Haryana

Panchkula

CC/68/2018

NARESH KUMAR - Complainant(s)

Versus

SPARKLING STAR INFRA PVT.LTD - Opp.Party(s)

MR.NITIN GUPTA

28 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	68 of 2018
Date of Institution	:	09.04.2018
Date of Decision	:	28.07.2022

 

Naresh Kumar S/o Ashok Kumar R/o H.No.677, Phase-1, Mohali.

    ..….Complainant

Versus                                                                  

1.     Sparkling Star Infra Pvt. Ltd. Now known as Shining Star Infra Ltd.

        Ist Address:- Regd. Officer:- SCO 65, Sector-12-A, Panchkula, through its Directors/Authorised Signatory.

        IInd Address:- Flat No.68, First Floor, Gulmohar City, Dera Bassi.

2.    Sh. Vikas Jain, Director Sparkling Star Infra Pvt. Ltd. Now  known as Shining Star Infra Ltd. R/o Flat No.68, First Floor, Gulmohar City, Dera Bassi(Punjab).

3.     Sh. Vikas Goyal Director Sparkling Star Infra Pvt. Ltd. Now, known as Shining Star Infra Ltd., R/o Flat No.601, Balaji Towers, Kishanpura, Opposite dream homes society, Dhakoli, Zirakpur (Punjab).

4.     Mrs.Payal Goyal w/o Vikas Goyal Director Sparkling Star Infra Pvt. Ltd. Now known as  Shining Star Infra Ltd. R/o Flat No.601, Balaji Towers, Kishanpura, Dhakoli, opposite dream home society, Zirakpur(PB).

                                                                      ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Sh. Gaurav Gupta, Advocate for the complainant.

                        Sh. Sanjeev Malhotra, Advocate for OPs No.1 to 3.

                        OP No.4 already given up vide order dated                                     07.9.2021.

                       

ORDER

(Satpal, President)

 

1.             The brief facts of the present complaint as alleged are that the Ops are real estate developers running various real estate projects in the name sparkling  star infra private ltd. @ shining star Infra Pvt. Ltd. Earlier the Ops were known  has Sparkling Star Infra Pvt. Ltd. and now they are known as Shining Star Infra Pvt. Ltd. The Ops advertised their residential project i.e. “Sparkling Star Infra Pvt. Ltd. @Shining Star Infra Pvt. Ltd. situated at village sallapur between Ropar and Morinda Highway District Ropar. The complainant approached to the OP at their office SCO-65, Sector-12-A, Panchkula where on the allurement of the Ops and pre launch offer, complainant booked a residential plot of 100sq yard having total value of Rs.5,50,000/-. The complainant paid booking amount of Rs.50,000/- vide payment receipt no.1512 dated 03.12.2013. As demanded by the Ops from time to time, the complainant paid an amount of Rs.2,25,000/- and Rs.2,75,500/- vide payment receipt nos. 1515 dated 04.12.2013 and 1517 dated 16.12.2013 respectively. After paying total cost towards the booked plot, the Ops entered into buyer’s agreement dated 20.12.2013 and it was assured by the Ops at the time of booking of plot that possession will be delivered within two years from the date of execution on buyers agreement and also assured that the Ops will pay Rs.One lakh as surplus amount per 100 sq yards if possession is not delivered within three years. Despite making total sale consideration of Rs.5,50,000/- Ops are unable to deliver the possession of plot till today, moreover Ops did not adhere the terms and conditions and not paid the assured surplus amount of Rs.One Lakh after three years. The complainant since from 2015 visiting to their office to get the possession and get conveyance deed executed but Ops neither given the possession nor get the conveyance deed executed. Even after five years, the Ops failed to raise development at the site and it has been informed by the Ops staff that the project has no government approvals due to which Ops is unable to deliver the possession of plot to the complainant. The act of OPs for non providing proper services to the complainant is deficiency in service on their part, which certainly caused physical and mental harassment to the complainant; hence, the present complaint.

