Raj Shekhar Attri, President1. By this order, we propose to dispose of, the aforesaid two appeals, as the issues involved therein, except minor variations, here and there, of law and facts are the same. Both the appeals have been filed by the appellant/opposite party no.5, against the orders dated 06.01.2017 and 12.05.2017 passed by the District Commission-I, U.T., Chandigarh in consumer complaints bearing no.638 of 2015 and 505 of 2015 respectively, whereby the appellant/opposite party no.5-M/s Urban Umbrella Development and Management Company (Capital Greens) has also been held jointly and severally liable alongwith respondents no.2 to 5/opposite parties no.1 to 4-M/s U.K. Homes Pvt. Ltd., to refund the amounts paid by respondents no.1 respectively in both consumer complaints, alongwith interest, compensation and litigation expenses.2. The brief facts of the consumer complaints filed before the District Commission-I was that despite the fact that the complainants/respondents no.1 have paid substantial amounts towards purchase of respective plots in the project of the opposite parties launched by them under the name and style €œCapital Greens€, Zirakpur Patiala Highway, Village Karala and Khizargarh, Tehsil Banur, District Mohali, yet, later on, it transpired that they failed to obtain necessary approvals from the competent authorities. Possession of the plots were not delivered to the complainants for dearth of land and also necessary approvals/sanctions. Since, requests made by respondent no.1 to the company seeking refund of amount paid did not yield any result, as such, the above consumer complaints were filed before the District Commission.3. Before the District Commission, respondents no.2 to 5/opposite parties no.1 to 4, did not appear despite service, as a result whereof they were proceeded against exparte. However, the appellant/opposite party no.5, put in appearance and filed reply wherein it was stated that though it had signed an MoU on 13.1.2015 at Delhi with respondents no.2 to 5 to develop the project and obtained management rights wherein it was made clear that in case of any legal case/litigation till date or in future pertaining to the amount received, all the liabilities for any kind of refunds of payments, whatsoever, received by respondents no.2 to 5 will be refunded by them only and that the appellant was to deal with those applicants who had made payments against the booking/sale etc. and wished to retain the same by signing a fresh application with the appellant. It was stated that prior to the execution of MoU dated 13.1.2015, the appellant being an investor through one of the authorized channel partner of respondents no.2 to 5 namely M/s R.R. Realty, a Delhi based Real Estate Agency, invested a sum of Rs.1,05,00,000/- from October, 2013 to September, 2014 in the project in dispute and during that period paid full and final amount of 9 plots admeasuring total area of 1750 sq. yards bearing plot Nos.42,56,67,80,228,229, 231,248 and 249; plot No.230 admeasuring 150 sq. yards amounting to Rs.9,00,000/- was sold to Ms. Niti Saxena w/o Mr. Neeraj Saxena vide sale deed dated 29.9.2014 before the Sub-Registrar, Banur, Distt. SAS Nagar, Mohali and that as per terms of the MoU dated 13.1.2015, the appellant paid approximately a sum of Rs.55,00,000/- directly to respondents no.2 to 5 and approximately Rs.75,00,000/- directly to the land owners of the said project on behalf of them. It was further stated that as per the MoU dated 13.1.2015, for the development and management of the said project, the appellant had initiated works such as fresh registration of land in favour of respondents no.2 to 5; demarcation and possession of land area; site office work at project site and commencement of passage work from main Zirakpur-Patiala road to the project site etc. Denying its liability, the appellant prayed for dismissal of the complaints qua it.4. The District Commission after hearing the contesting parties and on going through the evidence and record of the cases, allowed both the consumer complaints vide separate orders (06.01.2017 in consumer complaint bearing no.638 of 2015 and 12.05.2017 in consumer complaint bearing no.505 of 2015) out of which these appeals have arisen, whereby the appellant and respondents no.2 to 5 were jointly and severally directed to refund the amount paid by the respective complainants/respondents no.1, alongwith interest, compensation and litigation expenses.5. We have heard the contesting parties and have also gone through the entire record of the cases, very carefully.6. The moot question which falls for consideration before this Commission in these appeals is, whether the District Commission was right in allowing complaints and directing the appellant also alongwith respondents no.2 to 5, jointly and severally, to refund the amount paid by the respective complainants alongwith interest, compensation and litigation expenses or not. It may be stated here that a similar question in respect of the very same project, fell for determination before this Commission also, in consumer complaint bearing no.605 of 2017 titled as Dr.Vivek Sood and ors. Vs. M/s U.K. Homes Pvt. Ltd. (Capital Greens) and ors., decided by this Commission on 15.03.2021, which was answered in the affirmative and the appellant-Urban Umbrella was also held liable alongwith respondents no.2 to 5-U.K. Homes Pvt. Ltd. (Capital Greens), jointly and severally, to refund the amount paid by the complainants therein, alongwith interest, compensation etc. Relevant part of the said order is reproduced hereunder:-€œ€€.From the facts narrated above, it has been proved that the plots in question were sold to the complainants starting from the year 2012, in a project which was farce, as neither letter of intent nor licence has been obtained by the company for launching the same nor other necessary permissions such as NOC from Punjab Pollution Control Board and Ministry of Environment and Forest Department, Govt. of India and Punjab Regional and Town Planning and Development Act, 2006 had been obtained by opposite party no.1.However, it is very strange that despite the aforesaid fact, opposite party no.2 €“ Urban Umbrella purchased the project in question from opposite party no.1 for managing, marketing and developing the same. This fact is fortified from letter dated 11.08.2015, Annexure C-11 having been written by opposite party no.2 to the complainants, informing them about purchase of the said project. In the said letter, it has been in a very candid stated by opposite party no.2 that €œwe are now targeting to give possession of the project within 18 months, with a delay penalty clause of Rs.50/- per sq. yards. In order to achieve the timely and fully developed possession, we seek your co-operation..