Chandigarh

DF-I

CC/263/2023

KAMALJIT KAUR - Complainant(s)

Versus

SAIFI KUMAR - Opp.Party(s)

MANMOHAN KAUR DHALIWAL

02 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/263/2023
Date of Institution	:	15/05/2023
Date of Decision	:	02/05/2024

 

Kamaljit Kaur, aged 54 years, wife of S. Nek Singh Saroya, resident of Kothi No.54, Phase-4, SAS Nagar (Mohali).

… Complainant

V E R S U S

1. Saifi Kumar son of Ravi Kumar, resident of #25, Dhaba Kokrian, Tehsil Abohar, District Fazilka, Punjab, Director of Siswa Paradise Private Ltd.
2. Gurpreet Singh Sidhu son of not known, resident of Emerging Heights, Kharar, Punjab and also at Adab City, Khunimajra, Tehsil Kharar, District SAS Nagar, Managing Director of Siswa Paradise Private Ltd.
3. Siswa Paradise Private Ltd., SCO No.28-29-30, 2^nd Floor, Sector 9-D, Madhya Marg, Chandigarh through its Director Saifi Kumar son of Ravi Kumar, resident of #25, Dhaba Kokrian, Tehsil Abohar, District Fazilka, Punjab.

… Opposite Parties

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

                                                                       

ARGUED BY	:	Ms.Manmohan Kaur Dhaliwal, Advocate for complainant
	:	OPs ex-parte

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Kamaljit Kaur, complainant against the 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 month of June 2012, OPs published one brochure vide which applications were invited for purchase of cottage farm house/farm house under their proposed project Siswan Paradise at Village Mirjapur, Tehsil Kharar, District SAS Nagar (hereinafter referred to as “subject project”). The complainant applied for one cottage farm house in the subject project and OPs allotted preference/ docket No.SSWP-293 vide receipt (Annexure C-1) informing that she would be allotted cottage farm house measuring 605 sq.yard  (hereinafter referred to as “subject farm house”). The complainant made the total payment of ₹5,72,500/- on different occasions, i.e. ₹2,50,000/- at the time of proposed purchase at the first instance, ₹2,00,000/- vide two cheques (Annexure C-2) dated 5.6.2013 and ₹1,22,500/- by way of cheque dated 18.7.2014 (Annexure C-3).  Thereafter OP-1 being Director/Proprietor of OP-3 got a sale deed registered on 26.8.2014 (Annexure
   C-6) in favour of the complainant and transferred 1/25435 share in the total land. However, OPs failed to hand over possession of the subject land/farm house to the complainant despite many visits by her. In the year 2017, complainant also came to know that OPs had played fraud with many people like her in the same manner and have not returned the amount received as sale consideration. The complainant also sent a legal notice (Annexure C-13) asking the OP to return the sale consideration, but, the same was refused.  In this manner, the entire amount was received by the OPs from the complainant illegally and the said act amounts to unfair trade practice. OPs were requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OPs did not turn up before this Commission, despite proper service, hence they were proceeded against ex-parte vide order dated 22.6.2023.

2. In order to prove her case, complainant has tendered/ proved her evidence by way of affidavit and supporting documents.
3. 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 by believing and acting upon the information given by the OPs in their brochure, she had applied for a farm house and same was allotted by the OPs and she had paid total amount of ₹5,72,500/- on different dates, as is also evident from Annexure C-2 and C-3 and thereafter sale deed (Annexure C-6) was executed by Saifee Kumar/OP-1 in favour of the complainant qua 1/25435 share in the total area measuring 16400 bigha & 18 biswa and till date neither the OPs have handed over possession of the subject farm house to the complainant nor refunded the amount paid, the case is reduced to a narrow compass as it is to be determined if there is any deficiency in service or unfair trade practice on the part of OPs and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant.
   2. In support of her case, apart from her affidavit, complainant has proved Annexure C-1 whereby the subject farm house was allotted to her. Annexure C-2 & C-3 are copies of cheques totaling ₹3,22,500/-issued by the complainant in favour of OP-3 being part consideration towards sale of subject farm house. It is also the case of complainant that besides above, she had paid an amount of ₹2,50,000/- to the OPs at the time of purchase of subject farmhouse, which fact has gone unrebutted by the OPs. 
   3. Annexure C-6 is the copy of sale deed which clearly indicates that, in fact, through the said deed, Sh.Saifee Kumar/OP-1, had transferred 1/25435 share in total land measuring 16400 bigha & 18 biswa without referring anything about the specific plot, measuring 605 sq. yard in the name of the complainant. Thus, one thing is clear from the sale deed (Annexure C-6) that the said Sh.Saifee Kumar had only transferred a small share in the big chunk of land measuring 16400 bigha 18 biswa without getting the same partitioned from other owners and thereby misled the complainant by originally agreeing that a cottage farmhouse measuring 605 sq. yards shall be allotted to the complainant and later on had transferred only a very meagre share in the joint land, without handing over the actual possession to the complainant as had been shown and assured. All these allegations made in the consumer complaint stands proved through the affidavit submitted by complainant and the evidence led by her, which has gone unrebutted.
   4. Learned counsel for the complainant contended with vehemence that when it has come on record that the OPs have failed to hand over the possession of the subject farmhouse and further the OPs have not obtained the 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.
   5. We find force in the contention of learned counsel for the complainant, especially when there is nothing on record that the OPs had obtained the necessary approvals from the competent authorities before receiving huge amount from the complainant as sale consideration for the sale of subject plot/farmhouse.
   6. Not only this, even till date, when OPs have failed to prove on record that they are having requisite sanctions/approvals from the competent authorities for launching the subject project or that they been allowed to sell the flats/plots for which they have already extracted huge amount from the complainant, it is safe to hold that the OPs 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 OPs to obtain all the approvals/ clearances before booking the subject plot.  If the OPs chose to accept the booking without obtaining approvals/clearances or amended clearances, it is only themselves to blame for the same as the purchaser of subject floor/flat/plot has nothing to do with the grant of statutory approvals/clearances/amended clearances.
   7. 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…………”

8. The complainant has 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 02.04.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
9. 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.”

 

10. 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 aforesaid amount of ₹5,72,500/- to the complainant alongwith interest @ 9% per annum from the date(s) of respective payment onwards.  However, it is further clarified that on receiving the entire amount by the complainant from the OPs, the complainant shall have no right, title or interest with the sold share through sale deed (Annexure C-6) and the OPs shall get the land sold by them to complainant legally transferred in their favour through competent authorities and the complainant shall assist the OPs for the same.
2. to pay an amount of ₹50,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

02/05/2024 hg			Sd/-  [Pawanjit Singh] President
			Sd/-  [Surjeet Kaur] Member
			Sd/-  [Suresh Kumar Sardana] Member