Chandigarh

DF-I

CC/232/2024

VINOD KUMAR GOYAL - Complainant(s)

Versus

SAHARA CITY HOMES MARKETING AND SALES CORPORATION - Opp.Party(s)

K.M. GARG

04 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/232/2024
Date of Institution	:	8/5/2024
Date of Decision	:	04/09/2024

 

Vinod Kumar Goyal aged 69 years S/o Des Raj Goyal, resident of H.No. 2170, Sector 35C, Chandigarh Now resident of Flat No. 3009, SBI Officers Society, Sector 49D, Chandigarh.

Complainant

VERSUS

Sahara City Homes Marketing & Sales Corporation, Chandigarh through its Managing Director, SCO 1110-11, Sector 22C, Chandigarh.

...Opposite Party

 

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

 

                                                                               

ARGUED BY	:	Sh. K.M. Garg, Advocate for complainant
	:	Sh. Ishtneet Bhatia, Advocate for OPs (Defence of OP struck of vide order dated 7.8.2024).

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). The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that  on the allurement of OP through advertisement  the complainant decided to buy a flat in order to spend his retired life comfortably and on 7.3.2005 vide application Annexure C-1 applied for allotment of a flat  of 3 BHK (hereinafter referred to be as subject flat)  measuring 135.95 sq. meter under Sahara City Home Scheme at Banur, District Patiala for total cost of Rs.27,07,000/-. At that time the OP  had committed to allot the subject flat to the complainant complete in all respects. The complainant had paid booking amount of Rs.1,35,350/- vide draft dated 4.3.2005 and paid installment of Rs.2,70,700/- vide cheque dated 19.1.2006  and  thereby made total payment of Rs.4,06,050/- which was acknowledged by the OP vide Annexure C-2 and C-3 out of   Rs.27,07,000/-. Even after receiving the aforesaid amount, the OP neither had issued any allotment letter nor demanded any further remaining installments from the complainant. Thereafter, the complainant many times requested the OP to refund the aforesaid amount as there is no development on the site. Even the OP had not given any update about the progress of project or delivery of possession of the subject flat  and on finding no response from the OP, the complainant finally sent email Annexure C-4 dated 24.8.2023  with the request to refund the paid amount alongwith interest.  But the OP neither handed over the possession of the subject flat nor refunded the amount paid. In this manner, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OP. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. The OP was represented through its counsel  but as the OP failed to file the written version with the stipulated period, its defence was struck off vide order dated 7.8.2024.
2. In order to prove his claims the complainant has tendered/proved his evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments on record.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that   the complainant had booked  the subject flat with the OP by moving an application dated 7.3.2005  by paying booking amount of Rs.1,35,350/- vide draft dated 4.3.2005 and Rs.2,70,700/- vide cheque dated 19.1.2006 out of total cost  of the subject flat of Rs..27,07,000 as is evident from  receipts Annexure C-2 and C-3  and despite of receiving hefty amount, the OP neither handed over possession to the complainant nor refunded the deposited amount despite of several requests of the complainant, the case is reduced to a narrow compass as it is to be determined if the aforesaid act of OP amounts to deficiency in service and unfair trade practice and the complainant is entitled for the relief as prayed, as is the case of the complainant.
   2. As complainant has proved  his case by tendering his affidavit  in which he deposed as maintained in the complainant and the evidence led by the complainant is unrebutted by the OP who even could not file its written version in order to rebut the allegations made by the complainant, it is safe to hold that the OP has failed to execute allotment letter or buyer’s agreement or deliver the possession of the subject flat, by asking the complainant to pay the remaining amount nor could refund the deposited amount and as such there is deficiency of service and unfair trade practice on the part of the OP.
   3. Keeping in view the facts and circumstances of the present case, we are of the considered view that the complainant cannot be made to wait for an indefinite period and the OP, who is not in a position to deliver the possession of the unit(s) as promised, have no right to retain the hard earned money of the complainant. 
   4. 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 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.
   5. 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.”

 

6.  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 OP  has 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.
7.  In view of foregoing discussion, it is safe to hold that  the aforesaid act of OP amounts to deficiency in service and unfair trade practice on its part, especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OP. Hence, the instant consumer complaint deserves to be allowed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP  is directed as under :-
   1. to refund ₹4,06,050/- to the complainant alongwith interest @ 9% per annum (simple) from the respective dates of deposit till onwards.
   2. to pay ₹25,000/- to the complainant as compensation for causing mental agony and harassment;
   3. to pay ₹10,000/- to the complainant as costs of litigation.

 

5. This order be complied with by the OP 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 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)], till realisation, over and above payment of ligation expenses.
6. Pending miscellaneous application(s), if any, also stands disposed off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 04/09/2024			[Pawanjit Singh] President
mp
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member