Chandigarh

DF-I

CC/119/2024

BALJINDER KAUR W/O SH. GURDEV SINGH - Complainant(s)

Versus

M/S SISWAN PARADISE PVT. LTD., THROUGH ITS MANAGING DIRECTOR SH. GURPREET SINGH SIDHU - Opp.Party(s)

RAJESH VERMA

05 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

[1]

                    

Consumer Complaint No.	:	CC/119/2024
Date of Institution	:	29/2/2024
Date of Decision	:	5/9/2024

             

Baljinder Kaur W/o Sh. Gurdev Singh S/o Sh. Mahinder Singh R/o House No. 299, Village Kingra Chhohwala, Tehsil Jalandhar, Punjab, 144001.

..COMPLAINANT

Versus

 

1. M/s Siswan Paradise Pvt. Ltd., through its Managing Director Sh. Gurpreet Singh Sidhu Present Address Emerging Heights 3, Sector 115, Kharar- 1 Landran Road, Mohali, Punjab, 140501. Earlier Address SCO No. 46-47, 1^st  Floor, Sector 9-D, Chandigarh - 160009.

2. M/s Emerging India Real Assets Pvt. Ltd., through its Managing Director Sh. Gurpreet Singh Sidhu Present Address Emerging Heights 3, Sector 115, Kharar-Landran Road, Mohali, Punjab, 140501. Earlier Address SCO No. 46-47, 1st Floor, Sector 9-D, Chandigarh - 160009.

… Opposite Parties

[2]

 

Consumer Complaint No.	:	CC/120/2024
Date of Institution	:	29/2/2024
Date of Decision	:	5/9/2024

             

1. Baljinder Kaur Wd/o Late Sh. Gurdev Singh S/o Sh. Mahinder Singh.

2. Sandeep Kaur D/o Late Sh. Gurdev Singh S/o Sh. Mahinder Singh.

3. Ramandeep Kaur D/o Late Sh. Gurdev Singh S/o Sh. Mahinder Singh.

 

4. Tapinderveer Singh S/o Late Sh. Gurdev Singh S/o Sh. Mahinder Singh All R/o House No. 299, Village Kingra Chhohwala, Tehsil Jalandhar, Punjab, 144001.

...COMPLAINANT(S)

VERSUS

1. M/s Siswan Paradise (P) Ltd., through its Managing Director Sh. Gurpreet Singh Sidhu Present Address Emerging Heights 3, Sector 115, Kharar- Landran Road, Mohali, Punjab, 140501. Earlier Address SCO No. 46-47, 1st    Floor, Sector 9-D, Chandigarh-160009.

2. M/s Emerging India Real Assets (P) Ltd., through its Managing Director Sh. Gurpreet Singh Sidhu Present Address Emerging Heights 3, Sector 115, Kharar-Landran Road, Mohali, Punjab, 140501. Earlier Address SCO No. 46-47, 1^st  Floor, Sector 9-D, Chandigarh - 160009.

….Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

 

ARGUED BY	:	Sh. Rajesh Verma, Advocate for complainant (through VC).
	:	OPs exporte.

Per Pawanjit Singh, President

 

1. By this order, we propose to dispose of the captioned consumer complaints in which common questions of law and fact are involved.

              For the sake of brevity, relevant details, necessary for the disposal of the aforesaid consumer complaints i.e. plot size and total amount paid  etc., in respect of each consumer complaint, are tabulated as under :-

S. No.	C.C. No.	Plot size (sq.yd.)	Amount paid by complainant(s)(in rupees)
	CC/119/2024	605	4,29,600/-
	CC/120/2024	605	4,31,000/-

 

2.         The facts, for convenience, have been culled out from Consumer Complaint No.119 of 2024 titled as Baljinder Kaur vs. M/s Siswan Paradise Pvt. Ltd.  and anr.      

1. It transpires from the averments as projected in the consumer complaint that the Opposite Parties  had launched a group housing project at Mirzapur  and distributed the brochure and pamphlets  wherein four types of plots and farm house and their payment plan was provided.  The copy of brochure is annexed as Annexure C-1.  The complainant and her husband after going through the pamphlets being allured with the picture of project launched by the Opposite Parties had booked two cottage farmhouses of type 1 of 605 Sq. yard (hereinafter referred to be as subject plot) for personal use and occupation of their family members under group housing project. As per brochure issued by Opposite Parties, if any applicant deposits first installment before the date of Draw Lots then applicant shall get additional discount of 5% and keeping in view the additional discount, the complainant paid additional amount of Rs.2,50,000/- to the Opposite Parties  vide receipt Annexure C-2 dated 10.6.2012 i.e. before the date of draw.  The draw of lots was held on 14.6.2012 and the complainant was  declared winner of cottage farm house  of 605 sq.yds.  and Certificate Annexure C-3 was issued. The Opposite parties provided two types of payment plan, Plan A and Plan B. As per Plan A, the allottee was required to pay three annual installments and as per Plan B if the allottee pays lump sum amount to the Opposite Parties then the allottee shall get discount of Rs. 1 Lac on plot size 605 sq. yards. The husband of the Complainant as per Payment Plan B paid the remaining sale consideration to the Opposite Parties for both the residential plots vide draft dated 19.10.2012 amounting to Rs. 3. 55,000/- vide Annexure C-4 i.e. (Rs. 1,77,500/- for the present residential plot and Rs. 1, 77,500/- for another plot in connected complaint No.120 of 2024). The Opposite Parties after receiving the entire sale consideration to the tune of Rs. 4,27.500/- towards the present residential plot, transferred 1/25435 share in the total land in favour of the Complainant vide Registered Sale deed dated 08.11.2012 without any demarcation and cottage number. The Complainant was told by the Opposite Party(s) that the land shall be developed and proper demarcation shall be done in short time and possession shall be handed over to her very soon.  The complainant paid Rs.2100/-(Rs.3500/- in connected complaint) towards the stamp duty of the registered sale deed Annexure C-5. It is alleged that despite numerous requests made by the complainant, the Opposite Parties did not hand over the possession of the subject plot to the complainant.  Even the Opposite Parties had not taken any permission from the authorities nor they have CLU for selling the subjet plots.  In this manner the aforesaid act of the Opposite Parties amounts to deficiency in service and indulgence in unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs No.1&2  were properly served and when OPs did not turn up before this Commission, despite proper service, Opposite party No.2 was proceeded against exparte on 8.4.2024 whereas Opposite party No.1 was  proceeded against ex-parte on 30.8.2024.

