Chandigarh

DF-II

CC/295/2021

Davinder Singh - Complainant(s)

Versus

M/s Emerging Valley Pvt. Ltd. - Opp.Party(s)

Jagmohan Ghumman adv

25 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	CC/295/2021
Date of Institution	:	22/04/2021
Date of Decision	:	25/10/2024

 

Davinder Singh son of Baldev Singh, aged 39 years r/o VPO Bhunder, Tehsil Gidderbaha, District Muktsar.

                                ...  Complainant

V E R S U S

1.M/s Emerging Valley Private Limited, Corporate Office, SCO 46-47, 1^st Floor, Sector 9D, Madhya Marg, Chandigarh through its Director.

2.Gurpreet Singh Sidhu, Director, M/s Emerging Valley Private Limited, #317, Sector 21A, Chandigarh.

 

…. Opposite Parties

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU	PRESIDENT
	SHRI BRIJ MOHAN SHARMA	MEMBER

 

 

ARGUED BY:
	Ms.Apoorva Singh, Advocate, Proxy for Sh.Jagmohan Ghumman, Counsel for complainant (through VC)
	None for OPs (Defence already struck off)

       

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.        The complainant has filed the present consumer complaint alleging that he was allotted a 2BHK residential flat bearing No.F-102 in the project of the OPs namely Emerging Valley Pvt. Ltd., which was subsequently renamed as Prabh Homez. As per agreement, complainant had paid total sum of ₹31,38,325/- to the OPs and thereafter OP-1 had issued the final allotment letter to him. However, despite of requests and representations by the complainant, OPs failed to complete the construction.  In fact, GMADA vide its order dated 17.7.2020 (Annexure C-2) had declared the project of the OPs to be in violation of the Punjab Regional and Town Planning and Development Act, 1995 and Punjab New Capital (Periphery) Control Act, 1952 and ordered for demolition of the construction on the site.  OPs had even failed to get the requisite permissions from the concerned department despite taking aforementioned huge amount from the complainant. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, complainant has filed the instant consumer complaint seeking refund of the amount paid alongwith interest, compensation and litigation expenses.
2.        Since OPs failed to file their written version within the stipulated period granted by this Commission, as provided under Section 38 of the Consumer Protection Act, 2019 mandated by Hon’ble Supreme Court of India in case titled as New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., AIR 2016 SC 86 and M/s Daddy’s Builders Pvt. Ltd. & Anr Vs. Manisha Bhargava & Anr., II (2021) SLT 201, their defence was ordered to be struck off vide order dated 13.12.2022.
3.        Complainant led evidence in support of his case.
4.        We have heard the learned Counsel for the complainant and have gone through the documents on record, including written arguments.
5.        It is observed from the record that the complainant has alleged that he had paid total amount of ₹31,38,325/- to the OPs on different dates, as is also evident from Annexure C-1, details of which are as under :-

S.No.	Date	Mode	Amount
	29.03.2012	Cash	25,000/-
	28.06.2012	001496	4,75,000/-
	20.12.2012	009311	5,32,000/-
	28.05.2013	001496	4,75,000/-
	29.05.2013	9311	5,32,000/-
	10.07.2013	009312	4,50,000/-
	17.02.2014	Cash	3,00,000/-
	20.10.2015	Cash	3,49,325/-
		Total	31,38,325/-

However, perusal of Annexure C-1 (Colly.) clearly shows that, in fact, the complainant had mentioned the amount of ₹4,75,000/- twice i.e. one vide receipt dated 28.6.2012 qua cheque No.001496 dated 11.5.2012 (at page 10) and the other vide receipt dated 28.5.2013 again qua cheque No.001496 dated 11.5.2012 (at page 12) issued by the OPs.  So, complainant has paid it once but claiming the same twice, which is wrong on his part. The complainant was required to place on record the mode of payments to prove the same if it was paid twice. Similarly, the complainant had mentioned the amount of ₹5,32,000/- twice i.e. photocopy of one cheque No.009311 (at page 11) of Axis Bank issued by him and the other its receipt (at page 13) issued by the OPs. Complainant has paid only ₹5,32,000/- but claiming it wrongly twice.  Thus, it is clear that the complainant had actually paid ₹21,31,325/- only to the OPs and not ₹31,38,325/-. Though the complainant has committed serious effort to misguide this Commission yet taking a lenient view it is pardoned, otherwise this complaint should have been dismissed as he did not file this calculation honestly. 

6.        Pertinently, when the OPs collected money from the complainant, they had not obtained the required sanctions, permissions and approvals etc. from all the concerned competent authorities from where they were legally bound to take the same.  Thus, collection of amount from the consumers, without having such sanctions, permissions and approvals etc. is not only illegal and wrong but also amounts to unfair trade practice as per the Consumer Protection Act, 2019.  The relevant provisions of the Punjab Apartment and Property Regulation Act, 1995 mandates that the OPs should have obtained all the necessary sanctions, permissions and approvals etc. from the concerned authorities before collection of the amount from the consumers and thereafter they are legally bound to execute the buyer’s agreement therein specifically mentioning that such and such date should be the date of delivery of possession to the consumers, failing which a reasonable time is considered to be just and fair to deliver the agreed apartment to the complainant/consumer as upheld in many cases by the higher authorities from the date of buyer’s agreement between the parties. However, till today, neither the possession of the flat in question, complete in all respects, has been delivered by the OPs to the complainant nor the deposited amount been refunded to him. There is also nothing on record that the OPs were having all the necessary permissions/sanctions required for launching the project in question before accepting the deposit from the complainant. Thus, collecting payment from consumers without having necessary approvals from all the concerned authorities amounts to not only deficiency in service but also unfair trade practice for which the consumer should be compensated adequately.  
7.        The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 & 683 of 2003 titled as Kamal Sood Vs. DLF Universal Ltd. decided on 20.04.2007 has observed as under:-

                        “It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/ apartments, invites offers and collects money from the buyers. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

              The Hon’ble National Commission in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 observed as under:-

“The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

              The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/ complainants is entitled to?”

              Further, the Hon’ble National Commission in the case titled as Sujay Bharatiya & 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.

8.        Hence, the act of OPs in collecting money from the buyers (i.e. the complainant in the present case) before getting all the necessary approvals for the project and not handing over possession of the flat in question within the stipulated period and even not honouring their promises/ commitments certainly proves deficiency in service and indulgence in unfair trade practice on their part, which not only caused financial loss but also immense harassment & mental agony to the complainant, especially when the entire evidence led by the complainant is unrebutted by OPs.
9.        The buyers to have a comfortable life and having paid their hard earned money to have a flat are not supposed to wait indefinitely for possession. Thus, the complainant cannot be made to wait indefinitely for the possession of the flat and he is entitled to seek the refund of the amount paid along with interest. 
10.        In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. OPs are directed to refund the total deposited amount i.e. ₹21,31,325/- to the complainant alongwith interest @ 10% per annum from the date of respective deposits till the date of its actual realization. 
11.        This order be complied with by the OPs within 60 days from the date of receipt of its certified copy.
12.        The pending application(s) if any, stands disposed of accordingly.
13.        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

ANNOUNCED 25/10/2024 hg	[AMRINDER SINGH SIDHU] PRESIDENT
	[BRIJ MOHAN SHARMA] MEMBER