Chandigarh

DF-I

CC/159/2023

ROOPESH GUPTA - Complainant(s)

Versus

SAHARA INDIA BHAWAN - Opp.Party(s)

SHRUTI SHARMA

02 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

 

Consumer Complaint No.	:	CC/159/2023
Date of Institution	:	25/03/2023
Date of Decision	:	02/07/2024

 

Roopesh Gupta, Through s/o Ramesh Chander Gupta, r/o Unit No.704, 9118-14 Street, Surrey, British Columbia, Canada, V3R3Z6, through its General Power of Attorney Ramesh Chander Gupta, r/o H.No.2059, Ground Floor, Sector 21-C, Chandigarh, 160021.

… Complainant

V E R S U S

1.     Sahara Parivar (Sahara City Homes), Sahara Housing Division, SCO 1110-11, Sector 22C, Chandigarh, 160022, through its Mr. Deepak Dua, Regional Manager, Sahara City Homes, Sahara Housing Division SCO 1110-11, Sector 22-B, Chandigarh, 160022.

2.     Sahara City Homes, Sahara Housing Division, SCO 1110-11, Sector 22-B, Through Deepak Kumar, Assistant Area Manager, Sahara City Homes, SCO No.86, Shahi Majra, Balongi Road, Sahibzada Ajit Singh Nagar, Punjab.

3.     Sahara City Homes Marketing and Sales Corporation, Through Anoop Tripathi, General Manager, Sahara India Pariwar, S.C.O 1110-11, Second floor, above LIC Office, Sector 22-B, Chandigarh 160022.

4.     Satish Kumar Sharma, Zonal Head of Sahara City Homes, S.C.O 1110-11, Second floor, above LIC Office, Sector 22-B, Chandigarh 160022.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                                                               

ARGUED BY	:	Sh. Jastaran Chhatwal, Advocate alongwith Ms.Shruti Sharma, Advocate for complainant
	:	None for OPs (defence of OPs struck off vide order dated 3.6.2024)

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Roopesh Gupta, complainant through his father and General Power of Attorney holder (Annexure C-1), Ramesh Chander Gupta against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations, as projected in the consumer complaint, that in the year 2003, OPs had launched a housing project by the name of “Sahara City Homes” (hereinafter referred to as “subject project”) and as the complainant was interested to have his own house, he paid an amount of ₹10,000/- to the OPs on 30.12.2003 as booking amount.  The OPs remained silent for a year on the pretext of planning the project and on 10.12.2004 demanded an amount of ₹74,800/- which was paid by the complainant and was acknowledged by the OPs vide receipt dated 15.12.2004 (Annexure C-3). Photocopy of the site plan and the map from the brochure of Sahara City Homes are Annexure C-2. Thereafter the complainant visited the site personally with the agents of the OPs, who assured that the investment would be fruitful one.  After receiving aforesaid amount, OPs started dilly-dallying the complainant on one pretext or the other and the agents of the OPs kept on giving false promises of delivering possession of the house.  At that time, Deepak Sharma, agent of the OPs assured the complainant that the work would be done shortly on the spot.  When nothing was done by the OPs on the spot, complainant approached Harikrishan, Area Field Manager of the OPs, but, he also started giving false promises with respect to possession.  Thereafter the complainant visited the office of the OPs in Sector 22-B, Chandigarh numerous times where their employee, Anoop Tripathi registered the complaint of the complainant vide diary No.3224 on 1.11.2022 on the original receipt.  However, nothing has been done even after that on the spot.  Later on, the complainant came to know that the said project has been shelved due to wrong doings of the promoters of the company. The father of the complainant is a retired employee whereas his mother is suffering from cancer since the year 2012 and due to the aforesaid act of the OPs, complainant is undergoing trauma.  Thereafter the complainant had also sent legal notice dated 13.12.2022 (Annexure C-5) to the OPs to refund the aforesaid paid amount alongwith interest, but, with no result. In this manner, the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. Pursuant to the notice issued, OPs put in appearance through their counsel, but, as the written version was not filed by the OPs within the prescribed period, provided under the Act, their defence was struck off vide order dated 3.6.2024 of this Commission.

2. In order to prove his case, complainant has tendered/ proved evidence by way of affidavit and supporting documents.
3. We have heard the learned counsels 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 he had booked the subject flat with the OPs by paying ₹10,000/- on 30.12.2003 and thereafter had further paid an amount of ₹74,800/-  on 15.12.2004 i.e. total amount of ₹84,800/- as partial sale consideration out of total sale consideration i.e. ₹9-10 lacs and till date neither the possession of the subject flat has been delivered to the complainant nor the amount paid has been refunded to him, the case is reduced to a narrow compass, as it is to be determined if the said act amounts to deficiency in service and unfair trade practice on the part of the OPs and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant.
   2. Perusal of Annexure C-2, copy of brochure containing the site plan and drawing of the subject project/flat indicates that the OPs had shown a rosy picture about their project and thereby allured the customers, including the complainant, to purchase flat in their project.  Annexure C-3 is copy of receipt which indicates that an amount of ₹10,000/- was received by the OPs as booking amount on 30.12.2003 whereas an amount of ₹74,800/- was also received by them on 15.12.2004.  Thus, one thing is clear on record that the OPs have received total amount of ₹10,000 + ₹74,800 = ₹84,800/- out of total sale consideration of ₹9-10 lacs, as has also been alleged by the complainant in para 10 of his consumer complaint.
   3. Learned counsels for the complainant submitted that when it has come on record that the OPs have failed to hand over possession of subject flat and further OPs have not obtained requisite approvals from the competent authorities before receiving the aforesaid amount from the complainant, it is clear that the aforesaid act of the OPs amounts to deficiency in service and unfair trade practice.
   4. We find force in the submission of learned counsels for the complainant, especially when there is nothing on record that the OPs had obtained necessary approvals from the competent authorities before receiving amount from the complainant as partial sale consideration for the sale of subject flat. 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 held 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…………”

5. Learned counsels for the complainant have also relied upon the judgment of 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 2.4.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
6. Further, 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 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.”

In the present case also, complainant has alternatively prayed for refund of the amount paid alongwith interest etc.

7. Not only this, when it has come on record that the possession of the subject flat has not been offered to the complainant, till date, there is continuing cause of action in favour of the complainant. 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.
8. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed, especially when the entire evidence led by the complainant is unrebutted.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to refund the amounts of ₹10,000/- & ₹74,800/- to the complainant alongwith interest @ 9% per annum (simple) from the respective dates of payment by the complainant. However, it is further clarified that on receiving the entire amount by the complainant from the OPs, complainant shall have no right, title or interest with the subject flat.
2. to pay ₹40,000/- 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 OPs, jointly and severally, within a period of 45 days from the date of receipt of certified copy thereof, failing which the amounts 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 of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

02/07/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Surjeet Kaur] Member