Chandigarh

DF-II

CC/136/2022

Sushila Devi - Complainant(s)

Versus

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

Adv. Rajesh Verma

03 May 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.

:

136 of 2022

Date of Institution

:

10.02.2022

Date of Decision    

:

03.05.2024

 

                   

           

 

Smt.Sushila Devi W/o Sh.Krishan Lal, Resident of Village and Post Office Kherampur, Tehsil Mandi Adampur, District Hissar, Haryana. 

                ...  Complainant

 

Versus

M/s Emerging Valley Pvt. Ltd., through its Managing Director Gurpreet Singh Sidhu, Earlier Address: SCO No.46-47, First Floor, Sector 9-D, Madhya Marg, Chandigarh

Present Address:  through Superintended, Model Jail (Burail Jail), Sarovar Path, Sector 51, Chandigarh 160051

…. Opposite Party

 

BEFORE:

 

 

SHRI AMRINDER SINGH SIDHU,

PRESIDENT

 

SHRI B.M.SHARMA

MEMBER

 

Present:-

 

 

Sh.Rajesh Verma, Counsel of complainant

None for the OP.

    

 

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

 

  1.     By dint of this common order, we propose to dispose of 08 connected consumer complaints in which common questions of law and fact are involved, the details of which along with amount involved therein, is as under:-

 

Sr. No.

Case No.

Complainant

Vs.

OP(s)

Unit

1.

136/2022

Sushila Devi

vs.

M/s Emerging Valley Pvt. Ltd.

Plot 200 sq. yards

2.

137/2022

Sushila Devi & Ors.

Vs.

M/s Emerging Valley Pvt. Ltd.

Plot 205 sq. yds.

3.

483/2022

Gurpreet Singh

Vs.

M/s Emerging Valley Pvt. Ltd.

Plot 260 sq. yds.

4.

942/2021

Balveer Kaur

Vs.

M/s Emerging India Housing Corporation (P) Ltd.

2 BHK Flat

5.

377/2023

Parveen Kumari

Vs.

M/s Emerging Valley Pvt. Ltd.

Plot 250 sq. yds.

6.

376/2023

Manoj Kumar

Vs.

M/s Emerging Valley Pvt. Ltd.

Plot 172 sq. yds.

7.

375/2023

Harbans Singh

Vs.

M/s Emerging Valley Pvt. Ltd.

Plot 260 sq. yds.

8.

769/2022

Anjali Rani

Vs.

M/s Emerging Valley Pvt. Ltd.

Plot 260 sq. yds.

  1.     The facts are gathered from C.C.No.136/2022-Sushila Devi Vs. M/s Emerging Valley Pvt. Ltd
  2.     The complainant has filed the present complaint alleging therein that Sh.Krishan Lal, husband of the complainant and Rakesh Shilla applied for two residential flat in the project of OP and later on their request and application, adjusted its amount in the name of the complainant and accordingly the complainant was allotted a residential plot of 200 sq. in the project of the OP namely Emerging Valley Pvt. Ltd., Landran Banur Road, Mohali and further paid Rs.16,13,500/- (Ann.C-1 to C-5 colly.).  Thereafter, the OP got executed the Sale Deed in favour of the complainant in respect of the plot in question on 04.04.2016 whereby the OP transferred the share of Plot No.EVP No.134 in the name of the complainant (Ann.C-7).   It is submitted that after adjusting the amount already paid by Sh.Krishan Lal, Rakesh Shilla, which has been adjusted against the plot of the complainant as they issued No Objection in her favour, so in total the complainant paid Rs.30,80,000/- to the OP. 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.
  3.     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 2016 and the sale deed of the unit was also executed in the name of the complainant and the complainant approached this Commission belatedly 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.
  4.     The complainant filed replication to the written reply of the OP(s) and controverted their stand and reiterating her own.
  5.     We have heard the ld.Counsel for the contesting parties and gone through the documents on record.
  6.     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.
  7.     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.

  1.     Admittedly, the Unit in question was sold to the complainant by the OP in their subject project.  It is also clear from Annexure C-7 that the OP executed Sale Deed in favour of the complainant in respect of the unit in question for which the complainant also bear the stamp duty & other misc. expenses. However, the complainant was not delivered the possession as the OP was not having necessary permissions & approvals from the competent authorities.
  2.     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……..”

  1.     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 a reasonable period certainly proves deficiency in service and its indulgence in unfair trade practice. 
  2.     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 loss to the complainant, but also caused them immense harassment & mental agony.
  3.     Similar 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. 
  4.     Resultantly, all the consumer complaints i.e. the present complaint as well as other consumer complaints, mentioned in para above, are partly allowed with direction to the Opposite Party(ies) to deliver the possession of the Unit in question, within a period of One Year, having all basic amenities, to the complainant(s) after obtaining necessary requisite permissions from the concerned competent authorities.
  5.     The pending application(s) if any, stands disposed of accordingly.
  6.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

03.05.2024                                                                         

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

 (B.M.SHARMA)

MEMBER

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