Chandigarh

StateCommission

CC/395/2017

Navjyoti Singh - Complainant(s)

Versus

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

Sahil Gambhir & Gagan Bajaj,Adv.

06 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	395 of 2017
Date of Institution	:	11.05.2017
Date of Decision	:	06.11.2017

 

1. Navjyoti Singh W/o Sarbdeep Singh,
2. Sarbdeep Singh S/o Late S. H. Ahluwalia;

Both R/o H.No.434, 1^st Floor, Sector 37-A, Chandigarh now residing at H.No.1007, Sector 36-C, Chandigarh.

……Complainants.

V e r s u s

1. Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi – 110001 through its Managing Director/Authorised Signatory.

2^nd Address:-

Ansal Properties & Infrastructure Ltd., S.C.O. No.183-184, Sector 9-C, Madhya Marg, Chandigarh.

2. Housing Development Finance Corporation Limited, Sector 8-C, Madhya Marg, Chandigarh, through its Managing Director/Branch Manager/Authorised Signatory.

  ……Opposite Parties.

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

 

BEFORE:   MR. DEV RAJ, PRESIDING MEMBER.

                   MRS.PADMA PANDEY,MEMBER

 

Argued by: Sh. Gagan Bajaj, Advocate for the complainants.

                    Mr. Rachit Kaushal, Advocate for Opposite Party No.1 (Opposite Party No.1 exparte vide order dated 26.07.2017).

                    Ms. Anjali Moudgil, Advocate for Opposite Party No.2.  

 

PER  DEV RAJ, PRESIDING MEMBER

                The facts, in brief, are that the complainants purchased an independent residential dwelling unit bearing No.194 measuring 1220 sq. ft. in Victoria Floors, Ground Floor, in “Golf Links-II”, Sector 116, Mohali, by depositing a booking amount of Rs.50,000/- with Opposite Party No.1, vide application form dated 14.02.2012 (Annexure C-1). A Floor Buyer’s Agreement was signed between the complainants and Opposite Party No.1 (Annexure C-2). The complainants paid another amount of Rs.5,92,462/- to Opposite Party No.1 on 24.02.2012 (Annexure C-3). The complainants opted for construction linked payment plan, which was sent alongwith the Agreement. The total price of the unit, excluding External Development Charges and Preferential Location Charges, was fixed at Rs.41,48,000/- i.e. @Rs.3,400/- per sq. ft., (Annexure C-4). The complainants also took home loan from Opposite Party No.2 and home loan agreement dated 29.08.2012 was executed between the complainants and Opposite Party No.2 (Annexure C-5). Thereafter, a Tripartite Agreement was executed between the complainants and the Opposite Parties and a loan of Rs.34,00,000/- was sanctioned (Annexure C-6).

2.                After execution of the Agreement, the complainants continued paying the amount as and when demanded by Opposite Party No.1, which have been reflected in the Customer Ledger (Annexure C-7). It was stated that as per Clause 5.1 of the Buyer’s Agreement, possession of the unit was supposed to be delivered within 30 months, with an extended period of six months from the date of execution of the Agreement but the possession has not been handed over by the Opposite Parties till date.

3.                It was further stated that the complainants belonged to a middle class family and they bought the unit, in question, for their living but due to the act of Opposite Party No.1, they have been forced to live in a rented accommodation and have been paying a rent of Rs.35,000/- for the rented accommodation i.e. H.No.1007, Sector 36-C, Chandigarh, as per registered rent deed dated 12.01.2016 (Annexure C-8).

4.                It was further stated that the construction of the flat has stopped since June 2015 and completion of the promised amenities alongwith the said unit would sufficiently take long time. It was further stated that even till the filing of the complaint, the complainants have not received any epistolary intimation regarding handing over of possession nor have they received the unit and its subsidiary facilitation.

5.                Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of Opposite Party No.1, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking refund of Rs.40,83,462/- 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.1,00,000/- as litigation charges.

6.                It may be stated here that on 31.05.2017, Sh. Sachit Kaushal, Advocate put in appearance on behalf of Opposite Party No.1 and he was directed to file his Vakalatnama on the next date of hearing. He also sought time to file reply and evidence/affidavit on behalf of Opposite Party No.1, which he could file on or before the next date of hearing with advance copy to the Counsel opposite. However, Ms. Anjali Moudgil, Advocate, who put in appearance on behalf of Opposite Party No.2, filed her Vakalatnama and written statement and evidence/affidavit on 31.05.2017 itself. The matter was then adjourned to 21.06.2017, 13.07.2017 and 26.07.2017. However, on all the three dates, none appeared on behalf of Opposite Party No.1 and on 26.07.2017, Opposite Party No.1 was proceeded against exparte by passing following order:-

          “Despite many opportunities given, neither anyone has put in appearance on behalf of Opposite Party No.1 nor cost imposed on the last date of hearing has been deposited/paid. It appears that Opposite Party No.1 is not interested in defending this complaint. Hence, Opposite Party No.1 is ordered to be proceeded against exparte.

