Chandigarh

DF-I

CC/181/2024

PREM LATA PURI, - 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/181/2024
Date of Institution	:	23/03/2024
Date of Decision	:	05/09/2024

Prem Lata Puri, aged 77 years wd/o Late Sh. Sushil Kumar Kochhar r/o House No.8, Type II, Old Campus, Maharaja Agrasen Medical College, Village Agroha, District Hisar, Haryana.

… 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	:	Complaint against OP-2 dismissed as withdrawn vide order dated 26.6.2024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 Smt.Prem Lata Puri, 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 a project namely “Trinity Homes” at Landran–Banur Road, Mohali and through brochure (Annexure C-2) offered different types of residential plots, commercial spaces, high rise apartments, villas etc. for sale. The husband of the complainant late Sh. Sushil Kumar Kochhar had booked a 2 BHK ground floor flat (610 sq.ft.) with the OPs in the said project for total sale consideration of ₹16,20,000/- and paid ₹3.00 lacs vide receipt (Annexure C-3) and OPs had allotted flat No.EV/TH/301 vide provisional allotment letter dated 19.7.2013 (Annexure C-4). Thereafter the husband of the complainant had further paid an amount of ₹1,35,000/- vide receipt dated 22.11.2013, ₹1,35,000/- vide receipt dated 24.2.2014 and ₹2,25,000/- vide receipt dated 23.5.2014 (Annexure C-5 Colly.). After some time, OPs had launched another project namely “Premium Trinity Homes” located at Landran-Banur Road, Mohali and offered to the husband of complainant a 2 BHK ground floor flat (720 sq.ft.) in lieu of the earlier one at net sale price of ₹18,45,000/- after giving discount of ₹80,000/- by adjusting the earlier payment made by him to the tune of ₹7,95,000/-.  Accordingly OPs issued another provisional allotment letter dated 23.6.2014 (Annexure C-6). Thereafter, husband of the complainant paid ₹5,40,000/- vide four receipts of ₹1,35,000/- each dated 18.7.2014, 29.10.2014, 10.2.2015 and 21.7.2015 (Annexure C-7 Colly.).  Thus, upto 6.6.2016, husband of the complainant had paid total amount of ₹13,35,000/- for the aforesaid flat to OPs.  Later on, OPs launched another project namely “Prabh Homez” located at Landran-Banur Road, Mohali and offered the husband of complainant a 2 BHK residential ground floor (720 sq.ft.) at net sale price of ₹27,75,000/- after giving discount of ₹3,15,000/- excluding other charges and vide provisional allotment letter dated 6.6.2016 (Annexure C-8) allotted 2 BHK residential ground floor GF 25 in Tower 9 (hereinafter referred to as “subject flat”) in the subject project.  At that time, OPs had adjusted the earlier payment of ₹13,35,000/-  made by the husband of complainant and  on the asking of OPs, he had further paid the following amounts to them :

S. No.	Receipt date	Amount paid
	29.06.2016	2,00,000/-
	14.11.2016	2,00,000/-
	26.11.2016	2,00,000/-
	10.12.2016	1,57,500/-
	10.12.2016	57,000/-
	16.12.2017	3,00,000/-
	18.12.2017	1,00,000/-
	18.12.2017	2,00,000/-
	18.12.2017	93,750/-
	18.12.2017	1,25,000/-

 

Unfortunately, husband of the complainant died on 13.2.2017 and thereafter the payments were made by sons of complainant namely Ajay Kumar Kochhar and Vijay Kumar Kochhar. Complainant had also paid ₹1,25,000/- as one time parking charges and interest free maintenance charges to the OPs vide confirmation letter date 18.12.2017. Copies of receipts/confirmation letter are Annexure C-9 (Colly.). OPs had also charged an amount of ₹55,420/- as stamp duty for the execution of registered sale deed (Annexure C-10) qua the subject flat on 18.12.2017.  Later on, complainant came to know that the OPs had not taken requisite permissions from the concerned authorities for selling flats 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-11) obtained by a similarly situated allottee qua the subject project intimating that the OPs were not competent to sell any plot/flat etc. in the subject project.  Not only this, even GMADA had dismantled the project floated by the OPs in the name of Emerging Valley in which the complainant was having the subject flat.  As such, OPs have sold the subject flat without having the requisite permissions/approvals from the concerned departments. Not only this, OPs had not even 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 complainant that the deceased husband of the complainant had booked the subject flat with the OPs for total sale consideration of ₹27,75,000/- and he had paid total amount of ₹30,23,760/- to the OPs towards total sale consideration, including maintenance charges and the stamp duty for sale deed and later on it was unearthed in the RTI information (Annexure C-11) that the OPs were not possessing the requisite approval/permission etc. and they were not allowed to sell flats/plots in the subject project, 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 the provisional allotment letter (Annexure C-4) clearly indicates that the OPs had firstly allotted a 2 BHK flat to the husband of the complainant and later on, by adjusting the amount paid by him in their another project, OPs had issued provisional allotment letter (Annexure C-6) and finally had allotted the subject flat vide provisional allotment letter dated 6.6.2016 (Annexure C-8).  Annexure C-3, Annexure C-5 (Colly.), Annexure C-7 (Colly.) and Annexure C-9 (Colly.) are copies of receipts/payment confirmation issued by the OPs. Annexure C-10 is copy of sale deed dated 18.12.2017 qua the subject flat.
   3. Perusal of Annexure C-11 indicates that the GMADA had not approved the project of the OPs as OP-1 could not fulfil the conditions of letter of Intent.  Annexure C-12 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 has different legal entity than OP-1.
   4. 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 had not obtained requisite approvals/ permissions from the competent authorities before receiving the aforesaid amounts from the husband of the complainant/complainant, it is clear that the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice.
   5. 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…………”

6. 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.
7. 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. 

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, especially when the entire evidence led by the complainant is unrebutted.
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 total deposited amount of ₹30,23,670/- 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 flat sold through sale deed (Annexure C-10) and the OP-1 shall get the same legally transferred in its favour through competent authorities and the complainant shall assist OP-1 for the same.
2. to pay an amount of ₹1,00,000/- 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