STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Harpal Kaur, wife of Jatinder Singh, H.No.6161, Modern Housing Complex, Manimajra, Chandigarh – 1600101

……Complainant

V e r s u s

1. Ansal Housing and Construction Limited, Registered office 15 UGF, Indra Prakash, 21 Barakhamba Road, New Delhi, through its Managing Director.

2. Lalit Kumar Arora, General Manager, Ansal Housing and Construction Limited, SCO No.817 NAC, Shivalik Enclave, Mani Majra, Chandigarh-160101

3. Shalabh Makkar, Assistant General Manager (Marketing) Ansal Housing and Construction Limited, SCO No.817 NAC, Shivalik Enclave, Mani Majra, Chandigarh-160101

              .... Opposite Parties

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

BEFORE:      JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER

Argued by:    Sh. Balkar Singh, Advocate for the complainant.

                                    Sh. Upender Prasher, Advocate for the Opposite Parties.

PER  JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

              The facts, in brief, are that the Opposite Parties floated a group housing project at Zirakpur, and advertised about construction and sale of apartments, in the name of “Woodbury Apartments, Zirakpur” in the years 2006-07. On 03.11.2008, the complainant purchased apartment No.WALNT 302, measuring 1198 square feet, in the aforesaid project, from one Sharda Devi, who initially booked the same, with the Opposite Parties, on 20.09.2007, by making payment of Rs.1 lac. Sharda Devi had already paid Rs.15,53,571/-, vide different receipts, to the Opposite Parties, towards the part price of apartment. On 14.08.2008, the complainant moved an application, to the Opposite Parties, for transfer of the said apartment, in her name, from the name of Sharda Devi. The payment of Rs.15,53,571/-, was made by the complainant, to Sharda Devi, and the apartment, in question, was, ultimately, transferred in the name of the complainant, vide transfer letter dated 03.11.2008 Annexure C-11. Thereafter, the complainant vide different receipts, paid further amount of Rs.4,81,099/-, towards the part price of the said apartment. In this manner, the total amount, deposited with the Opposite Parties, towards the part price of the said apartment, came to be Rs.20,34,670/- (i.e. Rs.15,53,571/- plus (+) Rs.4,81,099/-), out of the total cost of the same to the tune of Rs.23,90,010/-. Letter of allotment was issued, in favour of Sharda Devi, on 16.10.2007, which was later on transferred, in the name of the complainant, by the Opposite Parties, vide transfer letter dated 03.11.2008 Annexure C-11. The Opposite Parties promised to handover the physical possession of apartment, in the year 2009. The Opposite Parties were asked to give the exact date of completion of the project, and delivery of physical possession of apartment, but to no avail. On the other hand, the Opposite Parties also charged additional amount of Rs.39,000/-, as club fees, from Sharda Devi, which the complainant had already paid to her, on the date of transfer, with their (Opposite Parties) knowledge. It was further stated that the Opposite Parties, further illegally charged the club fees, to the tune of Rs.9,000/- and Rs.3,000/-, from the complainant, vide receipts dated 22.12.2009 and 16.03.2012, respectively. It was further stated that the Opposite Parties, also demanded service tax, Preferential Location Charges, and Miscellaneous Charges, including club fees, in the sum of Rs.51,000/-. It was further stated that many letters were written by the complainant, to the Opposite Parties, as also, she approached the office of Opposite Party No.2, to inquire about the reasons, regarding delay, in construction and handing over the possession of apartment, in question, but no response was received. It was further stated that the complainant also personally visited the site three to four times, but the Opposite Parties did not give any response. It was further stated that by neither handing over the physical possession of apartment, in question, within the stipulated time, nor refunding the amount, deposited by the complainant, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to allot the apartment, in question, at the original booking price of Rs.23,90,010/-, and handover possession thereof, or in the alternative, to refund the amount deposited by her, alongwith interest @ 24% P.A.; pay compensation, in the sum of Rs.13,00,000/-, on account of mental agony, physical harassment and unfair trade practice; and cost of litigation, to the tune of Rs.25,000/-.

