Chandigarh

StateCommission

CC/848/2016

Dolly Guleria - Complainant(s)

Versus

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

Munish Goel,Adv.

14 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	848 of 2016
Date of Institution	:	28.11.2016
Date of Decision	:	14.08.2017

 

Dolly Guleria W/o Lt. Col. S.S. Guleria, H.No.865, Sector 12, Panchkula.

 ……Complainant

V e r s u s

1.Ansal Housing & Construction Ltd., Registered & Head Office: 15, UGF, Indra Prakash, 21, Barakhambha Road, New Delhi – 110001 through its Managing Director/Director/Partner/ Authorised Signatory.

2.Ansal Housing & Construction Ltd., 2^nd Floor, GNG Towers, Building No.10, Sector 44, Near Huda City Centre Metro Station, Gurgaon, Haryana through its Managing Director/ Director/Partner/Authorised Signatory.

3.Ansal Housing & Construction Ltd., SCO 817, First Floor, NAC Mani Majra, Chandigarh through its Managing Director/Director/Regional Manager/Branch Manager/Authorised Signatory.

4.Ansal Housing & Construction Ltd., Zirakpur Site Office, near PSEB Grid, Nabha Road, Babhat Zirakpur through its Managing Director/ Director/Partner/Authorised Signatory.

…..Opposite Parties.

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

               SH. DEV RAJ, MEMBER.

               MRS. PADMA PANDEY, MEMBER.

 

Argued by:

Sh. Munish Goel, Advocate for the complainant.

Sh. Pardeep Solath, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

            The facts, in brief, are that as the complainant, who is a renowned Punjabi Singer, and mother of three children, namely, Sunaini Sharma, Dilpreet Singh Guleria and Amanpreet Singh Guleria, was in need of a house for self living and also for living of Dilpreet Singh Guleria, who was 90% disabled on account of Juvenile Rheumutoid Arthritis, she contacted Opposite Party No.3, who informed that development of project namely, “Woodbury Apartments” at Zirakpur, Punjab was in full swing and she would be provided physical possession by December 2010. Opposite Party No.3 also provided brochure of the said project to the complainant (Annexure C-2). On this assurance, the complainant deposited Rs.50,000/- vide receipt (Annexure C-4), as booking amount with Opposite Party No.3, whose authorised representative, namely, Shyam Verma issued email dated 30.04.2010 (Annexure C-3) to the complainant, informing that Flat No. was Mapple-301, measuring 1200 sq. ft. with basic cost of Rs.21,90,000, PLC Rs.60,000/-, Club Fee Rs.60,000/- and Car parking Rs.1,50,000/- (Optional).

2.         Thereafter, complainant deposited Rs.2,87,500/- and Rs.5,00,000/- with the Opposite Parties vide receipts dated 28.05.2010 & 30.10.2010 (Annexures C-6 & C-7 respectively). Meanwhile authorised representative of the Opposite Parties got blank application letter signed from the complainant with a promise to provide completed documents to the complainant with detail of payment and payment schedule. The complainant contacted Opposite Party No.3 a number of times to provide allotment letter/buyers agreement but nothing was heard. The complainant also wrote email dated 03.05.2011 (Annexure C-8) in this regard. The complainant then received email dated 24.06.2011 (Annexure C-9) from Opposite Party No.3 for putting an application for change of payment plan of unit, in question. In response, since the progress of the unit, in question, was slow, the complainant vide email dated 29.06.2011 (Annexure C-10) requested Opposite Party No.3 for change of lumpsum payment plan to construction linked payment plan. The complainant further requested that in case, the Opposite Parties were unable to give firm date of completion, then her deposited money be refunded with interest.

3.         It was further stated that Opposite Party No.3 informed that it would take up the matter with the Director of the company but the complainant was shocked to receive letter dated 06.03.2012 (Annexure C-11), raising demand of Rs.13,69,551.90 & Rs.6,41,302.81 on account of interest without even issuing allotment letter alongwith payment schedule. The complainant agitated the matter with the Opposite Parties vide her letter dated 19.03.2012 (Annexure C-12) and told the Opposite Parties that she was ready to deposit only Rs.13 Lacs and not the interest. It was stated that the Opposite Parties did not reply to the aforesaid letter dated 19.03.2012. Thereafter, the complainant vide his letter dated 14.6.2012 (Annexure C-13) sought refund of her deposited amount. Subsequently, the complainant wrote email dated 16.07.2012 (Annexure C-14) but to no avail.

