informed the complainant about the order of high court even though the same was ordered in the month of February 2019. It is further alleged that the Ops No 1 to 3 have failed to show necessary permissions obtained from the competent authorities despite of request of the complainant. It is alleged that due to the aforesaid act of the Ops No.1 to 3 the complainant has to undergo a lot of mental agony, harassment and financial loss. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Parties NO. 1 to 3 while admitting the factual matrix of the case stated that the construction has admittedly being stopped by the orders of Hon'ble Punjab and Haryana High Court, the answering OPs have no role in the said matter and rather than raising his grievance before the Hon'ble High Court in the pending matter, the complainant has wrongly approached this Hon'ble Commission. It is averred that the dispute of the complainant, if any, is also related to the Municipal Council, Derabassi, who has not been impleaded as a party in the present case, since it is admitted fact that on the notice of MC, Derabassi, the complainant had stopped the construction of the house. Therefore, from perusal of the present paragraph, it is also crystal clear that the present complaint is liable to be dismissed on account of non-joinder of necessary party. Furthermore, non-construction of the house of the complainant due to the status quo orders of the Hon'ble Punjab and Haryana High Court cannot prove any fault on part of the answering OPs. Since, the matter is pending before the Hon'ble Punjab and Haryana High Court, the complainant cannot invoke cause of action to file present case from the status quo order of the Hon'ble Punjab and Haryana High Court. As such, the present complaint being misconceived is nothing but gross abuse of process of law. Denying any deficiency their part all other allegations made in the complaint has been  denied being wrong.
3. OP No. 4 in its reply stated that the grievance of the Complainant is against the developer/promoter and nothing has been stated or claimed against answering OP. The Complainant is a borrower of HDFC Bank Limited and their inter-se obligations are governed by separate loan agreement. Consequence of the default in repayment of the loan are governed by the terms and conditions of the loan agreement which are not in dispute. Further, default in compliance with the terms and conditions of the loan agreement entitles HDFC Bank Ltd. to recover its dues in accordance with law.  A prayer for dismissal of complaint against the answering OP has been made.
4. Rejoinder was filed and averments made in the consumer complaint were reiterated.
5. Contesting parties led evidence by way of affidavits and documents.
6. We have heard the learned counsel for the contesting parties and gone through the record of the case.
7. The grouse of the complainant through the present complaint is that despite paying huge amount of his hard earned money to the tune of Rs.23,33,280/-  to the OPs. The complainant could not get the construction on the plot  in question completed due to negligent and deficient act of the OPs No. 1 to 3.
8. As per case of the complainant Agreement was executed in favour of the complainant on 6.7.2015 and sale deed was executed on 2.4.2017. Thereafter during the construction vide letter dated 20.8.2019 through Municipal Corporation, the complainant was directed to maintain status quo on the orders of Hon’ble Punjab and Haryana High Court.  The allegations of the complainant is that he is consumer qua OPs  No. 1 to 3 but at no point of time the said order of the Hon’ble Punjab and Haryana High Court was conveyed to him by the Ops No. 1 to 3. It is alleged that the complainant availed loan from OP No.4  to meet the expenses for the construction  of the house on the plot in question  but his efforts for constructing a house  shattered  due to the  negligent act of the OPs.
9. After going through the record it is abundantly clear that the Ops received an amount of Rs.23,33,280/-  from the complainant towards the plot in question. As per case of the complainant and as is also apparent from  the photographs Annexure C-9 placed on record showing construction done by the complainant on the plot in question upto rooftop, besides internal plumbing, electricity wiring, sewerage and Air conditioner copper wiring etc.  It is alleged that the OPs No. 1 to 3 did not have necessary permissions/license from the competent authorities as a result of which the constructions work was ordered to be stopped by the Hon’ble High Court.
10. On the other hand the stand taken by the OPs No. 1 to 3  is that necessary permissions  were to be sought by the MC and in nutshell OPs No. 1 to 3 despite being builder tried to  put their responsibility on the MC. However this stand of the OPs No. 1 to 3 stands falsified  from their own document Annexure OP-4/5 the Conveyance Deed  wherein the OPs had declared at page 65 as under:-

