Last Updated on January 28, 2023 by Satish Mishra
This post is Emerging Heights-III Consumer Case Judgment Digest wherein the court awarded refund to homebuyer for delay in possession.
The complainant booked a flat in the opposite parties’ housing scheme and took a loan to pay the amount of the house. According to the LOI, the possession was supposed to be delivered after 36 months but was not delivered at time to the complainants. After hearing both the sides and referring to many judgements, the court held that opposite parties are guilty.
Also Read- STATE COMMISSION PUNJAB CONSUMER APPEAL- GULMOHAR VALLEY
TITLE; EMERGING HEIGHT CASE
FACTS OF THE CASE:
The complainant has filed a complaint u/s 17 of the Consumer Protection Act. Allured by glossy advertisements issued by the opposite parties, the complainants booked a flat, in their project named ‘Emerging Heights-III”, for which they initially paid an amount of Rs.3,50,000/- on 14.06.2012. Total price of the unit was fixed at Rs.35,85,150/-. Allotment Letter/ Agreement was signed between the parties on 30.10.2012. As per demand raised by the opposite parties, the complainants paid an amount of Rs.24,51,914/-.
As per terms and conditions of the Allotment Letter/Agreement, the complainants were offered construction linked payment plan. Further, it was promised that possession of the built-up unit, in a developed project will be delivered within a period of 36 months, from the date of booking. In a way, it was committed that possession of the unit will be delivered by 29.10.2015. It is further the case of the complainants that till the time of filing this complaint, they did not receive any offer of possession of the unit.
Also Read- Chandigarh: Consumer forum directs Emerging India to pay up for delay in possess ..
ARGUMENTS ADVANCED
COMPLAINANT’S ARGUMENTS
According to the learned counsel from the complainant, as per terms and conditions of the agreement, the opposite parties continued to pay GRI @Rs.9,364/- per moth upto 14.09.2014. Thereafter, nothing was paid to them. The complainants, in all, received an amount of Rs.3,27,740/-. To say so, reliance has been placed on statement of account., issued by the office of the opposite parties. It was stated that when possession of the unit was not offered: and it transpired that construction at the spot was not complete, compelled under circumstances, the complainants filed this complaint seeking refund of amount paid with interest, compensation etc.
RESPONDENT’S ARGUMENTS
 Upon notice, joint reply was filed by the opposite parties. It was stated that the complainants are speculators; they have purchased the unit, in question, for earning profits, after selling the same in open market. They are the owners of a house, address whereof has been mentioned in headnote of this complaint. It was pleaded that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It was alleged that rate of interest claimed is on the higher side and that the complainants would not fall within the definition of a consumer. It was averred that the complainants have sought interest and compensation, which could not be granted simultaneously. It was further pleaded that opposite parties no.2 and 3 have been wrongly impleaded as parties to the complaint, in their personal capacity. The complaint has been filed with malafide intentions just on surmises and conjectures, which needs to be dismissed.
Also Read- Madhavi Bhatia v. M/s Emerging India Housing CorporationÂ
FINDINGS OF THE COURT
 The objection, raised by the opposite parties, that in the face of existence of provision to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. According to arbjit Singh Vs. Puma Realtors Private Limited and Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case it ha been approved that the commission has the jurisdiction therefore this plea is rejected. The complainants, also, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite parties in their written reply, therefore, being devoid of merit, is rejected.
 In the present case also, by launching the project, in question, and selling the units therein, without obtaining necessary approvals/sanctions from the competent Authorities, the opposite parties, violated the provisions of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which amounted to unfair trade practice. Under similar circumstances, wherein, the builder has launched and sold the project, before obtaining permissions, there is a complete violation of the provisions of the PAPRA and the said violation amounts to adoption of an unfair trade practice, which is glaring and vivid on the part of the opposite parties and needs to be deprecated.
It is settled law that when there is a material violation on the part of the builder, in not handing over possession of units/plots by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated date (in the present case not offered) and on the other hand, can seek refund of amount paid.
Also Read- Consumer Complaint against Emerging India Housing
CONCLUSION
It is held tha, offering possession of the plot, vide letter dated 28.11.2017 i.e. during pendency of the complaint, is nothing but a tactics adopted by the opposite parties, to evade their liability, especially in the face of RTI information referred to and discussed above. As such, it is held that, in this case also, the complainant is entitled to refund of the amount paid, alongwith interest and compensation. The opposite parties, jointly and severally, are directed as under:-
To refund the amount of Rs.24,51,914/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposits onwards, after deducting the amount already received by them, towards Guaranteed Rental Income (G.R.I.).
To pay compensation, in the sum of Rs. 1 (one) lac, for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.
Also Read- Mr. Lekh Raj Kamboj vs Emerging India Housing
SIMILAR JUDEGMENTS
It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, wherein, under similar circumstances, while negating the plea taken by the builder, it was held as under:-
“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”
 Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-
“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.”
Also Read- consumer state commission doctypes: punjab – Indian Kanoon
For case specific advice, please connect with Top Best Expert Legal Consultants Attorneys in Real Estate/Property Estate/Consumer Court and Consumer Protection Dispute/ Consumer Grievances and Complaints/RERA Lawyers Advocates in Chandigarh Panchkula Mohali Kharar Derabassi Zirakpur etc.
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