Chandigarh

DF-I

CC/298/2024

JANAK RAJ - Complainant(s)

Versus

THE SKY ROCK CITY WELFARE SOCIETY MOHALI - Opp.Party(s)

VIKRANT DUGGAL

01 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/298/2024
Date of Institution	:	18/6/2024
Date of Decision	:	01/10/2024

 

Janak Raj S/o Mohan Lal R/o Flat No. 2047-B, Block No. 21, Sector-63, Chandigarh.

...Complainant

Versus

 

The Sky Rock City Welfare Society Mohali, SITE OFFICE, Sector-111- 112, Mohali through its President Navjeet Singh S/o Daljeet Singh presently lodged in Central Jail Nabha through superintendent of jail, Central Jail Nabha, Punjab.

...Opposite Party

 

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

 

                                                                               

ARGUED BY	:	Sh. Vikrant Duggal, Advocate for complainant (through VC)
	:	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 . The brief facts of the case are as under:-
   1. It transpires from the averments as projected in the consumer complaint that the opposite party is registered society under the provisions of The Societies Registration Act. 1860 and Navjeet Singh is the president & Parminder Kaur is General Secretary of the Society. The opposite party invited the applications for becoming members of the society and the complainant agreed to become the member of the society, by filling the application form.  The complainant booked one residential plot of 250 sq yard (hereinafter referred to be as subject plot) in the project of the Opposite party and the opposite party informed the complainant the tentative cost of the subject plot as Rs. 4500/- per sq. yard. The opposite party received an amount of Rs. 5,000/- towards the membership fee vide cheque no. 762212 from the complainant.  Copy of Registration/Membership is annexed as Ex-C-1. The opposite party in order to provide the residential plots assured the members about purchase of the land in Sector-111 & 112, 3 Mohali. It is alleged that the opposite party without obtaining the requisite permissions and approvals from the competent authorities required for advertising, started giving advertisement in Newspapers and also started receiving hefty amount from the members. The total cost of subject plot was Rs.11,25,000/-. The Complainant paid total amount of Rs.12,05,000/- to the opposite party towards the consideration of the subject plot vide Receipts /Cheque Exhibit/C-2(Colly.) It is alleged that the Opposite party collected a huge amount from the complainant without obtaining necessary permissions from the competent authority. The opposite party supplied share certificate, payment plan along with terms and conditions Exhibit C-3 and C-4 in which a specific condition that "if the Complainant does not want to continue even after paying installments, he will be refunded the entire amount paid with interest @8% p.a. after three years from the date of requisition.  The Opposite party issued provisional  allotment letter Exhibit C-5 dated 1.8.2025 to the complainant whereby he was allotted plot No.68M measuring 250 sq. yds. in Sector 110,111&112, Mohali. Thereafter the complainant vide  various letters Exhibit C-6, C-7 and C-8 asked the Opposite party about the status of development and delivery of possession of the subject plot but nothing was done by the Opposite party. The Opposite party specifically mentioned in receipt if the complainant does not want to continue even after paying some of the installment he/they will be refunded, the entire amount with the prevailing interest P.A. after one year from the date of registration. The Complainant was got registered as member on 28.10.2010 and till date no possession has been handed over to him. The Complainant came to know that the CLU granted to the opposite party was cancelled by the authorities and the reasons were not disclosed to the Complainant. Moreover, the opposite party has booked more number of members than the plots available as per the approval and the GMADA has also taken cognizance of this fact and has issued public notice dated 28.02.2017 Ex-C-9 in 'The Tribune' dated 28.02.2017 vide which the GMADA has issued cautioned to the general public not to indulge in purchasing any flat/Plot/commercial shops in any of the projects of M/s Sky Rock Welfare Society. It is alleged that the opposite party kept on receiving the amount, ignoring the fact that they were not in possession of any permissions and approvals with them. In this manner, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OP. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OP was properly served and when OP did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 2.8.2024.
2. In order to prove his claim the 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. At the very outset, it may be observed that when it is an admitted case of the complainant that he has become member of the Opposite party society and paid membership fee of Rs.5000/- and thereafter the complainant booked the subject plot in the project of Opposite party and paid total amount of
      Rs.12,00,000/-, towards the sale consideration of the subject plot and provisional  allotment letter Exhibit C-5 dated 1.8.2025 was issued to the complainant wherein he was allotted plot No.68M measuring 250 sq. yds. in Sector 110,111&112, Mohali and despite requests of the  complainant till date the possession of the subject plot has not been delivered to him by the Opposite party,  the case is reduced to a narrow compass as it is to be determined if the   aforesaid act of Opposite party of not delivering the possession of the subject plot to the complainant till date amounts to deficiency in service and  the complainant is entitled for the relief as prayed for as is the case of the complainant.
   2. Perusal of Exhibit C-1 indicates that the complainant paid Rs.5,000/- towards membership of the Opposite party. Exhibit C-2 (colly) are the receipts which indicate that the complainant has paid Rs.12,00,000/- towards the consideration of the subject plot. Exhibit C-3 is the share certificate  and Exhibit C-4 is the terms and conditions  and payment schedule, which indicate that the possession of the subject plot was to be handed over not later than two years of registration/requisition  whereas Exhibit
      C-5  is the provisional allotment which indicates that the complainant was allotted plot No.68M in Sector 110-11-12, Mohali measuring 250 sq.yards.  on 1.8.2015.  Exhibit C-6 to C-8 are the letters sent by the complainant to the Opposite party  with regard to the subject plot.  Exhibit C-9 is the public notice issued by GMADA  whereby the GMADA cautioned the general public not to indulge in purchasing any flat/Plot/commercial shops in any of the projects of M/s Sky Rock Welfare Society  as the Opposite party has cheated  the general public by collecting crores of rupees from them in the name of booking plots/flats more than the number of plots/flats approved in the project.
   3.  From the foregoing discussion, one thing is clear that the Opposite party has received huge money from the consumers including the complainant by   booking plots/flats in their project more than the approved plots/flats as is evident from  Exhibit C-9, thereby the Opposite party is indulged in unfair trade practice by alluring the general public through advertisements in the news papers for booking plots/flats in their project more than the approved plots/flats and even as per the complainant the Opposite party has not obtained the necessary permissions/approval for their project from the competent authority. 
   4. Not only this, OP has not come forward before this Commission to clarify by 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 OP to obtain all the approvals/ clearances before booking the subject flat.  If the OP 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 OP, 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…..”

 

5. 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…………”

 

6. Moreover, as per Exhibit C-4 the terms and conditions  and payment schedule, the possession of the subject plot was to be handed over not later than two years of registration/requisition  and conditions the Opposite party has not delivered the possession of the subject  plot to the  complainant till date despite of receiving huge amount of Rs.12,00,000/- towards the sale consideration of the subject plot as well as Rs.5,000/- towards the membership.
7. The 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 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.
8. 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.”

9. 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 OP  has 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.
10. In view of the of the above, it is safe to hold that the aforesaid act of Opposite party amounts to deficiency in service and unfair trade practice on its 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 OP. Hence, the instant consumer complaint deserves to be allowed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and Opposite party is  directed as under :-
   1. to refund ₹12,05,000/- to the complainant alongwith interest @ 9% per annum (simple) from the respective dates of deposit till onwards
   2. to pay ₹75,000/- 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 OP within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) 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 off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 1/10/2024			[Pawanjit Singh] President
mp
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member