Haryana

Karnal

CC/246/2023

Ms. Kusum Lata - Complainant(s)

Versus

Ansal Housing & Construction Limited - Opp.Party(s)

Ms. Babita Rani

19 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.246 of 2023

                                                        Date of instt 25.04.2023

                                                        Date of Decision: 19.09.2024

 

Ms. Kusum Lata wife of Shri Randhir Singh, resident of house no.57, Ward no.11, Jogian Wala Mohalla, Gharaunda, District Karnal.

 

                                                                        …….Complainant.

                                              Versus

 

1. Ansal Housing and Construction Ltd. G.T. Road, Karnal through its Managing Director.
2. Gaurav Singh Pundir, Manager, Ansal Housing construction Ltd. G.T. Road, Karnal.

 

…..Opposite Parties.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

Argued by:  Shri Randhir Singh Rana, counsel for the complainant.

                    Shri Mohit Sachdeva, counsel for the OP no.1.

                    OP no.2 exparte, vide order dated 15.06.2023.

                   

                     (Jaswant Singh, President)

ORDER:   

                

                The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OPs had launched a Scheme under the Din Dayal Awas Yojna at Karnal. Under that scheme the complainant booked a plot no.70 of 134.14 sq. yards alongwith parking area. The total sale consideration of the plot in question was Rs.17,43,820/-. An Agreement for Sale was executed on 17.05.2019 between the parties and the said agreement has been duly registered in the office of Sub Registrar Karnal. OPs allured the complainant and assured that the colony will be developed within one year and they will provide all facilities to its customer within stipulated time and possession will be given to them. After considering the false assurance of the OPs, complainant booked a plot no.70 in Prime Residency Project of Ansal Group Karnal which is shown in the site plan. The complainant paid a sum of Rs.1,60,000/- to the OPs as earnest money out of the total cost of the plot. The possession of the plot was to be delivered by the OPs in the year 2020 as per the allotment letter/agreement, but till today nothing has been done at the spot.  The complainant visited at the spot so many times and has inspected the spot, but there is no development on the site. Though the OPs have under taken that they will deliver the possession of the plot to the complainant upto 31.03.2020 but OPs failed to comply with their undertaking. Complainant visited at the spot so many times and has inspected the spot and found that there is nothing at the spot qua the construction of the roads and other infrastructure for the last one year and now OPs are bent upon to sell the above mentioned plot to some other persons for higher rates. The complainant had purchased the said plot for residential purpose and from the very date of purchase the aforesaid plot, the complainant is ready and willing to make the payment as per the payment schedule. Due to spread of Covid-19, pandemic disease the office of OPs as well as the construction work remained closed and act of OPs for non-providing the infrastructure at the spot like road, street electricity and other facilities required for the construction in the plot, complainant did not deposit the due installments in those days, for that the office of the OPs was closed due to spread of covid-19. The complainant is willing to purchase the abovesaid plot and still ready and willing to deposit the amount of installments, but OPs are bent upon to alienate the aforesaid plot to someone else forcibly and illegally. It is further averred that complainant has purchased the aforesaid plot for residential purposes, but OPs has not delivered the possession of the plot to the complainant till today and due to this reason the complainant could not raise the construction of the house and complainant is still residing in a rented accommodation and the complainant is having burden upon her shoulder to pay rent to the tune of Rs.7,000/- per month. The possession of the plot was to be delivered upto 31.03.2020 but till today the OPs have not delivered the possession of the plot. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint seeking direction to the OPs to handover the actual, physical and vacant possession of the plot in question as the complainant is still ready to pay the amount of installment as per the repayment schedule, OPs be restrained from alienating/mortgaging/leasing out the plot in question to any other persons forcibly and illegally without the consent of the complainant, if it is not possible to deliver the possession of plot in question then OPs may kindly be directed to refund the amount of Rs.1,60,000/- so deposited by the complainant alongwith 24% interest from the date of deposit till its realization, to pay Rs.7000/- per month as rent from 17.05.2020, to pay Rs.1,00,000/- for deficiency in service, mental agony, harassment etc. and to pay Rs.50,000/- on account of litigation expenses.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; cause of action; jurisdiction as in view of clause of 33 of the allotment letter/agreement, it provides for arbitration in case of dispute between the parties and concealment of true and material facts. On merits, it is pleaded that complainant had booked a plot bearing no.70 of DDJAY-3, situated in Ansal Town, Karnal on 19.05.2019. The size of the plot was 134.14 sq. yards. The total value of the said plot was Rs.17,43,820/-. Agreement to sell was executed. The complainant paid Rs.1,60,000/- on 19.05.2019 i.e. at the time of booking of the said plot. It is further pleaded that nowhere it is mentioned that the possession would be delivered in one year. The complainant has not deposited the installments except the first one which she had deposited at the time of issuance of the allotment letter. However, complainant on account of malafide intentions has failed to pay the outstanding dues as per the payment schedule, so she does not fall under the ambit of the definition of consumer as per the Consumer Protection Act. It is further pleaded that complainant failed to fulfill the obligations provided under the allotment letter dated 17.05.2019. Complainant has deposited only an amount of Rs.1,60,000/- on 19.05.2019 and since then she has not paid even a single penny against the payment schedule/installments for the plot. It is further pleaded that complainant has booked the plot in question for investment purpose and as the market is not doing well due to recession in real estate market and the complainant did not see much profit in selling the said plot therefore, she is making false and baseless allegations against the OPs in order to extract money from them. It is further pleaded that the complainant has not paid even a single penny after the amount of Rs.1,60,000/- and has now come to this Commission to get undue influence and benefit after committed wrong by herself. Since the complainant has signed the Agreement after duly acknowledging all its clauses, therefore, now she is stopped from turning a blind eye to its terms. Moreover, it is submitted that as per clause 7.5 of allotment letter readwith Haryana RERA Rules, earnest money amount to 10% of consideration amount can be forfeited by the Builder in case of default by the customer. Therefore, Rs.1,60,000/- as deposited by the complainant has been forfeited as per the terms of the agreement. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 did not appear despite service and opted to be proceeded against exparte, vide order dated 15.06.2023 of the Commission.

4.             Parties then led their respective evidence.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1/A, copy of agreement Ex.C1, copies of payment receipts Ex.C2 to Ex.C4 and closed the evidence on 10.07.2023 by suffering separate statement.

6.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Dushyant Arora, authorized signatory Ex.OP1/A, copy of letter dated 22.09.2020 Ex.O1, copy of Agreement for Sale Ex.O2 and closed the evidence on 09.01.2024 by suffering separate statement.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant booked a plot in the project of the OPs and deposited Rs.1,60,000/- to the OPs as earnest money out of the total cost of the plot of Rs.17,43,820/-.  The possession of the plot was to be delivered by the OPs upto 31.03.2020, but till today nothing has been done at the spot. Complainant is ready and willing to deposit the amount of installments, but OPs are adamant to alienate the plot in question forcibly and illegally and lastly prayed for allowing the complaint.

9.             Per contra, learned counsel for the OP no.1, while reiterating the contents of written version has vehemently argued that complainant  booked the plot in question in the project of the OP. Complainant has deposited only an amount of Rs.1,60,000/- on 19.05.2019 and thereafter nothing has been paid by the complainant against the payment schedule for the plot. Complainant had failed to fulfill the terms and conditions of the allotment letter dated 19.05.2019. He further argued that per clause 7.5 of allotment letter readwith Haryana RERA Rules, earnest money amount to 10% of consideration amount can be forfeited by the Builder in case of default by the customer. Therefore, Rs.1,60,000/- as deposited by the complainant has been forfeited as per the terms and conditions of the Agreement for Sale. He further argued that the present complaint is not maintainable before this Commission as disputes, if any, arise between the parties required to be settled by the Arbitrator in view of clause 33 of the  Agreement to Sale dated 19.05.2019 and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, on 19.05.2019 complainant booked a plot no.70 under the scheme of Din Dayal Awas Yojna at Karnal, for the total sale consideration of Rs.17,43,820/- with the OPs and in this regard the Agreement to Sale Ex.C1/Ex.O2 dated 11.05.2019 was executed between the parties. It is also admitted that complainant has deposited Rs.1,60,000/- as earnest money i.e. 10% of the booking amount.

12.           The first question arises for consideration is that whether this Commission has jurisdiction to try and entertain the present complaint or not?

13.           The OP has taken a plea in view of clause 33 of the Allotment Letter/Agreement, it provides for arbitration in case of dispute between the parties.  In this regard, we are of the considered view that if for the sake of argument it may be considered that there exists an arbitration agreement between the OP and the complainant in that case also this Commission has jurisdiction to try and entertain the present complaint as it is a settled proposition of law that complaint under Consumer Protection Act, being an additional remedy, despite there being an arbitration agreement, the proceedings before Consumer Commission have to go on. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. In this regard, we place reliance on the case titled “M/s Emaar MGF Land Limited Versus Aftab Singh, review petition © Nos.2629-2630 of 2018 (SC), wherein Hon’ble Supreme Court of India held in para no.55 as under:-

“We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration.”  

 

14.           Hence, keeping in view the above discussion and ratio of the judgment, the plea taken by the OP has no force. Thus, this Commission has jurisdiction to entertain and try the present complaint.

15.           The complainant has alleged that as per the clause no.7.1 of the Sale Agreement Ex.C1 dated 11.05.2019, OP was bound to handover the possession of the plot in question within one year. The clause of Sale Agreement is reproduced as under:-

        Possession of the plot:

7.1 Schedule for possession of the said plot-The vender agrees and   understands that timely delivery of possession of the plot to the Vendee and the common areas to the association of vendees or the competent authority, as the case may be as provided under Rule (1)(f) of the Rules 2017, is essence of the Agreement.

The Vendor assures to handover possession of the Plot for Residential usage as per agreed terms and conditions unless there is delay due to “Force Majeure”, order of any court, Tribunal or Authority, Government policy/guidelines, decisions affecting the regular development of the real estate project. If, the completion of the project is delayed due to the above conditions, then the Vendee agrees that the Vendor shall be entitled to the extension of time for delivery of possession of the plot.

16.           On perusal of the said clause, it is nowhere mentioned that the possession of the plot in question was to be handed over within one year from the date of Sale Agreement Ex.C1. Hence, plea taken by the complainant goes unproved.

17.           OP has alleged that as per the payment schedule, complainant did not deposit the remaining sale amount. Neither complainant nor OP has placed on file copy of payment schedule. Hence, it has not been proved on the file, the schedule of remaining payments. Hence, plea taken by the OP goes unproved.

18.           Hence, it appears that neither complainant deposited the remaining payment within time nor OP has completed the development work at the site within stipulated period and has been allotted the plot in question to another person. Thus, both the parties are at fault. Hence, it would be justified, if the deposited amount be ordered to be refunded to the complainant without any interest, compensation and litigation expenses.    

19.           In view of above discussion, we partly allow the present complaint and direct the OP no.1 to refund the amount of Rs.1,60,000/- to the complainant. This order shall be complied with within 45 days from the receipt of copy of this order. It is made clear if the awarded amount is not paid by the complainant within stipulated period then this amount will carry interest @ 9% per annum from the date of the order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 19.09.2024                                                           

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

         (Neeru Agarwal)               (Sarvjeet Kaur)

            Member                           Member