State Consumer Disputes Redressal Commission
Mr. Subodh Brahmi vs Siswan Paradise Private Limited on 14 May, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 814 of 2017 Date of Institution : 28.11.2017 Date of Decision : 14.05.2018 Mr.Subodh Brahmi s/o Sh.Hardev Brahmi, r/o House No.1228, Top Floor, Sector 22-B, Chandigarh. ......Complainant V e r s u s Siswan Paradise Private Limited, through its Managing Director/Director/Authorized Signatory, SCO 46-47, First Floor, Sector 9-D, near Mattka Chowk, Madhya Marg, Chandigarh-160009. (Old Address:- Siswan Paradise Private Limited, SCO No.28-29-30, Top Floor, Sector 09, Madhya Marg, Chandigarh). Emerging India Real Assets (P) Ltd., SCO 46-47, First Floor, Sector 9-D, Chandigarh through its Managing Director/ Director/Authorized Signatory. Emerging India Housing Corporation (P) Ltd., SCO 46-47, First Floor, Sector 9-D, Chandigarh through its Managing Director/Director/Authorized Signatory. ..... 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.Gurpreet Sharma, Advocate for the complainant.
Opposite parties exparte.
JUSTICE JASBIR SINGH (RETD.), PRESIDENT It is the case of the complainant that looking at attractive advertisements issued by the opposite parties, through various modes i.e. newspaper(s) and media, he opted to purchase a cottage farm house (in short the unit), in a project, launched by them, known as "Siswan Paradise", situated in Village Mirzapur, District Mohali, Punjab. It was represented that the opposite parties will provide all the amenities like roads, electricity, water etc. to the units, put for sale. To show that the said project was a venture of opposite party no.3, copy of brochure issued, is placed on record as Annexures C-1 and C-2. In a draw of lots held on 14.06.2012, the complainant was allotted a unit measuring 2420 square yards against docket no.SSWP-652. Price of the unit was fixed at Rs.17 lacs. Through cheque dated 11.06.2012, the complainant paid an amount of Rs.10 lacs against the sale consideration. Receipt Annexure C-4, acknowledging above payment was issued by opposite party no.3, on the said date. Vide letter dated 18.08.2012 Annexure C-5, he was offered buyback scheme with commitment that the opposite parties will buyback the said unit in three years, from the date of its purchase, against price of Rs.22.10 lacs. It was further said that buyback offer is only available to those, who have paid the full sale consideration. Allured by the promise made, the complainant paid balance amount of Rs.7 lacs against receipts dated 13.07.2013 Annexure C-6 and C-7. The parties entered into an agreement to sell on 31.07.2013 Annexure C-8. In the said agreement, as per Clause 5, it was committed that possession of the unit will be handed over, in a developed project, within three years, from the date of execution of the said agreement. Thereafter, through newspaper, the complainant came to know on 03.11.2012 that the project of the opposite parties was not approved. The complainant also came to know about this fact from an information sought by a similar located allotted, under Right to Information Act, 2005, by moving an application to the Greater Mohali Area Development Authority (GMADA). Vide document dated 05.09.2014 Annexure C-13 it was intimated that the opposite parties have not even moved an application to get the project approved and that not even a single case has been received and dealt with by the said Authority, as far as launching and selling of the project, in question is concerned. Thereafter, the complainant sent legal notice to the opposite parties, seeking refund of the amount paid, but to no avail. Hence this complaint.
On the date of preliminary hearing, Sh.J.S. Rattu, Advocate who was present in this Commission to represent opposite parties no.2 and 3 is some other cases, accepts notice of this complaint, on behalf of opposite parties no.2 and 3. He undertook to file vakalatnama on the next date of hearing. At the same time, notice was ordered to be issued to opposite party no.1, for 16.01.2018, which was received back unserved with the remarks "Refused", as a result whereof, it was proceeded against exparte. On the said date Sh.Harmandeep Singh, Public Relation Officer of the Company, filed vakalatnama of Sh.J.S. Rattu, Advocate, on behalf of opposite parties no.2 and 3 and sought time for filing reply and evidence. The matter was adjourned to 21.02.2018 for the above purpose, on which date, none put in appearance on behalf of opposite parties no.2 and 3, as a result whereof, they were also proceeded against exparte. On 24.04.2018, following order was passed by this Commission:-
"Vide order dated 16.01.2018, for not putting in appearance, Opposite Party No.1 was proceeded against exparte. Thereafter, Opposite Parties No.2 & 3 were also ordered to be proceeded against exparte vide order dated 21.02.2018, when after putting in appearance, they failed to turn up before this Commission. Reply and evidence/affidavit has not been filed. On the last date of hearing i.e. 23.03.2018, Sh. J. S. Rattu, Advocate put in appearance for Opposite Parties No.2 and 3.
