Chandigarh

DF-I

CC/748/2022

ANAND KUMAR YADAV - Complainant(s)

Versus

M/S R. K. M. HOUSING LIMITED - Opp.Party(s)

02 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

[1]

Consumer Complaint No.	:	CC/748/2022
Date of Institution	:	22/08/2022
Date of Decision	:	02/01/2024

 

Anand Kumar Yadav s/o Sh. Sher Singh Yadav r/o House No.5009, Ground Floor, MHC, Manimajra – 160101.

… Complainant

V E R S U S

1. M/s R.K.M. Housing Limited, a Company incorporated under the Companies Act, 1956, through its Managing Director/Director/Authorized Signatory.

Registered Office:

SCO No.1,2,3,4 at site at Sector 112, S.A.S. Nagar, Mohali.

2. Sh. Kanwaljit Singh, Director, M/s R.K.M. Housing Limited, Through Superintendent Jail, Central Jail, Burail, Chandigarh (In custody in Execution no.EA/184/2019 before Hon'ble State Consumer Disputes Redressal Commission, Punjab)
3. Smt. Manpreet Kaur, Director, M/s R.K.M. Housing Limited SCO no. 1,2,3,4 at site at Sector 112, S.A.S. Nagar, Mohali.

… Opposite Parties

[2]

Consumer Complaint No.	:	CC/749/2022
Date of Institution	:	22/08/2022
Date of Decision	:	02/01/2024

 

1. Dharamvir Singh Yadav aged 66 Years S/o Sh. Sher Singh Yadav
2. Promila Yadav aged 60 years W/o Sh. Dharamvir Singh Yadav

Both residents of House No. 1410, Sector 35B, Chandigarh.

… Complainants

V E R S U S

1. M/s R.K.M. Housing Limited, a Company incorporated under the Companies Act, 1956, through its Managing Director/Director/Authorized Signatory.

Registered Office:

SCO No.1,2,3,4 at site at Sector 112, S.A.S. Nagar, Mohali.

2. Sh. Kanwaljit Singh, Director, M/s R.K.M. Housing Limited, Through Superintendent Jail, Central Jail, Burail, Chandigarh (In custody in Execution no.EA/184/2019 before Hon'ble State Consumer Disputes Redressal Commission, Punjab)
3. Smt. Manpreet Kaur, Director, M/s R.K.M. Housing Limited SCO no.1,2,3,4 at site at Sector 112, S.A.S. Nagar, Mohali.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Navneet Jindal, Advocate for complainants
	:	Sh. J.S. Rattu, Advocate for OPs 1 & 2
	:	OP-3 ex-parte