€ The complainants were asked to visit the office of opposite party no.2 before 30.08.2015 in order to get a plot in the project in question and that it is selling the plot @Rs.14,500/- which is going to revise shortly to Rs.15,500/- per square yard. The complainants were also asked to get execute fresh agreement alongwith confirmed allotment of their plot within rates of the plot booked at initial stage with opposite party no.1. Even as per Clause II) of Memorandum of Understanding (MOU) dated 13.01.2015, Annexure C-38, it has been clearly stated by opposite party no.2 therein that it is undertaking the total project rights including complete land rights with sales, marketing, execution of agreement to sell and development of plots/units till possession.Not only as above, even as per Annexure B of the said MOU, it was agreed to between opposite parties no.1 and 2 that opposite party no.2 need not to pay the amount to opposite party no.1 and the amount already paid by the allottees will become the integral part of the total sale consideration to be paid by opposite party no.2 to opposite party no.1 towards the entire project land. During the pendency of this complaint, by way of filing reply, opposite party no.2 has tried to evade its liability, yet, the contents of letter dated 11.08.2015, Annexure C-11 and MOU dated 13.01.2015, Annexure C-38, leave no doubt, that the project in question with complete rights, was purchased by opposite party no.2 from opposite party no.1. Even otherwise, it is significant to mention here that opposite party no.2 is also a developer/builder and at the time of taking over the project in question, it was its legal duty to check the legal status of the project and if it ignored to do so and took over the same and started selling the units/plots therein @Rs.14,500/- per square yards to the general public and also retained the bookings of the plots of the complainants and told them to continue with same, now at this stage, it cannot wriggle out of the situation, on flimsy grounds€€€€7. In the present cases also, the appellant failed to convince this Commission by placing on record any cogent evidence to prove that it had no relation whatsoever with the project in question. Once the appellant had signed the MoU aforesaid, contents whereof reveal that it undertook all the rights of the project land including sales, marketing, execution of agreements to sell and also development of the plots/units till possession is delivered, now the appellant cannot wriggle out of the same. In Dr.Vivek Sood and ors.`s case (supra) also, it was found by this Commission that Urban Umbrella (appellant in the present cases) has written one letter dated 11.08.2015, Annexure C-11 to the complainants therein, informing them about purchase of the said project by it from M/s U.K. Homes Pvt. Ltd. In the said letter, it was in a very candid stated by Urban Umbrella (appellant in the present cases) that it is targeting to give possession of the plots in the said project within 18 months, with a delay penalty clause of Rs.50/- per sq. yards and even the rates of the plots which were to be charged by Urban Umbrella (appellant in the present cases) were also mentioned in the said letter.8. Irrespective of the above fact, the appellant tried to wriggle out of the situation, as its Counsel vehemently contended before this Commission that though MoU had been got executed in respect of the project land measuring 25 acres, yet, actual possession thereof had not been delivered to the appellant and it was on papers only. This fact is falsified from the own admission of the appellant, in the Suits filed by it before the Court of Civil Judge, Sr. Div. Mohali, against M/s U.K. Homes Pvt. Ltd. , wherein it has been candidly submitted by the appellant that it (Urban Umbrella, Plaintiff) has been in possession over plots under the project in question and prayer was made for mandatory injunction directing the U.K Homes to execute necessary said deed in favour of the appellant. Thus, in view of this candid admission that the appellant was in physical possession of the plots under the project in dispute, now it cannot be heard to say that since no land exists in the name of M/s U.K. Homes Pvt. Ltd., as the same stood auctioned in some execution proceedings, as such, the appellant cannot be held responsible in any manner, as far as refund of the amount paid in respect of the plots in the project in dispute are concerned. Even otherwise, it is significant to add here that the appellant is also a developer/builder and at the time of taking over the physical pos
Please Login To View The Full Judgment!
session of the project in question, it was its legal duty to check the legal status thereof and if it ignored to do so and took over the same and started selling the units/plots therein to the general public, as discussed above, now at this stage, it cannot wriggle out of the situation, on flimsy grounds.9. Thus, in our considered opinion, in view of the facts and circumstances of these cases, the District Commission was right in allowing the consumer complaints aforesaid out of which these appeals have arisen, by ordering refund of the amount paid by the complainants/respondents no.1 respectively alongwith interest; compensation, litigation expenses etc., jointly and severally by the appellant and respondents no.2 to 5 i.e. opposite parties no.1 to 5. All the issues dealt with by the District Commission in the orders impugned did not suffer any illegality or infirmity and as such did not require any interference by this Commission. Thus, the orders impugned stand upheld. Resultantly, these appeals being devoid of merit are dismissed with no order as to cost.10. Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected case file also.11. The files be consigned to Record Room, after completion.