Chandigarh

StateCommission

CC/10/2015

Rajan Paul - Complainant(s)

Versus

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

Jit Pal Singh, Authorized representative

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

Complaint case No.	:	10 of 2015
Date of Institution	:	16.01.2015
Date of Decision	:	01.04.2015

 

1.    Rajan Paul son of Sh. Jit Pal Singh
2.    Nidhi Paul wife of Sh. Rajan Paul.

      Both residents of House No.2406, Sector 37-C,       Chandigarh.

……Complainants

V e r s u s

1. Ansal Properties and Infrastructure Ltd., 1202-04, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001.
2. Ansal Properties and Infrastructure Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh.

              ....Opposite Parties

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

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Ms.Nidhi Paul, complainants No.2, in person and also           on behalf of complainant No.1.

                 Sh.Vaibhav Narang, Advocate for the Opposite                        Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that the Opposite Parties, floated a scheme, for the allotment of residential independent floors, in their project, under the name and style of “Luxury Floors”, Mohali, Punjab. In response to the advertisements, in the leading newspapers, as also the assurances, given by them (Opposite Parties), with regard to the salient features of the project aforesaid, the complainants applied to them, vide application dated 31.01.2010 Annexure C-2, for the allotment of a residential independent floor. Alongwith the said application, the complainants also deposited an amount of Rs.3,45,000/-, as earnest money, vide cheque No.036263 dated 31.01.2010. As such, vide Allotment Letter dated 25.02.2010 Annexure C-3, the complainants were allotted independent floor No.738-FF, measuring 144.45 square meters, consisting of three bedrooms, in their Project, namely “Luxury Floors”, at Golf Links, Sector 114, Kharar-Landran Road, Mohali, Punjab. The total cost of the said independent floor was to the tune of Rs.34,70,000/-, which included Rs.33,00,000/- towards its basic cost, Rs.1,50,000/- towards Preferential Location Charges and Rs.20,000/- towards Interest Free Maintenance Charges (IFMS). The payment plan opted by the complainants was construction linked.