          For arguments, to come up on 02.08.2017.”           

 

7.                On the next date of hearing 02.08.2017, again none appeared on behalf of Opposite Party no.1 and it was on the next date of hearing i.e. 21.08.2017, that Sh. Rachit Kaushal, Advocate, Counsel for Opposite Party No.1 joined the proceedings.

8.                Opposite Party No.2, in its preliminary submissions, in the written statement, stated that the grievance of the complainants is directly only against Opposite Party No.1, who allegedly failed to fulfill its commitments in terms of Floor Buyer’s Agreement and the complainants are aggrieved of the delay in handing over of possession of the flat. It was further stated that as regards the finance advanced by it (HDFC Ltd.) is concerned, the rights of the parties of the present lis are governed by the loan agreement (Annexure C-5) and tripartite agreement (Annexure R-3/1). It was further stated that in case of cancellation of the unit or in the contingency of termination of the Buyer’s Agreement, HDFC Ltd. has the first charge/right to seek apportionment of its dues. It was further stated that the loan account of the complainant is not regular (Annexure R-2/2) and Opposite Party No.2 reserved its right to proceed in accordance with the terms of the Tripartite Agreement and the Loan Agreement.

9.                On merits, it was stated that Home Loan Agreement dated 29.08.2012 was executed between Opposite Party No.2 and the complainants and they availed Rs.31,11,000/-, out of granted loan of Rs.33,18,400/-, and a Tripartite Agreement was also executed between the complainants, Opposite Party No.1 and Opposite Party No.2. It was further stated that the complainants are obliged to pay pre-equated monthly installment as per the terms and conditions of the Tripartite Agreement. The remaining averments were denied being wrong and a prayer was made for dismissal of the complaint.

10.              The complainants, in support of their case, submitted the affidavit of complainant No.1, namely, Navjyoti Singh, by way of evidence, alongwith which, a number of documents were attached.

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

12.           During the course of arguments, Counsel for Opposite Party No.1, took a specific objection that the complaint is barred by limitation as cause of action accrued to the complainants on 24.02.2015 when possession of the unit, in question, fell due. It may be stated here that the possession of the unit was to be offered/delivered by 23.02.2015 but Opposite Party No.1 kept silent and did not intimate anything to the complainants as regards possession, which is still due. When nothing was heard as regards possession, the complainants sent legal notice dated 15.03.2017 (Annexure C-9) to Opposite Party No.1, which was not responded to by Opposite Party No.1, as such, there is continuing cause of action, in favour of the complainants, 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 argument, in this regard, being devoid of merit, must fail, and the same stands rejected.

13.              Another objection, which the Counsel for Opposite Party No.1 raised during the course of arguments, was that  as per Clause 11.2 of the Agreement, all and any disputes, suits, complaints, litigation, claim or any other matter arising out of or in relation to this Agreement, shall be resolved by the Courts where the land is located i.e. Mohali and High Court of Punjab and Haryana at Chandigarh, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that according to Section 17 of the Act, a consumer complaint can be filed, by the complainant(s), before the State Consumer Disputes Redressal Commission, within         the territorial Jurisdiction whereof, a part of cause of action arose to him/her. Clearly, the application form for allotment dated              14.02.2012 (Annexure C-1), was signed by the complainants at Chandigarh. Letter dated 16.08.2012 (Page 54 of the complaint) was sent by Opposite Party No.1 from its Chandigarh office situated at SCO No.183-184, Sector 9-C, Madhya Marg, Sector 9-C, Chandigarh. Moreover, Opposite Party No.1 did not rebut the aforesaid facts by way of filing any reply or evidence/affidavit to the complaint filed. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. 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. 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, as held above, 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.

14.              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, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to them, to file the complaint. The argument of Counsel for Opposite Party No.1, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

15.              During arguments, Counsel for Opposite Party No.1 stated that in terms of Tripartite Agreement (Annexure C-6), Opposite Party No.1 assumed the liability of payments under the loan agreement as payable by the borrower to HDFC during 24 months and Opposite Party No.1 paid pre-EMI interest installments from 20.10.2014 onwards till May 2017. This fact is evident from the statement of account (Annexure R-2/2) placed on record. It may be stated here that Opposite Party No.1, in its letter dated 16.08.2012 (Page 54 of the complaint), informed the complainants as under:-

“We are pleased to book your unit no.0164-0-194GF in our Project named as “Victoria Floors” at Golf Links, Sector 116, Mohali in response to your application letter dated ____ along with payment of booking amount of 15% in favour of Ansal Properties & Infrastructure Ltd.

