Chandigarh

DF-II

CC/869/2021

Rahul Chanda - Complainant(s)

Versus

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

Adv. Rajesh Verma & Adv. Mukesh Verma

05 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	869/2021
Date of Institution	:	03.12.2021
Date of Decision	:	05.03.2024

 

                                 

                    

 

Rahul Chanda s/o Sh.Ranjan Chanda r/o H.No.1691, Phase-10, SAS Nagar, Mohali, Punjab.

                           ...  Complainant.

Versus

M/s Emerging Valley (P) Ltd., through its Managing Director Sh.Gurpreet Singh Sidhu Present Address: Sh.Gurpreet Singh Sidhu through Superintendent, Model Jail (Burail Jail), Sarovar Path, Sector 51, Chandigarh -160051, Earlier Address: SCO No.46-47, 1^st Floor, Sector 9-D, Chandigarh -160009.

…. Opposite Party

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Rajesh Verma, Counsel of complainant Sh.J.S.Rattu, Counsel for OP (thr. VC).

 

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

1.         By dint of this common order, we propose to dispose of 04 connected consumer complaints in which common questions of law and fact are involved.  The detailed of the amount alleged to be deposited by the complainant with the OP(s) is as under:-

Sr. No.	Case No.	Parties Name	Project Name & Total Consideration	Amount Deposited in Rs.
1.	869/2021	Rahul Chanda Vs. M/s Emerging Valley (P) Ltd.	“Premium Trinity Homes” 2BHK First Floor Rs.17.25 lakhs + other charges	Rs.17,41,250/- (Annexure C-1, C-2 & Annexure C-4 Colly.) (i.e. Rs.14,71,250/- through cheques and Rs.2,70,000/- alleged to be adjusted against Guaranteed Rental Income)
2.	941/2021	Manoj Kumar Vs. M/s Emerging Valley (P) Ltd.	“Trinity Homes” 2BKH Second Floor Rs.14.50 lakhs + Other Charges	Rs.5,40,000/- (Annexure C-2 Colly.)
3.	540/2021	Sushil Kumar & Surinder Singh Rana Vs. M/s Emerging Valley (P) Ltd. an Others	“Prabh Homes” 3BHK First Floor, Flat No.53 (Tower No.18)  was allotted in lieu of 3 One Bedroom Apartments (OBAs).	Rs.25,69,000/- (Annexure C-3 to C-5 (Colly.)
4.	793/2021	Ajay Kumar Vs. M/s Emerging Valley (P) Ltd. and Another.	“Emerging World” Corporate Office measuring 250 sq. yards Rs.11.25 lakhs + other charges	Rs.11,25,000/- (Annexure C-4 Colly.).

2.         The facts are gathered from C.C.No.869/2021-Rahul Chanda Vs. M/s Emerging Valley (P) Ltd.
3.         The complainant has filed the present complaint alleging therein that the complainant applied for a residential 2 BHK First Floor measuring super area 900 sq. for total sale consideration of Rs.17,25,000/- in the project of the OP known as Premium Trinity Homes located at Landran Bannur Road, Mohali by paying Rs.25,000/- vide receipt dated 12.06.2014 (Annexure C-1). He also paid Rs.3,20,000/- against receipt dated 16.07.2014 (Annexure C-2). He was issued provisional allotment letter dated 22.07.2014 (Annexure C-3) in respect of the said unit (Annexure C-1). It has been averred that he paid in total a sum of Rs.17,41,250/- to the OP through different modes and installments (Annexures C-1, C-2 and Annexure C-4 (Colly.). The OP issued payment confirmation letter dated 20.11.2019 regarding the receipt of Rs.17,41,500/-.    It has been averred that in totally he paid Rs.17,41,25/- (Rs.14,71,250/-  through cheques and Rs.2,70,000/- adjusted against Guaranteed Rental Income) to the OP till 20.11.2019. He requested the OP to deliver the possession of the unit in question but to no effect.  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 unit without having any permissions/approvals and license from the concerned department.  It has also been alleged that the GMADA has dismantled/demolished the project of the OP. 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.
4. 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.  It has been stated that the complainant is a habitual defaulter and he made payment of Rs.14,71,250/- against the net price of Rs.17,25,000/- only and he had not sent back the signed copy of the provisional allotment letter. It has further been stated that the project of the OP was attached by the Hon’ble State Commission and therefore, the same could not delivered on time and later the same was also demolished which was not in the hands of the OP. It has further been stated that the complaint is barred by time. 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.
5.     The complainant filed replication to the written reply of the OP and controverted their stand and reiterating his own.
6. We have heard the Counsel for the contesting parties and gone through the documents on record, including written submissions.
7. 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.
8.         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.

9.         Admittedly, the complainant was allotted the flat in question vide provisional allotment letter dated 22.07.2014 for total sale consideration of 17.25 lakhs.  The complainant has himself stated in the complaint that he had paid Rs.14,71,250/-  only through cheques and Rs.2,70,000/- adjusted against Guaranteed Rental Income. It is also the admitted case of the parties that the possession of the unit in question has been delivered so far. Thus, the complainant had paid Rs.14,71,250/- to the OP against the unit in question and he is, thus, entitled to refund of deposited amounts along with interest and not Rs.17,41,250/- as claimed. 

                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 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?”

10.         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. 
11.         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.
12.         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.
13.         Similar facts have been pleaded in another connected complaint and similar evidence has been led in them.  Therefore, in all the cases, deficiency in service as well as unfair trade practice on the part of the OP(s) is proved.  
14.         Resultantly, all the consumer complaints are partly allowed.
15.         In C.C.No.869/2021-Rahul Chanda Vs. M/s Emerging Valley (P) Ltd.,, the OP is directed to refund the deposited amounts i.e. Rs.14,71,250/- to the complainant alongwith interest @ 10% per annum from the date of its respective deposits till the date of its actual realization. 
16.         In C.C.No.941/2021-Manoj Kumar Vs. M/s Emerging Valley (P) Ltd., the OP is directed to refund the deposited amounts i.e. Rs.5,40,000/- to the complainant alongwith interest @ 10% per annum from the date of its respective deposits till the date of its actual realization. 
17.         In C.C.No.540/2021-Sushil Kumar and Another Vs. M/s Emerging Valley Pvt. Ltd. and Others, OPs No.1 and 3 are directed to refund the deposited amounts i.e. Rs.25,69,000/- to the complainants alongwith interest @ 10% per annum from the date of its 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 complaint qua OP No.2 stands dismissed.  
18.         In C.C.No.793/2021-Ajay Kumar Vs. M/s Emerging Valley Pvt. Ltd. and Others, OP No.1 is directed to refund the deposited amounts i.e. Rs.11,25,000/- to the complainant along with interest @ 10% per annum from the date of its respective deposits till the date of its actual realization. The complaint qua OP No.2 stands dismissed.
19.         This order be complied with by the OP(s), within 90 days from the date of receipt of its certified copy, failing which the complainants shall be at liberty to get the order enforced through the indulgence of this Commission.
20.         The pending application(s) if any, stands disposed of accordingly.
21.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

	Sd/-	Sd/-
Announced	(B.M.SHARMA)	[AMRINDER SINGH SIDHU]
05.03.2024	MEMBER	PRESIDENT