Haryana

Panchkula

CC/164/2022

KIRAN KHARB - Complainant(s)

Versus

M/S SHALIMAR ESTATES(P) LTD. - Opp.Party(s)

SURBHI

14 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	164 of 2022
Date of Institution	:	12.05.2022
Date of Decision	:	14.02.2023

 

 

1.     Kiran Kharb w/o Ram Kesh Kharb r/o H.No.12A, New Chaudhary        Complex Rally Sector-12A, Panchkula, Haryana.

2.     Ram Kesh Kharb s/o Sh. Diwan Singh H.No.12A. New Chaudhary        Complex Rally, Sector-12A,  Panchkula.                                                                                                                                                                                                               ..….Complainants

Versus                                                                  

1.     M/s Shalimar Estates(P) Ltd through its Authroised Directions, Office address SCO No.110-111, Sector-8C, Chandigarh-160008.

2.     Kamlesh Aggarwal  Director of M/s Shalimar Estates(P)Ltd. w/o Ram Kumar Aggarwal registered  address is House No.1084, Sector-8C, Chandigarh-160008.

3.     Ram Kumar Aggarwal Director of M/s Shalimar Estates(P) Ltd. registered address is House No.1084, Sector-8C, Chandigarh-160008. 

                                                                       ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Ms. Surbhi Sharma, Advocate for the complainant.

                        OPs No.1 to 3 ex-parte vide order dated 12.07.2022.

                       

                       

ORDER

(Per Dr.Pawan Kumar Saini, Member)

 

1.             Briefly stated, the facts of the case are that a residential project, namely, Shalimar Estates Naggal-Alipur(Panchkula) was launched by Ops, wherein applications, were invited for the allotment of plots through draw of lots. The complainants submitted an application no.4495 along with Rs.22,275/- as earnest money for the allotment of a plot. A letter dated 09.01.2002 was received by the complainants informing him that the draw of lots would be held on 16.01.2002. As per result of draw of lots, a residential plot no.68 of 10 marlas was allotted in favour of the complainants. A sum of Rs.33412.50 was deposited by the complainant in pursuance to letter dated 19.01.2002 and demand notice dated 23.02.2002, so as to make the total payment i.e. 25% of the total price of plot. The allotment letter qua allotment of plot No.68 in the said project was issued vide letter dated 21.03.2002. A sale agreement was entered between the complainant no.2 and Ops on 21.03.2002, wherein schedule of payment was mentioned alongwith other detailed terms and conditions. As per said agreement, total consideration was fixed as Rs.2,22,750/- and part payment Rs.55687.50 already paid to Ops  was shown and balance was to be paid in six installments. The complainant paid five annual installments in time and fifth installment was paid on 06.01.2007. It is stated that a publication was got made in the newspaper by the Ops on 18.01.2007 to the effect that a Court case is pending between the Ops and State of Haryana, due to which possession of residential plots to the allottees would got delayed till the decision of the dispute by the Hon’ble Punjab and Haryana, High Court. It was also mentioned in the said notification that if any allottee want to step back, he was at liberty to seek the refund of the paid amount & whoever wanted to continue with the scheme, he/they would get possession of the plot after the decision of the dispute and in case the decision comes against the Ops, then the allottees would get their whole money back. It is stated that the dispute before the Hon’ble High Court was qua the validity of the   notifications dated 11.07.2002, which was issued by the State Government under the Punjab Scheduled Roads and Controlled Areas Restriction of Unregulated Development Act, 1963, wherein the land in Shalimar project was declared controlled area. The complainant decided to continue with the scheme and hence, deposited the sixth i.e. last installment on 10.03.2008. It is stated that the OPs transferred the said plot no.68 at M/s Shalimar Estates (P) Ltd. in the name of wife of the complainant i.e. Kiran Kharab at the request of the complainant vide letter dated 28.03.2008. It is stated that the complainant has waited for a long period for the decision of the Hon’ble Punjab and Haryana, High Court as he was very much interested in the allotment of a residential plot. The Hon’ble Punjab & Haryana High Court allowed the writ petition on 05.10.2016 but the said judgment was challenged by State of Haryana by filing SLP before the Hon’ble Apex Court, wherein the judgment delivered by the High Court was set aside by accepting the SLP filed by the State of Haryana. The complainant after the decision of the Hon’ble Apex Court had tried to reach out to the Ops on several occasions, but the Ops have avoided their liability qua the refund of the paid amount on one pretext or the other. Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.

2.             Notices were issued to the OPs No.1 to 3 through registered post, which were not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OPs No.1 & 2; hence, they were deemed to be served and thus, due to non appearance of OPs No.1 to 3, they were proceeded ex-parte by this Commission vide its order dated 12.07.2022.

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-17 in evidence and closed the evidence by making a separate statement.

4.             We have heard the ld. counsel for the complainant and gone through the entire record available on the file, minutely and carefully.

