State Consumer Disputes Redressal Commission
Professor Dr. Nalini Pathania vs Emerging Valley Private Ltd. on 12 September, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 896 of 2016 Date of Institution : 08.12.2016 Date of Decision : 12-Sep-17 Professor Dr.Nalini Pathania D/o Janardhan Singh Pathania, 110, Pathania House, Purani Mandi, Jammu (J&K). ......Complainant V e r s u s Emerging Valley Private Ltd., through Director, Corporation Office, SCO No.46-47, First Floor, Sector 9-C, Near Matka Chowk, Madhya Marg Chandigarh-160009. .... Opposite Party 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.Raman Kumar Sharma, Advocate for the complainant.
Sh.Suvir Sidhu, Advocate alongwith Sh.Raghav Gulati, Advocates for the opposite party.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT The facts, in brief, are that the complainant, for her residential purpose, decided to purchase a Villa, measuring 250 square yards, in the project of the opposite party, named 'Emerging Valley', Landran-Banur Road, Mohali, Punjab. On various assurances made by representative of the opposite party, regarding salient features of the said project, she paid an amount of Rs.16 lacs, towards booking amount, vide different receipts, for the period from 12.03.2015 to 16.05.2015. Total cost of the said Villa was fixed at Rs.80 lacs. Booking of the villa was confirmed by the opposite party, vide letter dated 18.05.2015 Annexure C-6. Terms and conditions governing the sale of villa, are placed at Annexure C-7. It was stated that, thereafter, the complainant came to know about an order dated 26.06.2015, passed by SEBI, Mumbai, whereby, the opposite party had been directed not to collect any money from the investors, to launch any new scheme/project. It was further directed to the opposite party, not to divert any funds raised from the public at large, which was kept in its Bank account.
It was further stated that, not only as above, the complainant also came across a notice published in the newspaper dated 29.09.2015, namely Tribune, stating that the Consumer Forum, had penalized the opposite party, on account of misleading the purchasers and illegally selling farm houses, at Village Mirzapur, by giving bald assurances that basic amenities such as roads, water lines, sewerage etc. will be provided. It was also published in the said newspaper that, as per the information obtained by concerned person under RTI Act 2005 from the Competent Authorities, it transpired that not even a single case regarding sanctions/ approvals/permission had been received and dealt in respect of the project of the opposite party. Furthermore, the name of the said Company was not even in the record books of the Punjab Government. It was further stated that, after going through the said information, relating to the projects of the opposite party, the complainant lost faith and sought refund of amount paid but the opposite party refused to do so.
By stating as above, this complaint has been filed by the complainant, seeking refund of amount paid, alongwith interest, compensation and litigation expenses.
In the reply filed by the opposite party, it was pleaded that the complainant did not fall within the definition of "consumer" as defined under Section 2(1)(d) of the Act, as she being investor had purchased the unit, in question, for commercial purpose i.e. for selling the same, as and when there was escalation in the prices of real estate, to gain huge profits. It was further pleaded that the complaint is premature because as per Clause 'S' of terms and conditions of the allotment letter, possession of the Villa was to be delivered within a period of 36 months, from the date of receiving payment from the complainant, to the extent of 90% of the net sale price. The complainant had paid only an amount of Rs.16 lacs towards booking amount. It was averred that the project of the opposite party is approved from the competent Authorities. It was stated that the opposite party had clearly told the complainant that construction of the villa would commence after all necessary approvals were to be received.
Purchase of villa by the complainant is admitted. Payment of Rs.16 lacs, made by the complainant was not disputed. It was stated that the order passed by the SEBI was against Emerging India Infra. Ltd., which is a separate legal entity. It was further stated that the said Company has been closed, two years ago. Even otherwise, the said order was an interim order. It was admitted that the opposite party marketed and sold the project named "Siswan Paradise Pvt. Ltd.", being selling agent. It was stated that the said project did not belong to the opposite party. It was averred that the complainant was defaulter in making payment towards the said villa, as such, she breached terms and conditions of the allotment letter. It was further stated that as per Clause "F" of terms and conditions of the allotment letter, the opposite party was entitled to forfeit the booking amount, paid by the complainant. Prayer was made to dismiss the complaint.
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.
The contesting parties led evidence in support of their case and raised arguments, in terms of pleadings noted in earlier part of this order, which were heard, in detail.
The first question that falls for consideration is as to whether, the complainant is an investor and did not fall within the definition of a consumer, under Section 2 (1) (d) (ii) of the Act, as alleged by the opposite party or not. It may be stated here that there is nothing on record, that the complainant is a property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Since, the opposite party has leveled allegations against the complainant, as such, the onus lays upon it, to prove it, which it failed to do so. Thus, in the absence of any cogent evidence, in support of the objections raised by the opposite party, mere bald assertion i.e. simply saying that the complainant being investor, did not fall within the definition of a consumer, 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. Not only this, recently in a case titled as Aashish Oberai Vs. Emaar M GF Land Limited, Consumer Case N o . 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house.
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 the opposite party, in its written reply, therefore, being devoid of merit, is rejected.
The next question that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount paid or not. Admittedly, the complainant had booked the said villa, for which she had paid an amount of Rs.16 lacs, towards booking amount, vide different receipts, for the period from 12.03.2015 to 16.05.2015. Total cost of the said Villa was fixed at Rs.80 lacs. Booking of the villa was confirmed by the opposite party, vide letter dated 18.05.2015 Annexure C-6. The opposite party pleaded that as per Clause 'S' of the allotment letter, possession of the Villa was to be delivered within a period of 36 months, from the date of receiving payment from the complainant, to the extent of 90% of the net sale price, but in the instant complaint, since she failed to pay the said amount, as such, the complaint having been filed on 08.12.2016 is premature.
We are not going to agree with the plea raised, for the reasons to be recorded hereinafter. It may be stated here that this is not the first complaint, which is being filed against the said project of the opposite party. Even before, a number of complaints, in respect of the said project, have been filed before this Commission, wherein, after going through the authentic information, placed on record, it has been held by this Commission that the project of the opposite party has turned to be farce. The opposite party had floated a group of Companies at Kharar Landra Road, named Emerging India Infra Limited, Emerging Valley, Emerging Real Assets etc. etc. It is also in the knowledge of this Commission that all the Companies are being Managed by Sh.Gurpreet Singh Sidhu, Managing Director, who has also been convicted by the District Consumer Forum-I, U.T., Chandigarh, in number of cases. It is also in the knowledge of this Commission, that all the projects, referred to above, have been launched without necessary approvals/sanctions from the Govt. concerned. Not only this, from some of the cases, filed before this Commission, it has also come on record that some projects of the opposite party, are not even in the record book of the Competent Authorities and the same have been held illegal by the Govt. concerned.
At the same time, there is nothing on record, to prove that after making payment of Rs.16 lacs, in the May 2015, towards booking amount, any further demand towards price of the said villa, was ever raised by the opposite party. Not even a single demand letter in that regard has been placed on record. It is not proven case of the opposite party, that it had sent demand in respect of the unit, in question, but the complainant did not pay the same. It is further, not the case of the opposite party, that number of reminders were sent to the complainant to make remaining payment towards price of the said unit but she did not bother. It is further, not the case of the opposite party that when the complainant did not make payment, as demanded vide demand letter followed by reminders, allotment of the unit was cancelled, as such, she is not entitled to get refund of the booking amount. Had this been the case of the opposite party, which was to be proved by placing on record cogent evidence in that regard, the matter would have been different. The opposite party did not make any demand, for making payment towards the said unit, for next more than two years, from the date of booking, when it had already received Rs.16 lacs from the complainant and even thereafter i.e. by the date, this complaint was filed.
On the other hand, it is case of the complainant that when she came to know about the above facts, in respect of project of the opposite party, she lost faith in it and sought refund of the amount paid, but the opposite party refused to do so. In our considered opinion, after knowing the facts, referred to above, no prudent person will feel safe to remain attached with the project of the opposite party, as far as purchase of a house, for his/her residence, is concerned. As such, the stand of the complainant, seeking refund of the amount paid, under above circumstances, was justified. Under above circumstance, plea taken by the opposite party to the effect that the complaint having been filed by the complainant on 08.12.2016 is premature or that the complainant failed to make payment of further amount, towards price of the said unit, being devoid of merit, stands rejected.
To strengthen its case, the opposite party also placed on record, a copy of payment schedule Annexure R-1, to say that it was a construction linked payment plan and the complainant was required to pay the said amount within 24 months, from the date of booking. It may be stated here that the document Annexure R-1, which is neither signed by the complainant, nor by the opposite party, has no significant value, in the eyes of law and as such, cannot be considered to come at any conclusion. Even if the said document is considered (only for the sake of arguments, though not admitting), then also, as stated above, the opposite party failed to prove that when the demanded amount, as per payment schedule was not made by the complainant, any reminder(s) in that regard were sent and thereafter, when the complainant failed to make payment, for the next two years, allotment of the unit was cancelled by the opposite party, by invoking the provisions of Clause 'E" of the terms and conditions of the Allotment Letter dated 18.05.2015 Annexure C-6, which says that in case payments are not made, on time, the Company shall cancel the allotment and forfeit earnest/booking amount. Under above circumstances, no help, therefore, can be drawn by the opposite party from the payment schedule, referred to above.
Not even a single document has been placed on record, to apprise this Commission, as to at what stage, construction of the unit has reached. Nothing has been clarified, as to where, the substantial amount of Rs.16 lacs, received by the complainant, has been spent. Even in the written statement, nothing has been mentioned about the status and stage of construction. In case, all the development activities are being undertaken and construction of the units is going on, then it was for the opposite party, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development activities, are being undertaken at the site or not, but it failed to do so.
Under above circumstances, it is held that the complainant cannot be made to wait for indefinite period, at the whims and fancies of the opposite party, and as such, she is entitled to get refund of the amount paid.
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.16 lacs, was paid by the complainant without getting anything. The said amount has been used by the opposite party, for its own benefit. 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 her, to the tune of Rs.16 lacs, 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 party, through its Managing Director/Director, is directed as under:-
To refund the amount Rs.16 lacs to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards. To pay compensation, in the sum of Rs.75,000/-, 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.11,000/-, to the complainant. The payment of awarded amounts 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) shall carry penal interest @15% p.a., instead of @12%, from the respective dates of deposits onwards, and interest @15 % p.a., on the amounts mentioned at sr.nos.(ii) and (iii), 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 unit, it shall have the first charge of the amount payable, to the extent, the same is due to be paid by her (complainant). Certified Copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion.
Pronounced.
12-Sep-17_ Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg.