Chandigarh

StateCommission

CC/31/2017

Major Kamaljeet Singh - Complainant(s)

Versus

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

Piyush Aggarwal, Adv.

22 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	31 of 2017
Date of Institution	:	11.01.2017
Date of Decision	:	22.03.2017

 

1. Major Kamaljeet Singh son of Makhan Singh.
2. Mrs.Mandeep Kaur wife of Major Kamaljeet Singh.

Both residents of House No.88, Sector-A, Chandimandir,

Panchkula.

……Complainants

V e r s u s

1. Ansal Properties and Infrastructure Limited, SCO No.183-184, Sector 9-C, Above British Library, Chandigarh, through its Manager, Authorized Signatory/Officer Incharge/Director Sales and Marketing.
2. Ansal Properties and Infrastructure Limited, Registered Office-120204, Antariksh Bhawan, 22, Kaasturba Gandhi Marg, New Delhi-110001, through its Manager, Authorized Signatory/Officer Incharge/Director Sales and Marketing.

             .... Opposite Parties

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

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

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:        Sh.Piyush Aggarwal, Advocate for the complainants.

                         None for the opposite parties (Defence struck of).

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainants who are husband and wife have filed this complaint seeking possession of the unit bearing no.904, first floor, measuring 1299 square feet, purchased by them, in the project of the opposite parties, namely  “Exclusive Floors”, Golf Links, Sector 114, Kharar Landran Road, Mohali, Punjab. They purchased the said unit, to satisfy future needs of their family, as they were residing in a Govt. accommodation. They looked into various promises made by the opposite parties and agreed to purchase the said unit, for an amount of Rs.30,90,510/-, which included basic sale price plus additional charges. The amount was to be paid as per scheduled payment plan. The complainants paid an amount of Rs.3 lacs on 19.11.2010, vide receipt Annexure C-1, at the time of signing allotment letter. It is case of the complainants that they continued to make payment as per the payment schedule. Finally, allotment letter/agreement (in short the agreement) was issued to them on 05.02.2011. Before signing the said Agreement, they had paid an amount of Rs.5,69,538/-. It is their further case that as per Clause 12 of the Agreement, the opposite parties agreed to hand over possession of the constructed unit, within a period of 24 to 30 months of commencement of the construction after getting requisite approvals/clearances, from the Competent Authorities, subject to force majeure circumstances i.e. on or before 04.08.2013. Clause 12 of the Agreement reads thus:-

“The Construction of the said independent floor is likely to be completed within 24 to 30 months of commencement of work, which shall be tentatively the date of receipt of all requisite sanctions/approvals/ permissions/clearances subject however to force majeure circumstances, regular and timely payments by Allottee(s), availability of building material etc., change of policy by Government/Local Authorities etc. No claim by way of damages/compensation shall be raised against the Company in case of delay in handing over the possession on account of the said reasons or any other reasons beyond the control of the Company.”

 

                As and when demands were raised, amount was deposited towards price of the said unit. Receipts have been placed on record as Annexure C-3 colly. By 22.06.2012, the complainants had paid an amount equal to 70% of the total price of the unit i.e. Rs.22,06,106/-. However, possession of the unit was not offered. The complainants patiently continued to wait, however, no assurance was given by the opposite parties to hand over possession of the unit, within a time bound manner. On 04.04.2015, the complainants sent a letter to the opposite parties seeking reasons of delay in handing over possession of the unit. They further said that for more than one and a half years, no update qua status of construction has been given to them, by the opposite parties. In response thereto, the complainants received letter dated 04.04.2015, from the opposite parties, assuring them that possession of the unit will be handed over tentatively in the month of October 2015 or November 2015. Relevant part of the said letter reads thus:-

“This is regarding your unit no.904FF in Exclusive Floors situated at Golf Link-I, Sector 114, Mohali, we would like to inform you that as on date External Plastering for said unit has already completed. Now Flooring and Final Finishing work is pending. To complete pending work, it will take tentatively 6 months with extended period of 3 months time. So possession for said unit will be offered tentatively in m/o October 2015 or November 2015.”

