Haryana

Panchkula

CC/93/2023

TARUN GOYAL - Complainant(s)

Versus

M/S SAMAR ESTATES PVT LTD - Opp.Party(s)

ANURAG GOYAL

25 Nov 2024

ORDER

            BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	93 of 2023
Date of Institution	:	12.04.2023
Date of Decision	:	25.11.2024

 

 

Tarun Goyal s/o Sh. Sohan Lal resident of House No.2577, Sector-15, Panchkula.

       

                ….Complainant

Versus

1.     M/s Samar Estates Pvt. Ltd., having its office at # 87, Sector-7,         Panchkula through its Authorised Signatory Sh. Vinod Bagai s/o         Sh.    Nand Lal, #87, Sector-7, Panchkula.

2.     Local Manager ESS VEE Apartments, Sector-20, Panchkula being        developed M/s Samar Estates Pvt. Ltd.

3.     Real Pro Assets Ltd., SCO 218-219, 2^nd Floor, Sector-34-A,        Chandigarh through its Authorised Signatory.

                                                                                     ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh.Satpal, President.

                        Dr.Sushma Garg, Member

                        Dr.Suman Singh, Member

 

 

For the Parties:   Ms. Anurag Goyal, Advocate for the complainant.

                        Sh. Ketan Khurana, Advocate for the OPs No.1 & 2.

                        Sh. Satbir Mor,  Advocate for OP No.3.

                       

                                                                       

ORDER

(Satpal, President)

1.             Today, the case is fixed for consideration on the order dated 12.01.2024 passed by the Hon’ble NCLT, Chandigarh, in petition bearing no.CP(IB)98/CHD/Hry/2022 titled as ‘Punjab and Sind Bank vs. Samar Estates Pvt. Ltd.

2.             The brief facts, as per the pleadings as well as documentary evidence placed on record, are, that the complainant was looking for a residential house in the year 2010 and in this regard, he visited the office of the opposite party no.3(hereinafter referred to as OP No.3) in the month of January 2011, who was the marketing agency/Real Estate agent  of Opposite parties No.1 & 2(hereinafter referred to as OPs No.1 & 2). At that time, the OP No.3 allured the complainant that he could get a very luxuries residential flat alongwith lot of facilities in the project of OP No.1, namely, ESS VEE Apartments, Sector-20, Panchkula. The OP No.3 assured the complainant that the project would be completed within 1 year. The OP No.3 also visited the site of the project i.e. ESS VEE Apartments, Sector-20, Panchkula alongwith the complainant. As the construction was going on, the complainant got allured by the version  of the OP No.3 and got ready to purchase the flat in the project of OP No.1 i.e. in ESS VEE Apartments, Sector-20, Panchkula and in this regard, the complainant paid a total sum of Rs.7,10,000/- i.e. Rs.4,00,000/- on 03.01.2011, Rs.1,00,000/- on 08.01.2011,  Rs. 2,10,000/- on 12.04.2011 to the OP No.3 and in this regard, the OP No.3 issued a receipt to the complainant on 12.04.2011 as an booking amount of Flat no.201 in Block H at Samar Estate. The complainant submitted an application form for allotment of a residential apartment, in ESS VEE Apartment in Sector-20, Panchkula on 28.04.2011, which was a Group Housing Project of Samar Estate Private Limited of the OPs No.1 & 2 and at that time, paid a sum of Rs.7,00,000/- vide cheque no.529024 dated 28.04.2011 drawn on Bank of Baroda in favour of Samar Estate Private Limited. At that time, the OPs No.1 & 2 confirmed the version of the OP No.3 and assured the complainant that the possession of the Flat would be handed over to him within one year. It is submitted that the Apartment Buyer Agreement was executed between the complainant and the OP No.1 on 05.06.2011 at Panchkula for Apartment no.H-201 in Tower No.H-201, Floor no.2^nd, Floor measuring 1725 sq. ft. at the cost of Rs.53,00,000/- in ESS VEE Apartments, Sector-20, Panchkula, which was being developed  by M/s Samar Estates Private Limited i.e. OP No.1. It is stated that as per the agreement, the OPs No.1 & 2 had to handover the possession of the flat/apartment within 36 months from the date of commencement of construction.  It is averred that the complainant paid a total sum of Rs. 48,02,156/- till  21.12.2014 to the OPs but the OPs No.1 & 2 did not hand over the possession of the Flat/Apartment  to him. It is averred that the OPs No.1 & 2 issued the receipt of Rs.7,10,000/- which was taken by OP No.3 on behalf of the OPs No.1 & 2 for booking the Flat/ Apartments, Sector-20, Panchkula but the Ops No.1 & 2 did not issue the receipt of this amount.  It is averred that the complainant many times visited the OPs No.1 & 2 at the office of OPs at Panchkula and requested to tell the date of possession of the flat but the office bearers of the Ops at Panchkula office did not give any satisfactory answer to the complainant. It is stated that the OPs No.1 & 2, despite of the fact that they did not complete the project and did not hand over the possession of the flat to the complainant in time as per terms and conditions of the Flat Buyer Agreement, the complainant regularly paid the installaments of the flat/apartment and in this way, the complainant had paid a sum of Rs.48,02,156/- i.e. about approx, 90% of the total sale consideration by taking loans from his relatives and friends etc. on interest. It is averred that the OPs No.1 & 2, as per the terms and conditions of the Flat Buyer Agreement did not completed the project and did not hand over the possession of the flat in time. Thus, the complainant has suffered great financial loss as well as mental agony problem because of the irresponsible conduct of the Ops. Despite  the fact that  the complainant had paid about 90% amount of the total sale consideration to the Ops and till date the complainant had paid to the Ops Rs.48,02,156/- and last installment paid on 2014, but the Ops No.1 & 2 did not complete the project and misappropriated the money of the complainant. Furthermore, the Ops have miserably failed to adhere to the agreed terms of the said agreement. It is averred that the complainant requested many times to the officer bearers of the Ops No.1 & 2 present at the site to hand over the possession of the flat/ apartment or to refund his money but the office bearers of OPs No.1 & 2 did not respond on the genuine request of the complainant, which manifests that the OPs No.1 & 2 have no intention to handover the possession of the flat/apartment or to refund the money paid by the complainant. Ultimately, a legal notice dated 25.01.2023 was sent but to no avail.  Due to the act and conduct of the OPs, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

