Chandigarh

StateCommission

CC/541/2017

Krishan Kumar Dogra - Complainant(s)

Versus

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

Sawinder Singh, Adv.

23 Oct 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	541 of 2017
Date of Institution	:	13.07.2017
Date of Decision	:	23.10.2017

 

Krishan Kumar Dogra S/o Sansar Chand R/o #142, Ranjit Nagar, Jalandhar City, Punjab.

……Complainant.

                                          V e r s u s

Ansal Properties & Infrastructure Ltd. through its Authorised Signatory/Managing Director.

Corporate Office Address:

S.C.O. No.183-184, Sector 9-D, Madhya Marg, Chandigarh – 160009.

Second Address:

115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi – 110001.

  Opposite Party.

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

 

BEFORE:   MR. DEV RAJ, PRESIDING MEMBER.

                   MRS.PADMA PANDEY,MEMBER

 

Argued by: Mr. Sawinder Singh, Advocate for the complainant.

                    Mr. Rachit Kaushal, Advocate for the Opposite Party.  

 

PER  DEV RAJ, PRESIDING MEMBER

                The facts, in brief, are that the Opposite Party floated a scheme for developing a residential colony under the project name of            “Victoria Floors, Golf Links II” in Sector 116, Mohali, Punjab, where flats were to be constructed. The complainant booked a flat in the said project and Floors Buyer’s Agreement dated 16.12.2011 (Annexure C-1) was entered into between the parties. Unit No.247, First Floor, admeasuring 1435 sq. ft. was allotted to the complainant, total basic sale consideration whereof was Rs.38,22,000/- alongwith preferential location charges @Rs.69.69 per sq. ft to be levied extra. As per Clause 5.1 of the Agreement, the Opposite Party was to complete the development of the colony and the dwelling unit within 30 months with an extended period of six months from the date of execution of the Agreement or the date of sanction of the building plan, whichever was later, failing which, as per Clause 5.4 of the Agreement, the Opposite Party was liable to pay holding charges  @Rs.10/- per sq. ft. of the super area of the unit for the period of default, which came to be Rs.4,44,850/-. It was further stated that three years period for handing over possession of the unit expired in December 2014 i.e.15.12.2014. The complainant opted for construction linked payment plan and as per detail given in Para 3 of the complaint, the complainant paid an amount of Rs.40,10,205/- to the Opposite Party vide receipts (Annexure C-2 colly). It was further stated that till date, the possession of the unit, in question, has not been offered by the Opposite Party. It was further stated that construction work at the site is still extensively pending and the completion certificate has not been obtained for the said project. It was further stated that the complainant served legal notice dated 01.07.2017 (Annexure C-3) upon the Opposite Party, which was never replied to.

2.                Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking refund of Rs.40,10,205/- with interest @15% p.a. from the respective dates of deposits till realization; Rs.5,00,000/-  as compensation for harassment and mental agony besides Rs.50,000/- as litigation charges.

3.           The Opposite Party, in its written statement, took up preliminary objections to the effect that the complaint is an abuse of process of law as there is material concealment on the part of the complainant and that complaint is not a consumer as the investment in the property by the complainant was purely for commercial purpose and speculative investments and not for personal use.

4.                On merits, it was admitted that Unit  No.247 FF was allotted to the complainant vide Floor Buyer’s Agreement dated 16.12.2011. It was stated that the express mandate of Clause 5.1 of the Agreement simpliciter gave a tentative period of 30 months with an extended period of six months for delivering possession of the allotted unit from the date of allotment, which as stipulated therein, would run from the date all requisite sanctions/approvals/permissions/clearances from the Govt./Local Authorities/Sanctioning Authority were received subject to force majeure circumstances. It was further stated that the language used in Clause 5.1 of the Agreement duly highlights the fact that the possession of the unit was proposed to be delivered from the date of execution of the Agreement or the date of sanction of the building plan/allotment after all the necessary approvals and sanctions had been obtained from the Govt./Local Authorities/Sanctioning Authority. It was further stated that time was not the essence of the contract and 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 had time been the essence of the contract then the phrase “as far as possible” would not have been used and instead a definite period would have been given for delivery of possession. The remaining averments were denied being wrong and a prayer was made for dismissal of the complaint.

5.            The parties led evidence in support of their case.

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

7.                The first objection raised by the Opposite Party is that the complaint deserves to be dismissed on account of material concealment on the part of the complainant. It may be stated here that nothing is explained as to how and in what manner, there is concealment. The plea taken is, therefore, without any substance and the same stands rejected. 

