Chandigarh

StateCommission

CC/527/2017

Varinder Kumar - Complainant(s)

Versus

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

Paras Money Goyal Adv.

20 Feb 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	527 of 2017
Date of Institution	:	10.07.2017
Date of Decision	:	20.02.2018

 

1. Varinder Kumar son of Shri Sukhdev Kumar
2. Khushi Mittal wife of Shri Varinder Kumar

Both R/o H.No.36, Green Enclave, Village Daun, District S.A.S. Nagar (Mohali) (Pb.).

…… Complainants

V e r s u s

Ansal Properties and Infrastructure Ltd., through its Chairman/Director, 1202-04, Antriksh Bhawan 22, Kasturba Gandhi Marg, New Delhi-110001

2^nd Address:-

Ansal Properties and Infrastructure Ltd., through its Chairman/Director, Regional Office S.C.O. No.183-184, Sector 9-C, Madhya Marg, Chandigarh.

…..Opposite party

 

Argued by:-      Sh.Gaurav Bhardwaj, Advocate, proxy for         Sh.Paras Money Goyal, Advocate for the complainants.

                        Opposite party exparte.

====================================================

 

Complaint case No.	:	556 of 2017
Date of Institution	:	18.07.2017
Date of Decision	:	20.02.2018

 

Brij Krishan Koul son of Late Shri Shambhoo Nath Koul, resident of B/4-503, NHPC Colony, Sector 41, Faridabad (Haryana).

…… Complainant

V e r s u s

Ansal Properties and Infrastructure Ltd., 1202-1204, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001, through its MD.

2^nd Address: -

Ansal Properties and Infrastructure Ltd., S.C.O. No.183, 184, Sector 9-C, Madhya Marg, Chandigarh, through its Sr. Executive (Sales and Marketing)/Branch Manager/Authorized Signatory.

…..Opposite party

 

Argued by:-      Sh.Subhash Chand, Advocate for the        complainant.

                        Opposite party exparte.

====================================================

 

Complaints under Section 17 of the Consumer Protection Act, 1986

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                   By this order, we propose to dispose of the aforesaid two consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. In both the complaints aforesaid, the complainants have sought refund of the amount deposited with the opposite parties, towards price of their respective units, alongwith interest, compensation etc. At the time of arguments, on 29.01.2018, it was agreed by Counsel for the complainant(s), that, in view of above, both the complaints can be disposed of, by passing a consolidated order.

                Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing no. 527 of 2017, titled as Varinder Kumar and another Vs. Ansal Properties and Infrastructure Limited. The complainants are husband and wife respectively. It is their case that they purchased a flat bearing no.637, first floor, measuring 1120 square feet, consisting of 3 bedrooms and 2 bathrooms, from the opposite party, in a project launched by them, under the name and style ‘Happy Homez”, Golf Links, Sector 114, Kharar-Landran Road, Mohali, Punjab (in short the unit). Allotment letter Annexure C-1, in respect of the said unit was issued on 15.08.2010. It was stated that to purchase the said flat, the complainants paid an amount of Rs.2,50,000/- vide cheque dated 31.08.2010 and Rs.1,10,000/- (twice) vide cheques dated 16.09.2010, totaling Rs.4,70,000/- receipts whereof have been placed on record as Annexures C-2 to C-4. It was specifically stated that, it was assured by the opposite party to the complainants that they had to make payment of an amount of Rs.4,70,000/-, under subvention scheme and rest of the sale consideration will be demanded, at the time of handing over possession of the unit, but, later on, they refused to do so, and compelled the complainants to start making payment towards price of the unit, under threat of cancellation of allotment and applicability of forfeiture clause. The opposite party made the complainants to take home loan from the HDFC Bank to the extent of Rs.17 lacs, vide Tripartite Agreement dated 04.02.2012, Annexure C-5. The said bank disbursed an amount of Rs.14,40,000/- to the opposite party on 08.02.2012. It is further case of the complainants that they have been making payment of EMIs to the said bank, to repay the amount of loan raised by them. It is further stated by the complainants that as per Clause 12 of the Allotment Letter, the opposite party, committed to hand over possession of the said unit, within a period of 24 to 30 months. The said Clause 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 possession on account of the said reasons or any other reason beyond the control of the Company.”   

Time of 30 months period to hand over possession of the unit, came to an end on 14.02.2013. It is averred by the complainants that when they failed to get possession of the unit, in time, and also thereafter, they saw that there were no chances to get possession in the near future also, they bought a residential house in a project named Green Enclave, Mohali, for which they had to raise loan of Rs.18 lacs, from Andhra Bank, on higher rate of interest. It was stated that on 10.08.2015, the complainants received a letter from the opposite party, asking them to make payment of outstanding amount totaling to Rs.19,10,000/-, in respect of the unit, in dispute. By stating that they had already paid the said amount, the complainants asked the opposite party to withdraw its notice, however, nothing was done. Faced with the situation, they asked the opposite party to refund the amount paid, alongwith interest, however failed to get any response. It is specifically averred that facilities/basic amenities as promised by the opposite party, are not available at the project site. It was stated that the opposite party has received an amount of Rs.19,10,000/-, and used the same for its own purposes, as such, it is bound to refund the same alongwith interest, compensation etc. Hence this complaint.

2.         Notice in this complaint was issued on 13.07.2017, for 02.08.2017, on which date, Sh.Rachit Kaushal, Advocate, appeared on behalf of the opposite party by submitting his memorandum of appearance. He was asked to file vakalatnama on the next date of hearing. He sought time to file reply and evidence. The complaint was adjourned to 21.08.2017. Vakalatnama was not filed on the adjourned date. Sh.Rachit Kaushal, Advocate, again sought time to file vakalatnama, reply and evidence. The complaint was adjourned to 15.09.2017. On the said date also, vakalatnama, reply and evidence were not filed on behalf of the opposite party. Counsel for the opposite party again sought time for doing the needful, to which no objection was raised by Counsel for the complainants. As such, the complaint was adjourned to 25.10.2017. When again on the adjourned date, vakalatnama, reply and evidence were not filed on behalf of the opposite party, the complaint was adjourned to 07.11.2017 for doing the needful, subject to cost of Rs.2,000/-, on which date, cost was paid. Counsel for the opposite party, again sought time to file vakalatnama, reply and evidence. Subject to payment of cost, the matter was adjourned to 04.12.2017, on which date, neither cost was paid nor vakalatnama, reply and evidence were filed on behalf of the opposite party. Taking note of above facts, exparte proceedings were ordered against the opposite party, on 04.12.2017. That order was not put under challenge. On the next date, Sh.Rachit Kaushal, Advocate, appeared on behalf of the opposite party and sought time to address arguments and on his request, the matter was adjourned to 29.01.2018. On the said date, the case was called for three times, at the end of the entire list, however, none came present on behalf of the opposite party, to assist this Commission. Accordingly, after hearing Counsel for the complainants, the complaint was reserved for orders.
3.         As per facts narrated above, there is no rebuttal to the averments made by the complainants that by not handing over possession of the unit, in question, within the stipulated time, on receipt of huge amount aforesaid, the opposite party has failed to provide proper service. Further contention of the complainants that the opposite party has indulged into unfair trade practice, also appears to be correct. By making false promises, the complainants were made to pay huge amount of more than Rs.19 lacs. As per terms and conditions of the allotment letter, promise was made to hand over possession of the built-up unit, within 30 months i.e. latest by 14.02.2013, however, nothing was done. Even as on today, there is no commitment to hand over possession of the unit in near future. Besides as above, despite number of opportunities having been given to the opposite party, for filing reply and evidence, it failed to do so. Above facts clearly go to show that the opposite party was not serious in completing the construction and handing over possession of the built-up unit to the complainants. In view of above, it can safely be said that there was deficiency in providing service on the part of the opposite party and further by making false promise and not delivering possession of the unit, after receipt of huge amount, it also indulged into unfair trade practice.

                Not only in the instant case, earlier also, we have noticed that in some other cases also, there is an attempt of the opposite party to delay the proceedings and that at the spot construction is not complete. In a similar project (Golf Links-II) of the opposite party, in the same area, in the case of Prem Kumar Kanwar and another Vs. Ansal Properties and Infrastructure Ltd., consumer complaint bearing no.612 of 2017 decided on 19.02.2018, it was observed by this Commission as under:-

 

“It is not in dispute that the opposite party has failed to deliver possession of the unit, in question, within the stipulated period as provided in the Agreement or even till date, for want of construction at the site and also necessary approvals, from the Competent Authorities. The complainants have sought refund of the amount paid, alongwith interest, compensation etc. It is to be analyzed as to whether, in view of facts noted above; pleadings on record and arguments raised, it is open to the complainants, to claim above said relief or not.

                It is not in dispute that the complainants purchased the unit, in question, for which Floor Buyer’s Agreement was signed between the parties on 16.12.2011. Constructed unit was sold in favour of the complainants, for an amount of Rs.39 lacs, excluding external development charges. As per condition no. 5.1 of the Agreement, it was incumbent upon the opposite party, to hand over possession within a period of 30 months, with extended period of 6 months i.e. total 36 months from the date of execution of the said Agreement i.e. on or before 15.12.2014. The date of offer of possession of the unit i.e. 15.12.2014 already stood expired. Now it is February 2018. More than three years have lapsed.

                Contention of Counsel for the complainants that construction at the spot is virtually stopped, needs acceptance. By the date, when arguments were addressed before us, possession has not been offered to the complainants. At the time of arguments, Counsel for the opposite party failed to give any positive date/time, as to when, construction, will be completed and possession of the constructed unit will be given. In the written reply also, no commitment was made, as to by which time and date, possession of the unit will be delivered, after construction. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, is on the builder/opposite party. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, by the opposite party, in respect of the unit, in question, to prove that the construction is complete and it is actually ready for offer and delivery of possession. In case, all the development activities had been undertaken and construction of the flats is complete at the project site, then it was for the opposite party, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary 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, as to whether, all these development and construction activities, had been undertaken and completed at the site or not, but it failed to do so. At the same time, the opposite party was also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove its case, but it miserably failed to do that also.

                At the time of arguments, a very strange objection was raised by Counsel for the opposite party that construction of the units could not be completed, due to force majeure circumstances, faced by the opposite party i.e. non-approval of the project building plans, by the Officers of the Govt. Department concerned. It was stated that frivolous objections were raised by the Department, without any reasons. We have perused the reply filed. There is nothing on record, to show that any such alleged objections were ever raised by the Govt. Department, in respect of the project in question. Furthermore, no details in the reply have been given by the opposite party, as to at what stage and when, the alleged frivolous objections were raised by the Department, before granting approvals of the building plans etc. in respect of the project, in question. Such a plea taken by the opposite party, without any basis, needs rejection and is accordingly rejected.

                Under above circumstances, it can be said that there is a material violation on the part of the opposite party, in not offering and delivering possession of the unit, in question, to the complainants, by the promised dated i.e. 15.12.2014 or even as on today, thereby leading material violation on its part, apart from deficiency in providing service and guilty of adoption of unfair trade practice. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants 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 along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainants, while holding as under:-

“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.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

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

 

                However, in the present case, as stated above, the position is worst. It is not the case of the opposite party that construction could not be completed on account of some force majeure circumstances, actually encountered by them, as such, it be granted reasonable extension of time. Not even an iota of evidence has been placed on record to prove that the opposite party actually suffered any force majeure circumstances. Under these circumstances, the complainants are held entitled to get refund of amount deposited by them. In view of above facts of the case, the opposite party is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices. .”