3.             Upon notice, the OPs No.1 & 2 has appeared through counsel and filed the written statement by raising preliminary objections that as per Clause 46 of the Apartment Buyer’s Agreement dated 05.06.2011, the dispute, if any, between the parties was liable to be is referred to arbitrator; thus, the complaint is liable to be dismissed; the present complaint is barred by limitation. The Consumer Commission lacks pecuniary jurisdiction as the complainant has claimed the compensation exceeding Rs.50,00,000/-; the complainant has not approached the Commission with clean hands. It is submitted that as per letter dated 05.07.2012, 4^th construction linked installment of Tower H had become due on 30.06.2012 as casting of the silt floor slab of the said tower & construction upto brick work of the said apartment, has been executed and hence, the complainant was asked to deposit the installment. The complainant never controverted this fact or even chose to reply to the same. It is submitted that the complainant has booked the Apartment No.H-201 in Tower-H of Ess Vee Apartments being constructed and developed by OP No.1. It is further submitted that the OP No.1 suffered huge financial losses due to covid-19 and because of this very reason, the construction of the present project was interrupted but now, the financial issues are slowly being resolved and the said project is likely to be completed tentatively within next 12 months. It is submitted that  the OPs No.1 & 2 upto 31.03.2019 have paid charges  amounting to Rs.30.50 crore i.e. License fee, conversion charges, service charges, scrutiny fee, 100% EDC & 100/- IDC to the Government, besides  the land cost (book value of Rs.5.38 crore) paid to the land owners & HSVP/HUDA. The OPs No.1 & 2 have incurred expenditure of about Rs.186.05 crore towards development/construction cost; thus, totaling Rs.221.9. crore against the total receipts/advances of Rs.92.75 crore from the allottees. About Rs.186.18 crore is still overdue from the buyers of Pocket-A i.e. Ess Vee Apartments, after adjusting the above said receipts/advances of Rs.92.75 crore upto 31.03.2019. It is submitted that all necessary permissions and license were taken by the Ops qua the construction of the project in question. It is submitted that OPs No.1 & 2 making their sincere efforts to complete the construction but the funds for construction are to flow only from the flat buyers. Due to worldwide recession in the market during the last five years, buyers are not coming forward to invest in the real estate market. Even, the persons just like the present complainant, who had booked flats in the ongoing projects are not paying the due amount of installments in time, which resulted in delaying the construction work.

