Chandigarh

DF-I

CC/523/2020

Harjinder Singh - Complainant(s)

Versus

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

Jagmohan Ghumman

01 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/523/2020
Date of Institution	:	11/11/2020
Date of Decision	:	01/05/2023

 

Harjinder Singh aged about 55 years, s/o Sher Singh r/o H.No.1646, Urban Estate, Phase-I, Dugri, Ludhiana.

… Complainant

V E R S U S

1. M/s Emerging Valley Private Limited, Corporate Office, SCO 46-47, 1^st Floor, Sector 9-D, Madhya Marg, Chandigarh through its Director.
2. Gurpreet Singh Sidhu, Director M/s Emerging Valley Private Limited, #317, Sector 21A, Chandigarh.
3. Safi Kumar son of Ravi Kumar r/o H.No.25, Village Dhaba Kokaria, Tehsil Abohar, District Fazilka, authorised representative of M/s Emerging Valley Private Limited, Corporate Office, SCO 46-47, 1^st Floor, Sector 9-D, Madhya Marg, Chandigarh.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                               

 

ARGUED BY	:	Ms. Apoorva Arya, Vice Counsel for Sh. Jagmohan Ghumman, Counsel for complainant
	:	Ms. Bijuli Sinha, Vice Counsel for Sh. Jasjit Singh Rattu, Counsel for OPs 1 & 2.
	:	OP-3 ex-parte.

