Chandigarh

DF-I

CC/179/2024

MEENA KUMARI W/O KAILASH CHANDER - Complainant(s)

Versus

M/S EMERGING VALLEY PVT. LTD., THROUGH ITS MANAGING DIRECTOR SH. GURPREET SINGH SIDHU - Opp.Party(s)

MUKESH VERMA

05 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

Consumer Complaint No.	:	CC/179/2024
Date of Institution	:	23/03/2024
Date of Decision	:	05/09/2024

Meena Kumari w/o Kailash Chander r/o House No.2311, Sector 23C, Chandigarh.

… Complainant

V E R S U S

1. M/s Emerging Valley Pvt. Ltd., through its Managing Director Sh. Gurpreet Singh Sidhu, present Address Emerging Heights 3, Sector 115, Kharar – Landran Road, Mohali, Punjab 140501.
2. M/s Emerging India Real Assets Pvt. Ltd., through its Managing Director Sh. Gurpreet Singh Sidhu, Present Address Emerging Heights 3, Sector 115, Kharar – Landran Road, Mohali, Punjab 140501.

… Opposite Parties

 

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

 

ARGUED BY	:	Sh. Mukesh Verma, Advocate for complainant
	:	OP-1 ex-parte
	:	Complaint against OP-2 dismissed as withdrawn vide order dated 26.6.2024

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Meena Kumari, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that the OPs had launched project namely “Emerging Valley” at Landran – Banur Highway, Punjab (hereinafter referred to as “subject project”) and OP-2 is the sister concern of OP-1, who was marketing the project under the logo of Emerging India. In the subject project different types of residential plots, commercial spaces, high rise apartments, villas etc. were being provided. In the category of residential plots, OPs had been providing two types of plots and the copy of brochure is Annexure C-1. The complainant applied for a residential plot of plot of 150 sq. yards for total sale consideration of ₹24,75,000/- in the subject project for personal use vide application No.EVP/150/193 and she was provisionally allotted plot No.95 vide provisional allotment letter dated 29.7.2016 (Annexure C-2). At that time, OPs had provided two types of payment plans i.e. Plan A – Interest free installment plan and Plan B – Down Payment plan and the complainant had opted for Payment Plan A and had paid ₹19,43,750/- on different dates vide receipts (Annexure C-3 Colly.) as per following details :-

S. No.	Detail of subject property	Amount paid	Receipt date
1.	150 sq. yards Plot No.95, Emerging Valley, Landran-Banur Road, Mohali, Punjab.	675000	29.07.2016
		58750	10.11.2016
		200000	13.12.2016
		92000	27.12.2016
		100000	11.05.2017
		253000	11.09.2017
		200000	17.11.2017
		165000	21.11.2017
		100000	19.09.2018
		100000	29.09.2018
Total		19,43,750

       Thereafter the complainant came to know that the OPs had not taken requisite permissions from the concerned authorities for selling the plots in the subject project. After doing some research, complainant came across an RTI information supplied by GMADA vide letter dated 20.6.2017 (Annexure C-4) obtained by a similarly situated allottee qua the subject project intimating that though the OPs had applied to get licence to develop the project and Letter of Intent (LoI) was also issued, but, since the OP promoters could not fulfil the conditions contained in the LoI, licence was not issued.  Immediately after knowing all these facts, complainant approached the OPs for refund of the paid amount, but, the OPs failed to pay the same.  In fact, the OPs have sold the subject plot without having the requisite permissions/approvals from the concerned departments necessary for the subject project.  Not only this, even the OPs have not obtained licence from the GMADA for launching the subject project and thereby have violated the rules of PAPRA Act 1995.  In this manner, aforesaid act of the OPs amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.

2. OPs did not turn up before this Commission, despite proper service, hence they were proceeded against ex-parte vide order dated 22.5.2024.
3. However, subsequently in view of the statement made by learned counsel for the complainant, vide order dated 26.6.2024 of this Commission, the consumer complaint was dismissed as withdrawn against OP-2.

2. In order to prove her 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 parties that the complainant had booked the subject plot and paid the total amount of ₹19,43,750/- and till date neither the possession of the subject plot has been delivered to the complainant nor the amount paid has been refunded to her, the case is reduced to a narrow compass, as it is to be determined if the said act amounts to deficiency in service and unfair trade practice on the part of the OPs and the complainant is entitled to the reliefs prayed for in the consumer complaints, as is the case of the complainant.
   2. Perusal of brochure (Annexure C-1) clearly indicates that the OPs had shown rosy picture to the complainant qua the subject project and had allotted subject plot to the complainant vide provisional allotment letter (Annexure C-2).  Annexure C-3 (Colly) are receipts which indicate that the complainant had paid total amount of ₹19,43,750/- to the OPs. Annexure C-5 indicates that complainant had earlier filed a complaint against OP-2 which was dismissed by learned District Commission-II, UT, Chandigarh vide its order dated 20.2.2024 on the ground of mis-joinder of party, by holding that no relief can be granted against OP-2 as the same is a different legal entity than OP-1.
   3. Learned counsel for the complainant submitted that when it has come on record that the OPs have failed to hand over possession of subject plot and further OPs have not obtained requisite approvals from the competent authorities before receiving the aforesaid amounts from the complainant, it is clear that the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice.
   4. We find force in the submission of learned counsel for the complainant, especially when there is nothing on record that the OPs had obtained necessary approvals from the competent authorities before receiving amount from the complainant as partial sale consideration for the sale of subject plot. 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 held 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. Learned counsel for 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 2.4.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
6. Further, 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 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.”

In the present case also, complainant has prayed for refund of the amount paid alongwith interest etc. and not for possession. 

7. Not only this, when it has come on record that the possession of the subject plot has not been offered to the complainant, till date, there is continuing cause of action in favour of the complainant. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
8. 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 against OP-1.
9. So far as the case against OP-2 is concerned, as complainant has failed to bring on record any iota of evidence to prove that OP-2 has any concern with the transactions or the subject project and learned District Commission-II, UT, Chandigarh has already decided vide order dated 20.2.2024 that consumer complaint of the complainant is not maintainable against OP-2 and further though complainant had initially sought relief against OP-2 also, but, later on has withdrawn consumer complaint against OP-2, we are of the opinion that no case is made out against OP-2 and the consumer complaint qua it has already been dismissed vide order dated 26.6.2024.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP-1 is directed as under :-

1. to refund the aforesaid amount of ₹19,43,750/- to the complainant alongwith interest @ 9% per annum (simple) from the dates of respective payment onwards.  However, it is further clarified that on receiving the entire amount by the complainant from OP-1, complainant shall have no right, title or interest with the subject plot.
2. to pay an amount of ₹40,000/- 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 OP-1 within a period of 45 days from the date of receipt of certified copy thereof, failing which the amounts 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 other 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.

05/09/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member