Chandigarh

DF-I

CC/185/2021

Manish Manglesh - Complainant(s)

Versus

Ansal Golf Links II Project of Ansal Properties & Infrastructure Ltd. - Opp.Party(s)

ADS Jattana & MS Gill

03 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/185/2021
Date of Institution	:	22.3.2021
Date of Decision	:	3/1 /2024

 

1.       Manish Manglesh S/o R.K. Manglesh;

2.       Sona W/o Manish Manglesh;

          Both r/o H. No.99, First floor, Sec-1, Rewari, Haryana. 

 

… Complainants

V E R S U S

1. Ansal Golf Links-II project of Ansal Properties & Infrastructure Ltd., Sector 116, Kharar-Landran road, SAS Nagar Mohali; Punjab through its Manager/Managing Director/authorized representative;

Second Addrdsss:

The Managing Director, Ansal Properties & Infrastructure Ltd. SCO No.183/184, Sector 9, Madhya Marg, Chandigarh.

Third Address:

The Managing Director, Ansal properties & Infrastructure Ltd., 1202-04, Antriksh Bhawan, 22, Kasturba Gandhi Marg, new Delhi 110001.

2. HDFC Bank Limited SCO 153-154-155, Sector 8-C, Chandigarh 160008 through its Manager/Managing Director/authorized representative.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

 

                                                                               

ARGUED BY	:	Sh. M. S. Gill,  Advocate for complainant
	:	Sh. Prateek Garg , Advocate for OP No.1
	:	Ms. Neetu Singh, Advocate for OP No.2