2.             Upon notices, OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being vexatious, vague; no locus-sandi; estoppels; the complainant has not come with clean hands; suppressed the material facts; no jurisdiction; time barred and complainant does not fall under the definition of consumer. It is stated that from time to time, the complainant used to receive the payments from it through various cheques, details of payments are mentioned in para no.3 of preliminary objections of written statement. The payment made to the complainant by the Op No.1 is duly entered in the bank passbook of the OP No.1. On merits, it is denied that Ops had ever assured the complainant that they will pay Rs.One lakh as surplus per 100sq. yards if possession is not delivered within three years. It is denied that they are unable to deliver the possession of the plot rather even today the Ops are interested and willing to deliver the possession of the plot as per agreement and it is the complainant who is not interested to take the possession of the plot. The relevant condition of the agreement in case of consequence and breach (a) Developer: in the event of the Developer committing breach of performance of any of its obligation contained herein, the investors shall be entitled to enforce specific performance of this agreement. (b) In case the Developer shall fail to make delivery of subject property fully completed in all respect as aforesaid within the stipulated time, upon consent of the investor in writing time for such delivery may be extended for a further period as may be mutually agreed subject to a maximum of 24 months. The Developer shall pay to the investor an amount @2% on the investment to the investor for the said extended period towards compensation or in alternative the same area plot at some equally suitable land shall be provided to the investor but subject to timely payment by the investor. However, the Ops has not violated any terms and conditions of the agreement. Thus, there is no deficiency in service on the part of Op No.1 and the complainant has not suffered any harassment or agony and prayed for dismissal of the present complaint.

                Upon notices, OPs No.2 to 3 appeared through counsel and reiterated the grounds and submissions as taken in the written statement filed by OP no.1. Further, the OPs No.1, 2 & 3 are being represented through the same counsel.

3.             The complainant has tendered affidavit as Annexure C-A along with document Annexure C-1 to C-6 and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 to 3 has tendered affidavit Annexure R/A along with documents Annexure R-1 to R-4 and closed the evidence.

4.             We have heard the learned counsels for the complainant as well as OPs No.1 to 3 and gone through the entire record available on file, minutely and carefully.

5.             Admittedly, the complainant on the basis of representation made vide brochure(Annexure C-1(colly)) booked a plot in the residential housing project, namely, Sparkling  Star Infra Private Ltd. @ Shining Star Infra Pvt. Ltd floated by the OPs by paying a booking amount of Rs.50,000/-on 03.12.2013 vide receipt(Annexure C-2). Further, a payment of Rs.2,25,000/-in cash receipt dated 4.12.2013 (Annexure C-3) and a further payment of Rs.2,75,000/- vide receipt dated 16.12.2013 (Annexure C-4) qua the payment towards the plot is also not in dispute. An agreement(Annexure C-5) between the complainant and the OPs was executed on 20.12.2013 at SCO No.65, Sector-12-A, Panchkula containing the various terms and conditions qua the consideration involved the developer/OP’s obligation & consequences of breach etc. The total price of plot was fixed as Rs.5,50,000/- and as per agreement, the complainant was entitled to receive a sum of Rs.5,000/- on monthly basis as rent till 24 months or possession of the plot is delivered, whatever, is earlier. Since the OPs had failed to adhere to the terms and conditions of the said agreement qua the delivery of the possession of the plot after carrying out the development works at site, a legal notice dated 07.03.2018(Annexure C-6) was sent by the complainant to the OP No.1 asking for the refund of Rs.5,50,000/-as paid by him, along with interest. Finding no response, the present complaint has been filed requesting therein for the refund of an amount of Rs.5,50,000/-@ 18% per annum from the date of respective deposits till actual realization and Rs.1,00,000/- as assured surplus amount and a sum of Rs.5,00,000/- as lump sum compensation towards physical harassment and a sum of Rs.33,000/- as cost of litigation charges.