3. In order to prove her claim the complainant has tendered/proved her evidence by way of affidavit and supporting documents.
4. We have heard the learned counsel for the complainant and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that the complainant booked the subject plot in the project of the Opposite Parties and paid total sale consideration of Rs.4,27,500/-  and the sale deed of the subject plot was executed on 8.11.2012 for which the complainant also paid Rs.2100/- and despite several requests of the complainant the possession of the subject plot  was not handed over by the Opposite Parties till date, the case is reduced to a narrow compass as it is to be determined if the aforesaid act of the Opposite Parties amounts to deficiency in service and the complainant is entitled for the relief as prayed for.
   2. Perusal of Annexure C-1 the brochure clearly indicates that the Opposite Parties have floated their project under the name and style of Siswan Paradise Pvt. Ltd. for draw of plots of different sizes. Annexure C-2 is the  acknowledgement receipt showing that the Opposite Parties have received Rs.2,50,000/- from the complainant towards the consideration of the subject plot and Annexure C-4 is  copy of Draft of Rs.3,55,000/-, which was paid by the complainant towards the subject plot in the instant case and the subject plot in the connected complaint captioned above i.e. Rs.1,77,500/-  for each plot. Annexure C-5 is the copy of Sale Deed which indicates that the OPs transferred 1/25435 share in the total land in favour of the complainant vide the said sale deed dated 8.11.2012 without demarcation and cottage number.
   3. As per case of the complainant the Opposite Parties assured the complainant that the land shall be developed and proper demarcation shall be done in short time and possession shall be handed over soon to the complainant but despite repeated requests by the complainant, the Opposite Parties till date failed to hand over the possession of the subject plot to the complainant.
   4. It is further the case of the complainant that  the Opposite Parties had not taken any permission from the authorities nor they have got CLU over the land in question.
   5. To contradict the allegations of the complainant, the Opposite Parties 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 Opposite Parties   to obtain all the approvals/ clearances before booking the subject flat.  If the Opposite Parties  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 Opposite Parties , 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…..”

 

6. 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…………”

 

7. Moreover, as is apparent from record  that the Opposite Parties have not offered the possession of the plot in question to the complainant till date,  in our view the complainant cannot be made wait for indefinite period  for the possession of the subject plot and as such there is clear cut deficiency on the part of the Opposite Parties. The 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.
8. 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.”

9. As far as the question as to how the cause of action has arisen to the complainant is concerned,  it has come on record that the Opposite Parties  have failed to deliver the lawful possession of the subject plot after obtaining necessary approvals/completion certificate from the competent authority. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount

5. In view of the above discussion, both the consumer complaints deserve to succeed and the same are accordingly partly allowed. Opposite Parties   are directed as under :-

RELIEF IN CC/119/2024

1. to refund ₹.4,29,600/- to the complainant alongwith interest @9% p.a. from respective date of deposit till  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 Opposite Parties, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay ₹25,000/- to the complainant as compensation on account of mental agony and physical harassment.
3. to pay ₹10,000/- to the complainant as costs of litigation.

RELIEF IN CC/120/2024

1. to refund ₹.4,31,000/- to the complainants alongwith interest @9% p.a. from respective date of deposit till  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 Opposite Parties, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay ₹25,000/- to the complainants as compensation on account of mental agony and physical harassment.
3. to pay ₹10,000/- to the complainants as costs of   litigation.

6. This order be order be complied with by the OPs jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above in each case shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i) in each case above], till realisation, over and above payment of ligation expenses.
7. A certified copy of this order be also placed on the file of other  connected consumer complaint, mentioned above, which shall form part and parcel of the that file.
8. Pending application if any stands disposed off.
9. Certified copies of this order be sent to the parties free of charge. The file be consigned.

[Pawanjit Singh]

President

5/9/20

5/9/2024

[Surjeet Kaur] Member

[Suresh Kumar Sardana]

Member