2.       It was stated that according to Clause 12 of the Allotment Letter dated 25.02.2010 Annexure C-3, the Opposite Parties were to hand over physical possession of the said independent floor, in favour of the complainants, within a maximum period of 30 months, from the date of commencement of construction work. It was further stated that, however, the Opposite Parties never intimated to the complainants, regarding the start of construction of the said independent floor.
3.       It was further stated that, on the other hand, the complainants kept on making payment of instalments, in respect of the said independent floor, as per the payment plan, agreed to between the parties. It was further stated that despite making the payment of Rs.32,90,525/-, to the Opposite Parties, in respect of the unit, in question, possession thereof, was not offered to the complainants, what to speak of delivery thereof. 
4.       It was further stated that the complainants visited the site, a number of times, but were surprised to see that there was no construction of the residential floors. It was further stated that the complainants contacted the Opposite Parties, to apprise them, with regard to delivery of possession of the independent floor, in question, but to no avail. It was further stated that even emails dated 09.02.2014 and 18.02.2014 sent by the complainants, to the Opposite Parties, remained unanswered.
5.       It was further stated that the Opposite Parties collected the huge amount of Rs.32,90,525/-,towards the part price of independent floor, in question, by making a false promise, that physical possession thereof, shall be handed over within a period of 30 months, from the date of start of construction, but they did not abide by their commitment. It was further stated that, as such, the amount deposited by the complainants, towards the part price of independent floor, was utilized by the Opposite Parties, as a result whereof, they were caused huge financial loss. It was further stated that, as such, the complainants underwent a lot of mental agony and physical harassment, on account of non-delivery of possession of the unit, in question, at the hands of the Opposite Parties.
6.       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 complainants, 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 deliver  possession of the unit, in question, complete in all respects, as promised vide Allotment Letter dated 25.02.2010 Annexure C-3, within two months, from the date of filing the complaint; pay interest @18% P.A., on the amount deposited by them, from 25.02.2012; and compensation, to the tune of Rs.2 lacs, for mental agony and physical harassment .
7.       The Opposite Parties were served and put in appearance on 25.02.2015. In their joint written version, they pleaded that the complaint was bad for non-joinder of Monga Realtors, which gave the said advertisement. It was further pleaded that the complainants being Non-Resident Indians (NRIs), residing in Dubai, as also because they owned houses in Sectors 41 and 37, Chandigarh, had purchased the independent floor, in question, by way of investment, and, as such, they did not  fall within the definition of consumers. It was further pleaded that since as per Clause 32 of the Allotment Letter dated 25.02.2010 Annexure C-3, any dispute arising out, in respect of the said independent floor, was subject to the Jurisdiction of New Delhi Courts, as such, this Commission has got no territorial Jurisdiction to entertain and decide the complaint. It was further pleaded that time was not the essence of contract, as it was made clear, vide Clause 12 of the Allotment Letter dated 25.02.2010 Annexure C-3 that possession of the unit, in question, was likely/proposed to be delivered within a maximum period of 30 months, from the date of commencement of construction work. The factum of allotment of independent residential floor, in favour of the complainants, and payment of Rs.33,24,515/-, towards the part price of the unit by them was admitted. It was stated that the complainants defaulted in making payment of instalments, towards the said independent floor, as a result whereof, delayed payment interest was also levied upon them. It was further stated that the unit, in question, was complete in all respects and possession thereof, would be delivered very shortly. It was further stated that the Opposite Parties had already applied for completion and occupation certificates, to the Competent Authorities, in respect of the project, in question. It was further stated that the complainants could take over possession of the unit, in question, on  payment of  final dues, to the tune of Rs.4,77,104/-, as depicted in calculation sheet Annexure R-2. 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.
8.       In the rejoinder, filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
9.       The complainants, in support of their case, submitted their joint affidavit, by way of evidence, alongwith which, a number of documents were attached.
10.       The Opposite Parties, in support of their case, submitted the affidavit of Sh.Rajesh Kumar, their Authorized Signatory, by way of evidence, alongwith which, a number of documents were attached. 
11.       We have heard Ms.Nidhi Paul, complainant No.2, in person and also on behalf of complainant No.1, the Counsel for the Opposite Parties, and, have gone through the evidence and record of the case, carefully. 
12.       The first question, that falls for consideration, is, as to whether, the complainants fall within the definition of consumers, as defined by Section 2 (1) (d) (ii) of the Act, or not. No doubt, the Opposite Parties raised the pleas, in their written version, that since the complainants are Non-Resident Indians (NRIs), as also that they owned houses in Sectors 41 and 37, Chandigarh, as such, they purchased the floor, in question, by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices. It may be stated here, that the pleas taken up by the Opposite Parties, in this regard, do not carry any weight, and the same are liable to be rejected. First coming to objection of the Opposite Parties, that since the complainants are the owners of houses in Sectors 41 and 37, Chandigarh, the independent floor, in question, was purchased by them for commercial purpose, i.e. for selling the same, as and when there was escalation, in the prices of real estate, it may be stated here, that no evidence was produced by them (Opposite Parties), to prove their ownership, in respect of the said houses.  