4.         It was further stated that thereafter, the complainant engaged Sh. Pankaj Chandgothia, Advocate for filing a consumer complaint and also paid Rs.10,000/- to him as legal fee on 02.02.2013 but the said counsel did not file any complaint. The complainant was given an impression by the said Advocate that complaint had been filed and the same was pending. It was further stated that in the meanwhile, the complainant received letter dated 22.09.2015 from the Opposite Parties alongwith cheque dated 12.09.2015 in the sum of Rs.4,37,500/- towards refund against cancellation of booking of the flat, in question. The complainant immediately contacted the said lawyer but came to know that he had actually not filed any complaint before the Forum. However, the complete file was handed over back to the complainant by brother-in-law of Sh. Pankaj Chandgotia, Advocate in October, 2016, with a request to get it filed from some other advocate.

5.         It was further stated that thereafter, on contacting the Opposite Parties, it was informed to the complainant that now the Opposite Parties have cancelled the allotment and refunded the amount in 2015. It was further stated that the Opposite Parties have illegally cancelled the allotment and forfeited the amount, without issuing any allotment letter to the complainant till the date of filing of this complaint. It was further stated that the Opposite Parties also failed to obtain completion/occupancy certificate from the Government and provide basic amenities at the site. It was further stated that the Opposite Parties also failed to obtain necessary approvals/sanctions before start of construction. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

6.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties to refund the amount of Rs.8,37,500/- alongwith interest @18% p.a.; pay Rs.2,00,000/- as compensation for causing mental tension, harassment and mental agony besides Rs.33,000/- as cost of litigation and any other relief, which this Commission deems fit in the facts and circumstances of the case.

7.         The Opposite Parties, in their written statement, took-up certain preliminary objections, to the effect, that that the complainant is not a consumer, as she booked the unit, in question, not for her personal use but for investment purpose; that since the unit, in question, is situated in the State of Punjab and the Branch Office of Opposite Party No.1 is situated in State of Haryana, therefore, this Commission has no territorial jurisdiction to decide the complaint and that the complaint is liable to be dismissed on the ground that there is no written agreement signed between the parties.

8.         On merits, it was stated that the complainant did not pay the due amount. It was further stated that it was only after receiving email from authorized officer of the Opposite Parties to send an application to change the payment plan, so that they could issue allotment letter of the flat, the complainant made an application through email dated 29.06.2011 for the change of payment plan that too after a considerable gap of about eight months from the last payment made on 30.10.2010.  It was further stated that the complainant did not receive the allotment letter intentionally and failed to fulfill the criteria of initial payments. It was further stated that when despite several notices & reminders, the complainant failed to clear total outstanding of Rs.20,10,854.71, her allotment was cancelled and a refund cheque in the sum of Rs.4,37,500/- was duly sent to the complainant on 22.09.2015, as shown in Annexure C-17. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

9.         The parties led evidence, in support of their cases.

10.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the cases, carefully. 

11.       It is evident, on record, that the complainant applied for allotment of a residential apartment in ‘Woodbury Apartments’, Zirakpur vide application dated 30.04.2010 and vide letter of allotment dated 10.11.2010, she was allotted a    1200 sq. ft. unit bearing No.MAPLE-301, total unit price of which was Rs.22,50,000/-. The complainant had made the following payments:-

Sr. No.	Date	Amount (Rs.)
1.	30.04.2010	50,000.00
2.	28.05.2010	2,87,500.00
3.	30.10.2010	5,00,000.00
Total:		8,37,500.00

 

