Chandigarh

StateCommission

CC/27/2024

VINOD KUMAR - Complainant(s)

Versus

ROYALE EMPIRE - Opp.Party(s)

SANDEEP BHARDWAJ

01 Aug 2024

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint No.	:	27 of 2024
Date of Institution	:	18.04.2024
Date of Decision	:	01.08.2024

 

 

Vinod Kumar S/o Sh. Sadhu Ram Corresponding Address: Cabin No. 10, 1st Floor, SCO 826, NAC Manimajra, Chandigarh.

….Complainant

Versus

 

1. Royale Empire, Peer Muchhalla (Adjoining Sector 20 Panchkula) Zirakpur, District SAS Nagar, Mohali- Punjab through its partners/Directors/Managing Directors/ Authorized Signatories.
2. Prince Garg, Authorized signatory of Royale Empire R/o 201-F, Royale Empire, Peer Muchhalla (Adjoining Sector 20 Panchkula) Zirakpur, District SAS Nagar, Mohali- Punjab.
3. Jeevan Garg Authorized signatory of Royale Empire R/o 201-F, Royale Empire, Peer Muchhalla (Adjoining Sector 20 Panchkula) Zirakpur, District SAS Nagar, Mohali- Punjab.

E-mail:- royaleempirel@yahoo.in

....Opposite Parties No.1 to 3

 

4. Anil Kumar S/o Sh. Madan Lal, R/o House No. 643, Sector 12-A, Panchkula

….Performa Opposite Party

BEFORE:	JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MRS. PADMA PANDEY, MEMBER
PRESENT:	Sh.Pranab Bansal, Advocate for Sh. Sandeep Bhardwaj, Advocate for the complainant. Opposite parties no.1 to 3 exparte vide order dated 27.05.2024. None for  opposite party no.4.

PER JUSTICE RAJ SHEKHAR ATTRI

                   This complaint has been filed by the complainant, seeking delivery of possession of residential unit bearing no.503, measuring 1490 square feet covered area and 1800 square feet super area, purchased by him in the project of the opposite parties no.1 to 3 launched by them under the name and style “Royal Empire”, Block-R, Peermuchhalla, Zirakpur, District Mohali, Punjab, alongwith delayed compensation etc.  It is the case of the complainant that despite the fact that the entire sale consideration of Rs.50,25,000/- stood paid by him towards the unit in question, by 05.08.2013,  yet, opposite parties no.1 to 3 failed to deliver possession thereof by 04.05.2015, as committed vide clause 7 of the agreement dated 05.08.2013, Annexure C-2, for want of construction and development activities at the project site.  Various requests made by the complainant to the opposite parties no.1 to 3 to deliver possession of the unit in question, did not yield any result.   Hence, this complaint has been filed by the complainant seeking following reliefs:-

 

“…(i). To handover the possession of unit no 503, in Block -R, with covered area of 1490sq.ft and super area 1800sq.ft in the project called Royale Empire situated at Peermuchhalla, Zirakpur, District, Mohali, Punjab with the specification as agreed and all basic amenities and facilities along with the completion certificate from the competent authority i.e. GMADA.

 

(ii).     To pay compensation i.e. Rs.6300/- per month, as per clause 12 of the agreement, along with 18% interest from 04.02.2015 till the date of handing over the possession as per clause (i) of the prayer.

 

(iii).    To pay interest @18 on deposited amount i.e. Rs.50,25,000/- (Rs. Fifty Lakh and Twenty Five Thousand only) from the agreed date of possession 04.02.2015 till the date of handing over the possession as per clause (i) of the prayer.

 

(iv).    To pay compensation of Rs. 5 Lacs, on account of mental agony, physical harassment, financial loss, caused to the complainants and deficiency in service, negligence and adoption of unfair trade practice on the part of Ops.

 

(v).     To pay cost of litigation of Rs.1 lac to the complainant.

 

(vi).    To grant additional relief if any, as per the provision of the Consumer Protection Act, 2019.…”

 

