Chandigarh

StateCommission

CC/46/2019

Aman Taluja - Complainant(s)

Versus

Ansal Properties and Infrastructure Ltd. - Opp.Party(s)

Subhash Chand & Sapna Khurana Narang Adv.

06 Nov 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	46 of 2019
Date of Institution	:	26.02.2019
Date of Decision	:	06.11.2019

 

Aman Taluja son of Sh.Guman Chand Taluja, c/o Taluja Medical Hall, 218, Railway Road, Nangal Township, District Ropar, Punjab, presently residing at 11/26 Jonathan Avenue, Burwood East 3151, Victoria State, Melborne, Australia through General Power of Attorney Holder Mr.Raman Taluja son of Sh.G.C.Taluja.

 

……Complainant

V e r s u s

1. Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi – 110001, through its MD.
2. Mr.Sushil Ansal, Chairman of M/s Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi.
3. Mr. Pranav Ansal, Managing Director of M/s Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi.
4. Anil Kumar, Joint Managing Director of M/s Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi.
5. Ansal Properties and Infrastructure Ltd., S.C.O. No.183, 184, Sector 9-C, Madhya Marg, Chandigarh, through its Sr. Executive (Sales & Marketing)/Branch Manager/Authorized Signatory.
6. HDFC Limited, SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

                                                     .... Opposite Parties  

 

BEFORE:         JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

Argued by:      

 

Sh. Subhash Chand, Advocate for the complainant.

Sh. Sandeep Kumar, Advocate for Opposite Parties No.1 to 5.

Ms. Neetu Singh, Advocate, proxy for Ms. Rupali Shekhar Verma, Advocate for Opposite Party No.6.  

 

PER PADMA PANDEY, MEMBER

              The facts, in brief, are that the complainant required a house for her own family use in or around Chandigarh, therefore, he booked the floor in the project of Opposite Parties No.1 to 5/Builder on 15.01.2014 by making payment of Rs.2,32,996/-. Subsequently, Floor Buyer Agreement was executed between the parties on 16.01.2014 and unit No.279 SF in Victoria Floor, Golf Link II was allotted. It was stated that the complainant chose Subvention Scheme and, as such, Tripartite Agreement was executed between the Bank, Opposite Parties and the complainant. The complainant also took loan from HDFC – Opposite Party No.6 to the tune of Rs.36,16,200/- vide Loan Agreement (Annexure C-3). It was further stated that out of the total amount of Rs.46,01,533/- the complainant made the payment of Rs.11,79,411/- and HDFC disbursed an amount of Rs.34,22,084/- as per the demand of the Opposite Parties.  It was further stated that as per Clause 5.1 of the Agreement, construction of the unit allotted was to be completed in 30 months with extended period of 6 months from the date of execution of the Agreement i.e. latest by 15.01.2017 but after receipt of the huge amount of Rs.46,01,533/- from the complainant, the builder failed to construct the unit, as per the time period given in the Agreement. Therefore, the complainant sought refund of the amount from the Opposite Parties vide letter dated 18.08.2017 (Annexure C-7). After receipt of the said letter, the builder prepared a Settlement Agreement dated 12.12.2017, in which, the Opposite Parties would refund Rs.11,79,411/- to the complainant alongwith interest @9% p.a. and further the builder would pay Rs.34,22,084/- to HDFC (Annexure C-8) but the Opposite Parties did not honour the settlement as neither the money was returned to the complainant nor to the Bank. Even the Opposite Parties stopped paying the installment to the Bank since November, 2018. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence 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 (in short the ‘Act’ only), was filed.

2.             Opposite Parties No.1 to 5, in their joint written version, have taken objection that the complainant did not fall within the definition of “consumer” under the Consumer Protection Act, 1986, since the said investment in the property according to the replying Opposite Parties is purely for commercial/speculative purposes instead of personal use, as the complainant is living and well settled in Australia. It was further stated that in Clause 5.1 of the Agreement, possession of the unit was proposed to be delivered in 30 months time with an extended period of six months from the date of allotment which would run from the date all requisite sanctions/approvals/permissions/clearances from the Government/Local Authorities/Sanctioning Authority were received subject to force majeure circumstances. It was further stated that a bare perusal of the said clause would thus reveal that time was not the essence of the contract and that the period of 30 months with an extended period of six months for delivery of possession was given on estimate basis. It was further stated that the complaint was time barred, as the cause of action for seeking refund was arisen on 16.01.2014.  It was further stated that the apartment booked by the complainant was under subvention scheme and the bank (Opposite Party No.6) has contributed Rs.33,90,187/- and till date, the replying Opposite Parties continued to pay pre EMI interest to the said bank on the said advanced amount. Further, the replying Opposite Parties already refunded an amount of Rs.6,00,000/- to the complainant, whereas, he contributed Rs.11,62,550/- only from his own pocket. Copy of statement of account and bank receipt are Annexures OP-1 & OP-2. It was further stated that the complainant is not entitled to claim interest on the loan amount advanced by the Bank against which interest has already been paid by the replying Opposite Parties. It was further stated that the complainant was well aware about the progress of the project and he was enjoying the pre EMI interest being paid by the replying Opposite Parties to the bank and now when the unit, in question, is almost complete and only statutory clearances are being awaited from the concerned authorities, the complainant in order to earn interest income intentionally and willfully filed the complaint.  It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.

