Chandigarh

StateCommission

CC/463/2018

Sukhminder Singh Sandhu S/o Sh. Pyara Singh - Complainant(s)

Versus

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

Kashika Kaur Adv.

13 Jan 2020

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	463 of 2018
Date of Institution	:	13.12.2018
Date of Decision	:	13.01.2020

 

Sukhminder Singh s/o Sh.Pyara Singh r/o House no.716, Krishna Nagar Akalsar Road, Near Government Primary School, Moga, Punjab.       

……Complainant

V e r s u s

 

M/s Sanskriti Golden Oak Real Estate Pvt. Ltd., having its Registered Office at House no.639, Sector 11-B, Chandigarh through its authorized representative.

Second Address:- M/s Sanskriti Golden Oak Real Estate Pvt. Ltd., VPO Keshgarh Sahib, Ward No.10, Anandpur Sahib, District Ropar, Punjab through its Director Sh.Parminder Singh s/o Ranbir Singh.

Third Address:-

M/s Sanskriti Golden Oak Real Estate Pvt. Ltd., Flat No.405, Tower No.18, Royal Estate, Zirakpur, Mohali, through its Director Sh.Ravi Garg s/o Ishwar Chander.

….Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                      MRS. PADMA PANDEY, MEMBER.

                      MR. RAJESH K. ARYA, MEMBER.

 

PRESENT:    Sh.Reshab, Advocate proxy for Ms.Kashika, Advocate for the complainant.

Ms.Asha Rani, Advocate proxy for Sh.Arihant Goyal, Advocate for Sh.Parminder Singh, Ex-Director of the Company-M/s Sanskriti Golden Oak Real Estate Pvt. Ltd.,

Sh.Ravi Garg, Director of M/s Sanskriti Golden Oak Real Estate Pvt. Ltd.,  exparte vide order dated 29.10.2019.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    The above captioned complaint has been instituted seeking directions to the opposite parties, to refund the amount of Rs.19,66,220/- paid by the complainant towards purchase of flat bearing no.SF1/R3/206/I, first floor, measuring 2164.52 square feet, in the project named “Sanskriti Homes-I, situated in the revenue area of DLF Hyde Park Estate, Pocket R3, New Chandigarh (in short the unit). Total sale consideration of the said unit was fixed at Rs.71,42,932/-. It is the case of the complainant that despite making payment of substantial amount, referred to above, for the period from 06.05.2014 to 24.04.2018, the opposite parties failed to deliver possession of the unit in question, by 04.04.2018 as committed vide Clause 30(a) of the allotment letter i.e. within a period of 36 months plus 6 months from the date of start of construction i.e. from 05.11.2014. During the period intervening, on the request having been made by the complainant, he was relocated to unit no.SFI/R3/106/1, vide letter dated 10.04.2018. Thereafter, on the visits made by him to the project site, it was found that construction work at the project site was put at halt and basic amenities were also found missing. Furthermore, there was violation of the provisions of Punjab Apartment and Property Regulation Act, 1995 (PAPR Act), as the opposite parties failed to execute Buyer’s Agreement in respect of sale of the said unit. When neither agreement was executed between the parties nor construction work of the unit was completed nor basic amenities were provided at the project site nor possession of the relocated unit was offered by the promised date, the complainant served legal notice 27.10.2018 (Annexure C-6) upon the opposite parties seeking refund of the amount paid but of no avail. Hence this complaint.