                On merits, the 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 OPs No.1 & 2; as such, the present complaint is liable to be dismissed.

 4.            Upon notice, the OP  No.3  appeared through counsel and filed written statement by raising preliminary objections that the District Consumer Commission lacks the pecuniary jurisdiction as the amount claimed  is  in excess of Rs.50 lacs; the complainant is time barred. It is submitted that the OP No.3 has made no transaction with the complainant in its personal capacity. Even as per the case of the complainant, the OP No.3 is an agent of OP No.1. It is well settled that an agent cannot be held personally liable for the acts done in performance of its duties as an agent. It is submitted that the present complaint is liable to be dismissed, since the complainant has failed to show any deficiency in services or alleged unfair trade practice on the part of OP No.2. The complainant has all dealing and transaction with OP No.1 only and hence, the complainant cannot be said to be a consumer qua the OP No.3. It is submitted that the OP No.3 is neither a manufacturer nor a trader within the scope of the Act and hence, no liability can be fastened upon OP No.3 as prayed for the complainant.

                On merits, it is submitted that the OP No.3 is an agent of OP No.1 and hence, any money received in that capacity is not recoverable from the agent. It is submitted that the OP No.3 never received any amount from the complainant in its personal capacity. It is submitted that the complainants booked a three-bedroom flat bearing no.201, Tower H in ESS Vee Apartments, Sector-20, Panchkula, Haryana. It is submitted that any payment as received by the OP No.3 was accepted on behalf of the OP No.1 and not in personal capacity. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP No.3 and as such, the complaint is liable to be dismissed.

5.             We have heard the learned counsels for the parties and gone through the entire record available on the file, minutely and carefully.

6.             On 20.02.2024, the learned counsel on behalf of the OPs No.1 & 2 has placed on record the copy of order passed on 12.01.2024 by the Hon’ble National Company Law Tribunal, Bench Chandigarh in IA No. 2553/23 & CP(Lb) No.98/CHD/Hry/2022 under Section 7 & 60(5) of Lbc, 2016 in the matter of Punjab & Sind Bank Vs. Samar Estate,  wherein vide para no.11.8, moratorium has been imposed as envisaged vide Section 14 of the Insolvency & Bankruptcy Code, 2016,  according to which, the institution of  suits or continuation of pending suits  of  proceedings against the corporate debtor i.e. Samar Estates(OPs No.1 & 2) has been prohibited.

7.             The learned counsel on behalf of the complainant has no objection, if the complaint is adjourned sine die in the light of order passed by the Hon’ble NCLT dated 12.01.2024 qua OPs No.1 & 2 only. The learned counsel has contended that the complainant had made the payment of Rs.7,10,000/- to OP No.3 as booking amount for the Flat no. 201 in Block H in OP No.1 project. The learned counsel has contended that the OP No.3 has not forwarded the said booking amount to OPs No.1 & 2. The learned counsel has further argued that no moratorium has been imposed against the OP No.3 and thus, has prayed for continuation of the present proceedings against OP No.3.

8.             We have perused the receipt dated 12.04.2011 issued by OP No.3 and find that a sum of Rs.7,10,000/- was received by it as booking amount for Flat No.201 in Block H in Samar Estates i.e. OP No.1.

9.             Admittedly, the OP No.3 has received the said amount, working as an agent, on behalf of the OPs No.1 & 2, against whom moratorium has been imposed as discussed above vide order dated 12.01.2024 passed by the Hon’ble NCLT Bench Chandigarh; thus, we find no force and substance in the submissions made by the learned counsel for the complainant and accordingly, the same are hereby dismissed.

10.            As the Hon’ble NCLT, Chandigarh Bench, Chandigarh vide order dated 12.01.2024 passed in case(supra) has imposed moratorium as envisaged vide Section 14 of the Insolvency & Bankruptcy Code, 2016,  according to which, the institution of  suits or continuation of pending suits  of  proceedings against the corporate debtor i.e. Samar Estates(OPs No.1 & 2) has been prohibited; thus, the present complaint is disposed of accordingly.

11.            A copy of this order shall be forwarded, free of costs, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on: 25.11.2024

 

 

 

        Dr.Suman Singh                 Dr.Sushma Garg             Satpal

             Member                                    Member                 President

 

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

 

                                                 Satpal

                                            President