It may be stated here that vide miscellaneous application bearing No.426 of 2017, the Opposie Parties placed on record copy of aforesaid allotment letter dated 10.11.2010, which was taken on record vide order dated 29.05.2017. The complainant is definitely a consumer of the Opposite Parties as she hired the services of the Opposite Parties qua the unit, in question. As is evident from the pleadings of the parties, further payment was not made by the complainant. She also wrote letter dated 19.03.2012 (Annexure C-12) giving two proposals to the Opposite Parties either to accept the balance amount of Rs.13,00,000/- without any interest and payment of remaining 5% on receipt of possession or to refund the total amount of Rs.8,37,500/- with interest till the date of refund without any deduction whatsoever and cancel the booking as requested in April 2010. The complainant thereafter sent letter dated 14.06.2012 (Annexure C-13) to the Opposite Parties seeking refund of the full amount by 30.06.2012 with interest. Subsequently, the complainant sent email dated 16.07.2012 (Annexure C-14) to the Opposite Parties to immediately return full amount with interest. These communications were duly received by the Opposite Parties but there was no response. It was only after more than 3 years that the Opposite Parties vide letter dated 22.09.2015 (Annexure C-16), sent a cheque bearing No.482025 dated 12.09.2015 drawn on UCO bank, New Delhi, in the sum of Rs.4,37,500/- against refund of flat No.Maple-301. Thus, out of the total payment of Rs.8,37,500/-, a sum of Rs.4,00,000/- was deducted. The letter dated 22.09.2015 reads thus:-

“This is in reference to above said subject; please find enclosed herewith refund cheque number 482025, UCO bank, New Delhi, amount of Rs.437500.00 against refund of your booking of flat no. Maple – 301.”

 

Nothing is mentioned in the letter as to how and in which manner, a sum of Rs.4,00,000/- was forfeited by the Opposite Parties. Counsel for the complainant during arguments stated that the cheque, in question, was never got encashed by the complainant. 

12.       The first question that falls for consideration, is, as to whether, the flat, in question, was purchased by the complainant, for her personal use, or she was a speculator, as alleged by the opposite parties. No doubt, to defeat claim of the complainant, an objection was raised by the opposite parties, to the effect that the complainant, being an investor, had purchased the unit, in question, for earning profits, as such, she would not fall within the definition of consumer, as defined under Section 2(1)(d) of 1986 Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. On the other hand, it has been clearly averred by the complainant, in para no.20 of her complaint that she purchased the flat, in question, for personal use/self-living. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Commission that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the plot, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in its written reply, therefore, being devoid of merit, is rejected.  

13.       The next objection raised by the Opposite Parties is that since the unit, in question, is situated in the State of Punjab and the Branch office of Opposite Party No.1 is situated in State of Haryana, this Commission has no territorial jurisdiction to decide the complaint. It may be stated here that according to Section 17 of the Act, a consumer complaint could be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident, that the receipt of initial payment of Rs.50,000/- was issued by Sh. Shyam Verma, Authorised Representative of the Opposite Parties on behalf of Ansal Housing & Construction Ltd., from SCO No.817, NAC Manimajra through email to the complainant. However, the receipt, on further depositing the said amount to the Company, was issued on 30.04.2010 from New Delhi. Further email dated 24.06.2011 (Annexure C-9) was also issued from the aforesaid address of Manimajra. Thus, since

 

a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

14.       The next question, which falls for consideration, is, as to whether the Opposite Parties were justified in cancelling the allotment of the unit, in question, or not and as to what amount, the complainant was entitled to after cancellation. As already stated in Para 11 above, the unit, in question, was allotted on 10.11.2010 (Annexure R-1/1). As per Clause 23 of the said allotment letter, possession of the unit was to be delivered to the complainant after the same was ready for possession, provided all the amounts due from the allottee were paid to the Developer and the allottee was to take possession within 30 days of the developer giving written note intimating readiness of possession. It is on record that the complainant only paid an amount of Rs.8,37,500/- up-to 30.10.2010 and did not pay anything thereafter. The allotment was cancelled for non-payment of outstanding amount of Rs.20,10,854.71 and refund of Rs.4,37,500/-, after forfeiting a sum of Rs.4,00,000/-, was made to the complainant vide cheque on 22.09.2015 (Annexure   C-17),  which she did not encash. Clauses 13 & 14 of

 

the allotment letter (Annexure R-1/1), being relevant, are extracted hereunder:-

“13. The Developer and Allottee(s) hereby agree that the payment made to the Developer by the Allottee(s), either with the application for provisional allotment or thereafter to the extent of 20% of the Basic sale price of the said Residential Unit shall constitute earnest money.