Even no evidence was produced by the Opposite Parties, to the effect that the complainants owned a number of other residential properties, in the tricity, and, as such, the independent floor, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. On the other hand, the complainants, in their rejoinder, clarified that they did not even know that who is the owner of the said House in Sector No.41, Chandigarh, whereas, on the other hand House No.2406, Sector 37-C, Chandigarh, belonged to the father of complainant No.1. Thus, in the absence of any evidence, having been produced by the Opposite Parties, to the effect that the complainants are the owners of the aforesaid houses, it could not be said that the unit, in question, purchased by them, was for the purpose of investment, with a view to resell the same, as and when there was escalation, in the prices of real estate. The mere fact that a person(s) is/are residing, in a particular house(s), does not mean that she/he is the owner thereof.  Mere bald assertions, of the Opposite Parties, that the complainants were the owners of two houses in Sectors 37-C and 41, without having been supported by any cogent and convincing evidence cannot be relied upon. As such, the objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
13.       Coming to the second plea, taken by the Opposite Parties, regarding the complainants being NRIs, it may be stated here, that they (Opposite Parties) failed to produce, on record, any cogent and convincing evidence, to prove that the complainants are NRIs. On the other hand, it was specifically denied by the complainants, that they are NRIs. In the rejoinder, filed by the complainants, they specifically averred that they are serving in India. It was also clarified in the rejoinder that complainant No.2 had visited Dubai only once, and that too for one week, for some official visit. It may be stated here that if a person visits some foreign Country, for some official visit, for one week, it can't be said that he/she will become a permanent resident of that Country. Thus, the objection taken by the Opposite Parties, in this regard, has no legs to stand. Even if, for the sake of arguments, it is assumed that the complainants are NRIs, then also, the mere fact that it was a residential independent floor, which was allotted, in their favour, was sufficient to prove that it was to be used for the purpose of residence, by them, may be off and on, on their visit to India. There is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property. No law of the land, debars an NRI, though originally belonging to India, to purchase a residential property, in India, with a view to reside therein. The complainants, thus, availed of the services of the Opposite Parties, for the purchase of an independent residential floor, in question. The complainants, thus, fall within the definition of consumers, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.  
14.         The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act,  a  consumer complaint could be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. In the instant case, the application form Annexure C-1, in respect of the independent floor, in question, was signed and executed between the parties, at Chandigarh, as is evident from pages 11 and 13 of the file. Not only this, even the call notices dated 01.03.2010 Annexure C-8 and 27.04.2011 Annexure C-7 were issued, in favour of the complainants, by the Chandigarh Office of the Opposite Parties. The part payment of instalments towards the price of the unit was also made at Chandigarh. It means that a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission. This Commission has, therefore, got the territorial Jurisdiction to entertain and decide the complaint.
15.       No doubt, the Counsel for the Opposite Parties, while placing reliance on Balaji Coke Industry Pvt. Ltd. Vs. M/s Maa Bhagwati Coke (Guj.) Pvt. Ltd., Transfer Petition (Civil) No.78 of 2009, decided on 09.09.2009, by the Hon'ble Supreme Court of India, wherein it was held that where the agreement/contract specified the Jurisdiction of the Court at a particular place, all other Courts were excluded from invoking the same (Jurisdiction), contended that  since as per Clause 32 of  the  Allotment Letter dated 25.02.2010 Annexure C-3, the Parties by mutual consent, agreed that the Courts, at New Delhi, shall have Jurisdiction, to entertain and adjudicate the complaint, as such, the Jurisdiction of this Commission was barred. It may be stated here that 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 complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (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) CPJ 31(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 of 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 facts of the instant case. It may also be stated here that even if, it is assumed for the sake of arguments, that the complainants had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts at Delhi, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainants, to file the complaint. No help, therefore, can be drawn, by the Counsel for the Opposite Parties, from Balaji Coke's Industry Pvt. Ltd.'s case (supra). The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected
16.       The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainants, by the Opposite Parties. The complainants submitted an application dated 31.01.2010 Annexure C-2, for the purpose of allotment of an independent floor, in the aforesaid project. They were allotted the unit, in question, vide Allotment Letter dated 25.02.2010 Annexure C-3. According to Clause 12 of the Allotment Letter dated 25.02.2010 Annexure C-3, the complainants were to be handed over the possession of independent floor, in question,  within 24 to 30 months, from the date of start of construction. According to Annexure C-6, payment schedule, the date of start of construction was mentioned as 29.03.2010. The possession, thus,  as per the allotment letter was to be delivered by 28.09.2012. Admittedly, the amount of Rs.33,24,515/-, as is evident from the calculation sheet Annexure R-2, had been received by the Opposite Parties, towards part price of the said unit. On the other hand, the Opposite Parties, in their joint