3.             In its reply, Opposite Party No.6 (HDFC Limited) stated that the loan of Rs.36,16,200/- was availed by the complainant, for which, Tripartite Agreement was executed between the parties and out of the aforesaid amount, Rs.33,90,187/- was disbursed. It was further stated that in case of cancellation of the unit or in the contingency of termination of the Agreement, HDFC Limited has the first charge/right to seek apportionment of its dues. It was further stated that no relief has been sought by the complainant against the replying Opposite Party and, as such, the complaint qua Opposite Party No.6 should be dismissed.

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

5.             The objection taken by Opposite Parties No.1 to 5, to the effect that the complainant did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986 because the said property was bought by the complainant merely for speculation and not for any personal use, as the complainant is well settled in Australia, also deserves rejection. The complainant in para No.2 of the complaint clearly stated that the complainant is right now in Australia, however, he has purchased the instant property when he was in India for his residential purpose. Thereafter, the complainant alongwith his family had gone to Australia for work purposes, however, he continued his purchase of this house in India, as he wants to use the same whenever he would visit India and after his retirement the complainant wishes to have a house in and around Chandigarh because of the facilities available in and around Chandigarh. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 to 5 that the  complainant being investor/speculator, did not fall within the definition of a consumer, cannot be taken into consideration. Moreover, with regard to the objection taken by the Counsel for Opposite Parties No.1 to 5 that the complainant is a resident of Australia is concerned, even no law debars an NRI, who basically belonged to India, to purchase a residential property in India. Under similar circumstances, the Hon'ble National Commission, in a case titled as  Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer  Complaint  No. 118 of 2012, decided on 04.01.2016, held as under:-

“We are unable to clap any significance with these faint arguments.  It must  be borne in mind that after selling the property at Bangalore, and  in order  to save  the money from riggers  of capital gain tax, under  Section 54 of the Income Tax Act, 1961, there lies no rub in getting the property, anywhere, in whole of India.  There is not even an iota of evidence that they are going to earn anything from the flat in dispute.  From the evidence, it is apparent that the same had been  purchased  for  the residence of  the complainants.  Moreover, Sh. Tarun S. Bhagat, who is an independent person. It cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name.”

                   Thus, in the absence of any cogent evidence, in support of the objection raised by the Counsel for Opposite Parties No.1 to 5, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015, decided on 14 Sep. 2016”, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or hand purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 to 5, in its written reply, therefore, being devoid of merit, is rejected. 

6.             The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was within limitation or not.  It is the admitted fact that Opposite Parties No.1 to 5 failed to deliver possession of the unit, in question, to the complainant within the stipulated time frame, as mentioned in the Agreement or even the time when the complaint was filed and on the other hand, amount deposited was also not refunded to the complainant alongwith interest and, as such, there is continuing cause of action, in his favour, in view of principle of law laid down, in  Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal  Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for   the builder, in this regard, being devoid of merit, must fail, and the same stands rejected.

                At the same time, once a plea has been taken by Opposite Parties No.1 to 5 that the complaint filed is beyond limitation, as such, in the same breath, taking another plea to say that time is not to be considered as essence of the contract, in case of immovable property, has no legs to stand and, is accordingly rejected. 