2.           Despite service, none put in appearance on behalf of opposite parties no.1 to 3, as a result whereof, they were proceeded against exparte vide order dated 27.05.2024.
3.           Performa Opposite party no.4 in his written reply stated that he arranged sale of the unit in question to the complainant in the project of opposite parties no.1 to 3. It has been admitted that total amount of Rs.50,25,000/- was paid by the complainant to opposite parties no.1 to 3. It has been stated that no amount was retained  by performa opposite party no.4. While denying the rest of the averments made in the complaint, performa opposite party no.4 prayed for dismissal of the complaint against him.
4.          The contesting parties led evidence in support of their case.
5.           On the date of arguments, none put in appearance on behalf of opposite party no.4 and accordingly, we have heard the Counsel for the complainant  and have gone through the evidence and record of the case, very carefully.
6.           Counsel for the complainant has vehemently contended that all the efforts made by the complainant seeking delivery of possession of the unit in question has gone waste, as opposite parties no.1 to 3 have ignored the same. He further submitted that despite making payment of entire sale consideration, the complainant is empty handed because opposite parties no.1 to 3 have failed to fulfill their promise to deliver possession of the unit by 04.05.2015, as envisaged under clause 7 of the agreement dated 05.08.2013, Annexure C-2 for want of construction and development activities at the project site. 
7.           It is significant to mention here that perusal of record reveals that agreement dated 05.08.2013, Annexure C-2 in respect of the unit in question stood executed between the complainant and opposite parties no.1 to 3. It has been very clearly mentioned in clause 3 of the said agreement that Full and Final Payment PAID. As per clause 7 of the said agreement, opposite parties no.1 to 3 have committed to deliver possession of the unit by 04.05.2015 but there is nothing on record that it has so been done, even till date. The allegations leveled by the complainant in this complaint, qua non delivery of possession of the said unit have been gone unrebutted, as the opposite parties no.1 to 3, chose not to put in appearance, despite service, as a result whereof they were proceeded against exparte. 
8.            It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof and that actual physical possession of the units have been delivered to the allottees/purchasers or not, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, in case, the development/construction activities are being undertaken at the project site, then it was for the opposite parties no.1 to 3 , which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken or not, but, as stated above, opposite parties no.1 to 3 even failed to put in appearance despite service, what to speak of contesting the allegations leveled by the complainant, by way of filing written reply and evidence. It is therefore held that in the absence of rebuttal to the allegations made by the complainant, opposite parties no.1 to 3 have attracted an adverse inference, that they have nothing to say in their defence. 
9.           Hard earned money was paid by the complainant, with a hope to have his own house. However, his hopes were dashed to the ground as possession of the unit has still not been  delivered to him.  From the peculiar circumstances of this case, it has been proved that the opposite parties no.1 to 3 made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and he may act in reliance on it. The complainant is thereby involved in disadvantageous contract and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainant to enter into the agreement, referred to above, and also intent to deceive him, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties no.1 to 3, which has definitely caused a lot of mental agony, harassment and financial loss to the complainant.  The complainant is therefore held entitled to get possession of his unit.
10.           Under above circumstances, now, we will like to decide as to what amount of compensation should be granted to the complainant, for the period of delay in delivery of possession of the unit in question. On account of delay in actual delivery of possession of the unit to the complainant, he has definitely suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession of the units. Relevant part of the said order is reproduced hereunder:-

“……8. Having regard to the above submission, we indicated to the learned Counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC.

9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the Order passed by the SCDRC….”

 

11.           Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019,  by making reference to the earlier order passed by it in Himanshu Arora’s case (supra). In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today..…..”

 

12.           In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered.  As such, in the present case also, the complainant deserves just and fair compensation for the period of delay in delivery of possession to him by opposite parties no.1 to 3. In our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by him, from the due date of possession onwards till delivery of possession thereof, that will meet the ends of justice.
13.           Since no deficiency in service has been proved on the  part of Performa opposite party no.4 therefore complaint against him is dismissed with no order as to cost.
14.             For the reasons recorded above, this complaint is partly accepted, with costs and opposite parties no.1 to 3, jointly and severally, are directed as under:-
    1. To hand over actual physical possession of the unit in question to the complainant complete in all respects, after obtaining occupation and final completion certificates from the competent authorities, within  a period of 30 days from the date of receipt of a certified copy of this order.
    2. To  pay to the complainant, compensation by way of  interest @9% p.a. starting from 04.05.2015  till 31.07.2024, on the entire amount deposited by him, within a period of 30 days from the date of receipt of a certified copy of this order, failing which thereafter the entire accumulated amount for the said period i.e. 04.05.2015  till 31.07.2024 shall carry penal interest @12% p.a., from the date of default (i.e. after 30 days from the date of receipt of a certified copy of this order) till this entire accumulated amount is paid to the complainant.
    3. To pay to the complainant, compensation by way of  interest @9% p.a. on the entire amount deposited by him, w.e.f. 01.08.2024, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para no.(i) above. 
    4. To pay to the complainant, compensation to the tune of Rs.75,000/- for causing him mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default (i.e. after 30 days from the date of receipt of a certified copy of this order) till realization.
15.           Complaint against performa opposite party no.4 stands dismissed with no order as to cost.
16.           Pending application(s), if any, stands disposed of, accordingly.
17.           Certified copies of this order be sent to the parties free of charge, forthwith.
18.           File be consigned to Record Room after completion.

Pronounced.

01.08.2024

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/- 

 (PADMA PANDEY)

MEMBER

Rg.