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35(2) of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that vide buyers agreement dated 16.11.2011, the OP No.1 sold residential   unit  No.254-SF, Sector 116, Kharar Landran Road, SAS Nagar Mohali in its project Victoria Floors at Golf Links-II (hereinafter to be referred as subject flat) to the complainants  vide Agreement C-1, having area measuring 1435 sq. ft.  for a total sale consideration of Rs.40,18,000/- at the rate of Rs.2800 per sq. ft.  As per article 5.1  of the buyer agreement,  the OP No.1 had agreed to hand over the possession of the subject flat within a period of 36 months from the date of agreement. The complainants had made first payment on 16.11.2011 at the time of signing the agreement and had also made all the payments vide receipts Annexure C-2(colly) as per the demand raised by the OP No.1  and as per the payment schedule of the buyer’s agreement.  The complainants entered into loan tripartite agreement Annexure C-3 dated 7.5.2013 with the OPs for procuring the loan to make the entire payment of the subject unit. Under the scheme of No pre EMI interest till offer of possession floated mutually by OPs as envisaged in clause 3 of the tripartite loan agreement Annexure C-3. In this manner, the complainants had made entire payment to the OP No.1 from their own pocket  and by procuring housing loan from OP No.2. Despite  the fact that there is no pre-EMI interest till offer of possession, the OP No.2 has arbitrarily charged an amount of Rs.1,60,000/- from the  complainants which is unfair and malafide when the possession of the subject flat has neither been offered nor delivered to the complainants till date. In fact the complainant had opted to purchase the subject flat as the date of handing over the possession was stated to be within the year 2015 and the complainants wanted to settle in the tricity and to educate their children in the best institute in the area. Even as per clause 5.4 of the buyer agreement Annexure C-1, the OP No.1 is liable to pay Rs.10Sq.ft.  of 1435 sq. ft. area of the dwelling unit per month for the time period of default of OP No.1 which comes to Rs.09,04,050/- till March 2021. The entire project lying in a state of limbo and OP No.1 is not in a position to complete the project  and handover the possession of the subject flat to the complainant in the near future especially when the OP No.1 has  also failed to get  occupation clearance and other mandatory development clearance from the respective authorities. In this manner there is no option to the complainants but to seek refund of the amount paid to OP No.1 from their own pockets and by procuring housing loan from the bank. Not only this the electric connection, sewerage/storm water, water supuply system, roads etc  have not been completed by the OP No.1 and the OP No.1 is not in a position to hand over the possession of the subject flat. A legal notice Annexure C-4 was also served upon the OP No.1 seeking refund but with no result.     The aforesaid act of OPs amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP No.1 resisted the consumer complaint and filed its separate  written version and took preliminary objections of  maintainability, jurisdiction, concealment of facts, cause of action and also that the complainant is not a consumer. On merit admitted that the complainant had booked the subject flat  with the answering OP and the answering OP had agreed to hand over possession of the subject flat within stipulated period and the same could not be delivered to the complainant. It is further alleged that in fact the complainants are only entitled for delay charges as prescribed in the buyer agreement. The requisite sanction/approvals/permissions/ clearance were obtained from the authorities subject to force majeure circumstances and the consumer complaint is not maintainable. The unit is ready for possession and the complainant can take possession of the subject flat subject to the payment of balance sale consideration.  The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. OP No.2 in its written version  took preliminary objection of maintainability,   concealment of facts, cause of action. Further it is admitted that the Tripartite Loan Agreement was entered between the parties but even as per tripartite agreement, the borrower was made liable to pay the EMI in case of dispute  between borrower and the builder. It is further alleged that the complainants made defaults in payment of loan amount in violation of the terms and conditions of the subject tripartite agreement. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested
4. complainants chose not to file rejoinder.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments on record.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainants had booked the subject flat with OP No.1 which OP No.1 had agreed to sell the same for sale consideration of Rs. 40,18,000/- to the complainants  out of which the complainants paid an amount of Rs.28,12,600/-  by way of loan  amount disbursed by OP No.2  with whom the complainants and  OP No.1  had also entered into tripartite agreement and an amount of Rs.9,97,004/- was paid by the complainants from their own pockets as is also evident from Annexure C-2(colly)  and also that the OP No.1 builder had also made default in the repayment of the  EMI  in violation of terms and conditions of the tripartite agreement Annexure C-3 and till date OP No.1 has not issued letter of offer of possession to the complainants and has also not refunded the  amount paid by the complainants, the case is reduced to a narrow compass as it is to be determined if  the OP No.1 is deficient in rendering service by not handing over the possession or refund the deposited amount to the complainants  and the complainants are entitled for the amount as prayed for as is the case of the complainant or if this Commission has no jurisdiction to try this complaint and also the unit is ready for possession and the complainants are not accepting the possession of the same  and the complaint is liable to be dismissed as is the defence of OP No.1.
   2. In the back drop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around  the buyer’s agreement Annexure C-1, payment receipts Annexure C-2(colly)  and  Annexure C-3 the tripartite  agreement and other evidence led by the parties  and in order to determine the real controversy between the parties the documents tendered by the parties are required to be scanned carefully.
   3. Perusal of Annexure C-1  the agreement clearly indicates that  OP No.1 had agreed to sell the subject flat to the complainants for a sale consideration of Rs.40,18,000/- and as per clsue 5(1) of the agreement, the OP No.1 had agreed to  deliver the possession of the subject flat within 30 months with extended period of 6 months from the date of execution of the agreement or the date of sanction of the building plan whichever falls later. The relevant portion of the said clause is reproduced as under:-

“5.1 Subject to Clause 5.2 and further subject to all the buyers of the Dwelling Units in the said scheme, Golf Link II, making timely payment, the Company shall endeavor to complete the development of residential colony & the Dwelling Unit as far as possible within 30 (Thirty) months with an extended period of 6 (six) months from the date of execution of this Agreement or the date of sanction of the building plan whichever falls later.”

 