6.             The OPs No.1,2 & 3 have filed separate written statement almost on similar grounds resisting the complaint by raising preliminary objections as well as on merits in the written statement. The first objection raised by the learned counsel is that the complaint is time barred and thus, is liable to be dismissed. The learned counsel for the complainant opposed the said plea stating that the cause of action is still continuing and thus, the plea raised by the OP is liable to be rejected. Reliance has been placed upon the order passed by the Hon’ble National Commission, in case titled Harpreet Singh Kohli & Anr. Vs. Nelu Estate Estate and Movers Pvt. Ltd. in Petition no.418 of 2000, decided on 01.12.2014. The aforesaid plea raised by the Ops is not tenable as a sum of Rs.5,50,000/- paid by the complainant qua the price of the plot proposed, is still lying with the OPs and thus, cause of action is still continued.

7.             The next plea taken by the OPs is that the complainant does not fall under the category of consumer. This plea is also rejected in view of the fact that the complainant has made the payment of sum of Rs. 5,50,000/- to the OPs qua the allotment of a residential plot. Moreover, it is not the case of the OPs that the complainant is engaged in the sale and purchase of the properties. We may place reliance upon the judgment of thr Hon’ble National Commission delivered in case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishan Estate Developer Pvt. Ltd. 2016(1) CPJ 31(NC).

8.             Vide next plea, the territorial jurisdiction of this Commission to entertain and try the present complaint has been disputed. This ground is also rejected in view of the admitted factual position that the agreement to sell the plot in question was executed between the parties at SCO No.65, Sector-12-A, Panchkula(Annexure C-5). On merits, it is vehemently contended by the learned counsel for the OPs that no deficiency has been alleged against the Ops in the entire complaint. The learned counsel contended that the Ops have made no violation of the terms and conditions of the agreement dated 20.12.2013(Annexure C-5) that it is not the case of the complainant that he was illiterate person and thus, he was not well aware about the terms and conditions of the agreement. Continuing the arguments, the learned counsel stated that the Ops are still ready to deliver the possession of the plot to the complainant as per agreement. Inviting our attention towards the clause of the said agreement pertaining to the consequences of breach, it has been argued that time of delivery of the plot was liable to be extended for a period of 24 months and for the said period, the complainant/allottee was entitled to compensation or in the alternative to the allotment of another plot of equal size. Concluding the arguments, the learned counsel has prayed for dismissal of the complaint being baseless and meritless.

9.             The aforesaid contentions raised by the learned counsel on behalf of the Ops are not tenable as discussed hereinafter. As per clause of the 3(l) and 3(ll) of the Agreement dated 20.12.2013 (Annexure C-5), the complainant placing reliance upon the representations made by the Ops vide brochure(Annexure C-1(colly)) had agreed to take the plot in residential project to be developed by the OPs. As per brochure(Annexure C-1(colly)), it was represented that total area having 8 acres of land would be developed with Park/ Roads/commercial belt etc. Vide agreement(Annexure C-5) dated 20.12.2013, it was promised vide clause 6(iii) that the project would be completed in 5 years and the possession of plot would be delivered to the complainant thereafter, without any default. In this regard, though the OPs have claimed that they are ready to deliver the possession of the plot but it is no where shown by way of placing adequate and cogent documentary evidence that the necessary development works pertaining to basic amenities have been carried out at the site of the project and the development is complete in all respect. The complainant in para no.7 & 8 has specifically pleaded that the OPs have failed to carry out the necessary development at the site in question. In view of the specific and categorical contentions of the complainant that development works are not complete at site, it was incumbent upon the OPs to adduce adequate and cogent documentary evidence on record so as to rebut the contention of the complainant regarding non completion of the development works at site. It is well settled legal proposition that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. Therefore, the lapses and deficiencies on the part of the Ops in not delivering the possession of the plot after completing the development works at site is well proved. The complainant cannot be made to wait for any indefinite period for the delivery of the possession of the plot. In this regard, recently, the Hon’ble National Commission in consumer case no.2562 of 2018 titled as Sangeeta Agarwal & Anr Vs. M/s Chintels India Ltd. vide its order dated 27.05.2022 has held that plot purchaser cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. For the sake and clarity and convenience, the Para No.14 of the said order in as under:-

The Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra in Civil Appeal no.3182 of 2019 decided on 25.03.2019 as well as in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan and connected matter in CA No.12238 of 2018 decided on 02.04.2019(2019) 5 SCC 725, has held that flat purchasers cannot be made to wait for an indefinite period of time hoping to obtain possession and that seeking refund of amounts deposited is a valid Redressal. In the present complaint, there is neither a valid occupation certificate nor can the opposite party claim to have made a proper offer of possession. Therefore, there is, merit in the complainants’ averments.

