Chandigarh

DF-I

CC/372/2023

MRIDU SHARMA - Complainant(s)

Versus

SHALIMAR ESTATES PVT LTD - Opp.Party(s)

VERTIKA H. SINGH

03 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/372/2023
Date of Institution	:	2.8.2023
Date of Decision	:	3/04/2024

 

Mridu Sharma W/o Sh. Ram Sarup Sharma, resident of House No. 1739, Sector 34-D, Chandigarh.

Complainant

Versus

 

1. Shalimar Estates (P) Ltd., through its Managing Director, having its registered office at House No. 1084, Sector 8-C, Chandigarh.

 

SECOND ADDRESS:-

Shalimar Estates (P) Ltd., Admn. Office SCO 110-111, Sector 8-C, Chandigarh.

 

2. Ram Kumar Aggarwal, Managing Director, Shalimar Estates (P) Ltd., resident of House No. 1084, Sector 8-C, Chandigarh.

 

3. Kamlesh Aggarwal, Director, Shalimar Estates (P) Ltd., resident of House No. 1084, Sector 8-C, Chandigarh.

 Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Smt. Vertika H. Singh, Advocate for complainant (through VC)
	:	Sh. Varun Bhardwaj, Advocate for OPs (OPs exparte)

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 OPs).  The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that the OPs had launched a project “Shalimar Estates”  at  Naraingarh at Panjlasa, District Ambala (hereinafter to be referred as subject project) with great marketing and advertising all over Haryana and Chandigarh. Initially the plot No.149 (hereinafter to be referred as subject plot) in the subject project was allotted to one Joginder Paul vide Agreement to Sell Annexure C-1 dated 28.1.1997 for total sale consideration of Rs.1,35,000/-and after allotment of the same the said allotee had paid the total sale consideration to the tune of Rs.1,93,660.50 including interest  to the OPs  and the last installment was paid on 9.12.2022. Copies of payment receipts are annexed as Annexure C-2 (colly). Being allured  by the OPs,  the subject plot later on was purchased by the complainant for sale consideration of Rs.3,00,000/- on 15.12.2011 from erstwhile allotee Joinder Paul. The copy of payment receipt  is annexed as Annexure C-3 whereas the affidavit of the erstwhile allotee alongwith application are annexed as Annexure C-4.  Thereafter the complainant deposited an amount of Rs.25,00/-  with the OPs as transfer fee vide receipt Annexure C-5 and thereafter the OPs transferred  the rights of the subject plot vide transfer letter Annexure C-6 dated 21.12.2011  in favour of the complainant. However till date, the OPs have maintained complete silence on the possession of the subject plot as they have failed to develop the entire project.  There is no approach road to the plot of the complainant and even no water or electricity connection and sewerage has been laid on the subject plot. The complainant repeatedly requested the OPs to provide basic amenities but with no result. The photograph of the subject plot is annexed as Annexure C-7.  The complainant repeatedly visited the OPs enquiring about the status of the development work but badly disappointed by seeing that the OPs had completely shunned the development and in this manner vide clause 3 of the transfer letter Annexure C-6 dated 21.12.2011, the OPs had misled the complainant that possession of the plot was ready. Not only this even the OPs could not obtain the necessary sanctions and approvals from the competent authorities till date  nor could they provide any park or other amenities in the project and in this manner the aforesaid act of  OPs amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs  were properly served and when OPs did not turn up before this Commission, for filing reply and evidence on 24.11.2023 despite ample opportunity given,  they were proceeded against exparte on the said date.

2. In order to prove their case, complainant has tendered/proved her 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.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the subject plot was  originally allotted to Jaginder Paul as  is also evident from  copy of  Agreement Annexure C-1 and later on the subject plot was sold by the erstwhile allottee Joginder Paul to the complainant for sale consideration of Rs.3,00,000/- as is also evident from Annexure C-3 the receipt and further the subject plot was transferred in the name of the complainant by the OPs vide transfer letter Annexure C-6, the case is reduced to a narrow compass as it is to be determined if  the OPs have collected the entire sale consideration from the original allottee Joginder Paul and later on from the complainant without obtaining necessary sanctions and approvals from the competent authorities and the OPs are deficient in service  and indulged  in unfair  trade practice and the complainant is entitled for the relief as prayed for and for that purpose the entire documentary evidence led by the complainant is required to be scanned carefully.
   2. In support of her case, the complainant has tendered her duly sworn affidavit in which she deposed the manners in which she had purchased the  subject plot  from the erstwhile allottee Joginder Paul  and the subject plot was transferred in her name in the record of the OPs but till date the OPs could not develop the subject project and there is no approach road to the plot, water, electricity connection and sewerage. In addition that she also proved on record photographs Annexure C-7(colly), which clearly indicate that the subject plot has not been developed/complete in all respect till date and the entire evidence led by the complainant is unrebutted by the OPs, thus, it is safe to hold that  despite of receipt of entire sale consideration from the erstwhile allottee as well as from the complainant, the OPs have not developed the subject project till date, hence the  aforesaid act of OPs amounts to deficiency in service and unfair trade practice on their part.
   3. Moreover, nothing has come on record from the OPs 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 OPs to obtain all the approvals/ clearances before booking the subject plot.  If the OPs 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 plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, 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…..”

 

4. 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…………”

5. 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.
6. 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.”

7. 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 OPs  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.
8.        So far as the quantum of compensation etc. is concerned, as the OPs have failed to hand over the possession of the subject plot to the complainant after developing and completing  the same in all respect  with basic amenities and after obtaining occupation and completion certificate  from the competent authorities, the OPs are liable to handover the possession of the subject plot complete in all respect alongwith delayed compensation to the complainant. 

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 deliver actual physical possession of the subject plot to the complainant, complete in all respects i.e. after providing all the basic amenities, referred to above, and execute the sale deed, on receiving of EDC, PLC charges (if the subject plot is preferentially located) and also Govt. taxes as applicable, from the complainants.
2. To pay delayed compensation to the complainants in the form of simple interest @ 9% per annum on the entire deposited amount w.e.f. filing of complaint till the date of actual physical possession of the subject plot complete in all respects.
3. To pay ₹20,000/- to the complainant as compensation for causing mental agony and harassment to them and also deficiency in providing service and adoption of unfair trade practice;
4. To pay ₹10,000/- to the complainants as costs of litigation.

5. This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(ii) & (iii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining directions..
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 3/04/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member