BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

1.     Sh. Bhushan Gupta s/o Late Sh. Pirthi Chand Gupta r/o House    No.65, Village Majri, District and Tehsil, Panchkula, Haryana.

2.     Smt. Nisha Gupta w/o Sh. Bhushan Gupta r/o House No.65, Village     Majri, District and Tehsil Panchkula, Haryana

                                                                         ….Complainants

Versus

1.     M/s Green Space Infraheights Private Limited having its Registered Office at 301-311, 3^rd Floor, Indraprakash Building, 21, Barakhamba Road, Cannaught Place, New Delhi-110001.

        Also at:SCO-406, Ist and 2^nd Floor, Sector-20, Panchkula.

2.     M/s Green Space Infraheights Private Limited through its Managing Director, Sh. Sandeep Jain at 301-311, 3^rd Floor, Indraprakash Building, 21, Barakhamba Road, Cannaught Place, New Delhi-110001.

        Also at: SCO: 406, 1^st and 2^nd Floor, Sector-20, Panchkula.

3.     M/s Green Space Infraheights Private Limited through its Director, Sh. Sachin Jain at 301-311, 3^rd Floor, Indraprakash Building, 21, Barakhamba Road, Cannaught Place, New Delhi-110001.

        Also at: SCO: 406, 1^st and 2^nd Floor, Sector-20, Panchkula.

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr.Barhm Parkash Yadav

For the Parties:   Sh.Sidhant Bhonsle, Advocate for the complainants.  

                        Sh.Manoj Lakhotia, Advocate for OPs No.1 to 3.

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the Ops had launched an Affordable Group Housing Colony, namely, “Shree Vardhaman Green Space” in Village Billah, Sector-14, Panchkula Extn. II, District Panchkula, Haryana. On 25.05.2015, the complainants, for their residential purpose, booked a Category-II unit in the project launched by the OPs vide application no.2114 and paid Rs.72163/- as the booking amount. Also, on 26.08.2015, flat no.1107, 11^th Floor, Tower-E, was allotted to the complainants and after adjustment of the booking amount, complainants were asked to make further payment of Rs.2,89,800/- as acceptance of the above said allotment which came out to be equivalent to 25% of the basic sale price. The complainants being in subservient position made the above said payment on 10.09.2015. The Ops had collected 25% of the basic price even before obtaining requisite permissions and sanctions from various department/authorities and thereby the Ops have indulged in unfair trade practices by collecting huge amounts from the complainants without requisite permissions and sanctions. The flat buyer’s agreement was executed on 18.01.2016 i.e. only after passing of 4 months from the date of allotment/payment of 25% of the basic sale price. It is averred that the complainants have been paying installments as and when demanded by the OPs. On 10.02.2017, the complainants visited the office of OPs at Sector-26, Chandigarh but staff of the Ops asked to them that Ops have shifted the local office to the project site. In September, 2018, the complainants went to the office of the OPs at the project site and the official of the Ops told that the payment plan has been updated and the same has been uploaded on the website of the Ops. In March, 2019 the complainants visited the project site of the OPs and see that the project was nowhere near completion. On 12.10.2020, the complainants again visited the project site and disappointed with the progress of the project. However, a customer ledger dated 12.10.2020 whereby they were being asked to pay Rs.66049/- which included Rs.20,799/- as interest at an exorbitant rate of 15% per annum. Feeling aggrieved by the malpractices of the Ops, the complainants approached the officials of the OPs on 13.10.2020 demanding refund of the amount paid by them but they received no proper response.  The complainants have served a legal notice upon the OPs on 15.10.2020 but no reply/response received by the OPs till date. Due to the act and conduct of Ops, the complainant has suffered a great deal of financial loss, mental agony and harassment; hence, the present complaint.