5.             Evidently, a sum of Rs.3,13,393/- was paid by the complainant on several dates w.e.f. 14.12.2001 till 10.03.2008 vide several receipts. The details of payment made by the complainant to OPs are tabulated  as under:-

Sr. No.	Date	Purpose	Amount
1	14.12.2001	Earnest money	22,275/-
2	19.03.2002	15% 18% interest	33412.50     502.00  33915.50
3	07.01.2003	Ist  installment	52904.00
4	27.01.2004	IInd  installment	52904.00
5.	25.01.2005	IIIrd installment	48726.00
6.	11.04.2006	IVth installment	44550.00
7.	16.01.2007	Vth installment	42026.00
8.	10.3.2008	VIth installment	32800.00
		Total Paid	313393.00

       

6.             The grievances of the complainant are that the OPs have failed to adhere to their promise as made vide public notice, published in the Dainik Tribune on 18.01.2007(Annexure C-12), wherein it was assured that in case of any adverse decision  against the OPs, the deposited amount would be refunded. During arguments, the learned counsel for the complainant, reiterating the averments made in the complaint as  also in the affidavit(Annexure C-A) of the complainant, contended that the floatation of the residential scheme, namely, Shalimar Estates Naggal-Alipur(Panchkula) by the Ops has become invalid and illegal in view of the judgment delivered by the Hon’ble Apex Court vide its judgment dated 16.11.2021 in the Civil Appeal No.6901 of 2021 titled as State of Haryana and other Vs. Shalimar Estate Pvt Ltd. & ors., wherein the notifications dated 11.07.2002 and 31.12.2002 issued by the State of Haryana under the Punjab Scheduled Roads and Controlled Areas Restrictions of Unregulated Development Act, 1963 (hereinafter referred as Controlled Area Act) and Haryana Development and Regulation of Urban Areas Act, 1975 (herein after referred as to Urban Development Act) declaring the land of the Shalimar project as controlled area as well as Urban area, were upheld by the Hon’ble Apex Court. The learned counsel vehemently contended that the OPs are duty bound to refund the deposited amount to the complainants in view of their undertaking given vide public notice dated 18.01.2007(Annexure C-12), published in the Dainik Tribune newspaper. Concluding the arguments, the learned  counsel contended  that the OPs has been deficient while rendering services to the complainant as they have failed to refund their deposited amount after the decision of the Hon’ble Apex Court in case(supra) and thus, prayed for acceptance of the complainant by granting relief as claimed for in the complaint.

7.             The OPs No.1 to 3 have preferred not to contest the present complaint by remaining absent despite services of notice and accordingly, they were proceeded ex-parte vide order dated 12.07.2022 and thus, the assertions made by the complainant go unrebutted and uncontroverted.

8.             As stated above, there is no doubt qua the making of  payment of Rs.3,13,393/- by the complainant to OPs vide several receipts as shown in the tabular form above. Pertinently, the residential project was launched by the Ops by inviting applications from the General Public and on the basis of the same the complainant had deposited the earnest money amounting to Rs.22,275/- on 19.12.2001(Annexure C-1) whereas the OPs became the owner of the land on 16.05.2002 and 30.05.2002 i.e. much after the allotment of the plot by the Ops in favour of the complainant. The Hon’ble Apex Court vide its observations in para No.20 has observed that the first respondent i.e. Ops started collecting money even before they became the full fledged owners. Therefore, the allotment of plot in favour of the allottees, including the complainant by the OPs even before their ownership was neither valid/legal nor justified. The OPs ought to have obtain the no objection certificate as also the necessary approvals and sanctions prior to the floatation of the residential plot in question. In Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC), it was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, schematic building plan etc. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction of construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/buildings. This was reiterated by the Hon’ble National Commission, recently in M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First decided on 31 May 2018., as under:- Appeal No. 1787 of 2016, 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. In the present case, the OP’s have collected the money from the buyers including  the complainants without their full ownership of the land. Thus, the OPs have indulged into unfair trade practice while collecting the amount from the buyers/consumers in the absence of full ownership of the land.

9.             The deficiency on the part of the OPs is further evident from the fact that after losing the case as per judgment delivered by the Hon’ble Apex Court in Civil Appeal(supra) it was incumbent upon them OPs to refund the deposited amount to the complainants. The OPs have not adhered to their undertaking given vide public notice dated 18.01.2007(Annexure C-12) published in the Danik Tribune newspaper qua the refund of the deposited amount. Therefore, we conclude that the Ops have been deficient while rendering services to the complainant.

10.            Coming to the relief, it is found that a sum of Rs. 3,13,393/- has been deposited by the complainant. The complainants are entitled to the refund of said amount of Rs.3,13,393/- along with interest.

11.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 3:-

1.     To refund the amount of Rs.3,13,393/- to the complainant along with interest @ 9% per annum w.e.f. the date of respective deposit.
2.     To pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation.

 

 

12.            The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 14.02.2023

 

 

 

          Dr.Sushma Garg         Dr. Pawan Kumar Saini             Satpal

                  Member                  Member                          President

 

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

 

                                       

Dr. Pawan Kumar Saini

Member