 

14.  Payment of installments due towards the basic sale price, club membership fees of the Residential Unit and covered car parking (if purchased) will be made by the Allottee(s) at intervals as per the payment plan opted by him/her. Timely payment of installments is the essence of the terms of this Allotment Letter. If payment of installment is not received within the stipulated period given in the opted payment plan and/or in the event of breach of any of the terms and conditions of this Allotment Letter or those of the application by the Allottee(s), the Allotment can be cancelled at the sole discretion of the Developer and 20% of the basic Sale Price of Residential Unit, which constitute the earnest money, shall stand forfeited and the balance amount, if any, will be refunded without any interest on receiving the original documents from the Allottee(s) and after compliance of necessary formalities. However, in exceptional circumstances, the Developer may in its absolute discretion condone the breaches including delay in making payment by charging an interest @21% compounded quarterly on the delayed payments/ outstanding and restoration charges at such rates as may be decided by the Developer in its sole discretion.”

 

15.       As already stated in Para 11 above, no details as to the manner, in which, the balance amount of Rs.4,00,000/- was deducted were mentioned in the forwarding letter dated 22.09.2015. Had the Opposite Parties acted on the request of the complainant and refunded the amount within a reasonable period of a month or so, after receipt of request of the complainant in 2011 and 2012, the position would have been different. When the Opposite Parties have been clearly deficient in not refunding the amount for almost four and a half years, the request of the complainant for refund has to be dealt with and decided in accordance with settled law by the Hon’ble National Commission/Hon’ble Apex Court. Undoubtedly, the complainant has suffered immensely by not getting timely refund.

16.       In DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014 decided by Hon’ble National Commission on 06.01.2015, it was held that in the absence of evidence of actual loss, forfeiture of any amount exceeding 10% of the sale price cannot be said to be a reasonable amount. The aforesaid observation of Hon’ble National Commission was recorded taking note of decision of Hon’ble Supreme Court of India in Maula Bux Vs. Union of India, 1969 (2) SCC 544 and Shree Hanuman Cotton Mills & Ors. Vs. Tata Air Craft Ltd., 1969 (3) SCC 522 and Satish Batra Vs. Sudhir Rawal, (2013) 1 SCC 345.

17.        In DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No.3861 of 2014 decided on 26.08.2015, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Paras 10 and 11 of its order, held that the Revision Petitioner was not entitled to charge interest as non-refundable amount on the subsequent installments in the wake of cancellation of plot. Paras 10 and 11 of the order read as under:-

“10.      We have now to consider whether the forfeiture amount mentioned in the letter of cancellation under the head “earnest money” and “non-refundable advance” was justified or not.  It has been stated in the said letter that a sum of Rs.15,57,781.25ps. was being forfeited as earnest money.  In the plot-buyers’ agreement, however, this amount has been shown as Rs.14,85,747/-.  It is to be seen, however, whether the OP DLF was within its rights to treat 15% of the total price as earnest money of the plot.  In a case recently decided by this Bench in “DLF Limited vs. Bhagwanti Narula,” RP No. 3860 of 2014, decided on 06.01.2015, we have taken the view that an amount exceeding 10% of the total price of the property cannot be forfeited by the seller as earnest money being unreasonable, unless the OP can show that it had suffered loss to the extent the amount was forfeited by it.  Applying the same principle in the present case as well, it is held that the OP DLF was competent to forfeit only 10% of the total amount of the plot in question as earnest money.  Since the total value of the plot including Preferential Location Charges (PLC), is Rs.99,04,986.10ps. as already indicated, 10% of the earnest money comes out to be Rs.9,90,500/-

 

11.       In so far as interest on delayed payments, stated to be non-refundable amount in the agreement is concerned, the OP deducted a sum of Rs.3,65,479.25ps in the cancellation letter. It is observed in this regard that the complainant made payments of a sum of Rs.12 lakh at the time of initial booking and then made two further payments in the last week of June 2011. Since no further payments were made, as per the terms and conditions of the allotment as contained in Para 65 of the plot-buyers’ agreement, the OP was well within its rights to initiate the process of cancellation of the plot after the first default in making payment of an instalment. In its own wisdom, if it decided not to do so immediately, it is not entitled to charge interest as non-refundable amount on the subsequent instalments in the wake of cancellation of plot. The letter of cancellation dated 23.05.2012 makes it clear that the plot-buyers’ agreement if executed, stood cancelled and the allottee shall not have any lien or right on the said property. It is held, therefore, that the OP cannot deduct a sum of Rs.3,65,479.25ps as non-refundable amount from the money deposited by the complainant.”