 

                It was promised that possession of the unit will be offered in the month of October or November 2015. However, it was not so done. The opposite parties continued to put off the complainants, on one pretext or the other. It is positive case of the complainants that to make payment towards price of the said unit, they had raised loan from Army Group Insurance Fund, New Delhi and they had been repaying the same. However, on account of delay, as they failed to get possession of the unit, in question, they could not make payment, which led to receiving repeated demands by the above said party. It was alleged that the opposite parties have not performed, as per promise made, to offer possession of the constructed unit. By further alleging that the opposite parties have also adopted unfair trade practice, by selling the units without getting necessary approvals, a prayer has been made that let directions be issued to them (opposite parties) to hand over possession of the unit purchased, complete in all respects; pay compensation for the period of delay in handing over possession, by way of interest @12% p.a. on the amount deposited; compensation for mental agony and physical harassment; cost of litigation expenses etc.

2.         Notice in this complaint was sent to the opposite parties on 13.01.2017 for 25.01.2017. On the said date, a representative of the opposite parties put in appearance and authorized Sh.Rachit Kaushal, Advocate, to appear on behalf of the opposite parties. Request was made to give date for filing reply and evidence. At the same time, on that date, none put in appearance, on behalf of the complainants. The matter was adjourned to 14.02.2017, on which date, Ms.Kashika Kaur, Advocate, proxy for Sh.Rachit Kaushal, Advocate, put in appearance. She sought further time to file reply and evidence, on behalf of the opposite parties. The matter was adjourned to 01.03.2017, on which date, following order was passed:-

“Called third time at the end of the entire list. Neither reply filed nor anybody had come present to assist this Commission on behalf of the Opposite Parties. It is clear from the record that on 25.01.2017, one representative of the Company had put in appearance on behalf of the Opposite Parties and placed on record Vakalatnama of Sh.Rachit Kaushal, Advocate. He sought time to file reply and evidence and on his request, the matter was adjourned to 14.02.2017. On the said date, Ms. Kashika Kaur, Advocate put in appearance on behalf of the Opposite Parties and she sought further time to file reply and evidence. To the prayer made, very graciously no objection was raised by the Counsel for the complainants. The matter was adjourned to today. Reply and evidence could have been filed by the Opposite Parties in the office of this Commission. However, it was not done. Today, none is present to give any explanation for not filing any reply and evidence. Hence, the defence of the Opposite Parties is struck of.

                   Arguments heard.

                   Reserved for orders.”

3.         It was felt by this Commission that there is an attempt to delay the matter and further, noting that neither reply has been filed, nor anybody came present to assist the Commission, defence of the opposite parties was struck of. Arguments were heard and the matter was reserved for orders.
4.         It is apparent on record that the complainants purchased the unit, in question, in a project aforesaid, launched by the opposite parties, for which they paid an amount of Rs.3 lacs on 19.11.2010, as earnest money. They were allotted the said unit, vide  allotment letter dated 05.02.2011. By 22.06.2012, they had paid an amount of Rs.22,06,106/- out of the total sale consideration of Rs.30,90,510/-. It is their case that they continued making payment, as and when demanded by the opposite parties. As per Clause 12 of the Agreement, possession of the constructed unit was to be delivered within a maximum period of 24 to 30 months of commencement of work, which shall be tentatively the date of receipt of all requisite sanctions/approvals/ permissions/clearances from the Competent Authorities i.e. on or before 04.08.2013. When delivery of possession was not in sight, the complainants wrote letter dated 04.04.2015, seeking possession of the constructed unit. They got answer through letter dated 04.04.2015, wherein, it was specifically stated that construction was still going on and possession of the unit is likely to be delivered in the month of October or November 2015. Even thereafter, nothing was done and this complaint was filed in the month of January 2017. In this manner, there is a huge delay in not handing over possession of the unit. The opposite parties failed to fulfill their promise. Further, their action in selling the project without getting necessary approvals, is clearly an adoption of unfair trade practice. A builder is bound to take all necessary approvals/clearances from the Competent Authorities before launching and selling the project, and if it fails to do so, it amounts to an unfair trade practice, on its part. Similar view was expressed by the National Commission in  a case titled as Emerging India Real Assets Pvt. Ltd. and another vs. Kamer Chand and another, Revision-Petition No.765 of 2016, decided on 30.03.2016. In that case, it was held as under:-