AND WHEREAS the Sellers have obtained necessary licenses, permission, approvals and NOC's from the various Authorities/Offices of the Local Authority and State Government for the promotion and development of a residential project thereon and has developed the said Project. Accordingly and by virtue of the above arrangement the Sellers are well and sufficiently entitled to sell the various units in the said Project which comprises several plots, flats, villas, shops etc. of various sizes, dimensions and land uses forming part of the approved Layout Plan of the for allotment of a Residential Plot admeasuring 145.83 Sq. yards in the said Project”

11. Perusal of the afore-extracted contents of the conveyance deed reveals that the Ops themselves declared that they have obtained various permissions/approvals  and NOC from the various authorities  of local bodies of state government but on the other hand the complainant could not complete the construction work and his dream of having a house for his old parents and children had shattered due to the deficient act of the OPs as they did not obtain the necessary permissions from the competent authorities before collecting huge money from the complainant and other buyers which resulted  in stay on the  construction of house on the plot in question.
12. 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 held 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…..”

 

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 held 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…………”

 

13.  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.  Hence, there is deficiency on the part of the OPs. No. 1 to 3.
14. So far the quantum of relief is concerned, it is proved on record that the OPs had collected the money from the complainants in both the complaints without obtaining necessary approval/permissions from the competent authorities though they declared in the conveyance deed that they have taken all the necessary approvals/permissions from the competent authority, which resulted stay on the construction of the plot of the complainants in the both the complaints. It is also evident from record in both the  above captioned complaints that the  complainants have in fact raised construction upto roof top  after availing loan from the OP No.4 but due to stay on construction by the Hon’ble High Court they could not further construct the house, which caused not only huge financial loss to the complainants but also mental agony and harassment as at the one hand complainant had taken huge loan and on which he is paying  high rate of interest  on the other hand complainant is compelled to live in the rented accommodation. In our opinion since the complainant had spent his hard earned money including the loan amount towards the construction activity in these  circumstances, punitive damages need to be imposed on the OPs No. 1 to 3. Hence, in our opinion the OPs are not only liable to refund the price of the plot but also liable to compensate the complainants for the financial loss, mental agony and harassment suffered by them.  
15. In view of the above discussion, both the consumer complaints deserve to succeed and the same are accordingly partly allowed. OPs No. 1 to 3 are directed as under :-

RELIEF IN CC/190/2024

1. to refund the deposited amount of Rs.23,33,280/- to the complainant alongwith interest @9% per annum from the respective date(s) of deposit,  till realisation. However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject property shall vest with the OPs No. 1 to 3, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay Rs.17,00,000/-  to the complainant towards the expenses incurred by the complainant for raising construction of house  on the plot in question alongwith interest @9% per annum from 20.8.2019 when the complainant received notice for stoppage of construction till realization.
3. to pay ₹50,000/- to the complainant as compensation on account of mental agony, physical harassment and financial loss.
4. to pay ₹10,000/- to the complainant as costs of litigation.

RELIEF IN CC/191/2024

1. to refund the deposited amount of Rs.24,57,235/- to the complainants alongwith interest @9% per annum from the respective date(s) of deposit,  till realisation. However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject property shall vest with the OPs No. 1 to 3, for all intents and purposes, and the complainants shall have no right, title or interest in the same in future.
2. to pay Rs.16,50,000/-  to the complainants towards the expenses incurred by the complainant for raising construction of house  on the plot in question alongwith interest @9% per annum from 20.8.2019 when the complainants received notice for stoppage of construction till realization.
3. to pay ₹50,000/- to the complainants as compensation on account of mental agony, physical harassment and financial loss.
4. to pay ₹10,000/- to the complainants as costs of litigation.

16. This order be complied with by the OPs No. 1 to 3 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) & (iii) in each case 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)& (ii) in each case above], till realisation, over and above payment of ligation expenses in each case above.
17. Complaint qua OP No.4 stands dismissed.
18. Pending miscellaneous application(s), if any, also stands disposed off.
19. A certified copy of this order be also placed on the file of other  connected consumer complaint, mentioned above, which shall form part and parcel of the that file.
20. Certified copies of this order be sent to the parties free of charge. The file be consigned.

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member
18/7/2024