Chandigarh

DF-I

CC/432/2023

JAGJIT SINGH - Complainant(s)

Versus

M/S EMERGING INDIA HOUSING CORPORATION PRIVATE LTD - Opp.Party(s)

SAVINDER SINGH GILL

05 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/432/2023
Date of Institution	:	06/09/2023
Date of Decision	:	05/02/2024

 

Jagjit Singh s/o Sh. Sohan Singh r/o VPO Bhunder, Tehsil-Gidderbaha, Dist. Muktsar, Punjab-152101.

… Complainant

V E R S U S

M/s Emerging India Housing Corporation (P) Ltd., having its site office at Emerging Heights, Sector-115, Mohali, Punajb through its Directors, Sh. Gurpreet Singh Sidhu and Sh. Sushil Kumar.

… Opposite Party

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

                                               

ARGUED BY	:	Sh. Savinder Singh Gill, Advocate for complainant
	:	OP ex-parte

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Jagjit Singh, complainant against the aforesaid opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that the complainant applied for a residential flat for his family and personal use in the project of the OP under the name and style of “Emerging Heights-III” situated at Sector 115, SAS Nagar, Mohali (hereinafter referred to as “subject project”) by making payment of ₹1,00,000/- upon which flat No.G-303 (hereinafter referred to as “subject flat”) was allotted to him for total sale consideration of ₹32,40,000/- out of which he paid ₹27,33,824/- as confirmed by the OP in the letter dated 16.1.2015 (Annexure C-1). Thereafter, Apartment Allottee(s) Arrangement was executed between the parties on 27.5.2015 (Annexure C-2) as per which OP was to complete the development of the project by 26.8.2016, but, it failed to do so and till date possession of the subject flat has not been offered to the complainant. Later on, complainant came to know that, in fact, OP has not got the required sanctions/permissions from the competent authorities and the project was not even approved at the time of collecting money.  In this manner, the aforesaid acts of the OP amount to deficiency in service and unfair trade practice. OP were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 6.11.2023.

2. In order to prove his case, complainant has tendered/ proved 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 complainant that he was allotted the subject flat by the OP in the subject project for total sale consideration of ₹32,40,000/-, out of which he had paid an amount of ₹27,33,824/-, as is also evident from copy of payment confirmation dated 16.1.2015 (Annexure C-1) and Apartment Allottee(s) arrangement executed on 27.5.2015 (Annexure C-2), the case is reduced to a narrow compass as it is to be determined if the OP, despite of having received an amount of ₹27,33,824/- from the complainant, has failed to either offer the possession of the subject flat or refund the amount to the complainant, and the said act of the OP amounts to deficiency in service and unfair trade practice and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant.
   2. Perusal of the payment confirmation letter (Annexure C-1) as well as the Apartment Allottee(s) Agreement (Annexure C-2) clearly indicates that the OP had received an amount of ₹27,33,824/- out of the total agreed sale consideration of ₹32,40,000/-. The case of the complainant is that as per clause 5.1 of the agreement (Annexure C-2), OP was to complete the subject project by 26.8.2016, but, it has failed to do so and till date the possession has not been offered to him.  All these allegations made in the consumer complaint stands proved through the affidavit submitted by complainant and the evidence led by him, especially when the same is unrebutted by the OP.
   3. Not only this, even till date, when OP has failed to prove on record that it is having requisite sanctions/approvals from the competent authorities for launching the subject project or that it has been allowed to sell the flats/plots for which it has already extracted huge amount from the complainant, it is safe to hold that the OP 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 OP to obtain all the approvals/clearances before booking the subject flat.  If the OP chose to accept the booking without obtaining approvals/clearances or amended clearances, it is only itself 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.
   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. 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 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
6. 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.”

 

7. 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.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP is directed as under :-

1. to refund the amount of ₹27,33,824/- to the complainant alongwith interest @ 9% per annum from the respective date(s) of payment till realisation of the same.  However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject flat shall vest with the OP, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay an amount of ₹75,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OP within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry 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 of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

05/02/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Suresh Kumar Sardana] Member