Chandigarh

DF-I

CC/160/2022

Naveen Kumar Prashar - Complainant(s)

Versus

T.V.S Ventures - Opp.Party(s)

Mohit Singla

01 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/160/2022
Date of Institution	:	4.2.2022
Date of Decision	:	1/02/2024

 

Naveen Kumar Prashar aged about 42 years S/o Sh. Tilak Raj R/o House No.

2044, Sector 44-C, Chandigarh (U.T).

 

Complainant.......

 

Versus

 

1. T.V.S Ventures, 602, Sreemax House, Dhruvtara Apartments, Medinova Complex, Somajiguda, Hydrabad- 500082. Through Chairman/Managing Director/Director/Authorised Representative.

 

2. Bioscope and Sreemax Entertainment Ltd. Flat No-602, 6th Floor, Sreernax House, Dhruvtara Apartments, Medinova Complex, Somajiguda, Hydrabad- 500082. Through its Chairman/Managing Director/Director/Authorised Representative.

 

Opposite Parties......

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

 

                                                                               

ARGUED BY	:	Complainant in person.
	:	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 on 3.4.2008 the complainant booked one residential plot bearing No.327 measuring 300 Sq. yds.  for his personal use  with basic price of Rs.3100/- sq. yds with total cost of Rs.9,30,000/- (hereinafter to be referred as subject plot ) situated at Penjerla village Kothur Revenue Mandal, District Mehoobnagar, Andhra Pardesh  with the OPs.  At time of booking of the subject plot  the complainant had deposited an amount of Rs.70,000/-  as advance/booking amount with the OPs which was also acknowledged by OP No.2  vide receipt Exhibit C-1 dated 3.4.2008.  On 8.4.2008 the complainant again transferred an amount of Rs.30,000/-  to the OPs as per  their demand which was acknowledged by the OPs vide receipt Exhibit C-2 dated 8.4.2008. On 21.4.2008 an Agreement for Sale of Plot Exhibit C-3 was executed between the parties vide which the Ops had assured that they will develop/complete the black top roads, electricity, drainage, parks, security, DTCP approved layout within four months from the date of execution of the agreement.  Vide letter dated Exhibit C-4 dated 24.4.2008, the OPs have acknowledged the receipt of Rs.1.00 lakh from the complainant. Later on when the OPs raised demand with the complainant about the remaining amount, the complainant deposited/transferred the same from time to time and further transferred an amount of
   Rs. 50,000/- on 07-08-2008, Rs. 50,000/- on 08-08-2008, Rs. 50,000/- on 12-08-2008, Rs. 45,000/- through DD on 12-08-08, Rs. 48,000/- through DD, and Rs. 45000/- through DD on 21- 08-2008 and thereafter Rs. 2,50,000/- through DD in the accounts of the opposite parties and thereby the complainant paid total amount of Rs. 6,38,000/-  including an amount of Rs.1.00 lakh which was acknowledged by the OPs vide receipt Exhibit C-4.  Copies of DD/Payment Receipts are annexed as Exhibit C-5 to C-7. However, despite of the fact that major portion of the total sale consideration has already been paid by the complainant to the OPs, the OPs failed to develop the site and failed to hand over the possession of the subject plot. The complainant contacted the OPs by making telephonic calls by sending emails and even personally but they had  not replied  and on finding that there is no other bio-media, the complainant was compelled to send legal notice dated 29.1.2019, to the OPs requesting them to hand over the possession   of the subject plot or to refund the deposited amount alongwith interest. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs No.1&2 were properly served and when they did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 9.5.2023 and 6.9.2023 respectively.

2. In order to prove his case, complainant has tendered/proved his 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. Before touching the merits of the case, it is worth to mention here that the complainant vide his email dated 15.1.2024 as well as through oral submission  prayed to confine his claim to  the extent of refund of the deposited amount alongiwith interest and compensation. Since the complainant has prayed to confine his claim to the extent of refund of the deposited amount alongwith interest and compensation by not pressing his prayer for possession of the plot, this Commission vide order dated 15.1.2024 has decided to decide the claim of the complainant for refund purpose only.
   2. At the very outset, it may be observed that when it is an admitted case of the complainant that the OPs had agreed to sell the subject plot to the complainant for sale consideration of Rs.9,30,000/- out of which he had already paid Rs.6,38,000/-,  and  despite of that the OPs neither developed the subject project nor have handed over the possession of the subject plot to the complainant, the case is reduced to a narrow compass as it is to be determined if  the aforesaid act of the OPs amount to deficiency in service and unfair trade practice and the complainant is entitled for the relief as prayed for.
   3.  In order to prove his case the complainant has tendered his duly sworn affidavit CW1/A and deposed therein as mentioned in the complaint. The complainant has also proved on record the receipts  Exhibit C-1 and C-2 which clearly  indicates that the complainant paid an amount of Rs.70,000/-  on 3.4.2008 and Rs.30,000/- on 8.4.2008 to the Ops and the aforesaid amount of Rs.1,00,000/- was acknowledged by the OPs in the agreement for sale of plot Annexure C-3, which further indicates that the complainant had agreed to pay the remaining amount on or before 31.5.2008.  Exhibit C-5 to C-7 are copies of draft which indicate that the complainant had paid further amount of Rs.48,000/-, Rs.45,000/- and Rs.45,000/-  on different dates. Exhibit C-11 statement of account further indicates that the complainant further made payment to the OPs on different dates i.e. amount of Rs.50,000/- was paid on 7.8.2008, an amount of Rs.50,000/- paid on 8.8.2008, and further amount of Rs.50,000/- and Rs.2,50,000/- were paid on 12.8.2008. Thus the complainant paid a total amount of Rs.6,38,000/- to the OPs.   Exhibit C-8  is the legal notice sent by the complainant to the OPs which indicates that the complainant requested the OPs  either to handover the possession of the subject plot or to refund the deposited amount alongwith interest and compensation.  As per case of the complainant the  notice was not replied by the OPs
   4. From the documentary evidence led by the complainant as discussed above, it is proved on record that the OPs despite of having received major portion of the total sale consideration of the subject plot from the complainant failed to either develop the subject project after  obtaining necessary permission from the competent authorities nor  handed over the possession of the subject plot to the complainant till date, thus, the aforesaid act of OPs amounts to deficiency in service and unfair trade practice on their 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 OPs..
   5. Undisputedly, the amount deposited by the complainant,  has been utilized by opposite parties for earning profits in their business. Opposite parties have also violated the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”), by not obtaining the necessary sanctions/permissions from the competent authorities before launching the above said scheme and collecting money from the people. Therefore, it stands proved that opposite parties have violated Sections 3, 5, 9 and 12 of PAPRA.
   6. Not only this, OPs have failed to clarify this Commission by appearing before this Commission and leading any evidence or making any defence 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 flat.  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 floor/flat/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…..”

 

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. 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.”

 

10. 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.

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 pay ₹6,38,000/- to the complainant alongwith interest @ 9% per annum from  the respective dates of deposit  till onwards.
2. to pay an amount of ₹25,000/- to the complainant(s) as compensation for causing mental agony and harassment to her/him/them;
3. to pay ₹10,000/- to the complainant/s 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, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
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 1/02/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member