written version, in paragraph No.2 of the preliminary objections/submissions, clearly averred that the construction of the unit, in question, was complete in all respects, but since they had applied for completion and occupation certificates, possession thereof would be delivered very shortly. This averment of the Opposite Parties, clearly establishes that even till date they are not in a position to deliver legal physical possession of the unit, in question, for want of completion and occupation certificates, having been obtained from the Competent Authorities. On the other hand, perusal of Annexure R-1 clearly goes to reveal that the Opposite Parties have applied to the Greater Mohali Area Development Authority (GMADA), vide application dated 18.02.2015 i.e. during the pendency of the instant consumer complaint, which (complaint) was filed by the complainants, on 16.01.2015. Thus, under these circumstances, it can very well be said that that the complainants were not even offered the possession of floor, allotted in their favour, complete in all respects, by the date the complaint was filed and even till date, despite the fact that they had made the payment of Rs.33,24,515/-, to the Opposite Parties, what to speak of delivery thereof. In case, the construction of the unit, in question, has been completed, then it was for the Opposite Parties, to submit some cogent and convincing evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, in respect of the same. However, no evidence of the Engineer or the Architect,  was produced by the Opposite Parties, that construction of the unit, in question, was actually completed,  and, thereafter, the possession of the same, complete in all respects, could be delivered to the complainants.  By making a misleading statement to the effect, that physical possession of the floor, in question, shall be delivered within 24 to 30 months, from the date of start of construction, and not adhering to the commitment, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
17.       No doubt, it was argued by the Counsel for the Opposite Parties, that since no specific period was mentioned in the Allotment Letter, for delivery of possession of the unit, in question, as such, time was not the essence of contract. It may be stated here, that the complainants cannot wait for an indefinite period, for delivery of possession of the unit, in question. As stated above, in Annexure C-6 payment plan/payment schedule, the date of start of construction was clearly specified as 29.03.2010. Thus, the possession was to be delivered, complete in all respects by 28.09.2012. Admittedly, the legal physical possession of unit, in question, was not offered, or delivered to the complainants, by the Opposite Parties, till date, for want of completion and occupation certificates, despite the fact that huge amount  of Rs.33,24,515/-, towards part price of the same has already been deposited by them. It is, therefore, held that the complainants are entitled to the legal physical possession of floor, in question, complete in all respects, allotted in their favour.
18.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, for mental agony and physical harassment or not. The unit, in question, was allotted to the complainants, on 25.02.2010. However, till date, even after the expiry of period of more than four years, legal possession of the unit, in question,  complete in all respects, has not even been offered to them, by the Opposite Parties, despite the fact that the amount of Rs.33,24,515/-, being part of the sale consideration, thereof has been deposited by them.  One could well imagine the plight of   the persons, who had deposited their hard earned money, to the tune of Rs.33,24,515/-, but they were not offered the legal physical possession of the independent floor, in question, allotted to them, complete in all respects by the stipulated date or till date. Compensation, in the sum of Rs.1,00,000/-,  if granted, to the complainants, for mental agony and physical harassment, caused at the hands of the Opposite Parties, in our considered opinion, would be just, fair and adequate.
19.       It may be stated here, that vide calculation sheet, copy whereof is Annexure R/2, the Opposite Parties raised a demand of Rs.4,77,104/- i.e. Rs.3,30,000/- towards part basic sale price of the unit, in question, plus (+) Rs.15,932/- as interest towards delayed payment plus (+) Rs.25,063/- towards service tax plus (+) Rs.1,06,109/- towards the increase in area. In the said calculation sheet, the Opposite Parties have shown the total amount received, from the complainants, under all the heads aforesaid, to the tune of  Rs.33,24,515/- out of the total sale consideration of Rs.38,01,619/-. It is, therefore, held that as per the demand made  by  the  Opposite Parties, vide Annexure R-2,  the complainants are liable to pay Rs.4,77,104/-, at the time of taking over possession of the said unit. The demand is, thus, held to be legal.
20.       No other point, was urged, by the Counsel for the parties.
21.       For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are held jointly and severally liable and directed as under :-
    1. To hand over the actual legal physical possession of independent floor No.738-FF, measuring 144.45 square meter, consisting of three bedrooms, in their Project, namely “Luxury Floors”, at Golf Links, Sector 114, Kharar-Landran Road, Mohali, Punjab, complete in all respects to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, on payment of  the  amount  of Rs.4,77,104/-, as indicated above, by them (complainants).
    2. To pay compensation, in the sum of Rs.1,00,000/- for mental agony and physical harassment, to the complainants, within 45 days, from the date of receipt of a certified copy of this order.
    3. To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.
    4. In case, the amount of compensation as mentioned clause (ii) above, is not paid, within a period of 45 days, from the date of receipt of a certified copy of this order,  the same shall carry interest @12% P.A., from the date of filing the complaint, till realization, besides payment of costs and compliance of other directions given above.
22.       Certified Copies of this order be sent to the parties, free of charge.
23.       The file be consigned to Record Room, after completion.

Pronounced.

April 1, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

Rg