2.             Upon notice Ops No.1 to 3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; has not come with clean hands; time barred; concealed material facts. It is stated that the OPs are engaged in the business of real estate development and it proposed to develop an affordable residential housing scheme/colony, namely, “Shree Vardhman Green Space” at Panchkula extension, District Panchkula, Haryana. The complainants had submitted a joint application to the Ops for booking/allotment of one BHK flat having super built up area of 535 sq. ft. in the said scheme. The application form also contained the payment plan in accordance to which the complainants were to make the due installments as specified. The payment plan clearly stated at the time of application 5% of the Basic Sale Price within 15 days from the issuance of allotment letter 20% of the BSP and thereon at intervals of 6 months 12.5% of the total BSP was to be paid respectively. The allotment was required to be made through draw of lots to be held in the presence of a committee consisting of Deputy Commissioner or his representative Senior Town Planner, DTP of the concerned District.  The complainants informed by the OPs vide its letter dated 13.08.2015 that the draw is to be held on 25.08.2015 and they were invited to the said event and Bhoomi Pujan of the said project was held on 15.03.2016. The complainants are well aware of the terms of the agreement signed and handed over to the OPs. It is submitted that as per clause 4(a) of the flat buyer agreement the timely payment of the installments of the basic price and other charges are the essence of the agreement.  It is also stated that as per clause 8(a) of the Agreement the date of delivery of possession is tentative and subject to force major circumstances, which was in the knowledge of the complainants.  Further, the complainants themselves have breached the terms of the agreement and failed to make payment of installments on time. It is submitted that the complainants have breached their obligation to make payment of the installments timely and caused losses to the Ops it kept reserved one of the flat for the complainants for a considerable period of time without payment of the agreed installments on time. In the real estate projects like the project in question the development being multi-storied group housing development, the default in payment committed by even one allottee adversely affect and thereby causing impediment in the development and overall delay in delivery of the project. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint of the complainant is liable to be dismissed. So, there is no deficiency in service on the part of the OPs No. 1 to 3 and prayed for dismissal of the present complaint.

3.             The learned counsel for the complainants has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 to 3 tendered affidavit Annexure R-A alongwith Annexure R-1 to R-5 and closed the evidence.

4.             We have heard the learned counsels for the parties and gone through the entire record available on file including the written arguments filed by the learned counsel for complainant as well as OPs No.1 to 3, minutely and carefully.

5.             Admittedly, the complainant applied for the allotment of a flat having super built up area, measuring 535 sqr. feet, vide his application no.002114(Annexure R-2) by paying  a sum of Rs.72,163/- to OPs as booking amount, vide acknowledgment/receipt Annexure C-2 & C-3, in the housing project, namely, “Shree Vardhaman Green Space” located in Village Billah, Sector-14 Panchkula, Extn.II, District Panchkula, to be developed by the OPs wherein he was found successful for the allotment of flat no.1107, floor 11^th tower ‘E’ in the draw of lots held on 25.08.2015  and accordingly, allotment letter dated 26.08.2015(Annexure C-4) was issued to the complainant. Thereafter, Flat Buyer’s Agreement(Annexure C-6) containing various terms and conditions was executed between the parties on 18.01.2016. The payment amounting to Rs.12,36,963/- made by the complainant vide several receipts qua the price of the said flat is not in dispute. The main grouse of the complainant is that despite his making substantial payment qua price of the flat, the project in question has not been completed alleging deficiency on the part of OPs so far and thus, has filed this complaint seeking the refund of deposited amount of Rs.12,36,963/-along with compensation of Rs.1,00,000 and Rs.50,000/- on account of mental agony and physical harassment and litigation charges respectively.

6.             The complaint is resisted by raising preliminary objections as well as on merits by the OPs in their written statement. It is contended that the complaint is time barred and liable to be dismissed on this ground alone. This objection is rejected in view of the fact that a sum of Rs.12,36,963/- is still lying deposited with the Ops and further, the possession of the allotted flat has not been offered so far.

7.             The next objection is that the issue involved in the adjudication of the present complaint cannot be decided in a summary proceeding as the adjudication would require extensive evidence to be led by the parties, involving examination and cross-examination of witnesses, for proper adjudication. This objection is also rejected as the controversy can be adjudicated in a proper and fair manner on the basis of documentary evidence alone and therefore, no merit is found in this objection.

8.             On merits, it is strongly contended that as per Clause 4(a) of the Flat Buyer’s Agreement(Annexure C-6), it was incumbent upon the complainant to make timely payments of the installment qua the basic price of the flat and other charges as the same is/was the essence of the agreement. It is contended that the complainant defaulted, on various occasions, in making the payment of due installment and accordingly, he was issued several notices/letters, details, whereof/thereof is given in para No.9 of the written submissions of the OPs. It is strongly argued that the complainants themselves have breached the terms of the Flat Buyer’s Agreement(Annexure C-6), while not making the timely payment and thus, the complaint is liable to be dismissed. It is contended that the default in payment committed even by one allottee in the multi-storied group housing project adversely affected the development of the other units as well as financial planning and the pace of the project etc. The learned counsel denying  any lapse and deficiency on the part of the Ops invited our attention towards the details submissions made in Clause vi of para ‘B’ of the written submissions, wherein it is contended that the project has got delayed on account of force majeure conditions arising out of Covid-19 situation. It is further contended that the refund of the amount to the complainant would jeopardize the completion of the project and impact the remaining home buyers as the project is nearing the completion. Concluding the arguments, the learned counsel prayed for dismissal of the present complaint being baseless and meritless.

