Chandigarh

DF-I

CC/359/2023

AMRINDER SINGH S/O SH. BASANT SINGH - Complainant(s)

Versus

M/S EMERGING VALLEY PVT. LTD. - Opp.Party(s)

MUKESH VERMA

04 Jun 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/359/2023
Date of Institution	:	26.7.2023
Date of Decision	:	04/06/2024

 

Amrinder Singh, S/o Sh. Basant Singh,

Resident of Kotli Khas, Hosiharpur, Punjab.

2. Navnoor Singh Rana,  S/o Sh. Bakhsish

Singh, Resident of Village Aaloobhati, Kotli Khas, Hoshiarpur, Punjab.

...COMPLAINANTS

VERSUS

 

M/s Emerging Valley Pvt. Ltd., through its Managing Director Sh. Gurpreet Singh Sidhu, Emerging Heights -III, Sante Majra, Sector 115, SAS Nagar, Mohali, Punjab-140307.

… Opposite Parties

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

 

                                                                               

ARGUED BY	:	Sh. Rajesh Verma, Advocate for complainant (through VC)
	:	OP exparte.

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that  the OP launched  project namely  Prabh Homes at Emerging valley located at Emerging Valley, Landran Banur Road, Mohali. In the said project different types of plot, commercial space high rise apartments etc.  were provided by the OP.On  being allured with the  pamphlets  distributed  by the OP, the complainants had fallen into the trap of the OP and applied for one residential floor of 2BHK ground floor measuring 150 sq. yds  in the said project for basic sale price of Rs.29,90,000/-. The OP vide allotment letter Annexure C-1 dated 23.12.2015  allotted  the  said residential flat to the complaints. However, the OP after receiving the considerable sale consideration  told the complainants that they are not in a position to deliver the possession of the residential flat in the said project due to lack of approval from the competent authority and asked the complainants that they will adjust the amount in residential plot in the project namely Emerging Valley Pvt. Ltd. (hereinafter referred to be subject project). The complainants have already paid  the entire sale consideration  of the aforesaid flat  and the said sale consideration  was adjusted by the OP in the residential plot available in their project namely Emerging Valley Pvt. Ltd..  On the asking of the OP, the complainant purchased stamp duty of Rs.1,10,000/-  and also spent Rs.40,100/-  towards registration fee  and other charges for execution of sale deed and thereafter the OP executed sale deed Annexure C-2 dated 25.1.2018  and transferred residential plot No.BA46 measuring 150 Sq. yds (hereinafter referred to be subject plot) in favour of the complainants.  The complainant paid an amount of Rs.26,00,000/- to the OP on various dates and the OP vide confirmation  letter  Annexure C-3 dated 27.1.2018 confirmed receipt of entire payment towards the subject plot including  EDC charges and service tax. After sometime the complainant came to know that the OP had not taken requisite permission from the concerned authorities for selling the subject plot in their subject project and after doing some research work, the complainant came across a RTI  information supplied  by Greater Mohali Area Development Authority (GMADA) the competent authority   vide letter Annexure C-4 dated 20.6.2017  that the OP had applied  to get license to develop a colony and letter of intent (LOI) was issued and as the promoter failed to fulfill the conditions contained in the said LOI,  license was not issued to the OP. It was also mentioned in the said letter  that the promoter/OP was not competent to sell any plot/flat etc.  In this manner, as the OP  has sold the subject residential plot to the complainant without having necessary approval  from the concerned competent authority and license from the GMADA and  as a result thereof till date the OP failed to offer actual physical possession of the subject plot. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OP. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP  was properly served and when OP did not turn up before this Commission, despite proper service, it was  proceeded against ex-parte on 20.9.2023.

2. In order to prove his case, complainant has tendered/proved his 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  OP had sold the subject plot to the  complainant in their subject project vide sale deed Annexure C-2 on receiving of entire sale consideration as has been acknowledged by the OP vide confirmation letter Annexure C-3 dated 27.1.2018 without having requisite permission and sanctions from the competent authorities and was not even competent to sell the subject plot as is also evident from Annexure C-4 issued by the GMADA, the case is reduced to a narrow compass as it is to be determined if  the aforesaid act of OP amounts to deficiency in service and unfair trade practice and the complainant is entitled for the relief as prayed for and for that purpose the entire documentary evidence led by the complainant is required to be scanned carefully.
   2. Perusal of   Annexure C-2  the copy of sale deed clearly indicates that the OP executed sale deed qua the subject plot in favour of the complainant  by referring that the OP was competent to sell the subject plot whereas perusal of Annexure C-4  the copy of letter issued by GMADA clearly indicates that  the OP was not competent to sell the subject plot to the complainant. The relevant portion of the said letter is reproduced as under:-

"GREATER MOHALI AREA DEVELOPMENT AUTHORITY, PUDA BHAWA, SECTOR 62, S.A.S. NAGAR

(Town Planning and Licensing Shakha)

To

       Sh.Manvir Singh Home No. 447, Type-2, Punjab Mandi Board Complex Sector 66, S.A.S. Nagar

Letter No.STP/GMADA/A-2/2016/1866 Dated 20/06/2017

Subject: Sh. Manvir Singh (File No. 10919) through RTI Act, 2005 for information (Diary No. 465 dated 05.06.2017)

The information sought Regarding the above subject, it is stated that M/S Emerging Valley Private Limited applied for setting up a colony at Village Nogiari district SAS Nagar and for taking up the license in this office but the promoter of the colony could not fulfil the conditions of letter of intent, the licence was not issued to the promoter. The promoter of the colony cannot sell a plot, flat and boths without taking the license.

Sd/- Administrative Office Licensing GMADA, SA.S. Nagar

Endorsement No. GMADA STP/2016     dated

copy of the above is hereby sent to Administrative officer (Coordination) SAS Nagar with reference to his letter No. 1222 dated 08/06/2017 for information."

3. Thus one thing is clear from aforesaid letter that the OP has not obtained any license from the competent authorities i.e. GMADA for setting up the project as intimated by the GMADA authorities making further clear that the OP has collected huge amount from the complainant without obtaining necessary permissions and approval from the competent authorities. 
4. None has turned up on behalf of OP  to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainant knowing fully well that necessary clearances have not been given by the competent authorities, which was otherwise obligatory on the part of the OP to obtain all the approvals/ clearances before booking the subject commercial space.  If the OP chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are only themselves to blame for the same as the purchaser of the subject plot 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  OP has  thus failed to offer possession of the subject plot till date despite receiving entire amount from the complainants. The Hon’ble National Commission in the case of SujayBharatiya&Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 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. GovindanRaghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also inFortune 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.  As far as the question as to how the cause of action has arisen to the complainants is concerned,  it has come on record that the OP  has failed to deliver the lawful possession of the subject plot after obtaining necessary approvals/completion certificate from the competent authority. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint. 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 SarojKharbanda 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.
9. Thus the aforesaid act of the OP amounts to deficiency in service and unfair trade practice on its part, especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OP. Hence, the instant consumer complaint deserves to be allowed.

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 hand over actual physical possession of the subject plot to the complainants within three months from the date of receipt of certified copy of this order, after obtaining all necessary approvals including obtaining completion certificate/occupancy certificate  from the competent authorities.
2. to pay an amount of ₹50,000/- to the complainants as compensation for causing mental agony and harassment to them;
3. to pay ₹10,000/- to the complainants as costs of litigation.

5. This order be complied with by the OP within three months from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(i) &(ii) above.
6. Pending miscellaneous application(s), if any, also stands disposed off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 04/06/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member