2.              The Opposite Parties, in their written version, pleaded that the complaint was not maintainable, as the complainant was not a consumer, under the provisions of Section 2(1)(d) of the Act. It was further pleaded that the complainant did not approach this Commission, with clean hands. It was further pleaded that rather the complainant misrepresented the facts, and, as such, the complaint was liable to be dismissed. It was further pleaded that the complaint involved the disputed questions of fact and law, and, as such, this Commission, had got no Jurisdiction to entertain and adjudicate the same, as the proceedings before it, are summary in nature. It was stated that, as per Clauses 51 and 54 of the terms and conditions of letter of allotment, duly signed by the complainant, it was specifically mentioned that the Courts/Forum(s) at Delhi alone would have Jurisdiction to entertain and decide the complaint, and, as such, this Commission has got no territorial Jurisdiction. It was admitted that the apartment, in question, which was earlier booked by Sharda Devi, was transferred, in the name of the complainant, on 03.11.2008.  It was also admitted that the basic price of apartment was Rs.23,90,010/-, excluding External Development and other charges. It was further stated that the complainant opted for construction linked payment plan, and, also put her signatures for acceptance of the same. It was further stated that, thereafter, the complainant failed to abide by the payment schedule. She failed to make further payments, as a result whereof, she was liable to pay interest. It was further stated that a number of letters were written to the complainant, to make payment of the amount, due against her, but to no avail. It was also admitted that the complainant deposited the total sum of Rs.20,34,670/-, but later on, failed to abide by the terms and conditions of payment plan. It was further stated that, as on 28.11.2012, a sum of Rs.3,37,636.44, towards the principal amount and Rs.93,390.21Ps, towards interest, was due against the complainant. It was denied that any assurance was given to the complainant that the possession of apartment shall be delivered in the year 2009. It was further stated that there was no mention of specific date, regarding the delivery of physical possession of apartment, as per the terms and conditions of the allotment letter. It was further stated that, as soon as, the complainant cleared the dues, the apartment will be made ready and live-able and handed over to her, within a short period, after completing the finishing and other ancillary work. It was further stated that since the fault lay on the shoulders of the complainant, as she did not make payment of the remaining amount, outstanding towards the price of apartment, she was not entitled to any relief. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

3.              The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.

4.              The Opposite Parties, in support of their case, submitted the affidavit of Mukesh Pandit, its Assistant Legal Manager, by way of evidence, alongwith which, a number of documents were attached. 

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

6.              The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. Opposite Parties No.2 and 3, of Ansal Housing and Construction Limited, have been working for gain, on behalf of the Company, at Chandigarh. It is evident, from payment acknowledgment receipts Annexures C-4, C-5, C-6, C-7, C-12 (Collectively at pages 20 to 23), that payment towards the part price of apartment, in question, was received by an authorized representative of the Opposite Parties, at Chandigarh. Not only this, it is further evident, from the copies of cheques Annexures C-14 (Collectively at pages 24 to 27, 29, 30), that the payment towards the part price of apartment, in question, was also made through the same, at Chandigarh, drawn on Punjab National Bank, at Chandigarh, Indian Bank at Chandigarh, Punjab and Sind Bank at Manimajra and Punjab National Bank, at Manimajra. The details of the said cheques are given hereunder:-

It means, that the payment of aforesaid amount through cheques, towards the part price of apartment, in question, was made to the Opposite Parties, at Chandigarh. It is further evident, from Annexures OP-4 and OP-7, the letters issued by Opposite Party No.1, to the complainant, appending the note thereon, that “Please add SERVICE TAX, in above payable amount and remit the payment through crossed Cheques/Bank Draft in favour of ANSAL HOUSING & CONSTRUCTION LTD., payable at New Delhi/Chandigarh/Zirakpur only. OUTSTATION CHEQUES ARE NOT ACCEPTED”. From the aforesaid documents, it is, thus, evident, that a part of cause of action, arose to the complainant, within the territorial Jurisdiction of this Commission at Chandigarh. According to Section 17 of the Act, a Consumer Complaint can be filed by the complainant, at a place, where a part of cause of action arose to her. Under these circumstances, it is held that this Commission, at Chandigarh, has got territorial Jurisdiction to entertain and decide the complaint.

7.              No doubt, in the written version, an objection was taken by the Opposite Parties, that as per Clauses 51 and 54 of the letter of allotment Annexure OP-1, the Parties by mutual consent, agreed that the Courts/Forum(s), at New Delhi, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. All the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13(4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down,  by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are  not  the Courts. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. Neither the apartment, in question was booked at New Delhi, nor all the payments were made at New Delhi.  In Ethiopian Airlines Vs Ganesh Narain Saboo, IV(2011)CPJ43(SC)= VII(2011)SLT 371,  the principle  of law, laid down was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.  In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I(2013)CPJ31(NC) and  Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I(2013) CPJ 169 (NC) the  agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the jurisdiction to the Courts/Forums at Delhi and Hyderabad.  The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction to a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case.  It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts/Forums at New Delhi, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainant, to file the complaint. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