7.             Another objection raised by Counsel for Opposite Parties No.1 to 5 that since it was mentioned in the Agreement that the Company shall “endeavour” to deliver possession of the unit within a period of 30 months with an extended period of 6 months from the date of execution of the Agreement and, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 5.1 of the Agreement (Annexure C-4), which was signed between the parties, that the Company shall endeavour to complete the development of residential colony and the dwelling unit as far as possible within 30 months with an 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. It is pertinent to note that in the present case, Opposite Parties No.1 to 5 failed to prove that due to force majeure circumstances, the possession was delayed, which was beyond the control of Opposite Parties No.1 to 5. In the absence of any force majeure circumstances having been faced by Opposite Parties No.1 to 5 or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 5.1 of the Agreement, Opposite Parties No.1 to 5 were bound to deliver possession of the unit, within a maximum period of 36 months from the date of execution of the Agreement, as such, time was,  unequivocally made the essence of contract.

                Even otherwise, Opposite Parties No.1 to 5 cannot evade their liability, merely by saying that since the word endeavour/proposed was mentioned in the Agreement, for delivery of possession of the unit and, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

 

In view of above, the plea of Opposite Parties No.1 to 5 in this regard also stands rejected.

8.             The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainant. As per Clause 5.1 of the Agreement, it is clear that possession of the unit was to be delivered within a maximum period of 36 months from the date of execution of the Agreement and not more than that. In the present case, Agreement was executed between the parties on 16.01.2014 and as per the said Agreement, possession was to be delivered within a period of 36 months from the date of execution of the Agreement i.e. latest by 15.01.2017 and not more than that.

9.             The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount actually paid by him. It is the admitted fact that the complainant paid the huge amount with Opposite Parties No.1 to 5 in respect of the unit, in question and after receipt of the amount, the builder failed to deliver possession of the unit, in question to the complainant within the stipulated time frame as mentioned in the Agreement or even the time when the complaint was filed. Even Settlement Agreement dated 12.12.2017 was executed between the parties. As per the said Agreement, the builder failed to return the amount to the complainant as well as to the Bank. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. Opposite Parties No.1 to 5, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. From the records, it is observed that the builder paid only an amount of Rs.6 lakhs to the complainant as is evident from receipt (Annexures OP-1 & 2). The complainant is thus, entitled to get refund of balance amount actually paid by him. In view of above facts of the case, Opposite Parties No.1 to 5 are also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

10.           It is to be further seen, as to whether, interest, on the actually deposited amount, can be granted, in favour of the  complainant. It is not in dispute that huge amount was deposited by the complainant, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties No.1 to 5, for their own benefit. There is no dispute that for making delayed payments, Opposite Parties No.1 to 5 were charging heavy rate of interest @18% p.a. for first three months of delay but if the delay is beyond three months then the interest shall be applicable @21% p.a. compounded quarterly, as per Clause 4.5 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. 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 view of above, the  complainant is certainly entitled to get refund of the amount actually deposited by him alongwith interest @12% p.a. (simple), from the date of deposit till realization. 

11.           As far as the plea taken by the Counsel for Opposite Parties No.1 to 5, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties No.1 to 5) case, that the builders were ready with possession of the unit, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of Opposite Parties No.1 to 5 or for any personal reason, and are seeking refund of the actual amount deposited. Had this been the case of Opposite Parties No.1 to 5, that they were willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the actually amount deposited, after deduction of the earnest money, as per the Agreement. In this view of the matter, the plea taken by the Counsel for Opposite Parties No.1 to 5, in this regard, has no legs to stand and is accordingly rejected.

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

13.           For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 to 5 are jointly and severally are directed, as under:-

1. To refund the amount actually paid by the complainant from his own pocket/sources alongwith interest @12% p.a.  from the respective date(s) of deposit onwards within a period of two months from the date of receipt of certified copy of this order, failing which, it shall carry interest @15% p.a. till realization.
2. To refund the entire amount of loan to bank concerned from which loan amount was released in favour of the Builder under subvention scheme alongwith pending pre-EMI interest, if any.
3. To refund to the complainant, the installment of pre-EMI interest, if any, paid by him, as it was the liability of Opposite Parties No.1 to 5 only, failing which, it shall carry interest @12% p.a. from the due date till realization.
4. To pay compensation to the complainant, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to him, failing which, it shall carry interest @12% p.a. from the date of filing this complaint till realization.
5. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainant, failing which, it shall carry interest @12% p.a. from the date of filing this complaint till realization.

 

14.           The complaint qua Opposite Party No.6 stands dismissed.

15.           However, it is made clear that, if the  complainant(s), in the aforesaid case, has availed any other loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant(s).

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

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

Pronounced.

November 6^th, 2019.                                             

[JUSTICE RAJ SHEKHAR ATTRI]

[PRESIDENT]

 

 

(PADMA PANDEY)

        MEMBER

 

 

(RAJESH K. ARYA)

MEMBER

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