Per Pawanjit Singh, President

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

1. It transpires from the averments as projected in the consumer complaint that OP-1 company had launched a project under the name and style of “Emerging Valley” which was subsequently renamed as “Prabh Homez” (hereinafter referred to as “subject project”).  Initially, the daughter of the complainant had booked a residential flat in the said project on 19.2.2013 and later on she had transferred her right and interest in the said flat in favour of her father i.e. the complainant vide affidavit dated 23.5.2016 (Annexure C-1).  The complainant had paid total consideration of ₹17,32,700/- to OP-1 in lieu of residential flat No.TRP 1182 (hereinafter referred to as “subject flat”) which was allotted to him.  Subsequently, the complainant had also made payment of ₹2,00,000/- and ₹32,700/- to OP-1 regarding preferential allotment of the flat. OP-1 had also issued the final allotment letter dated 10.9.2016 (Annexure C-3) to the complainant regarding the subject flat and had also acknowledged the receipt of ₹15,00,000/- as on 10.9.2016.  However, despite of the fact that the OPs had received the huge amount from the complainant, they had not developed the project on the spot and thereafter the complainant alongwith other similarly situated allottees approached the OPs to complete the project.  Later on, OP-1 through its authorised power of attorney got the conveyance deed registered in the name of complainant.  Despite of the fact that the construction work was not completed by the OPs on the spot, possession letter dated 27.9.2018 (Annexure C-4) was issued.  In this manner, OPs have committed fraud on the complainant as the concerned authority i.e. GMADA vide its order dated 17.7.2020 (Annexure C-5) declared the project of the OPs, which also contained the subject flat, to be in violation of the Punjab Regional and Town Planning and Development Act 1995 (hereinafter referred to as “1995 Act”) and Punjab New Capital (Periphery) Control Act, 1952 (hereinafter referred to as “1952 Act”) and accordingly the construction of the project was ordered to be demolished. The OPs had concealed material facts that requisite permissions were not obtained by them from the concerned authorities, which 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 praying for refund of the amount alongwith interest etc.
2. OPs 1 & 2 resisted the consumer complaint and filed their 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 and further on the ground that the complainant is habitual defaulter of not making payments to the OPs. The receipt of payment as alleged by the complainant is denied. It is also alleged that the flat was ready for possession, but, the complainant had not opted for the possession when the same was offered to him on 6.11.2017 after making the balance payment of net sale price.  It is also alleged that necessary approvals were already taken by the OPs from the concerned authorities.  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. OP-3 was properly served and when none turned up on his behalf before this Commission, despite proper service, he was proceeded against ex-parte vide order dated 19.2.2021.
4. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove his case, complainant tendered/proved his evidence by way of affidavit and supporting documents. However, as OPs 1 & 2 failed to file evidence despite grant of sufficient opportunity, therefore, vide order dated 23.2.2023 of this Commission, opportunity to file the same was closed.
3. We have heard the learned counsel for the contesting 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 subject flat was sold by the OPs to the complainant and the payment of the entire sale consideration as claimed by the complainant to the OPs has been disputed by the OPs, the case is reduced to a narrow compass as it is to be determined if the complainant has made the payment of the entire sale consideration to the OPs and OPs had unauthorisedly raised construction of the subject project, including the subject flat allotted to the complainant, without seeking necessary approvals/permissions/sanctions from the competent authorities and the same was ordered to be demolished by the authorities and the said act of the OPs amounts to unfair trade practice on their part and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the complainant has not made the payment of the sale consideration and the OPs have launched the subject project after obtaining necessary permissions/approvals/sanctions from the competent authorities and there is no unfair trade practice on their part and the consumer complaint is liable to be dismissed, as is the defence of the OPs.
   2. In order to prove his case, complainant has proved copy of affidavit (Annexure C-1) executed by his daughter in which she deposed that she has transferred her rights in the subject flat in favour of her father, Sh. Harjinder Singh (complainant).  Annexure C-3 is the copy of final allotment letter dated 10.9.2016, due execution of which has also not been disputed by the OPs, which clearly indicates that the subject flat was allotted to the complainant subject to fulfilment of the terms and conditions of the agreement.  It is further clear from the payment schedule annexed with the final allotment letter (available at page 16 of the consumer complaint) that the OPs have acknowledged the payment of ₹15,00,000/- from the complainant and an amount of ₹3,50,000/- was further payable by the complainant at the time of roof casting and at the time of possession. Annexure C-4 further indicates that the OPs had handed over possession of TRP Flat
      No.PT-03-SF-09 to the complainant on 27.9.2018.  The complainant has further proved the receipts (Annexure C-6 at page 15 & 16) whereby the OPs acknowledged having received ₹2,00,000/- and ₹32,700/- on 20.9.2017).  Otherwise also, it is further clear from the letter (Annexure C-4) that the OPs had acknowledged that there were no dues against the complainant qua the subject flat making further clear that the entire payment of ₹17,32,700/- was acknowledged by the OPs.
   3. It is further clear from the order dated 17.7.2020 (Annexure C-5) that the GMADA has ordered demolition of the subject project of the OPs, which includes the subject flat, by finding that the OPs have violated Section 80 of the 1995 Act and relevant sections of 1952 Act as well as Punjab Apartment and Property Regulation Act, 1995, making it further clear that in fact the OPs had cheated the complainant by firstly raising unauthorised construction of the project without seeking necessary approvals/sanctions/permissions from the competent authorities and thereafter sold the subject flat to the complainant by receiving hefty amounts.
   4. Moreover, though the OPs have alleged in their written version that they have obtained the necessary sanctions and approvals from the competent authorities, yet, when there is no iota of evidence brought on record by them to prove that they had taken the necessary approvals/sanctions/permissions from the competent authorities i.e. GMADA etc. for the completion of the project or to sell the flats in the same, it is clear that the OPs had raised unauthorised construction in the subject project and the said act amounts to unfair trade practice on their part.
   5. It has already been held 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 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…..”

6. It is well settled law, as held by the 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, 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. The consumer complaint of the complainant is also resisted by the OPs on the ground that the complainant is not a consumer since he already owns a house and the investment made by him was for commercial transaction. However, the defence of the OPs is without merit as merely by having a house/flat in his/her name does not bar a flat owner to book another flat for his family and does not stop the person from becoming a consumer, especially when the OPs have not led any evidence in this regard. 
8. The consumer complaint is further resisted by the OPs on the ground that the complainant was                                                                                         required to approach the arbitrator in case he was aggrieved against the OPs 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 the Arbitration Act.
9. 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 OPs are directed as under :-

1. to refund the amount of ₹17,32,700/- to the complainant alongwith interest @ 9% per annum from the respective date(s) of receipt, till realization of the same.
2. to pay an amount of ₹50,000/- 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 OPs within thirty days from the date of receipt of its certified copy, failing which, they 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 01/05/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member