Per Pawanjit Singh, President

1. By this order, we propose to dispose of the captioned consumer complaints, filed by the respective complainants, in which common questions of law and facts are involved. The facts, apart from minor variation here and there, are also almost analogous. The complainants in the above complaints have sought the relief of refund of the amount paid alongwith interest and compensation etc. As such, during arguments, it was agreed upon by the parties that captioned consumer complaints can be disposed of by passing a consolidated order.
2. To dictate the order, facts are being taken from Consumer Complaint No.748 of 2022-Anand Kumar Yadav Vs. M/s R.K.M. Housing Limited & Ors.
3. It transpires from the allegations as projected in the consumer complaint that the OPs floated a scheme for development of a residential colony/project in Sector 112, Mohali in Ext -1 (hereinafter referred to as “subject project”) for which they called applications.  At the time of launching the scheme, OPs represented to the complainant that they were having all approvals from the competent authorities for development of the colony and it was also assured that the possession of the plot will be handed over within a period of two years from the date of execution of the agreement.  Being allured with the promises, complainant decided to purchase a plot in the subject project so that after his retirement the family can be settled there and accordingly he approached the OPs who agreed to allot plot size of 150 sq. yards @ ₹12,000/- per sq. yard.  The complainant vide application (Annexure C-1) booked a plot by paying ₹50,000/ and provisional allotment letter dated 2.10.2011 (Annexure C-2) was issued to him vide which plot No.650, measuring 150 sq. yard in Sector 112, SAS Nagar (Mohali) (hereinafter referred to as “subject plot”) was allotted and on 3.2.2011 Memorandum of Understanding (Annexure C-3) was also signed by the complainant. The complainant had made total payment of ₹20,92,500/- to the OPs vide receipts (Annexure C-4 to C-23) as tabulated in para No.3 of the consumer complaint. On receiving the entire payment, OPs had issued the no due certificate (Annexure C-24). Despite of receiving the full and final payment in the year 2013, possession of the subject plot has not been given by the OPs to the complainant and since then OPs are enjoying the said amount. The complainant had invested his hard earned money in the subject plot with a dream to have his own house after retirement, which could not be fulfilled due to the act of the OPs.  In the year 2020, the complainant came to know that OPs 2 & 3, Directors of OP-1, had been arrested.  Later on, OP-2 was released on interim bail for raising fund and the complainant met him on several occasions and only assurances were given by him.  In this manner, it is clear that the possession of the subject plot cannot be given as the complainant further came to know that the OPs have not deposited the EDC charges with the Greater Mohali Area Development Authority (GMADA) till date.  The OPs have not been handing over possession of the subject plot till date and further they have violated the provisions of the Punjab Apartments and Property Regulations Act, 1995 by not seeking approvals from the competent authorities for launching the said project and by collecting huge amount from the complainant they are enjoying the same.  Not only this, OPs have also already closed their office and the subject project has been abandoned and in this manner the complainant is entitled for the refund of the amount paid to the OPs alongwith interest @10% as per clause 7 of the MoU.  In this manner, the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
4. OPs 1 & 2 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, jurisdiction, limitation, arbitration etc.  It is further alleged that the complainant is habitual defaulter and has defaulted in almost all the payments and had not sent back the signed copy of the MOU Dated 12.4.2011.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
5. Pursuant to the notice issued by this Commission, initially Ms. Parminder Kaur, Advocate appeared on behalf of all the OPs and sought time for filing reply and evidence. However, subsequently, neither anybody appeared on behalf of OP-3 nor reply and evidence were filed on its behalf, therefore, vide order dated 29.3.2023 OP-3 was proceeded against ex-parte.
6. In replication, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
7. In order to prove his case, complainant tendered/proved evidence by way of affidavit and supporting documents. However, as OPs 1 & 2 failed to file evidence despite grant of sufficient opportunity, therefore, vide order dated 25.5.2023 of this Commission, opportunity to file the same was closed.
8. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had booked the subject plot measuring 150 sq. yards by paying the booking amount of ₹50,000/- vide application (Annexure C-1) and thereafter the OPs had allotted the subject plot, as is also evident from the allotment letter (provisional) (Annexure C-2) and the complainant has also paid the entire amount, including development charges, as is evident from the copies of receipts (Annexure C-4 to C-23) and also that nothing is payable by the complainant to the OPs, as is also evident from the no dues certificate (Annexure C-24) issued by the OPs, the case is reduced to a narrow compass as it is to be determined if the OPs have received the entire sale consideration from the complainant without obtaining the necessary sanctions/approvals from the competent authorities for launching the subject project and in this way there is deficiency in service and unfair trade practice on the part of the OPs and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint is not maintainable on account of the legal objections taken by the OPs and the same is liable to be dismissed, as is the defence of the OPs.
   2. It is the case of the complainant that he had paid an amount of ₹20,92,500/- to the OPs, but, even after receiving the said amount, OPs have failed to develop the area and hand over possession, till date, as agreed upon, and the said act amounts to deficiency in service and unfair trade practice on their part.  All these allegations made in the consumer complaint by the complainant stands proved through the affidavit submitted by the complainant. On the other hand, OPs have failed to lead any evidence to counter the case of the complainant in order to prove their defence and also that they ever made any offer of possession to the complainant after receiving huge amount as agreed upon by them. 
   3. Not only this, even till date, when OPs have failed to prove on record that they are having requisite sanctions/approvals from the competent authorities for launching the subject project or that they have been allowed to sell the subject plots for which they have already extracted huge amount from the complainant, it is safe to hold that the OPs 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 flat.  If the OPs chose to accept the booking without obtaining approvals/clearances or amended clearances, it is only themselves to blame for the same as the purchaser of the subject floor/flat/plot has nothing to do with the grant of statutory approvals/ clearances/ amended clearances.
   4. It has thus been proved on record that money had been collected from the prospective buyers including the complainant by the OPs, 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…………”

5. The complainant has also relied upon the judgment of 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.
6. 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.”

 

7. The consumer complaint is further resisted by the OPs on the ground that the complainant, if aggrieved,  was required to approach the arbitrator against the OPs and the consumer complaint of the complainant is not maintainable before this Commission 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.
8. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed. 

9. In the light of the aforesaid discussion, the both the consumer complaints succeed, the same are hereby partly allowed and OPs are directed as under :-

CC/748/2022

1. to refund the amount of ₹20,92,500/- to the complainant alongwith interest @ 9% per annum from the respective date(s) of payment onwards.  However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject plot shall vest with the OPs, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay an amount of ₹50,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

10. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

CC/749/2022

1. to refund the amount of ₹27,90,000/- to the complainants alongwith interest @ 9% per annum from the respective date(s) of payment onwards.  However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject plot shall vest with the OPs, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay an amount of ₹50,000/- to the complainants as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

11. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
12. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
13. Certified copies of this order be sent to the parties free of charge. The file be consigned.

02/01/2024 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member