Chandigarh

DF-II

CC/255/2022

Neeraj Ailawadi - Complainant(s)

Versus

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

Adv. Sachit Kaushal

07 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	255/2022
Date of Institution	:	15.03.2022
Date of Decision	:	07.03.2024

 

                                 

                    

 

Neeraj Ailawadi s/o Sh.Chander Mohan Ailawadi r/o H.No.73, Sector A, Defence Colony, Ambala Cantt., Ambala Haryana.

                           ...  Complainant.

Versus

1.    M/s Emerging Valley Pvt. Ltd., SCO No.46-47, 1^st Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh -160009 through its Director/Managing Director/Authorized  Representative.

2.    Director/Managing Director/Authorized  Representative of M/s Emerging Valley Pvt. Ltd., SCO No.46-47, 1^st Floor, Sector 9-D, Near Mattka Chowk, Madhya Marg, Chandigarh -160009

…. Opposite Parties

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SHRI B.M.SHARMA	MEMBER
Present:-
	Complainant in Person. Sh.J.S.Rattu, Counsel for OPs (through VC).

 

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

1.         By dint of this common order, we propose to dispose of 03 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	Plot size, Project Name & Total Consideration	Amount Deposited in Rs.
1.	255/2022	Neeraj Ailawadi Vs. M/s Emerging Valley Pvt. Ltd. & Anr.	Plot measuring 250 sq. yards in “Emerging Valley” located at Emerging Valley, Landran Banur Road, Mohali for Rs.38.75 lakhs + other charges	Rs.38.00 lakhs
2.	205/2022	Rachna Kumari Vs. M/s Emerging Valley Pvt. Ltd. & Anr.	Plot measuring 150 sq. yards in “Emerging Valley” located at Emerging Valley, Landran Banur Road, Mohali for Rs.22.50 lakhs + other charges	Rs.22,50,000/- (Annexure C-1)
3.	206/2022	Sunita Rani Vs. M/s Emerging Valley Pvt. Ltd. & Anr.	Plot measuring 200 sq. yards in “Emerging Valley Pvt. Ltd.” Landran Banur Road, Mohali for Rs.28.40 lakhs	Rs.28,40,000/- (Annexure C-1 & C-2 Colly.)

2.         The facts are gathered from C.C.No.255/2022-Neeraj Ailawadi Vs. M/s Emerging Valley Pvt Ltd. and Another.
3.         The complainant has filed the present complaint alleging therein that the complainant booked a residential plot measuring 250 sq. yards in the project of the OPs known as “Emerging Valley” located at Emerging Valley, Landran Banur Road, Mohali. The complainant was also issued allotment letter dated 12.10.2013 (Annexure C-1) in respect of the plot.  The complainant alleged that she had paid the entire price of Rs.38.00 lakhs to the OPs against receipts [Annexure C-2 (Colly.)]. Subsequently, the OPs have registered the sale deed in respect of the plot in favour of the complainant.   Subsequently, the complainant visited the site and surprised to see that the entire project of the OPs was sealed and the gates of the projects were also closed.  It has further been alleged that various notices of the Court have been affixed outside the walls of the project. It has further been alleged that the OPs have not obtained the requisite approvals/permissions from the competent authorities. It has further been alleged that the OPs have duped the complainant to tune of Rs.38.00 lakhs.  It has further been alleged that the complainant visited the OPs many times but they refused to refund the deposited amount with interest and rather they harassed and humiliated the complainant. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed this complaint seeking directions to the OPs to refund Rs.38,00,000/- along with interest, compensation and litigation costs.
4. After service of notice, the OPs filed their written version and took preliminary regarding maintainability of the complaint, arbitration clause, pecuniary jurisdiction, concealment of facts and cause of action.  It has been admitted that the complainant had booked the unit in question for Rs.38.75 lakhs and the receipts attached with the complaint only speak of Rs.17,43,800/- and thus the payment in the absence of the receipts are denied.  It has been stated that the complainant is a habitual defaulter. It has further been stated that the flat was ready for possession but the complainant has not opted for the possession  as the possession was also offered to him after making the balance payment of thenext price as he had not paid any amount after 15.04.2013.  It has further been stated that once the plot is registered in the name of the complainant then there is no question of duping the complainant. 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 their part, the OPs have prayed for dismissal of the complaint.
5. We have heard the complainant in person and the Counsel for the OPs through V.C. and gone through the documents on record.
6. The main plea taken by the OPs 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.
7.         The submission of the OPs 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 the OPs to the contrary has no force and the same is rejected accordingly.

8.         Admittedly, the complainant was allotted the unit in question vide provisional allotment letter dated 12.10.2013 for basic sale price of 38.75 lakhs.  The complainant has stated in the complaint that she had deposited the amount of Rs.38.00 lakhs towards the plot in question and even the OPs have also executed the sale deed 21.03.2016 in respect of the unit in question in favour of the complainant.  However, the possession of the plot complete in all respects has not been offered by the OPs. The OPs have also failed to place on record any documentary evidence in the shape of offer letter, occupation certificate and completion certificate showing that the plot in question complete in all respects i.e. all the basic amenities has ever been offered to the complainant. Meaning thereby that the OPs are not in a position to deliver the possession of the plot in question complete in all respects to the complainant after lapse of sufficient period. Thus, the complainant is entitled to refund of the deposited amount of Rs.38.00 lakhs with interest 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?”

9.         Hence, the act of the OPs 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 OPs 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 OPs, is clearly established, which not only caused financial loss to the complainant, but also caused them immense harassment & mental agony.
12.         Almost identical facts have been pleaded in another connected complaints 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.  
13.         Resultantly, all the consumer complaints are partly allowed.
14.         In C.C.No.255/2022-Neeraj Ailawadi Vs. M/s Emerging Valley Pvt Ltd. and Another, the OPs are directed to refund the deposited amounts i.e. Rs.38,00,000/- to the complainant 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 plot in question in favour of the OPs-Company on account of receiving sale consideration from them.
15.         In C.C.No.205/2022-Rachna Kumari Vs. M/s Emerging Valley Pvt Ltd. and Another, the OPs are directed to refund the deposited amounts i.e. Rs.22,50,000/- 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.206/2022-Sunita Rani Vs. M/s Emerging Valley Pvt Ltd. and Another, the OPs are directed to refund the deposited amounts i.e. Rs.28,40,000/- to the complainant alongwith interest @ 10% per annum from the date of its respective deposits till the date of its actual realization. 
17.         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.
18.         The pending application(s) if any, stands disposed of accordingly.
19.         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]
07.03.2024	MEMBER	PRESIDENT