State Consumer Disputes Redressal Commission
Jaswinder Singh vs Emerging Valley Private Limited on 14 May, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 531 of 2017 Date of Institution : 12.07.2017 Date of Decision : 14.05.2018 Jaswinder Singh s/o Gurmel Singh, r/o Village Todar Majra, Tehsil Kharar, District SAS Nagar. ......Complainant V e r s u s Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. Gurpreet Singh Sidhu, Managing Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. Harvinder Singh Behl, Additional Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. Sushil Kumar, Additional Director, Emerging Valley Private Limited, SCO 46-47, First Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh through its Managing Director. ..... Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR.DEV RAJ, MEMBER.
MRS.PADMA PANDEY, MEMBER.
Argued by: Sh.Amrik Singh, Advocate for the complainant.
Sh.J.S. Rattu, Advocate for opposite parties no.1 and 2.
Opposite parties no.3 and 4 exparte.
JUSTICE JASBIR SINGH (RETD.), PRESIDENT It is the case of the complainant that through various advertisements in newspapers and also brochures issued by the opposite parties, he came to know about a project launched by them i.e. Emerging Valley, Landran-Banur Road, Mohali, and as such, he booked a plot measuring 200 square yards, by making payment of Rs.2 lacs on 13.09.2014. Total price of the plot was fixed at Rs.31 lacs. Provisional allotment in respect of plot measuring 200 square yards was issued vide letter dated 10.06.2015 Annexure C-2. Terms and conditions of allotment letter were attached with the said letter and as per Clause (N) thereof, possession of the developed plot was to be delivered within time limit of three years after the date of allotment. It is further the case of the complainant that, thereafter, he was intimated that plot measuring 200 square yards is not available and he be shifted to plot measuring 150 square yards. It was so done vide letter dated 12.06.2015 Annexure C-3. By the said date, the complainant had already paid an amount of Rs.10,15,000/- to the opposite parties. Thereafter, another letter dated 08.08.2016 Annexure C-4 was issued by the opposite parties, wherein payment of Rs.10,51,750/- was confirmed. The complainant further deposited an amount of Rs.2 lacs on 03.03.2017 and 29.03.2017. It was intimated to him vide letter dated 28.04.2017 Annexure C-5, that payment made will be adjusted towards a booth in the said project, as plots were not available. Thereafter, again he was told that plot measuring 100 square yards was ready for possession. He was asked to change the option, which he did and vide letter dated 22.05.2017 Annexure C-6, entire payment of Rs.12,51,750/- was adjusted against the relocated plot. It is further case of the complainant that even then, when possession was not delivered, he became suspicious and went to the site and was surprised to see that there was no development at all. To his query, as to when possession of the plot will be delivered, no satisfactory reply was given. The complainant came across RTI information supplied by Greater Mohali Area Development Authority (GMADA) i.e. the competent Authority. The said information was sought by a similar located allottee, qua Emerging Valley project launched by the opposite parties. The said Authority, vide letter dated 20.06.2017 Annexure C-7, intimated that opposite party no.1 had applied to get licence to develop a colony. Letter of Intent (LOI) was issued. Because the promoter failed to fulfill the conditions contained in the said LOI, licence was not issued to it. It was further said vide the said letter, that the promoter was not competent to sell any plot/flat etc. Translated copy of the said letter reads thus:-
"GREATER MOHALI AREA DEVELOPMENT AUTHORITY, PUDA BHAWA, SECTOR 62, S.A.S. NAGAR (Town Planning and Licensing Shakha) To Sh.Manvir Singh Home No.447, Type-2, Punjab Mandi Board Complex Sector 66, S.A.S. Nagar Letter No.STP/GMADA/A-2/2016/1866 Dated 20/06/2017 Subject: Sh.Manvir Singh (File No.10919) through RTI Act, 2005 for information (Diary No.465 dated 05.06.2017) The information sought Regarding the above subject, it is stated that M/S Emerging Valley Private Limited applied for setting up a colony at Village Nogiari district SAS Nagar and for taking up the license in this office but the promoter of the colony could not fulfil the conditions of letter of intent, the licence was not issued to the promoter. The promoter of the colony cannot sell a plot, flat and boths without taking the license.
Sd/- Administrative Office Licensing GMADA, S.A.S. Nagar Endorsement No.GMADA STP/2016 dated
copy of the above is hereby sent to Administrative officer (Coordination) SAS Nagar with reference to his letter No.1222 dated 08/06/2017 for information."
Thereafter, again the complainant visited the office of the opposite parties but failed to get any positive response, qua delivery of possession of the plot.
Upon notice, reply was filed by opposite parties no.1 and 2. It was alleged that the complainant has not come to this Commission with clean hands. He was issued provisional allotment letter on 10.03.2015. Possession of the plot was to be delivered within three years, as such, this complaint having been filed on 12.07.2017, was premature. It was stated that the complainant would not fall within the definition of consumer, as he owned another house in Mohali. It was further stated that, initially the complainant opted for 200 square yards plot. He was then relocated to a plot measuring 150 square yards; then to a booth and then to plot measuring 100 square yards, as such, he was not a genuine buyer. He was finally allotted 100 square yards plot, for an amount of Rs.15.50 lacs. The amount involved was less than Rs.20 lacs, as such, this Commission lacks pecuniary jurisdiction. Territorial jurisdiction of this Commission was also challenged. To the averments made in para no.7 of the complaint that no licence to develop colony was issued in favour of opposite party no.1, specific reply was not filed by opposite parties no.1 and 2. It was stated that if the complainant was not satisfied, he should not have opted for the change of size of plot. It was further stated that the complainant deposited the amount toward price of the plot, after inspecting the site. He was a willing purchaser. Now on account of failure of the market, he wishes to withdraw his amount. It was stated that all necessary sanctions are available with the Company for selling the project. To say so, sanction granting Change of Land Use (CLU) dated 04.07.2013 was placed on record. Other documents issued in March 2014 onwards are placed on record, by way of evidence, to say that process to grant of other sanctions was under process. Some sanctions like STP etc. stood granted. It was further stated that plot measuring 100 square yards was allotted in the month of May 2017 and immediately, thereafter, this complaint was filed in the month of July 2017, as such, it being premature, is liable to be dismissed.
Despite deemed service, none put in appearance on behalf of opposite parties no.3 and 4, as a result whereof, they were proceeded against exparte vide order dated 06.09.2017.
In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties no.1 and 2.
The contesting parties led evidence in support of their case.
We have heard the contesting parties, and have gone through the evidence, and record of the case, carefully and are of the considered opinion that this complaint deserves to be allowed. It is true that provisional letter in respect of initially allotted plot, measuring 200 square yards, was issued in favour of the complainant on 10.06.2015, Annexure C-2 and in the said letter, a commitment was made to hand over possession of the plot, within a period of three years i.e. upto June 2018. Before exhausting the entire period of three years, this complaint has been filed by the complainant. However, as is reflected in earlier part of this order, even as on today, licence to develop colony i.e. for the project under question, is not available with the opposite parties, as such, it will not be justified to ask the complainant to wait till the end of three years. It is apparent on record that one of the similar situated allottee sought information under the RTI Act, 2005, from the GMADA, as to whether any licence is available with opposite party no.1 to develop the project, in question or not. In the answer, vide letter dated 20.06.2017, it was specifically stated that after issuance of LOI, when the builder failed to fulfill necessary conditions, no licence was granted to it. The promoter was not competent to develop a colony and sell plots, flats etc., in the said project. Opposite parties no.1 and 2 placed on record some documents as Annexures with the affidavit and an attempt has been made to show that some permissions were available with the builder, to raise the said project, however, in the face of letter dated 20.06.2017 issued by the GMADA, such contention cannot be accepted.
At the time of arguments also, Counsel for opposite parties no.1 and 2 failed to show any valid licence to develop the project, in question. He only placed reliance on the documents attached with the said affidavit. Those documents came up for consideration, in a similar case, titled as Jarnail Singh Vs. Emerging Valley Private Limited, complaint case no.37 of 2017, decided on 23.05.2017 and this Commission observed as under:-
"Thereafter, during pendency of this complaint, the opposite party moved an application, to place on record some more documents Annexure R-4 to R-11, which was allowed on 06.04.2017, subject to payment of costs. Those documents are taken on record. Perusal of those documents indicate that when the project, in dispute, was launched, not even a single approval granted by the Competent Authorities, was available with the opposite party. Subject to many conditions, CLU was granted on 04.07.2013 and thereafter, in continuation to the said letter, another letter was issued on 23.09.2013 Annexure R-5. As per conditions imposed, before starting the development in the project, it was necessary for the opposite party to get licence, as per terms and conditions of The Punjab Apartment and Property Regulation Act, 1995 (PAPRA). NOC from Punjab Pollution Control Board (PPCB) was to be obtained before start of development. Other permissions like environmental in terms of Notification dated 14.09.2006; NOC from the Forest Department etc., were also to be got issued. Document Annexure R-6 indicates that to make arrangements for treatment and disposal of sewerage, communication was sent by the GMADA, only on 20.11.2015. As per information supplied through document Annexure R-7, it was indicated that some land falling in the project was mutated, in the name of the opposite party, in the year 2015. Perusal of photographs placed on record Annexure R-11, also makes it very clear that within the project only, wherein an alternative unit was offered, the development/construction appears to be incomplete. The facts brought on record by the opposite party itself, make out a case in favour of the complainant. It is admitted in the written statement itself and also at the time of arguments by Counsel for the opposite party that in the project, when the unit was initially sold to the complainant in the year 2012, construction had not started at all.
Without discussing anything further, on the basis of this admission itself, it can safely be said that the opposite party was guilty of providing deficient service to the complainant and refund of the amount deposited, can be ordered accordingly.
Be that as it may, it is on record that there is nothing to show that any permission was available with the opposite party when project was sold in the year 2012. To launch the project, without getting necessary permissions/approvals, would amount to unfair trade practice. Similar view was expressed by the National Commission in a case titled as Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.765 of 2016, decided on 30.03.2016. In that case, it was held as under:-
"We are unable to persuade ourselves to agree with the ld. counsel. While affirming the order passed by the District Forum and commenting and deprecating the conduct of the Opposite Parties in the complaint, in launching the project and selling the farmhouses, even without obtaining sanction/approval from the competent authority, the State Commission has observed as follows:-
If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent no.2 and appellant no.1 are the sister concern. It is also apparent on record that before appellant no.1 started marketing the project, not even an application has been filed by respondent no.2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.08.2014, referred to above, clearly states that not even a single application qua granting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent no.2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent no.2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.
6. We are in complete agreement with the view taken by the State Commission. "
The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In view of above, it can safely be said that by adopting unfair trade practice, the project was sold/launched. "
In view of above fact, the complaint filed, cannot be termed as premature. The complainant has virtually been duped. The project was sold by the opposite parties, without getting approvals/licence. Such an act would amount to unfair trade practice. It may be stated here that earlier also, against the same Company/(Emerging Valley Pvt. Ltd.), in Naveen Goel and another Vs. Emerging Valley Private Limited, consumer complaint bearing no.218 of 2015, decided by this Commission on 17.02.2016, it was held as a matter of fact that when the project was sold, even Change of Land Use (CLU) was not in the hands of the opposite party. Even Letter of Intent (LOI) was released thereafter. First Appeal bearing no.278 of 2016 filed against the order dated 17.02.2016, was dismissed, in limine, by the National Commission, vide order dated 18.04.2016.
In view of above, the complainant is entitled to get refund of the amount paid by him.
Now we will deal with an objection raised by opposite parties no.1 and 2 that the complainant is a speculator, and that he has purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, he would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. He is a resident of Mohali. He has purchased a plot nearby for investment purpose. It may be stated here that the objection needs rejection. It is on record that initially 200 square yards plot was allotted to the complainant. Thereafter, on account of non-availability of the said plot, the complainant was then relocated to 150 square yards plot; then to a booth and, thereafter, to a 100 square yards plot. At the time of arguments, Counsel for the complainant has specifically stated that the complainant has purchased the said plot, for residential purposes. The case of the complainant that he was forced to change his preferences from one plot to another plot or a booth, appears to be correct. Not even a single document has been placed on record, signed by the complainant, to say that he ever opted freely, for change of his preferences from one plot to another plot or a booth. Even today, licence aforesaid, is not available with the opposite parties, as such, the complainant cannot be termed to be an investor. At the same time, there is nothing, on record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 and 2, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no.1 and 2 in their written reply, therefore, being devoid of merit, is rejected.
Now we will like to decide an objection raised by opposite parties no.1 and 2 that for want of pecuniary jurisdiction, it is not open to this Commission to entertain and adjudicate this complaint. It may be stated here that as per Section 17 (1) (a) of the Act, the State Consumer Disputes Redressal Commission shall have pecuniary jurisdiction to entertain any complaint, complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. It was also so elucidated elaborately by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. Relevant part of the said order reads thus:-
"It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it's the value of the goods or services and the compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer. Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation, if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore. "
In the present case, vide letter dated 22.05.2017, finally the complainant was allotted plot of 100 square yards, for an amount of Rs.15,51,000/- out of which an amount of Rs.12,51,750/- stood paid by him to the opposite parties. As such, if the total value of plot, plus compensation claimed by way of interest @24% p.a. on the amount deposited to the tune of Rs.12,51,750/-; compensation to the tune of Rs.5 lacs claimed for mental agony and physical harassment, if taken into consideration, it exceeds Rs.20 lacs and falls below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction, to entertain and decide the complaint. The objection taken by opposite parties no.1 and 2 that this Commission lacks pecuniary jurisdiction, being devoid of merit, must fail and the same stands rejected.
The next question that falls for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and decide the complaint or not. According to Section 17 of the Act, a consumer complaint can be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident that the entire documents in respect of the unit, in question, annexed with the complaint, were released from Corporate Office of the opposite parties i.e. from SCO No.46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh-160009. Not only as above, even the documents placed on record, by way of evidence, by opposite parties no.1 and 2, pertaining to the years 2015 also revealed that they were corresponding with the GMADA, from SCO No.46-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh-160009. If that is so, it can safely be said that the Corporate Office of the Company at Chandigarh, was actively playing a significant role, in respect of the transaction in question, meaning thereby that it was actually carrying on business for gains, from Chandigarh. Merely bald assertion to the effect that only the Mohali Courts have jurisdiction to entertain and decide the present complaint, is of no help to the opposite parties. This assertion of opposite parties no.1 and 2 is also bereft of merit, in view of Clause 'M' of the allotment letter dated 10.06.2015, Annexure C-2, which says that "All legal disputes shall be subject to the courts of competent jurisdiction at Chandigarh only". Under these circumstances, it can very well be said that this Commission, at Chandigarh, has territorial jurisdiction, to entertain and decide this complaint, in view of Section 17 (2) (a) (b) and (c) of the Act. The objection taken by opposite parties no.1 and 2, in their written version, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
It is to be further seen, as to whether, interest, on the amount refunded, can be granted in favour of the complainant. It has been proved on record that an amount of Rs.12,51,750/- was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the opposite parties, for their own benefit. They have provided nothing to the complainant till date and have been relocating him, again and again, on false promises. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, alongwith interest, from the respective dates of deposits till realization.
No other point, was urged, by the contesting parties.
For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:-
To refund the amount of Rs.12,51,750/- to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.1,00,000/-, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.
The payment of awarded amounts, in the manner mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @15% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos.(ii) and (iii) also, from the date of filing of this complaint, till realization.
However, it is made clear that, if the complainant, has availed loan facility from any banking or financial institution, for making payment of installments towards the said plot, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
14.05.2018 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.