Called third time at the end of the entire list.
Today none has come present on behalf of Opposite Parties No.2 and 3 to assist this Commission.
Arguments on behalf of the complainant heard.
Reserved for orders."
In view of above, it can safely be said that all the averments made by the complainant have gone unrebutted. Despite service of notice and putting appearance before this Commission, opposite parties no.1 and 2 vanished from the sight. Despite granting many opportunities, even reply and evidence was not placed on record. The documents placed on record by the complainant, clearly prove that on representations made by the opposite parties, he (complainant) had purchased the said unit, on making payment of Rs.17 lacs towards price of the same. It is also proved on record that the project, when launched, was not approved. As per information supplied to a similar located allottee against letter Annexure C-12, the Public Information Officer, Senior Town Planning, PUDA, vide letter dated 05.09.2014 Annexure C-13, in a clear-cut manner informed that the opposite parties have not even moved application to get the project approved before putting it to sale and even thereafter. To launch the project, without getting necessary permissions/approvals, would amount to unfair trade practice. It is necessary to mention here that qua this very project namely "Siswan Paradise", one complainant namely Kamer Chand, had filed a consumer complaint before District Forum-I, U.T., Chandigarh, which was allowed vide order dated 16.09.2015 and amount paid by him was ordered to be refunded with interest, compensation and litigation expenses. First Appeal No.51 of 2016 filed by opposite parties no.2 and 3, was dismissed by this Commission, vide order dated 09.02.2016, by observing as under:-
"It is positive case of respondent no.1 that he had purchased the unit in dispute, on showing very rosy pictures of the project, by representative of the appellants. Specifically, the above fact has not been controverted by the appellants. 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.
Even at the time of arguments, on asking, the appellants have failed to show us, any application filed to get sanction/approval to launch the project and the lay out plan approved by the Competent Authority. If without looking at the copy of sanction letter and approved layout plan, the appellants had started marketing the project, fault lies with them. They, alongwith respondent no.2, are clearly responsible for the fraud committed, with the general public. As such, no ground, whatsoever, has been made out, to reverse findings of the Forum."
Feeling aggrieved, opposite parties no.2 and 3 i.e. Emerging India Real Assets (P) Ltd. and Emerging India Housing Corporation (P) Ltd., filed Revision-Petition No.765 of 2016, titled as Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, decided on 30.03.2016, before the National Commission, which was also dismissed in limine, by observing 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.
We are in complete agreement with the view taken by the State Commission. As noted above, the petitioners happen to be body corporate. Before offering the farmhouses in the said project as Agent of Respondent No. 2, they must be aware about the status of the sanction for launch of the project. Therefore, it is beyond one's comprehension that the present Petitioner was not aware about the actual state of affairs for which only the developer could be held responsible.. "
The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In the present case also, it is proved on record that opposite party no.1 and opposite parties no.2 and 3 are sister concern. It was also so reflected in the documents presented by the opposite parties, when selling the said project. Above facts clearly proves that the opposite parties are guilty of gross misconduct and were also deficient in providing service and guilty of adoption of unfair trade practice. The complainant has virtually been duped. The project was sold by the opposite parties, without getting approvals/licence. Even after making payment of Rs.17 lacs, towards the said unit, as far as back in 2012, the complainant is still empty handed. Opposite parties did not prefer to contest the case, by filing written reply and evidence, meaning thereby that they have nothing to say against the contentions raised against them, by the complainant, in the consumer complaint. The complainant cannot be made to wait for an indefinite period, at the whims and fancies of the opposite parties. Under these circumstances, it is held that the complainant is entitled to get refund of amount deposited by him, with the opposite parties.
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.17 lacs, 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. 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 Counsel for the complainant.
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.17 lacs to the complainant, alongwith interest @12% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.50,000/-, 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.15,000/- 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 unit, 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.