Chandigarh

DF-I

CC/431/2021

Mrs Reena - Complainant(s)

Versus

M/s Gupta Builders and Promoters Pvt. Ltd. - Opp.Party(s)

Col N K Kohli

18 Jul 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/431/2021
Date of Institution	:	06/07/2021
Date of Decision	:	18/07/2022

 

Mrs. Reena W/o Sh.Sanjay Jain, R/o H.No.754, HUDA Plots, Sector 19, Panchkula, Haryana-134113.

… Complainant

V E R S U S

1. M/s Gupta Builders and Promoters Pvt. Ltd., SCO No.196-197, Ground Floor, Sector 34A, Chandigarh-160022, through its Managing Director Mr.Satish Kumar Gupta.
2. Satish Kumar Gupta, Managing Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO No.196-197, Ground Floor, Sector 34A, Chandigarh-160022.
3. Pradeep Kumar, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO No.196-197, Ground Floor, Sector 34A, Chandigarh-160022.
4. Ajay Kumar, Director, M/s Gupta Builders and Promoters Pvt. Ltd., SCO No.196-197, Ground Floor, Sector 34A, Chandigarh-160022.

… Opposite Parties

CORAM :	SURESH KUMAR SARDANA	PRESIDING MEMBER
	SHRI BM SHARMA	MEMBER

 

                                                

ARGUED BY	:	Col.N.K.Kohli (Retd.), Counsel for Complainant.
	:	OPs ex-parte.

Per Suresh Kumar Sardana, Member

1.      The long and short of the allegations are that the complainant booked a plot of land 220 sq. yds. with the OPs in their upcoming project in the name of “GBP Aerosi” situated at Landran-Banur Road, District SAS Nagar (Mohali) by paying the booking amount of Rs.50,000/-. As per complaint, before making the said booking the complainant was shown the site map of the said project and the layout of plots (Annexure C-1). The OPs were offering different payment plans for the said plots. The complainant finding the said offer attractive agreed to pay 50 per cent of the cost of the plot upfront. The net discounted price of plot was worked out to be Rs.41,03,000/- and the complainant had made 50 per cent payment of the agreed amount i.e. Rs.20,60,000/- by 11.09.2019. A Copy of the said agreement is annexed as Annexure C-2. The OPs had promised that the plot in question will be handed over and registry thereof executed by March, 2020. The OPs took pretext of problems due to lockdown and other associated issues due to Covid pendemic and assured that they will make sure that registry of the plot booked in her name is executed latest by November, 2020.

    As per complaint, in July, 2020, the complainant learnt that the OPs do not have the sale deed of the land in question in their name and as such not legally entitled to sell the plot in question. Further that they have not yet registered their project “GBP Aerosi” under RERA although they had been initially claiming that it was under the process and later that it has been done. The complainant has been time and again visiting the OPs to know the exact date of offer of possession or refund of her money but the OPs failed to give any satisfactory answer. The OPs have failed to offer physical possession of the aforesaid plot to the complainant. Alleging that the aforesaid act and conduct of the OPs in not delivering timely possession nor refunding the amount paid, amounts to grave deficiency in service and unfair trade practice on the part of OPs, complainant has filed the instant complaint.

2.     Notice of the complaint was sent to OPs seeking their version of the case. However, nobody appeared on behalf of OPs despite service, therefore, they were proceeded ex-parte on 19.04.2022.
3.     Complainant led evidence by way of affidavits and documents.
4.     We have heard the learned counsel for the complainant and gone through the record of the case.
5.     It is evident from Annexure C-2, the agreement to sell on 31.12.2019, the OPs have admitted that they have received an amount of Rs.20,60,000/-. It is significant to mention here that the allegations leveled by the complainant, through his counsel to the effect that the project stood abandoned by the OPs and Directors of the company have left the country, have gone unrebutted, as the OPs, chose not to put in appearance, despite deemed service, as a result whereof they were proceeded against ex-parte.
6.     It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, the development/construction activities are being undertaken at the project site and the project is not abandoned as alleged by the complainant, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken or not, but, as stated above, the opposite parties even failed to put in appearance despite deemed service, what to speak of contesting the allegations leveled by the complainant, by way of filing written reply and evidence. It is therefore held that in the absence of rebuttal to the allegations made by the complainant, in its complaint, the opposite parties have attracted an adverse inference, that they have nothing to say in their defence. 
7.     Hard earned money to the tune of Rs.20,60,000/- respectively was paid by the complainant with a hope to have its own house. However, its hopes were dashed to the ground when they came to know that the project stood abandoned by the opposite parties and that their Directors whereabouts are not known and left the project midway.  From the peculiar circumstances of this case, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainant is thereby involved in a disadvantageous contracts with the developer and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainant to enter into the agreements, referred to above, and also intent to deceive them, which amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, which has definitely caused a lot of mental agony, harassment and financial loss to the complainant.
8.      The Hon’ble Apex Court in the case of Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors. – (2018) 5 SCC 442 and the Hon’ble National Commission in the case of Parsvnath Exotica Resident Association Vs. Parsvnath Developers Ltd. & Ors., Devidayal Aluminium Industries (P) Ltd.  – IV (2016) CPJ 328 (NC), Subodh Pawar Vs. M/s Ireo Grace Realtech Pvt. Ltd. – CC No. 1998/16 decided on 24.09.18 and Amita Arora Vs. M/s. Ireo Grace Realtech Pvt. Ltd. – C.C.No.696/2017 decided on 27.03.2019, has held that the Courts are at liberty to grant the relief which is justified and warranted in the facts and circumstances of the case and a complainant cannot be asked to wait for indefinite period for the possession of the allotted Units. Thus, keeping in mind the peculiar facts and circumstances of the present case, we are of the considered opinion that if the amount paid by the complainant, against its unit, is ordered to be refunded alongwith interest, compensation and litigation expenses (as there is no possibility of delivery of the unit in the near future, because of the reasons given above); that will meet the ends of justice. 
9.       Now, we will deal with the question, as to what rate of interest should be awarded to the complainant, while ordering refund of amounts paid, against its unit. It may be stated here that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. The party concerned in refund cases is suffering a loss inasmuch as she had deposited the money in the hope of getting a plot but she is deprived of same; she is deprived of the benefit of escalation of the price of that plot; and also she would have to take out more money from his pocket for beating the escalation in price, for buying a new plot and as such, compensation to be granted by way of interest on the deposited amount in such cases would necessarily have to be higher. Our this view is supported by the principle of law laid down by the Hon’ble Supreme Court in  Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held that in a case where money is being simply returned, the purchaser is suffering a loss in as much as he had deposited the money in the hope of getting a flat/plot and therefore, he has been deprived of the benefit of escalation of the price and the compensation in such cases, therefore, would necessarily have to be higher.

          The Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019;  and recently in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021, awarded interest @12% p.a. to the complainants, on the amounts to be refunded to them from the respective dates of deposits. It is therefore held that if interest @12% p.a. is awarded on the amounts to be refunded to the complainants, in the present consumer complaints, that will meet the ends of justice.

10.     Significantly, OPs did not appear to contest the claim of the complainant and preferred to proceed against ex-parte. This act of the OPs draws an adverse inference against them. The non-appearance of the OPs shows that they have nothing to say in their defence against the allegations made by the complainant. Therefore, the assertions of the complainant go unrebutted and uncontroverted.
11.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under :-

1. to refund an amount of ₹20,60,000/- to the complainant alongwith interest @ 9% per annum from the date of deposits till realization.
2. to pay an amount of ₹50,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay ₹15,000/- to the complainant as costs of litigation.

12.     This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
13.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
18/07/2022	[BM Sharma]	[Suresh Kumar Sardana]
Ls	Member	Presiding Member