8.              Undisputedly, Sharda Devi was originally allotted the apartment, in question, from whom the complainant purchased the same. Ultimately, the said apartment was transferred, in the name of the complainant, by the Opposite Parties. According to condition number 22 of the terms and conditions of the letter of allotment Annexure OP-1, the developer was to make an endeavor to handover physical possession of the unit to the allottee(s), within a reasonable time, from the date of issuance of the same, subject to force-majeure circumstances, such as act of God, fire, earthquake, flood, civil commotion, war, riot, explosion etc. etc. The letter of allotment was issued by Opposite Party No.1, on 16.10.2007. Reasonable time, as mentioned in condition no. 22 of the allotment letter, could be, at the most, said to be 2 years or at the maximum 3 years, on account of force-majeure circumstances. Mere fact, that only reasonable time,  for the delivery of physical possession was provided, as per condition no.22 of the terms and conditions of the letter of allotment, did not mean that the builder could delay the delivery of physical possession of apartment for years together. Admittedly, a sum of Rs.20,34,670/-, towards part price of the unit, has already been deposited by the complainant, with the Opposite Parties. The complainant, no doubt, opted for the construction linked plan, yet, that did not mean that she was required to make payment of the remaining amount, even if, there was no progress, in construction, at the site. Since the complainant had already made payment of more than 95% of the price of apartment, when she saw that neither there was any progress in construction, at the site, nor any date was committed by the Opposite Parties, when contacted, regarding the delivery of physical possession of the same, she was not bound to make payment of the remaining price of apartment, in question. No cogent and convincing evidence was brought, on record, by the Opposite Parties, regarding the construction raised by them, within 2 years, from the date of allotment of apartment. Even, no cogent evidence was produced by the Opposite Parties, as to upto which stage, the construction had reached, after the expiry of a period of 3 years, from the date of allotment of apartment, in favour of the complainant. There is, nothing, on record, that even by the time, when on 24.09.2012, the complaint was filed, by the complainant, any construction had been raised by the Opposite Parties, and, as such, the question of delivery of physical possession of the unit did not at all arise. In Prasad Homes Pvt. Ltd. Vs E.Mahender Reddy & Ors. 1(2009)CPJ 136 (NC),  no development work had been  carried out, at the site. Thus, the   payment of further  installments, was stopped by the complainant. It was, in these circumstances, held by the Hon’ble National Commission, that the builder could not be allowed to take shelter, under any clause of the agreement, to usurp the money deposited by the complainant. It was further held that, if any clause, in the agreement, entitled the builder to forfeit the deposited amount, even if, the fault was on his part, that could be said to be heavily loaded, in his favour, and it amounted to indulgence into unfair trade practice. The National Commission, ultimately, upheld the order of the State Consumer Disputes Redressal Commission directing the refund of the deposited amount, with interest. The principle of law, laid down in Prasad Homes Pvt. Ltd.’s case (supra)  is fully applicable to the facts of the instant case.  Under these circumstances, it could not be said that the complainant was at fault. On the other hand, the Opposite Parties, were at fault, in not raising the construction, within 2 years or at the most, maximum 3 years, i.e. by 15.10.2009 or 15.10.2010, of the issuance of letter of allotment, in favour of the predecessor of the complainant. The complainant could not wait indefinitely, at the whims and fancies of the Opposite Parties. Neither the complainant was handed over the physical possession of apartment, even after more than 5 years of the issuance of allotment letter, in her favour, nor did the Opposite Parties adhere to the reasonable period, of delivery of physical possession, as per the terms and conditions of the allotment letter. Under these circumstances, the complainant could not be blamed for the conduct of the Opposite Parties, referred to above. The Opposite Parties were, thus, deficient, in rendering service.

9.              It was next submitted by the Counsel for the Opposite Parties, that the construction could not be undertaken, as the amount outstanding against the complainant, was not paid by him, with interest, though a number of letters were written to him. He further submitted that the construction could only be raised, if all the allottees paid the amount, as per the plan opted for, by them. This submission of the Counsel for the Opposite Parties, has been duly considered, in the foregoing paragraph. As stated above, since more than 95% price of the unit had been paid by the complainant, to the Opposite Parties, but they had failed to raise construction, even after the expiry of a period of 5 years, from the date of issuance of allotment letter, in favour of the predecessor of the complainant, she was not bound to pay the remaining amount, especially, when there was no progress in construction, at the site. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