 

4.         In the instant case also, it is proved that the allotment letter was issued on 15.08.2010, with a promise to deliver possession of the unit, in question, within a maximum period of 30 months. However, as stated above, despite receipt of huge amount of more than Rs.19 lacs, the opposite party has failed to complete construction of the unit, in question, and hand over possession thereof to the complainants. They were living on rent. Under compelling circumstances they were forced to purchase another flat, in some other project, referred to above. They are continuously making payment towards EMIs, for the amount of loan raised by them for the unit, in dispute. The date of offer of possession of the unit i.e. 14.02.2013 already stood expired. Now it is February 2018. More than five years have lapsed.

                Under above circumstances, it can be said that there is a material violation on the part of the opposite party, in not offering and delivering possession of the unit, in question, to the complainants, by the promised dated i.e. 14.02.2013 or even as on today, thereby committing material violation on its part, apart from deficiency in providing service and guilty of adoption of unfair trade practice. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants 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 along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainants, while holding as under:-

“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.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

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

 

                In the present case, there is nothing on record to show that the opposite party suffered any force majeure circumstances, on account of which, construction could not be completed. Non-filing of reply and evidence by the opposite party, is sufficient to prove the case of the complainants. Under these circumstances, the complainants are held entitled to get refund of amount deposited by them. In view of above facts of the case, the opposite party is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

5.         At the same time, it is also held that there is nothing on record to show that this Commission may come to the conclusion that it has no territorial jurisdiction and pecuniary jurisdiction to entertain and decide this complaint or that the complainants are not consumers.  The complaint is, thus, maintainable before this Commission. 
6.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainants. It is not in dispute that an amount of Rs.19,10,000/- was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the opposite party, for its own benefit. There is no dispute that for making delayed payments beyond period of three months, the opposite party was charging heavy rate of interest @18% p.a., as per Clause (c.)  of the allotment letter, for the period of delay in making payment of instalments.  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 complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @12% p.a., from the actual dates of deposits (less than the rate of interest charged by the opposite party, in case of delayed payment, as per Clause (c.) of the Allotment Letter), till realization. 
7.         No other point, was urged, by Counsel for the complainants.
8.         For the reasons recorded above, both the complaints are partly accepted, with costs, in the following manner:-

Consumer complaint bearing no.527 of 2017. The opposite party is directed as under:-

1.   To refund the amount of Rs.19,10,000/- to  the  complainants, alongwith interest 12% p.a.,  from the respective  dates of  deposits onwards.
2.   To pay compensation, in the sum of Rs.80,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3.   To pay cost of litigation, to the tune of Rs.30,000/-  to the  complainants.

 

Consumer complaint bearing no.556 of 2017. The opposite party is directed as under:-

1.       To refund the amount of Rs.27,33,150/- to the complainant, alongwith interest 12% p.a., from the date of purchase/endorsement of the unit, in question, by him (complainant) and thereafter, from the respective dates of deposits onwards.
2.       To pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainant.

 

9.         The payment of awarded amounts, in the manner referred to, in both the complaints, mentioned at sr.nos.(i) to (iii) respectively, shall be made, within a period of two (2) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a. instead of @12%, in the manner, referred to therein, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii) respectively, from the date of filing of respective complaints, till realization.
10.         However, it is made clear that since in the instant complaint, the complainants have availed loan facility from the banking institution, for making payment of installments towards the said unit, as such, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants). Similar directions shall be applicable to the complainant, in the connected case also, in case, he has also availed loan for making payment of the respective unit.
11.         Certified Copies of this order be sent to the parties, free of charge.
12.         Certified Copies of this order be placed in connected complaint, referred to above.
13.         The file be consigned to Record Room, after completion.

Pronounced.

20.02.2018

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.