Chandigarh

DF-II

CC/887/2021

Rajeev Tilak - Complainant(s)

Versus

M/s Emerging India Housing Corporation (P) Ltd. - Opp.Party(s)

Adv. Devinder Kumar

16 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/887/2021
Date of Institution	:	6.12.2021
Date of Decision	:	16.6.2023

 

1. Rajeev Tilak son of Sh. Pawan Kumar r/o house No.11/8, Krishna colony, Bhiwani, Haryana 127021.

.

… Complainant

V E R S U S

1. M/s Emerging India Housing Corporation Private limited, Head Office: SCO No.46-47, first floor, Sector 9-D, Near Mataka Chowk,  Madhya Marg, Chandigarh through its Managing Director. 
2. Gurpreet Singh Sidhu, Director M/s Emerging India Housing Corporation Private Limited Head Office: SCO No.46-47, first floor, Sector 9-D, Near Mataka Chowk,  Madhya Marg, Chandigarh.

2^nd address:

Present in judicial custody in burial jail, Chandigarh.

3. Kamaljit Singh son of Sh. Avtar Singh, Director M/s Emerging India Housing Corporation Private Limited r/o H. No. 612, Chaura road, Hirabagh Patiala, Punjab.
4. Shaifi Kumar son of  Sh. Ravi Kumar, General Manager/authorized signatory M/s Emerging India Housing Corporation Private Limited r/o House No.25, village Dhaban Kokian, Tehsil Abhohar, District Fazilka, Punjab 140041.

.  … Opposite Parties

 

CORAM :	SURJEET KAUR	Presiding Member
	B.M. sharma	MEMBER

                       

ARGUED BY		Sh. Devinder Kumar counsel for complainants. None for OPs No.1&2.
		Ops No. 3 and 4 exparte.

PER SURJEET KAUR,PRESIDING Member

1. Briefly stated the complainant booked a 3 BHK flat in the project of the OPs in Sector 115, Mohali and paid an amount of Rs.25,000/- as booking amount. The complainant was allotted flat No.802 in the project of the OPs vide through draw of lot. The total consideration of the flat in question was Rs.40,32,000/-. Vide letter dated 16.7.2011 OPs has allotted to the complainant flat No.401 in their project.  It is alleged that the total consideration of the flat in question was Rs.40,32,000/- however while issuing provisional allotment letter dated 19.11.2012 the OPs increased the flat amount from 40,32,000/- to Rs.42,29,100/- without consent of complainant. As per provisional allotment letter dated 19.11.2012 the  possession of the flat was to be handed over within three years from the date of allotment and to execute complete the project after obtaining necessary permission from the competent authorities. It is alleged that instead of handing over possession, the OPs vide another allotment letter dated 17.9.2015 allotted the complainant flat No. D-401 and assured the complainant that they will complete the construction within 12 months and extended period of three months from the date of execution of the apartment allotment agreement. It is alleged that despite payment of Rs.30,19,200/- by the complainant to the  OPs towards the payment of the flat in question the OPs failed to handover the possession of the flat in question to the complainant. The  complainant requested the OPs several times to hand over the possession of the flat but to no avail. A legal notice dated 25.10.2021 was also sent to OPs but nothing fruitful came out. 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&2 in their reply took preliminary objections of maintainability, cause of action and also that   complainant is not consumer as he had booked the subject flat for commercial purpose and he is required to approach the arbitrator as per the arbitration agreement. It is also alleged that the complainant is habitual defaulter in making the payment and not entitled for any relief. It is averred that payment were to be made by the complainant under installment linked payment plan which the complainant has attached because final allotment/buyers agreement was not executed as the complainant has not made the payment of 75% of the net sale price. The complainant has only made payment of Rs.20,16,000/- against net sale price of Rs.42,29,100/- Denying all other allegations made in the complainant a prayer for the dismissal of the complaint has
3.  OPs No. 3&4 despite due service did not turn up hence, they were proceeded against exparte vide order dated 30.9.2022.
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. It is evident from Annexure C-3 to C-7 and C-11 to C-17 that the complainant had paid a total amount of Rs.30,19,200/-  since 2011 till 2016 towards the price of the flat in question. It is admitted fact that the total consideration of the flat was Rs.42,29,100/- and the flat in question was duly allotted to the complainant by the OPs but till date the construction has not been completed and the physical possession of the same has not been handed over to the complainant. Hence, is the present Complaint.
8. The stand taken by the OPs No.1&2  is that the complainant purchased the flat in question for commercial purpose and also he is required to approach the  Arbitrator as per the Arbitration Agreement.
9. After going through the evidence it is abundantly clear from the receipts issued by the OPs that the complainant had paid an amount of Rs.30,19,200/- towards the price of the flat in question. But till date the OPs have failed to offer possession of the flat in question despite receiving more than 70% amount towards the price of the flat. 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, that non delivery of the 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.  Thus, there is deficiency on the part of the OPs for not handing over possession of the flat in question to the complainant.
10. As far as the allegation of the OPs that the complainant is not a consumer as he purchased the flat for commercial purpose is concerned the same is not tenable as the OPs have failed to lead any evidence on record that  the subject flat was purchased by the complainant for commercial purpose. Moreover the complainant in its complaint pleaded that he purchased the flat for residential purpose to settle around Chandigarh.  The Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, has held as under:

“The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(1)(d) of the Act."

      

Hence, it is unsafe to hold that the  property in question was purchased by the complainant for commercial purpose.

11. The consumer complaint is further resisted by the OPs on the ground that the complainant is                                                                                         required to approach the arbitrator in case he is aggrieved against the OPs and the consumer complaint of the complainant is not maintainable before this Commission is also without merit as law on this point has already been settled by the Hon’ble Apex Court in the case of Aftab Singh Vs. Emmar MGF Land Limited & Anr., Consumer Case No.701 of 2015 decided on 13.7.2017 in which it was held that arbitration clause in the agreement between the complainant and the builder cannot circumscribe the jurisdiction of the Consumer Fora notwithstanding the amendment made to Section 8 of the Arbitration Act.
12. 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. 
13. In the light of above, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to refund the amount of ₹30,19,200/- to the complainant alongwith interest @ 9% per annum from the date of respective dates of payment till realisation of the same.
2. to pay an amount of ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment to them;
3. to pay ₹10,000/- to the complainant as costs of litigation.

14. This order be complied with by the OPs within thirty 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.
15. Certified copies of this order be sent to the parties free of charge. The file be consigned.

			sd/- [surjeet kaur]
			presiding member   sd/-
			[b.m. sharma]
			Member