“We are unable to persuade ourselves to agree with the ld. counsel.  While affirming the order passed by the District Forum and commenting and deprecating the conduct of the Opposite Parties in the complaint, in launching the project and selling the farmhouses, even without obtaining sanction/approval from the competent authority, the State Commission has observed as follows:-

If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent no.2 and appellant no.1 are the sister concern. It is also apparent on record that before appellant no.1 started marketing the project, not even an application has been filed by respondent no.2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.08.2014, referred to above, clearly states that not even a single application qua granting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent no.2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent no.2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.

                6.    We are in complete agreement with the view taken by                  the State   Commission. ”

                 The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In view of above, it can safely be said that by adopting unfair trade practice, the project was sold/launched.

5.         Besides as above, in the instant case, despite number of opportunities having been given to the opposite parties, for filing reply and evidence, they failed to do so. Above facts clearly goes to show that they were not serious in handing over possession of the built-up unit to the complainants. All the averments made by the complainants, in the complaint, went unrebutted. In view of above, it can safely be said that there was deficiency in providing service on the part of the opposite parties and further by making false promise and not delivering possession of the unit, after receipt of huge amount, they indulged into unfair trade practice. Under above circumstances, directions need to be issued to the opposite parties to hand over possession of a built-up unit, purchased by the complainants, within a specific period.
6.         What relief can be granted to a consumer, in case of delay, in offering possession of a residential unit purchased, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein dealing with similar issue, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

                Not only this, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice.

                Taking note of above said proposition of law, ends of justice would meet, if interest is granted for delayed period, to the complainants whereof 04.08.2013. However, in the instant case, if interest @11% p.a. for the period of delay, on the deposited amount is granted, that would meet the ends of justice.

7.         At the same time, it is also held that there is nothing on record to show that this Commission may come to the decision that this Commission did not vest with territorial jurisdiction and pecuniary jurisdiction to entertain and decide this complaint.  The complaint is thus maintainable before this Commission. 
8.         No other point, was urged, by Counsel for the complainants.
9.         For the reasons recorded above, the complaint is partly accepted, with costs. The opposite parties, jointly and severally, are directed as under:-
   1. To hand over actual physical possession of the unit, in question, to the complainants, within a period of 04 months, from the date of receipt of certified copy of this order, complete in all respects, after obtaining necessary occupation/partial/completion certificates, from the competent authorities, on receipt of legally due amount from them (complainants), if any.
   2. To execute and get registered the sale deed, in respect of the unit, in question, in favour of the complainants, within two months, from the date of handing over possession, as indicated in Clause (i) above, on payment of registration and stamp duty charges, by them to the Registering Authorities.
   3. To pay compensation, by way of interest @11% p.a., on the entire deposited amount, to the complainants, from 04.08.2013 (promised date) to 28.02.2017, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @14% p.a. instead of 11% p.a., till realization.
   4. To pay compensation by way of interest @11% p.a. on the entire deposited amount, w.e.f. 01.03.2017, onwards (per month), till delivery of actual physical  possession of the unit, by the 10^th of the following month, failing which, the same shall also carry penal interest @14% p.a., instead of 11% p.a., from the date of default, till payment is made.
   5. To pay compensation, in the sum of Rs.02 (Two) lacs, on account of mental agony, physical harassment, caused to the complainants, deficiency in providing service and adopting unfair trade practice, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @11% p.a., from the date of filing this complaint till realization.
   6. To pay cost of litigation, to the tune of Rs.33,000/-  to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @11% p.a., from the date of filing this complaint till realization.
10.         So far as the prayer made by the complainants, for issuance of directions to the opposite parties for reimbursement of the amount paid by them to the Army Group Insurance Fund, New Delhi, is concerned, the same is not justified, as they are getting compensation, by way of interest, on the deposited amount, in the manner, ordered above, @11% p.a., which will take care of financial loss, if any, caused to them. As such, the prayer made in this regard, stands rejected.
11.         Certified Copies of this order be sent to the parties, free of charge.
12.         The file be consigned to Record Room, after completion.

Pronounced.

22.03.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Rg.