8.                To defeat claim of the complainant, the next objection raised by the Opposite Party was that since the complainant had purchased the plot, in question, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. It may be stated here that 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. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profits, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  2016 (2) CPJ 316. 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 had 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 complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in the written reply, therefore, being devoid of merit, is rejected.  

9.             An objection has been raised by the Opposite Party in Para 16 of the written statement that the complaint is barred by limitation  as the possession of the unit, in question, fell due in 2014. It may be stated here that the possession of the unit was to be offered/delivered by 15.12.2014 but the Opposite Party kept silent and did not intimate anything to the complainant as regards possession, which is still due. When nothing was heard as regards possession, the complainant sent legal notice dated 01.07.2017 (Annexure C-3) to the Opposite Party, which was not responded to by the Opposite Party, as such, there is continuing cause of action, in favour of the complainant, 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 the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.

10.              Now coming to the merits of the case, admittedly, an independent dwelling unit bearing No.247 (First Floor), admeasuring 1435 sq. ft.  in the project of the Opposite Party known as Victoria Floors, under the Scheme “Golf Links II” was allotted to the complainant and a Floor Buyer’s Agreement  was executed between the complainant and the Opposite Party on 16.12.2011 (Annexure C-1). As per Annexure-3, at Page 38 of the file, the basic sale price of the unit, in question, was Rs.38,22,000/-, Preferential Location Charges Rs.1,00,000/- and External Development Charges Rs.1,60,720/-. The complainant opted for Construction Linked Installment Plan (at Page 39 of the file) and EDC & PLC was also to be paid as per Payment Plan at page 40 of the file. The complainant, in all, paid an amount of Rs.40,10,205/-, which fact has not been denied by the Opposite Party and receipts whereof have been placed on record. As per Clause 5.1 of the Agreement, the company was to complete the development of the unit, in question, as far as possible, within 30 months with an extended period of six months from the date of execution of the said Agreement or the date of sanction of the building plan, whichever was later.  In its written statement, neither the Opposite Party disclosed the date of sanction of the building plan nor any documentary evidence to furnish such date, has been placed on record. Therefore, in the absence of date, on which building plan was approved, the date of execution of the Agreement viz. 16.12.2011 has to be taken as the date for calculating the stipulated period of 36 months in offering possession. The possession of the unit, in question, was, thus, to be offered/delivered by the Opposite Party by 15.12.2014. Admittedly, possession of the unit, in question, has still not been delivered. There is, thus, inordinate delay of 2 years 10 months in offering/delivering possession of the unit in question. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, in the light of law settled by Hon’ble National Commission in such cases, held that the complainant is entitled to refund of the amount deposited with the Opposite Party. Relevant Paras of the aforesaid judgment read thus:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

The position in the instant case is worst. On getting no response qua offer/delivery of possession of the unit, in question, the complainant  sent legal notice to the Opposite Party on 01.07.2017 (Annexure C-3), which was delivered by hand at its corporate office. However, despite receipt of the said legal notice, the Opposite Party did not offer/deliver possession of the unit, in question. Even the legal notice aforesaid was not replied to by the Opposite Party. The deficiency in rendering service and indulgence into unfair trade practice by the Opposite Party is writ large. Therefore, the complainant is held entitled to refund of the amount alongwith interest from the dates of respective deposits.

11.              It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. Admittedly, possession of the unit, in question, which was to be delivered within the stipulated period i.e. by 15.12.2014, has not been delivered till date. It is not in dispute that an amount of Rs.40,10,205/- was paid by the complainant to the Opposite Party, without getting anything, in lieu thereof. The said amount has been used by the Opposite Party, for its own benefit. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, alongwith interest @12% p.a. (simple) from the respective dates of deposits till realization.

12.              The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him. Clearly possession of the unit, in question, has not been offered to the complainant till date, on account of which, he (complainant) suffered mental agony and physical harassment. The compensation in the sum of Rs.5 Lacs, claimed by the complainant, is on the higher side.. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1,50,000/- if granted, would be adequate to serve the ends of justice.

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 against the Opposite Party. The Opposite Party is held liable and directed as under:-

(i)      To refund the amount of Rs.40,10,205/- to   the   complainant, alongwith interest @12% p.a. (simple), from the respective dates of deposits till realization, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)      To pay an amount of Rs.1,50,000/- as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.33,000/-  as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.

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

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

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.

23.10.2017

 (DEV RAJ)

PRESIDING MEMBER

 

 

 

(PADMA PANDEY)

          MEMBER

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