10.            Further, we find no lay out plan of the residential plot containing the numbers of the plots along with the length and breadth of the roads/parks etc. Further, as per clause 7(iii) of the agreement, notice was required to be given to the complainant offering the possession of the plot in the project. No such notice is placed on record, nor it is the case of the Ops that any such notice has ever been issued by them. Therefore, the contentions of the Ops that they are still ready and willing to deliver the possession of the plot is totally baseless and meritless. Lastly, It is pertinent to mention here that the complainant has specifically pleaded in para no.8 of the complaint that the OPs have not obtained any necessary approvals and sanctions etc. from the Competent Authority. The Ops have not controverted the said assertion by placing on record the copy of necessary approvals and sanctions pertaining to the project in question. Therefore, we are of the considered view that OPs have not obtained the necessary approvals/sanctions from the competent authority. It is not the case of the Ops that necessary approvals/sanctions not required in their case. As per well settled legal proposition, a builder is legally bound to first obtain the requisite permissions and sanctions from the Authorities and then collect the consideration money from the general public interested to buy units in its project. In Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7 (NC), it was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, schematic building plan etc. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction of construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/ buildings. The ratio of law, laid down in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licences and without getting the necessary approvals, the same amounts to indulgence into unfair trade practice, on the part of the builder. The aforesaid view has been reiterated by the Hon’ble National Commission, recently in appeal No. 1787 of 2016 titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., decided on 31 May 2018.

11.            In the above stated factual and legal proposition, the lapses and deficiencies and indulgence into unfair trade practice on the part of the OPs is well proved and thus, the Ops No. 1 to 3 are liable jointly and severally to compensate the complainant.  

12.            Coming to the relief, it is an admitted factual position that the complainant has deposited a sum of Rs. Rs.5,50,000/- with the OPs and in view of above discussion, he is entitled to the refund of said sum of Rs.5,50,000/-with interest. Further, the complainant, as per agreement, was entitled to the rent amount of Rs.1,20,000/-, out of which, payment of Rs. 75,000/- has already been made by the OPs to him and thus, he is entitled to the balance amount of Rs.45,000/- as per terms and conditions of the agreement.

13.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 3:-

1.     To refund Rs.5,50,000/- to the complainant, along with interest @ 9% per annum w.e.f. the date of deposit  till actual its realization.
2.     To pay the balance amount  of rent i.e. Rs.45,000/- to the complainant.
3.     To pay an amount of Rs.15,000/- to the complainant on account of mental agony and harassment.
4. To pay an amount of Rs.5,500/- as cost of litigation.

 

 

14.            The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be entitled to the interest @12% instead of 9% from the date of this order till actual realization. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 28.07.2022

 

 

 

          Dr.Sushma Garg         Dr. Pawan Kumar Saini             Satpal

                  Member                  Member                          President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

 

 

CC No. 68 of 2018

 

Present:             Sh. Gaurav Gupta, Advocate for the complainant.

                        Sh. Sanjeev Malhotra, Advocate for OPs No.1 to 3.

                        OP No.4 already given up vide order dated                                     07.09.2021.

 

Arguments heard. Now, to come upon 28.07.2022 for orders.

 

Dated: 20.07.2022

 

 

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

         Member                          Member                               President

 

 

Present:             Sh. Gaurav Gupta, Advocate for the complainant.

                        Sh. Sanjeev Malhotra, Advocate for OPs No.1 to 3.

                        OP No.4 already given up vide order dated                                     07.09.2021.

 

                                Vide a separate order of even date, the present complaint is hereby partly allowed against OPs No.1 to 3 with costs.

         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.28.07.2022

 

 

        Dr.Sushma Garg          Dr. Pawan Kumar Saini           Satpal

              Member                   Member                                  President