Chandigarh

DF-I

CC/367/2023

Sanjeev Kumar Gupta - Complainant(s)

Versus

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

Deepak Aggarwal

02 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/367/2023
Date of Institution	:	20.7.2023
Date of Decision	:	02/07 /2024

 

Sanjeev Kumar Gupta, son of Sh. Prem Sagar, resident of House No.529, Sector 10, HUDA, Ambala City, Haryana

.......Complainant

 

VERSUS

 

1. M/s Emerging Valley (P) Ltd., SCO No.46-47, First Floor, Sector 9-D. Chandigarh, through its Managing Director/Director

2. M/s Emerging India Housing Corporation (P) Ltd., SCO No 46-47, First Floor, Sector 9-D, Chandigarh, through its Managing Director/Director

3. Sh.Gurpreet Singh Sidhu, Managing Director of M/s Emerging Valley (P) Ltd. and M/s Emerging India Housing Corporation (P) Ltd..., SCO No 46-47. First Floor, Sector 9-D. Chandigarh.

2nd Address: ADAB City Centre, Surya Enclave, SCO No.5, Kharar Landran- Banur, Road, District SAS Nagar, Mohali, Punjab

4. Sh.Kamaljeet Singh, Director of M/s Emerging Valley (P) Ltd. and M/s Emerging India Housing Corporation (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh

Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                                               

ARGUED BY	:	Sh. Inderjeet Singh, Advocate proxy for Sh. Deepak Aggarwal, Advocate for complainant
	:	OPs exparte.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh. Sanjeev Kumar Gupta 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 in year 2013 number of advertisement were made by the OPs through various newspaper, telemarketing, brochure and internet regarding sales of residential plots in the project Emerging World situated at Kharar Landran Banur Road, SAS Nagar, Mohali, promising all the basic amenities such as roads, water lines, sewerage etc. It was also assured by the OPs that all the requisite permissions from the competent authorities including change of land use etc. have been obtained.  The complainant being allured with such advertisement approached the office of OPs at Chandigarh to purchase a commercial space measuring 250Sq.ft. for personal use  in order to earn livelihood by way of self employment after his retirement. On enquiry made by the complainant it was assured by the OPs that the  subject project is approved by the GMADA i.e. Government of Punjab and OPs were having all the necessary permissions from the said authorities for launching the subject project. On this, the complainant filed application form and deposited the same with the OPs with booking amount of Rs.25,000/- vide cheque Annexure C-1 dated 17.3.2012. The complainant was required to make the payment as per payment schedule given in Annexure C-2. On 30.3.2012 draw of plots was  held and the complainant was allotted showroom/corporate office space SS-250 (hereinafter to be referred as subject commercial space) and it was also declared that the  complainant has won a car namely Chevrolet Beat(D),  regarding which certificate Annexure C-3 was issued. Thereafter the complainant was again issued schedule of payment wherein various discounts have also been given  and thereafter the OPs issued letter Annexure C-4 dated 6.3.2013   and intimated that the basic sale of the subject commercial space is Rs.10,20,000/- with 5% discount equal to Rs.51,250/- and further intimated that winning amount which the complainant had won in the draw  to the tune of Rs.4,50,000/- towards Chevrolet beat car will be adjusted in the basic sale price  and intimated that after adjustment of draw amount and discount, the sale price would be Rs.5,46,250/-. Vide letter Annexure C-5 dated 30.9.2013 the complainant was provisionally allotted commercial space measuring 250 Sq. ft. .  The copy receipts of payment made by the complainant are annexed as Annexure C-6. It is alleged that the Ops had not been handing over the possession of the subject commercial space and lingering on the matter on one pretext or the other. The complainant visited the office of OPs number of times but with no result. Thereafter when the complainant enquired about the said project by sending email dated 20.6.2020 to the competent authorities i.e. GMADA regarding issuance of license to the OPs, it was  informed to the complainant by the authorities vide memo Annexure C-7 that no lincense has been issued to the OPs for setting up any colony on the Landran Banur Road, Mohali. In this manner, the complainant came to know that in fact the OPs have collected huge money from him, knowing the fact that they were having no  license for setting up of the colony and the aforesaid act of OPs amounts to deficiency in service and indulgence in unfair trade practice on their part. It has also come to the notice of the complainant that number of warrants have been issued against the MD of Ops since 2015 and he is running free after duping huge amount from the innocent buyers.  As the Ops have neither handed over the possession of the subject commercial space nor refunded the amount deposited by the complainant, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs  were properly served and when OPs did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 28.2.2024.

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 Ops have allotted the subject commercial space to the complainant on net sale price to the tune of Rs.5,46,250/-  as is evident from Annexure C-2 and later on rescheduled the payment by declaring the basic sale price of the subject commercial space to tune of Rs.10,25,000/ as is also evident from Annexure C-4 and at that time had also declared the complainant as winner of one Chevrolet Beat(D)  car  worth Rs.4,50,000/- which was adjusted by the OPs  in the basic sale price and finally asked for net sale price of Rs.5,46,250/- after discount of draw amount to the tune of Rs.4,50,000/- and further the OPs  have launched  the subject project without having license  and necessary  permissions and approval from the competent authorities  for setting up the project as is also evident from the letter Annexure C-7 issued by GMADA and till date the OPs have neither handed over the possession  of the subject commercial space nor refunded the amount paid by the complainant, the case is reduced to a narrow compass as it is to be determined if  the aforesaid act  of the OPs amounts to deficiency in  service and the complainant is entitled for the relief as prayed for and for that purpose the documents placed on record by the complainant are required to be scanned carefully.
   2. Perusal of Annexure C-5 the provisional allotment letter indicates that the subject commercial space was allotted to the complainant by the OPs. Annexure C-6 (colly) further indicates that Rs.5,66,000/-  was received by the OPs from the complainant  towards the sale consideration of the subject commercial space.
   3. Annexure C-4  is the letter dated 6.3.2013 vide which OPs  acknowledged that draw winner of Chevrolet Beat car valuing to the tune of Rs.4,50,000/-  is adjusted against the basic sale price of the subject commercial space  of Rs.10,25,000/-. Thus, one thing is clear on record that the complainant has paid an amount of Rs.5,66,000/- to the OPs and in addition to that Rs.4,50,000/- won by him in draw was also adjusted by the OPs towards the basic sale price of the subject commercial space meaning thereby the   complainant paid a total amount of Rs.10,16,000/- (5,66,000/- + 4,50,000/-) to the OPs towards the sale consideration of the subject commercial  space but despite of that the OPs have failed to deliver the possession of the subject space to the complainant and the Ops cannot be allowed to make wait the complainant infinite period  for possession  of the subject commercial space.
   4. 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 in which it was 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. 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.
   5. 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.”

 

6. Further perusal of Annexure C-7  clearly indicates that in fact the OPs has not obtained any license from the competent authorities i.e. GMADA for setting up the project till 20.6.2020 as intimated by the GMADA authorities to the complainant making further clear that the Ops have collected huge amount from the complainant without obtaining necessary permissions and approval from the competent authorities. 
7. None has turned up on behalf of OPs  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 authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject commercial space.  If the OPs 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 commercial space has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, 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…..”

 

8. 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…………”

 

9. Hence, the aforesaid act of the OPs 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 OPs are directed as under :-

 

1. to refund ₹10,16,000/- to the complainant alongwith interest @ 9% per annum from date of allotment of the subject commercial space i.e. 30.9.2013  till onwards.
2. to pay an amount of ₹40,000/- 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 jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
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 02/07/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member