Chandigarh

DF-II

CC/437/2021

Madhu Bala - Complainant(s)

Versus

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

Rajesh Verma Adv.

23 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	437/2021
Date of Institution	:	13.07.2021
Date of Decision	:	23.02.2024

 

                                 

                    

 

Madhu Bala aged 62 years w/o Sh.Rajinder Paul Mittal r/o H.No.C-294, Block C, Ground Floor, Sushant Lok, Sector 57, Opposite Rail V, Gurgaon, Haryana-122001

                           ...  Complainant.

Versus

M/s Emerging Valley (P) Ltd., through its Managing Director Sh.Gurpreet Singh Sidhu Present Address: Sh.Gurpreet Singh Sidhu s/o Sh.Nachattar Singh (Namberdar) r/o Dhaban Kokrian, Post Office Bahader Kherha, Tehsil Abohar, District Fazilka, Punjab Earlier Address: SCO No.46-47, 1^st Floor, Sector 9-D, Chandigarh -160009.

…. Opposite Party

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SHRI S.K.SARDANA	MEMBER
Present:-
	Sh.Rajesh Verma & Sh.Mukesh Verma, Counsel of complainant Sh.J.S.Rattu, Counsel for OP.

 

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

1.         The complainant has filed the present complaint alleging therein that the complainant applied for a residential 2 BHK Independent Floor measuring super area 1100 sq. ft. (plot area 1350 sq. ft) for Rs.27,80,000/- in the project of the OP known as Prabh Homes in Emerging Valley located at Landran Bannur Road, Mohali. The complainant was issued Provisional Allotment Letter dated 21.03.2015 in respect of the unit (Annexure C-1). It has been averred that he paid Rs.27,68,724/- to the OP through different modes and installments (Annexures C-2, C-3, C-4 to C-8). The OP issued No Dues Letter dated 27.09.2017, acknowledging the receipt of entire amount.   The OP in haste manner executed the sale deed dated 27.9.2017 (Annexure C-10) in favour of the complainant without delivering the actual physical possession of the unit.  Later on, the complainant came to know that the OP had not taken the requisite permissions from the competent authorities for selling the units.   The GMADA vide letter dated 20.06.2017 informed that the OP was not competent to sell any plot/flat etc.  It has further been averred that the OP had sold the plot without having any permissions/approvals and license from the concerned department.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OP, the complainant has filed this complaint seeking directions to the OP to refund Rs.27,68,724/- along with interest, compensation and litigation costs.
2. After service of notice, the OP filed its written version and took preliminary regarding maintainability of the complaint, arbitration clause, pecuniary jurisdiction, concealment of facts and cause of action. The OP has denied the payment made to the third person other than it.   It has further been stated that the complainant was handed over the possession in 2017 and the sale deed of the unit was also executed in the name of the complainant and the complainant approached this Commission after a gap of 5 years which creates a serious doubt.  Denying all other allegations and stating that there is no deficiency in service on its part, the OP has prayed for dismissal of the complaint.
3.     The complainant filed replication to the written reply of the OPs and controverted their stand and reiterating her own.
4.        We have heard the Counsel for the contesting parties and gone through the documents on record.
5. The main plea taken by the OP is that the dispute between the parties is liable to be referred to arbitration, as per the Arbitration and Conciliation Act, 1996 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 Arbitration Act.
6.        The submission of the OP is that the complaint is barred by limitation. However, the Hon’ble National Commission in “Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr.” 2016(2) CLT 457 has also held that unless or until the complainant get possession of the flats, complete in all respects, he/she has got continuous cause of action. In Para-8 of the said judgment, it has been observed as under:-

“8.   The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in “Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association” Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012.”

              So in view of availability of recurring cause of action in favour of complainant till its refusal, certainly the complaint is not barred by limitation and submission of Counsel for OP to the contrary has no force and the same is rejected accordingly.

7.        Admittedly, the complainant was allotted the unit in question vide allotment letter dated 21.03.2015.  It is also clear from Annexure C-7 that the OP had acknowledged the receipt of Rs.18,13,245/- towards the unit in question. The complainant had also transferred Rs.9,00,059/- through NEFT dated 27.09.2017 to the OP.  The complainant had also incurred a sum of Rs.36,000/- towards stamp duty and Rs.19,420/- towards misc. expenses for registration of the sale deed in her favour qua the unit in question. In all, the complainant incurred a sum of Rs.27,68,724/- qua the unit in question.
8.        The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 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 Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has 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 in 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 in services, then the question is what compensation the respondents/complainants is entitled to?”

16 to 21.         xxxxxx

22.          …….. In light of the above, the damages other than consequential loss have to be measured at the time of the breach. However, the aforesaid rule is flexible which needs to be assessed in facts and circumstances of individual case……..”

9.        Hence, the act of the OP to collect the money before getting all the necessary approvals for the project and not handling over possession of the unit in question within the stipulated period certainly proves deficiency in service and its indulgence in unfair trade practice. 
10.        The buyers/complainants to have a comfortable life and having paid their/her hard earned money to have a house, are not supposed to wait indefinitely for possession. Thus, the complainant cannot be made to wait indefinitely for the possession of the flats allotted to them and the complainant is entitled to seek the refund of the amount paid along with compensation.
11.        The OP accepted the money, but failed to honour the commitment/promise made with complainant, therefore, the deficiency in service as well as unfair trade practice adopted by the OP, is clearly established, which not only caused financial loss to the complainant, but also caused them immense harassment & mental agony.
12.        In the light of above observations, the present complaint is allowed with following directions to the OP to refund the amount of Rs.27,68,724/- to the complainant along with interest @ 9% p.a. from the date of respective deposits till the date of its actual realization, subject to the condition that after receipt of the above awarded amount, the complainant shall be legally bound to execute registered Sale Deed in respect of the unit in question in favour of the OP-Company on account of receiving sale consideration from them.  The OP shall also pay Rs.50,000/- as lump sum compensation to the complainant on account of mental tension and harassment as well as litigation expenses.
13.         The above said order shall be complied with jointly and severally by the OP within a period of 60 days from the date of receipt of its copy.
14.        The pending application(s) if any, stands disposed of accordingly.
15.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced 23/02/2024	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (S.K.SARDANA) MEMBER