2.           Notice of this complaint was served upon the Company- M/s Sanskriti Golden Oak Real Estate Pvt. Ltd. and also its Directors namely Sh.Ravi Garg and Sh.Parminder Singh.
3.           However, despite giving number of opportunities to the Company as also Sh.Ravi Garg, its Director, reply and evidence was not filed rebutting the allegations leveled by the complainant in his complaint, as a result whereof, they were proceeded against exparte vide order dated 29.10.2019.
4.           Sh.Parminder Singh in his short reply filed, pleaded that since he took over charge of the Company as Additional Director on 09.01.2018 and thereafter due to his preoccupation in some other Company, he tendered his resignation to the Board of Directors of M/s Sanskriti Golden Oak Real Estate Pvt. Ltd. on 09.05.2018 and also the fact that no cause of action arose to the complainant during his tenure, as such, complaint against him be dismissed. To support his contention, he has placed on record Form No.DIR-II (Annexure OP-2/1) recorded with the Registrar of Companies, Chandigarh.
5.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, only the complainant and Sh.Parminder Singh, Ex-Director of the Company, have adduced evidence and also produced numerous documents.
6.           We have heard the contesting parties and have carefully gone through record of the case, very carefully.
7.           It is evident from the record that application form dated 21.03.2014 (Annexure C-1) was filled by the complainant for purchase of the unit in question, in the said project, total price whereof was fixed at Rs.71,42,932/- and he has paid an amount of Rs.19,66,220/- for the period from 06.05.2014 to 24.04.2018. It is further evident from Clause 30(a) of the allotment letter dated 26.03.2015 (Annexure C-2), that the Company committed to deliver possession of the unit in question within a period of 36 months plus 6 months extended period from the date of start of construction i.e. on or before 04.04.2018, date of start of construction being 05.11.2014. It is further evident from letter dated 10.04.2018 (Annexure C-5) that the complainant was relocated to unit no.SFI/R3/106/1. However, thereafter, as alleged by the complainant, when neither agreement was executed between the parties nor construction work was completed nor basic amenities were provided at the project site; nor possession of the relocated unit was offered by the promised date, he served legal notice 27.10.2018 (Annexure C-6) seeking refund of the amount paid but what to speak of refunding the amount paid, even no response was received from the opposite parties, as a result whereof he was forced to file this complaint.
8.           After going through the documents placed on record, this Commission is convinced that the complainant has booked the unit in question, against which he has paid substantial amount referred to above, to the Company- M/s Sanskriti Golden Oak Real Estate Pvt. Ltd. of which Sh.Ravi Garg is the Director.  Furthermore, the allegations leveled by the complainant to the effect that despite making payment referred to above, the Company failed to deliver possession of the unit by the promised date or even thereafter for dearth of construction and development activities, have gone unrebutted as neither the Company nor its Director preferred to file written reply and evidence despite availing number of opportunities during pendency of this complaint, as a result whereof, ultimately, they were proceeded against exparte. Under these circumstances, since reply and evidence has not been filed by the Company and its Director Sh.Ravi Garg, an adverse inference can easily be drawn by this Commission that they have nothing to say in their defence against the allegations leveled by the complainant in his complaint and are guilty of deficiency in providing service, negligence and adoption of unfair trade practice in not developing the project and delivering possession of the unit in question by the promised date or even thereafter, thereby usurping hard earned money of the complainant.  Our view is supported by the principle of law laid down by the Hon’ble Supreme Court of India in C. S. Rowjee and Others vs Andhra Pradesh State Road,  1964 AIR 962, 1964 SCR (6) 330, wherein it was held that if the allegations contained in the complaint/petition remain unrebutted then an adverse inference can be drawn against whom, allegations have been leveled.
9.           The complainant has booked the unit as far as back in March 2014 and now it is January 2020, and still he is empty handed despite the fact that substantial amount of Rs.19,66,220/- stood paid by him to the Company.  Under these circumstances, we are of the considered opinion that we cannot make the complainant to wait for an indefinite period, in the matter. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken 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. In the present case also, since there has been an inordinate delay in the matter and also  it appears that the Company is not serious to develop the project, as such, we are of the considered opinion that if we order refund of the amount paid alongwith suitable interest that will meet the ends of justice. 
10.           The question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver possession of residential units/plots, by the stipulated date, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. Recently also, under similar circumstances, 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 while ordering refund of the amount paid, awarded interest @12% p.a. As such, in the present case also, the complainant is held entitled to get interest @12% p.a. from the respective dates of deposits of amount of Rs.19,66,220/-. At the same time, the Company and its Director Sh.Ravi Garg are also held liable to compensate the complainant for deficiency in providing service, negligence and adoption of unfair trade practice and also causing him mental agony and harassment.
11.            As far as the liability of Sh.Parminder Singh, Ex-Director of the Company is concerned, it may be stated that we have gone through the record of the case and find that he took charge of the Company as Additional Director on 09.01.2018 and thereafter tendered his resignation to the Board of Directors of M/s Sanskriti Golden Oak Real Estate Pvt. Ltd. on 09.05.2018. During his tenure with the Company as Additional Director, neither any payment has been received from the complainant towards price of the said unit; nor any commitment has been found to be made regarding possession of the unit; nor any document has been shown to be signed by him. At the same time, the complainant has also failed to produce on record any documentary evidence to convince this Commission that Sh.Parminder Singh, was responsible for and carrying out day to day affairs of the Company, at the relevant time, when he entered into the contract for purchase of the unit in the said project. As such, this complaint against Sh.Parminder Singh is dismissed with no order as to cost. However, it is made clear that these findings are limited to this complaint only and shall not provide any blanket immunity to Sh.Parminder Singh, in the cases, where he is found guilty of deficiency in providing service, negligent and adoption of unfair trade practice, during his tenure or otherwise.
12.           For the reasons recorded above, this complaint is partly accepted with costs against the Company-M/s Sanskriti Golden Oak Real Estate Pvt. Ltd. alongwith its Director Sh.Ravi Garg, for which they are jointly and severally, directed as under:-

1. To refund the amount of Rs.19,66,220/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.19,66,220/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay compensation for causing mental agony and physical harassment to the complainant; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @12% p.a. from the date of passing of this order, till realization.

13.           However, it is made clear that if the complainant has availed loan facility from any Bank/Financial Institution, for making payment towards price of the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
14.           Certified Copies of this order be sent to the parties, free of charge.
15.           The file be consigned to Record Room, after completion.

Pronounced

13.01.2020

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg.