Haryana

Karnal

CC/685/2021

Smt. Sushil Chawla - Complainant(s)

Versus

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

Hitesh Sahni

23 Oct 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.685 of 2021

                                                        Date of instt 07.12.2021

                                                        Date of Decision: 23.10.2024

 

Smt. Sushil Chawla wife of Shri Parveen Kumar Chawla, resident of house no.1989, Sector-7, Urban Estate, Karnal, Haryana.

 

                                                                        …….Complainant.

                                              Versus

 

1. Ansal Housing & Construction Ltd. through its Manager, 15 UGF, Indra Prakash, 21 Barakhamba Road, New Delhi-11000.
2. Ansal Housing and Construction Ltd. through its Manager, Sector-36, 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 Hitesh Sahni, counsel for the complainant.

                 Shri Mohit Sachdeva, counsel for the OPs.

 

                     (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 complainant purchased a plot no.D-052 measuring 273.65 Sq. yard in the OPs residential plotted project at sector 36, Karnal, Haryana and letter to that effect stating that the said plot which was in the name of Mr. Gurcharan Singh stands transferred in her name and further stating therein that the amount of Rs.18,51,583.56 stands credited to her nominee. At the time of purchase/transfer, it was told by the OPs that the possession of the said plot will be handed over within reasonable time after completing construction of all the necessary amenities like roads, sewerage, water harvesting, street lights and other community buildings etc. necessary for livelihood in the project of OPs. The complainant has also sent a letter dated 02.08.2021 stating therein that the actual/physical possession of the plot may kindly be handed over so that complainant may construct the house thereon. Complainant is a senior citizen and is very desperate for constructing her own house and till date complainant is living in a rented accommodation. Complainant sent a reminder dated 14.09.2021 to the OPs but nothing was done into the matter and OPs turned a deaf ear and has neither delivered the actual/physical possession nor any reply was given to the abovesaid letter and reminder. Complainant visited the OP no.2 and requested to handover the actual/physical possession of the said plot to the complainant but in vain. There are many constructions activities on the nearby plots are going on but the complainant has been deprived of as the actual/physical possession of the said plot has not been handed over to the complainant. Then complainant sent a legal notice dated 28.10.2021 to the OPs but it also did not yield any result. It is pertinent to mention here that complainant also moved RTI application dated 02.08.2021 to the District Town and Country Planning, Karnal seeking information regarding the residential project of OPs wherein the said plot is located and the complainant received the partly information vide letter dated 16.09.2021 from the office of Director Town and Country Planning, Chandigarh, Haryana and complainant received the partly information, vide letter dated 13.10.2021 from the office of District Town and Country Planning, Karnal, Haryana and complainant was shocked with the information as till date OPs have received only part completion of the said residential project, meaning, thereby, that the OPs have not completed the development work in the said residential project till date.  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 give the actual/physical possession of the plot no.D-052 measuring 273.65 sq. yards in the OPs residential plotted project at sector 36, Karnal to the complainant and further to get sale deed executed in favour of complainant, to pay the interest @ 18% per annum on the payment i.e. Rs.18,51,583.56/- deposited for the purchase/transfer of plot from the date of deposit till the completion certificate of the project is obtain from the competent authorities, to pay Rs.1,00,000/- as compensation for mental pain, agony and harassment and Rs.22000/- towards the litigation expenses.

2.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that in view of the Allotment letter/Agreement, it provides for arbitration in case of dispute between the parties. It is further pleaded that complainant has not got the registered sale deed executed in his name. It appears that complainant intends to get unjust enrichment by making false and frivolous claims against the OPs. Complainant failed to fulfill the obligations provided under the allotment agreement. The official staff of OPs told the complainant regarding possession of the plot, that she has to execute sale deed registration. Without sale deed registration, handing over the physical possession of the plot will not be possible. It is denied that official staff of the OPs never told the complainant at the time of transfer that the possession of the said plot will be handed over after completion of roads, sewerage etc. The official staff of the OPs always told the complainant regarding possession of the plot, that she has to execute sale deed registration. Handing over the physical possession of the plot will not be possible getting the sale deed registered in favour of complainant, so the OPs had sent letters to the complainant regarding sale deed execution and possession of the plot but complainant did not get the sale deed executed in her name. It is further pleaded that the development work have improved and have attained a better stage than earlier. The unit in question and the project has been completed in almost all respects and many families are residing happily in their units. 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.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of letter dated 19.09.2012 Ex.C1, copy of allotment letter Ex.C2, copy of letter dated 02.08.2021 Ex.C3, postal receipts and tracking report Ex.C4 to Ex.C6, copy of reminder dated 14.09.2021 Ex.C7, postal receipts and tracking report Ex.C8 to Ex.C10, copy of legal notice dated 28.10.2021 Ex.C11, postal receipts and tracking report Ex.C12 to Ex.C14, copy of RTI dated 02.08.2021 Ex.C15, copy of reply of RTI dated16.09.2021 Ex.C16, copy of LC-IV May, 2007 Ex.C17 and Ex.C18, reply of RTI dated 13.10.2021 Ex.C19, copy of grant part completion certificate dated 17.05.2017 and closed the evidence on 10.03.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Dushyant Arora, authorized signatory Ex.OP1/A, copy of allotment letter Ex.O1, copy of letter of OP to complainant dated 19.09.2012 regarding transfer of plot no.D-052 with regard to transfer of plot in the name of complainant Ex.O2 and closed the evidence on 10.04.2024 by suffering separate statement.

6.             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.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased a plot in the project of OPs and paid entire sale price alongwith other charges to the OPs. The possession of the said plot was to be handed over within reasonable time after completing construction of all the necessary amenities like roads, sewerage, water harvesting, street lights and other community buildings etc. The complainant requested the OPs several times to handover the physical possession of the plot in question and get the sale deed executed but till date OPs neither handed over the physical possession nor executed the sale deed in favour of the complainant

and lastly prayed for allowing the complaint. Learned counsel of complainant has placed reliance on the case law titled as Abhishek Khanna and others in Civil appeal no.5785 of 2019, date of decision 11.01.2021; Mr.Mridula Rajbanshi and another Vs. Umang Realtech (P) Ltd. 2021 SCej 1087 (NCDRC); Jose Mariano Corderio Versus M/s Kalash Real Estate Developers in First appeal no.12 of 2018, date of decision 01.02.2021; Deepak Goyal and another Versus M/s North Star Apartments Pvt. Ltd. and others, in consumer case no.871 of 2017, date of decision 28.09.2021 and Sunny Ahuja Versus Raheja Developers Ltd. in consumer case no.180 of 2020, date of decision 03.01.2022.

8.             Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that complainant has not got the registered sale deed executed in his name. Complainant failed to fulfill the obligations provided under the allotment agreement. Without sale deed registration, handing over the physical possession of the plot is not possible. OPs are still ready to handover the physical possession of the plot, if the complainant got the sale deed executed. He further argued that as per arbitration clause in the allotment letter, this Commission has no jurisdiction to try and entertain the present complaint and lastly prayed for dismissal of the complaint.

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

10.           Admittedly, complainant purchased a plot in the project of the OPs and paid the entire sale consideration of the plot to the OPs as well as previous allottee Shri Gurcharan Singh. It is also admitted that OPs had transferred the plot in favour of the complainant. It is also admitted that the physical possession of the plot has not been handed over to the complainant.

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

12.           No doubt, as per clause 44 of letter of Allotment Ex.C2, the Arbitrator shall settle the case, if any dispute arises 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 OPs 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.”  

 

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

14.           As per the clause 18 of letter of allotment, OPs were bound to hand over the possession of the unit to the complainant within a reasonable time from the date of execution of the allotment letter, subject to force majeure circumstances. In the present case, admittedly, there were no force majeure circumstances. The allotment letter Ex.C2 has been executed in the year 2010 but till date no physical possession has been offered to the complainant. The possession of the plot in question has not been offered by the OPs only on the ground that complainant has failed to get the sale deed executed. Said excuse is not tenable and only just to harass the complainant and delay the possession of the plot. There is no legal hitch to handover the physical possession of the plot without executing the sale deed. Possession can only be handover only issuing the allotment letter and receipt the entire sale consideration. It is not a case of the OPs that complainant has not deposited the entire cost of the plot including other charges. Thus, the plea taken by the OPs have no force.

15.           OPs have alleged that despite several letters, complainant failed to execute the sale deed. On perusal of the file, it reveals that there are no letters on the file as alleged by the OPs. Apart from this, the person who has deposited the entire price of the plot, why he would not be ready to execute the sale deed.

16.           The OPs have alleged that the project was to be completed within a reasonable time from the date of execution of the allotment letter. The reasonable period does not mean that the OPs are having liberty to keep the matter pending for several years. The OPs have neither completed the development work at the site nor handed over the physical possession of the plot to the complainant. Hence, it is proved on record that OPs have neither completed the construction work at the site within stipulated period nor handed over the physical possession of the plot. The complainant cannot be made to wait indefinitely for the delivery of the possession. In this regard, we relied upon the following case laws:- 

17.           In Abhishek Khanna’s case (supra) the Hon’ble Supreme Court held that delay in delivery of possession of apartment-Refund-Factum of delay in completing construction and making offer of possession is undisputed fact in this case-Court directed developer appellant to refund entire amount deposited by respondent buyers as categorized in two categories by Court. Further, in Mridula Rajbanshi’case (supra) the Hon’ble National Commission held that Builder-Allotment of flat-Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the opposite party in relying on Force Majeure clause while retaining the amounts deposited by the complainants, is not only an act of Deficiency in Service but also of Unfair Trade Practice-Direct the Builder Co. to refund the entire principal amount received alongwith compensation in the form of simple interest @ 9% per annum from the date of deposit till the actual date of payment together with costs of Rs.50,000/- within a period of four weeks from today, failing which the amount shall carry interest @ 12% per annum till its realization. Further, in Jose Mariano Cordeiro’s case (supra) the Hon’ble National Commission held that Possession delayed-Housing Residential flat-opposite party, failed to deliver the possession of the flat within the stipulated period-Deficiency in service on the part of the OP-Since deficiency in service was established on the part of the Respondent/opposite party-sought interest and compensation-Scope-Held-If builder is found deficient in service is entitled to pay compensation during period of delay period-complainant entitled for compensation for delayed handing over of possession.  Further, in Deepak Goyal’s case (supra) the Hon’ble National Commission held that Delay in possession of flat-Unfair Trade Practice-Complaint before National Commission-under clause-8 (a) of Flat Buyer’s Agreement promised period for offer of possession was 36 months with grace period of 90 days from the date of execution of the FBA, subject to exception as given under clause 8 (b), 38, delay in approval of sanctioned plan and issue of Occupation Certificate-promised period for offer of possession expired in November, 2015-Bulding not taken any plea and offer of possession was delayed either for delay in sanction of layout plan or in issue of Occupancy Certificate-Possession notice was issued on 27.11.2018, with delay of three years-Held, allottee cannot be made to wait for indefinite period for possession complaint allowed with cost of Rs.one lakh-Direction to builder to refund amount Rs.66,58,319/- alongwith interest @ 9% per annum”.

18.           Keeping in view the ratio of the law laid down in the abovesaid judgments, facts and circumstances of the complaint, the act of the OPs by not completing the project within stipulated period amounts to deficiency in service and unfair trade practice.

19.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to hand over the physical possession of the plot in question to the complainant and further to get sale deed executed in favour of complainant. We further direct the OPs to pay the interest @ 9% per annum on the paid amount (Rs.18,51,583.56/-) from the date of deposition till handover the physical possession of the plot in question to the complainant. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the date of receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated:23.10.2024

         President,

      District Consumer Disputes                           

      Redressal Commission, Karnal.

 

                   ( Neeru Agarwal)            (Sarvjeet Kaur)

                             Member                        Member