4. Thus one thing is clear from the aforesaid clause 5.1 that the OP No.1 had agreed to hand over the possession of the subject flat on or before 16.11.2014 i.e. within 3 years from the date of execution of Buyer’s Agreement Annexure C-1 which was admittedly executed on 16.11.2011 and not from the date of sanction of building plan, as the recital in the agreement is itself vague one and the same cannot be considered to be legal one and thus the actual agreed date for handing over the possession of the subject flat was 16.11.2014.
5. Annexure OP-3/3 dated 21.5.2021 issued by the OP No.2 clearly indicates that loan amount of Rs.30,00,000/-  was sanctioned by OP No.2 in favour of the complainants,  out of which an amount of Rs.28,12,600/- was disbursed against mortgage of property  i.e. flat No.254-SF, Victoria Floors, Ansal API Kharar Landran Road, Mohali and a total loan amount of Rs.31,50,664/- was outstanding against he complainants and in this manner it stands proved on record that an amount of RsRs.38,09,604/- has already been paid to OP No.1 which included loan amount of Rs.28,12,600/- and an amount of Rs.9,97,004/- paid by the complainants from their own pocket vide receipt Annexure C-2(colly).
6. The next question for determination is if OP No.1 had taken necessary approval from the competent authorities is concerned, the OP No.1 has come with the defence that it has sought all the approvals from the competent authorities and the subject flat is ready for possession. But since the OP No.1  failed to prove on record any permission/ approval/completion certificate from the competent authorities showing that  OP No.1 was having the same before launching of the project, it is safe to hold that the aforesaid act of OP No.1 amounts to deficiency in service and unfair trade practice on its part. Further the OP No.1 has failed to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainant knowing fully well that necessary clearances have not been given by the competent authority, which was otherwise obligatory on the part of the OP No.1 to obtain all the approvals/ clearances before booking the subject flat.  If the OP No.1 chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are only themselves to blame for the same as the purchaser of the subject floor/flat/plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OP No.1, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                             “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

7. It has thus been proved on record that money had been collected by the OPs from the prospective buyers including the complainants, without obtaining statutory approvals/ clearances. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required licence/approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

 

8.        Undisputedly, the amount deposited by the complainants, has been utilized by OP No.1 for earning profits in its business. OP No.1 has also violated the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”), by not obtaining the necessary sanctions/permissions from the competent authorities before launching the above said scheme and collecting money from the people. Therefore, it stands proved that opposite Party No.1 has violated Sections 3, 5, 9 and 12 of PAPRA.
9. The OP No.1 has failed to offer possession of the subject flat till date. The complainant has also relied upon the judgment of Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 in which it was held that non delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of the builder and in those cases, allottees are well within their rights to seek refund of the amount paid. The above view is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
10. Recently, the Hon’ble National Commission in Sanjiv Kumar Jain & Anr. Vs. Lodha Crown Buildmart Private Limited, II (2023) CPJ 271 (NC) has held that inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund on this ground alone and if unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined.  The relevant headnote of the order is reproduced below for ready reference :-

“(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Housing — Booking of duplex flat — Non-delivery of possession — Deficiency in service — Inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund, on this ground alone — If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined — As there was unreasonable delay in offer of possession, complainants are entitled for refund of full amount under Clause 11.3 of agreement — Home buyer cannot be made to wait for possession of flat for indefinite period — Opposite party is directed to refund entire amount deposited by complainants with interest @ 9% per annum from date of respective deposit till date of payment.”

 

11. So far as the objection raised by OP No.1 that this Commission has no territorial jurisdiction to try the complaint  as  no cause of action has arisen within the jurisdiction of this Commission. is concerned, a perusal of  Annexure C-2 receipts at page 47, 48 and 49 clearly indicate that OP No.1 had received partial amount of sale consideration at its office at Chandigarh i.e. SCO 183/184, Sector 9C, Madhya Marg, Chandigarh as a result of which    partial cause of action has arisen within the jurisdiction of this Commission and this Commission  has jurisdiction to try the complaint..
12. The consumer complaint is also resisted by the OP No.1 on the ground of limitation and that the complainants have no cause of action, is without merit as it has come on record that the possession of the subject plot has not been offered by the OP No.1 to the complainants, till date. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint.
13. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed. 

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP No.1 is directed as under :-

1. to refund ₹38,09,604/- to the complainants alongwith interest @ 9% per annum from the date of each deposit made by complainants till onwards.
2. to pay an amount of ₹75,000/- to the complainantsas compensation for causing mental agony and harassment to them;
3. to pay ₹10,000/- to the complainants as costs of litigation.

However, it is made clear that the financier i.e. HDFC Bank Limited from whom  admittedly the  complainant availed loan shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainant towards the discharge of loan liability,

5. This order be complied with by the OP No.1 within 45 days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. complaint against OP No.2 stands dismissed as the complainant failed to prove cause of action against it.
7. Pending miscellaneous application(s), if any, also stands disposed off.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 3/1/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member