9.             After hearing the rival contentions of the learned counsels for both the parties and perusing the entire record available on the file, it is found that the OPs had collected the amount qua price of the flat from various consumers/allottees including the complainant even before the receipt of necessary approvals/sanctions. As per admitted factual position, the Ops had collected a sum of Rs.3,61,963/- till 10.09.2015, whereas  the Flat Buyer’s Agreement was executed on 18.01.2016. As per version of the Ops, environmental clearance for the project was granted by the State Environment Impact Assessment Authority, Haryana on 15.03.2016; as such, the opposite parties had collected huge amount from the innocent and gullible customers without obtaining the required permissions and sanctions from the competent authorities. A builder is legally bound to first obtain the requisite permissions and sanctions from the Authorities and then collect the consideration money from the general public interested to buy units in its project. In Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC), it was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, schematic building plan etc. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction of construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/buildings. The ratio of law, laid down in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licences and without getting the necessary approvals, the same amounting to indulgence into unfair trade practice, on the part of the builder. This was reiterated by the Honble National Commission, recently in M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First decided on 31 May 2018., as under:- Appeal No. 1787 of 2016, 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. In view of the aforesaid legal position, the OPs have indulged into unfair trade practice while collecting the amount from the buyers/ consumers even before obtaining the necessary approvals/sanctions.

10.            Further, the unfair trade practice on the part of the OPs is evident from the fact that as per the terms and conditions of the Flat Buyer’s Agreement(Annexure C-6), the complainant was liable to be penalized in the event of default of installment qua the price of the flat whereas there is no such clause penalizing the OPs in the event of their failure to deliver the possession within the stipulated period of four years.

11.            Further, it is pertinent to mention that as per terms and conditions appended with the application form(Annexure R-2), the possession of the flat was to be delivered within a period of 4 years from the date of allotment whereas according to clause 8 of the Flat Buyer’s Agreement(Annexure C-6), it was to be delivered within a period of 4 years from the date of approvals of building plans or grant of environmental clearance whichever is later; thus, we find that the Ops, while indulging into unfair trade practices had changed the terms and conditions qua the delivery of possession to the disadvantage of the consumers.

12.            The last deficiency on the part of the OPs, which is very important, is evident from the fact is that the OPs have failed to deliver the possession of the flat as stipulated vide terms and conditions of the Flat Buyer’s Agreement. According to Clause C-8 of the Flat Buyer’s Agreement(Annexure C-6), it was incumbent upon the OPs to offer the possession of the plot within a period of 4 years from the grant of environmental clearance, which was admittedly, granted on 15.03.2016. As per the version of OPs, the project is at the final stage and nearing completion; however, no documentary evidence in support of OPs contention has been placed on record. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence, do not carry any evidentiary value. Further, it is also not the case of the OPs that they have applied for the occupation certificate qua the completion of the said project, wherein the flat of the complainant is located. Needless to mention here that occupation certificate is granted by the competent authority on the basis of certificates/clearances issued by the various authorities e.g. stability certificate issued by the structural engineer, NOC from Fire Authorities & electrical fitness certificate etc. 

13.            Recently, the Hon’ble National Commission in consumer case no.2562 of 2018 titled as Sangeeta Agarwal & Anr Vs. M/s Chintels India Ltd. vide its order dated 27.05.2022  has held that plot  purchaser cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. The Para No.14 of the said order is reproduced as under:-

The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra in Civil Appeal no.3182 of 2019 decided on 25.03.2019 as well as in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and connected matter in CA No.12238 of 2018 decided on 02.04.2019-(2019) 5 SCC 725, has held that flat purchasers cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. In the present complaint, there is neither a valid occupation certificate nor can the opposite party claim to have made a proper offer of possession. Therefore, there is, merit in the complainants’ averments.

14.            In view of the aforementioned factual and legal position, we conclude that OPs are liable to refund the deposited amount alongwith interest jointly and severally.

15.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 3:-

1. To refund a sum of Rs.12,36,963/- to the complainant along with interest @ 9% per annum w.e.f. the date of each deposit  till actual realization.
2. To pay an amount of Rs.20,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation charges.

16.            The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:25.07.2022

Dr.Sushma Garg                          Satpal          

           Member                                  President

Note: Each and every page of this order has been duly signed by me.

                                         Satpal,                              

President