Further, recently the Hon’ble National Commission in case titled Shri Harjinder S. Kang Vs. M/s Emaar MGF Land Ltd., Consumer Complaint No.482 of 2014 decided on 04.07.2016, in Paras 13 and 14, held as under :-

“13.   The case of the opposite party is that as per Clause 2(f) of the Buyers’ Agreement, extracted hereinabove, 15% of the total sale price constitutes the Earnest Money which they were entitled to forfeit.  However, it has been held by this Commission in DLF Ltd., Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014, decided on 06.1.2015, that an amount exceeding 10% of the total price of the property cannot be forfeited as Earnest Money unless the opposite party can show that it has suffered loss to the extent of the amount actually forfeited by it.  Applying the principle laid down in the above referred decision of this Commission, the opposite party could have forfeited only a sum of Rs.12,77,475/- from the amount paid to it by the complainant.  The balance amount of Rs.71,97,275/- (84,74,750/- - 12,77,475/-) was required to be refunded to the complainant, which the opposite party has failed to do.

14.   In the event of the failure of the allottee to make the timely payment of the sale consideration, the agreement could be terminated after a delay of more than thirty days from the due date.  In the present case, the default on the part of the complainant occurred for the first time on 26.4.2013 since the instalment payable on that date was not paid in full.  Therefore, the agreement could have been terminated on 26.5.2013.  The opposite party however, failed to do so and continued to utilize the entire amount, which the complainant had paid to it from time to time.  The opposite party therefore, must compensate the complainant by paying compensation by way of interest on the balance amount of Rs.71,97,275/- with effect from 26.5.2013.”

 

              The aforesaid judgments clearly lay down that not more than 10% of the earnest money can be forfeited. The Opposite Parties have not adduced any evidence that they suffered loss beyond 10% of the sale consideration.

 

18.       The complainant had clearly indicated her intention vide letter dated 19.03.2012 (Annexure C-12) that in case, the first proposal to accept the balance amount of Rs.13,00,000/- without any interest and payment of remaining 5% on receipt of possession, was not acceptable to the Opposite Parties then, the total amount of Rs.8,37,500/- deposited by her be refunded with interest till the date of refund without any deduction whatsoever and cancel the booking as requested in April 2010. In all fairness, the Opposite Parties should have taken decision on the matter within a reasonable period of a month or so. However, they remained silent despite reminder(s) by the complainant, which amounted to deficiency in rendering service. Computing one month from letter dated 19.03.2012 (Annexure C-12) after deducting/forfeiting 10% of the total sale consideration of the unit, in question, the Opposite Parties were required to refund the balance amount i.e. (Rs.8,37,500.00 minus (-) Rs.2,25,000.00) = Rs.6,12,500.00 alongwith interest w.e.f. 19.04.2012. It is, therefore, held that the opposite parties could forfeit an amount to the extent of 10% (i.e. Rs.2,25,000.00) of the total sale consideration of Rs.22,50,000.00, out of the deposited amount of Rs.8,37,500.00. As such, the complainant was entitled to the refund of an amount of Rs.6,12,500/-. By  not   refunding  the  refundable  amount  to   the

complainant, the Opposite Parties were deficient in rendering service and indulged into unfair trade practices.

19.       It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In the facts and circumstances of the case, grant of interest @12% p.a. on the refundable amount would be adequate to serve the ends of justice.

20.       No other point, was urged, by Counsel for the parties. 

21.       For the reasons recorded above, this complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:-

(i)    To refund the amount of Rs.6,12,500/-, to   the   complainant, alongwith interest @12% p.a. simple w.e.f. 19.04.2012, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)   To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)  In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. simple, from the date of default, till realization and amount mentioned in Clause (ii) above, with interest @12% p.a. (simple) from the date of filing the complaint till realization.

22.       However, it is made clear, that in case, the complainant has availed loan facility from any banking/financial institution(s), it shall have the first charge on the amount payable, to the extent, the same is due to be paid by her (complainant).

23.       Certified copies of this order be sent to the parties, free of charge.

24.       The file be consigned to Record Room, after completion.

Pronounced.

14.08.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

      MEMBER

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