We also would like to inform you that if you choose our special “No Pre EMI Interest” scheme and get qualified under the terms & conditions of financial institution for the approval & sanctioning of 80% of loan amount in favour of company, then the company shall bear the Pre-EMI interest payable to the financial institution. In case of any delay in the offer of possession, the Pre EMI interest for unit under the above mentioned scheme shall be borne by company till the offer of possession.”

16.              The core question, which falls for consideration, is, whether there is delay in offering/delivering possession of the unit, in question, and whether the complainants are entitled to refund of the deposited amount. Admittedly, an independent dwelling unit bearing No.194 (Ground Floor), admeasuring 1220 sq. ft.  in the project of Opposite Party No.1 known as Victoria Floors, under the Scheme “Golf Links II” was allotted to the complainants and a Floor Buyer’s Agreement  was executed between the complainants and Opposite Party No.1 on 24.02.2012 (Annexure C-2). As per Annexure-3, at Page 36 of the file, the basic sale price of the unit, in question, was Rs.41,48,000/-, Preferential Location Charges Rs.2,74,500/- and External Development Charges Rs.1,36,640/-. The complainants opted for Payment Plan (Annexure C-4 at Page 38 of the file). It is evident on record that the out of the total amount of Rs.40,83,462/- paid to Opposite Party No.1, the complainants paid an amount of Rs.9,72,462/- and an amount of Rs.31,11,000/-  was disbursed out of the sanctioned loan amount by Opposite Party No.1. 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 the absence of date, on which building plan was approved, which could only be furnished by Opposite Party No.1, the date of execution of the Agreement viz. 24.02.2012 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 Opposite Party No.1 by 23.02.2015. Admittedly, possession of the unit, in question, has still not been delivered. There is, thus, inordinate delay of 2 years 8 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 complainants sent legal notice to Opposite Party No.1 on 15.03.2017 through registered post (Annexure C-9). However, despite receipt of the said legal notice, Opposite Party No.1 did not offer/deliver possession of the unit, in question. Even the legal notice aforesaid was not replied to by Opposite Party No.1. The deficiency in rendering service and indulgence into unfair trade practice by Opposite Party No.1 is writ large. The genuine hopes of the complainants to have a house have been shattered to ground and they are residing in rented accommodation. Therefore, the complainants are held entitled to refund of the deposited amount alongwith interest from the dates of respective deposits.

17.              It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants. Admittedly, possession of the unit, in question, which was to be delivered within the stipulated period i.e. by 23.02.2015, has not been delivered till date. It is not in dispute that an amount of Rs.40,83,462/- was paid by the complainants to Opposite Party No.1, without getting anything, in lieu thereof. The said amount has been used by Opposite Party No.1, 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 complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @12% p.a. (simple) from the respective dates of deposits till realization.

18.              The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them. Clearly possession of the unit, in question, has not been offered to the complainants till date, on account of which, they (complainants) suffered mental agony and physical harassment. The compensation in the sum of Rs.5 Lacs, claimed by the complainants, is somewhat 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.

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

20.               For the reasons, recorded above, the complaint is partly accepted with costs against Opposite Party No.1 only. Opposite Party No.1 is held liable and directed as under:-

(i)      To refund the amount of Rs.40,83,462/- to the   complainants, 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. However, it is made clear that since Opposite Party No.1 has incurred liability of interest on the loan amount in terms of Tripartite Agreement, the amount of interest/pre-EMIs already paid by Opposite Party No.1 to Opposite Party No.2 (HDFC Ltd.) shall be deducted from the interest amount payable to the complainants.

(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 complainants, 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 Opposite Party No.1, 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.

21.              However, it is made clear that, since the complainants have availed loan facility from Opposite Party No.2 (HDFC Ltd.), for making payment towards the said unit, it (HDFC Ltd.) will have the first charge on the amount payable, to the extent, the same is due to be paid by the complainants/Opposite Party No.1.

22.              The complaint against Opposite Party No.2 (HDFC Ltd.) stands dismissed with no order as to costs. 

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

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

Pronounced.

06.11.2017

 (DEV RAJ)

PRESIDING MEMBER

 

 

(PADMA PANDEY)

          MEMBER

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