10.           Not only this, reliance was placed by the complainant, on the document dated 29.05.2012, copy whereof is Annexure C-17, issued by the Public Information Officer of Municipal Council Zirakpur, which reveals that the project, in question, had not yet applied for completion certificate. Alongwith this document, copy of another letter dated 30.07.2007, is attached, wherefrom, it is evident, that the Opposite Parties were being sent a copy of the building and site plan. It is further evident, from this letter that the permit was valid for one year, and, if the project was not completed within one year, the permission would become invalid. Nothing was brought, on the record, by the Opposite Parties that after the expiry of one year, from 30.07.2007, the date mentioned on the letter, attached with the letter Annexure C-17, they sought renewal of the permission, on the ground, that construction could not be completed. Under these circumstances, the case of the complainant, that construction had not been raised, even by the time, the complaint was filed, as there was no permission, with the Opposite Parties, appears to be correct. Had any document, been produced by the Opposite Parties, with regard to the renewal of permission, for construction,  after the expiry of one year from 30.07.2007, the matter would have been different. Even, no other document, was produced, on the record, by the Opposite Parties, showing that the “No Objection Certificate” from pollution angle was applied for, by them and issued in their favour. It appears that after the expiry of a period of one year from 30.07.2007, the permission was not got renewed, by the Opposite Parties. The Opposite Parties, thus, continued the construction, illegally, without any permission. In case Kamal Sood Vs. DLF Universal Ltd., reported as  III(2007) CPJ-7 (NC),   it  was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, and schematic building plan. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the apartments/building. The ratio of law, laid down, in the aforesaid cases, is squarely applicable to the facts and circumstances of the instant case. By collecting huge money from the prospective buyers, without having requisite permissions, in the first instance, for raising the construction etc., the Opposite Parties indulged into unfair trade practice.

11.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, for mental agony and physical harassment, as the possession of apartment, in question, was not delivered to her, by the Opposite Parties, within the reasonable time stipulated. One can visualize the plight of an allottee, who was allotted a unit, and even after making payment of more than 95% of the price thereof, she was not delivered physical possession of the unit for five years. A tremendous mental agony and physical harassment was caused to the complainant, on account of the aforesaid acts of the Opposite Parties. The complainant, is, thus, entitled to compensation, in the sum of Rs.1,50,000/-, on account of mental agony and physical harassment caused to her, by the Opposite Parties, and unfair trade practice, adopted by them.

12.           The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by her, in case, ultimately, the Opposite Parties failed to deliver physical possession of apartment, in question. The amount of Rs.20,34,670/-, has been improperly and illegally retained by the Opposite Parties. They have been earning interest thereon, by investing the same, in their activity of construction, and, on the other hand, the complainant is being deprived of her hard earned money. Had this amount been deposited, by the complainant, in some bank, she would have earned handsome interest thereon. It is settled principle of law, that compensation is granted for mental agony and physical harassment or injury caused to the complainant, whereas, she is entitled to interest, for financial loss, caused to her, at the hands of the Opposite Parties. In the event of non-delivery of physical possession of the unit, in question, the complainant shall certainly be entitled to interest @10% P.A.

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

14.           For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-

                              i.   The Opposite Parties, are, jointly and severally, directed to obtain completion and occupation certificate, from the Competent Authority, within 2 months, from the date of receipt of a certified copy of the order.

                            ii.   The Opposite Parties are jointly and severally directed to handover physical possession of the apartment, complete in all respects to the complainant, within one month, after the expiry of period, mentioned in Clause (i) above, at the original booking price of Rs.23,90,010/-, on receipt of the remaining sale consideration, plus (+) other charges, as per the terms and conditions of allotment letter minus(-) interest demanded by them.

                          iii.   In case, the Opposite Parties failed to obtain the completion and occupation certificate and handover the physical possession of the apartment, in question, in favour of the complainant, within the aforesaid stipulated time, in Clauses (i) and (ii)  of paragraph 14 above, then, they shall be jointly and severally liable to refund the amount of Rs.20,34,670/- to the complainant, within one month,  thereafter, with interest @10% P.A., from the respective dates of deposits, till realization

                           iv.   The Opposite Parties shall, in any case, be also liable jointly and severally to pay compensation, in the sum of Rs.1,50,000/-, to the complainant, for mental agony and physical harassment, caused to her and for indulgence into unfair trade practice, within two months, from the date of receipt of a certified copy of the order.

                             v.   The Opposite Parties shall also be jointly and severally liable to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.

                           vi.   In case the payment of amounts, mentioned in Clauses (iii) and (iv) is not made, within the stipulated period, then the Opposite Parties shall be jointly and severally liable to pay amount mentioned in Clause (iii) with interest @15% P.A., instead of 10% P.A., from the respective dates of deposits, and interest @ 15% P.A., on the  amount of compensation, mentioned in Clause (iv), from the date of filing the complaint, till realization, besides payment of costs, to the tune of Rs.20,000/-

15.           Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced.

01.02.2013

Sd/-

 [JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg