Chandigarh

DF-I

CC/284/2020

Ashwani Kumar - Complainant(s)

Versus

M/s Sanskriti Golden Oak Real Estate Pvt. Ltd. - Opp.Party(s)

H.S. Rakhra

04 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/284/2020
Date of Institution	:	7.8.2020
Date of Decision	:	4/09 /2023

 

Ashwani Kumar son of late Sh. Gian Chand r/o H. No.603, PEC Campus, Sector  12, Chandigarh Now resident of Palm Heights, Sunny Enclave, Sector 125, Mohali Punjab.

… Complainant(s)

V E R S U S

1.       M/s Sanskriti Golden Oak Real Estate Pvt. Ltd. having its registered office at DLF  Pocket R2, New Chandigarh (Mullanpur), District SAS Nagar, Mohali through its Managing Director/ Authorized representative.

2.       Ravi Garg Managing Director/Chairperson/authorized person of M/s Sanskriti Home, Sub Diary of M/s Golden Oak Real Estate Pvt. Ltd. SCO No. 78-79, Sector 8-C, Chandigarh now resident of H. No.639, Sector 11, Chandigarh.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Sh.Amit Kumar Rai, Counsel for complainant
	:	None for OPs (Defence of OPs already struck off. )

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OP/OPs). The brief facts of the case are as under:-

1. It transpires from the averments as projected in the consumer complaint that OPs are engaged in the business of construction of real estate development had launched the project “Sanskriti Homes” in the year 2016 and advertised their project and assured the member of the general public and prospective consumers about the prompt commencement of construction work in the land located in the DLF, Hyde Park, New Chandigarh.  At that time the OPs had also claimed to have approval and license for developing and construction group housing complex and for carving out allotted units  of the project. The complainant entered into an agreement with the OPs  for the purchase of the  dwelling unit  costing to Rs.66,20,550/-. The complainant had deposited amount of Rs.35.00 lakh through three separate transactions i.e. RTGS and further paid an amount to the tune  of Rs.25.00  lakh.   and Rs.6,20,550/-  on different dates. The complainant had made the payment to authorized signatory of the M/s Golden Oak Real Estate Pvt. Ltd.., which was duly acknowledged by the OP No.2 vide receipt Annexure C-2 to C-4. However, the OPs while acting in gross disregard and in contravention of the provisions of the Punjab Apartment and Property Regulation Act 1995 (hereinafter referred to as PAPRA) has till date failed to execute a formal Buyer’s Agreement with the complainant. At the time of allotment of the subject unit as well as in accordance with the clause 30 of the Allotment Letter, the possession of the Apartment was required to be handed over within a period of 36 months from the date of start of construction. In this manner the OPs were required to complete the construction on or before 2019. The OPs however, kept the complainant in dark by not intimating him about the status of construction of the allotted unit and in this manner they cheated the complainant. When the complainant did not receive any information about the status of the subject unit, he visited the spot and physically verified on the spot that construction of the allotted unit had been stalled and even basic structure had not been completed and the OPs were not in a position to handover possession of the subject  unit to the complainant. In this manner the aforesaid act of OPs amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs  were properly served but when OPs  failed to file their written version within the prescribed period their defence was struck of by this Commission vide order dated 21.11.2022.

2. In order to prove their case, complainant has tendered/proved his evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the complainant and also gone through the file carefully, including the written arguments of complainant.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the OPs had agreed to sell the subject unit No.SF1/R3/202/1  to the complainant for total sale consideration of Rs.66,20,550/- and the complainant had paid entire sale consideration to the OPs in the year 2016 and further that the OPs   had agreed to handover the possession of the subject dwelling unit to the complainant by the end of 2019 and till date OPs have failed to even offer possession to the complainant and have not handed over the same to the complainant till date and also that the OPs are not having any approval from the competent authority i.e. GAMADA for launching the subject project and the OPs have violated the mandatory provision of PAPRA, the case is reduced to narrow compass as it is to be determined if  there is deficiency on the part of the OPs who have not offered the possession despite of having received huge amount from the complainant and the complainant is entitled for the relief as prayed for.
   2. In order to prove his case, the complainant has tendered his affidavit, in which he deposed as maintained in the complaint.  In addition to that the complainant has also  proved on record copy of allotment letter, which clearly indicates that the subject unit No.SF1/R3/202/1  was allotted to the complainant by the OPs  for a total sale  consideration of Rs.66,20,550/-. A perusal of receipts Annexure C-2 to C-4 having been issued by the OPs clearly indicates that the complainant had paid entire sale consideration to the OPs even in the year 2016. However, it has also come on record that the OPs have failed to offer the possession of the subject unit to the complainant and have also failed to prove on record that they were having necessary approval  for the launching of the subject project from the GAMADA under the provisions of PAPRA and further that entire evidence led by the complainant is un-reubutted by the OPs on record. It is further proved on record that the OPs have extracted huge amount from the complainant and agreed to sell the subject unit to complainant without having necessary approvals from the competent authority.  
   3. Not only this, OPs have failed to clarify this Commission by leading any evidence or making any defence as to why they 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 the approvals/clearances or amended clearances, they are 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 and for the said act of the OPs, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                             “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

4. It has thus been proved on record that money had been collected from the prospective buyers including the complainant, 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. 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. 

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

 

1. to refund the deposited amount of ₹66,20,550/- to the complainant alongwith interest @ 9% per annum from the respective date(s) of deposit till realization of the same.  However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject flat 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 ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by 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.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 4/09 /2023 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member