Chandigarh

DF-I

CC/143/2021

Ram Lal Verma - Complainant(s)

Versus

M/s Emerging India Real Assets Pvt. Ltd. - Opp.Party(s)

Rajesh Verma

06 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                            

 

Consumer Complaint No.	:	CC/143/2021
Date of Institution	:	08/03/2021
Date of Decision	:	06/06/2023

Ram Lal Verma s/o late Sh. Chet Ram Verma, resident of house No.2301, Golden Enclave, Sector 49-C, Chandigarh 160047.

… Complainant

V E R S U S

M/s Emerging India Real Assets (P) Ltd., through its Managing Director Sh.Gurpreet Singh Sidhu, Present address, Shop No.3 Sante Majra, Opposite Divine World, Kharar, Earlier Address SCO No.46-47, 1^st Floor, Sector 9-D, Chandigarh.

… Opposite Party

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

                                               

ARGUED BY	:	Sh. MukeshVerma,  Counsel for complainant
	:	Sh. J.S. Rattu, Counsel for OP.

­

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Ram Lal Verma, 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 OP company had launched a project under the name and style of “Emerging World” at Landran Banur Highway (hereinafter referred to as “subject project”) in which different types of residential as well as commercial plots were provided as per brochure (Annexure C-1). The complainant had applied for a showroom space of 250 sq.ft. for total consideration of ₹9,50,000/- for the purpose of earning his livelihood by means of self-employment and had paid ₹1,87,250/- as per the payment confirmation letter dated 2.9.2019 (Annexure C-2) received from the OP.  Later on, complainant came to know that the OP had not taken the requisite permissions from the concerned authority for the aforesaid project and thereby committed fraud with him and accordingly he stopped making further payments to the OP. The complainant approached the OP for refund of the aforesaid amount, but, it kept on delaying the matter. In this manner, the aforesaid act of the OP amounts to deficiency in service and unfair trade practice. The complainant also came across an information dated 20.6.2017 (Annexure C-3) supplied under RTI Act by GMADA to a similarly located allottee qua Emerging Valley Project launched by the OP through which it was informed that the OP had applied to get licence to develop a colony and as it had failed to fulfil the conditions contained in the Letter of Intent, licence was not issued to it.  Not only this, OP has violated the provisions of the Punjab Apartment and Property Regulation Act, 1995 (hereinafter referred to as “PAPRA”) which bars the real estate builders and developers from advertising and demanding money from the prospective buyers till they have all requisite permissions with them.  OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, mis-joinder/non-joinder of necessary parties and also that the complainant is not consumer and he is required to approach the arbitrator as per the arbitration agreement.  It is also alleged that the complainant is a habitual defaulter.  It is, however, admitted that the subject showroom space was booked by the complainant and he had made payment of ₹1,87,250/- against net sale price of ₹9,50,000/-. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. The complainant chose not to file rejoinder despite grant of sufficient opportunity.

2. In order to prove his case, complainant tendered/proved evidence by way of affidavit and supporting documents. However, as OP failed to file evidence despite grant of sufficient opportunity, therefore, vide order dated 31.1.2023 of this Commission, opportunity to file the same was closed.
3. We have heard the learned counsel for the parties 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 complainant had applied for a showroom space with the OP and the OP had received an amount of ₹1,87,250/- in total from the complainant, as is evident from the payment confirmation letter dated 2.9.2019 (Annexure C-2), the case is reduced to a narrow compass as it is to be determined if there is any deficiency in service or unfair trade practice on the part of OP in accepting money from the complainant even without seeking necessary permissions/ approvals/sanctions from the competent authorities and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OP.
   2. In the backdrop of foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the fact if the OP had collected/received money from the complainant even without seeking requisite approvals/sanctions from the competent authorities.
   3. Annexure C-3 is copy of letter dated 20.6.2017 which clearly indicates that a similarly situated allottee was informed by GMADA that M/s Emerging Valley Private Limited, who had allotted the subject showroom space to the complainant, had applied for taking up the licence from its office and the licence was not issued to the promoter (OP) as it could not fulfil the conditions of Letter of Intent and it was declared that the OP cannot sell a plot, flat and both without taking the licence.  Thus, when it stands proved on record that even till 20.6.2017, OP was not possessing requisite licence/sanctions/approvals from GMADA for the development of the subject project and admittedly the OP had received an amount of ₹1,87,250/- from the complainant in the year 2019 and moreover when the OP has failed to produce/prove any document showing that even during the pendency of the consumer complaint it had obtained the licence to develop the project or sought permission/approval from the competent authorities, it is safe to hold that the aforesaid act of the OP amounts to deficiency in service and unfair trade practice on its part.
   4. Moreover, OP has failed to clarify this Commission by leading any evidence or making any defence as to why it had received money 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 showroom space. If the OP chose to accept the booking without obtaining the approvals/ clearances or amended clearances, it is only itself to blame for the same as the purchaser of the subject showroom space has nothing to do with the grant of statutory approvals/clearances/ amended clearances and for the said act of the OP, 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…..”

 

5. 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…………”

 

6. The complainant has also relied upon the order 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.
7. 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.”

 

8. The consumer complaint is further resisted by the OP on the ground that the complainant, if aggrieved against the OP, was required to approach the arbitrator 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 Arbitration Act.
9. The consumer complaint of the complainant is also resisted by the OP on the ground that the complainant is not a consumer since he already owns a house at Chandigarh and the investment made by him was for commercial transaction. However, the defence of the OP is without merit as merely by having a floor/house/flat in his/her name does not bar a consumer from booking another plot/flat/ showroom for his/her family and does not stop the person from becoming a consumer, especially when the OP has not led any evidence in this regard. 
10. 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 ₹1,87,250/- 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 showroom space 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 ₹20,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it 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. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 06/06/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Suresh Kumar Sardana] Member