Chandigarh

DF-I

CC/236/2021

Dr. Parvinder Kaur Chawla - Complainant(s)

Versus

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

Vivek Gupta

25 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/236/2021
Date of Institution	:	9/4/2021
Date of Decision	:	25/10/2024

 

1. Dr. Parwinder Kaur Chawla aged around 48 years w/o Dr. Amandeep Singh, R/o H.no..612, Phase 2, Mohali.

Complainant

 

VERSUS

 

1. Ansal Properties & Infrastructure Ltd. through its Managing Director/ Director/Chairman (Whole Time Directors, Sh. Sushil Ansal and Pranav Ansal and Director, Sh. Anil Kumar)

Corporate Branch Office Address:

SCO-183-184, Sector 9-C, Madhya Marg Above British Library, Chandigarh.

Branch Office Address

SCO NO 12-A, Ansal City Center, Kharar Landran Road, Sector 115, SAS NAGAR, MOHALI.

Head Office Address:

115, Ansal Bhawan, 16-Katurba Gandhi Marg, New Delhi-110001

2. M/s HDFC Bank Limited, through its Chairman/Managing Director/Authorized Signatory, having its office at Branch Office at SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

Opposite Parties

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Sh. Vivek Gupta, Advocate for  complainant alongwith complainant.
	:	None for OP No.1
	:	Sh. Sankalp Sharma, Advocate for OP No.2.

Per surjeet kaur, Member

     Briefly stated on the allurement of the OP No.1 the complainant booked flat in the project of OP No.1 by paying booking amount of Rs.1,00,000/-  and accordingly allotment letter Annexure C-2 was issued to the complainant allotting unit number 278-SF measuring 1435 sq. ft.. The total cost of the said unit was Rs.48,93,808/-. Floor Buyer’s Agreement was executed between the complainant and OP No.1 on 9.4.2012. As per Floor Buyer’s Agreement the possession of the floor was to be given within 3 years from the date of execution of Floor Buyer’s Agreement but despite of elapse of 6 years the possession of the unit in question has not been offered by the OPs despite the complainant. The complainant availed loan from OP No.2  under subvention scheme  whereby the the EMIs were to start from the date of offer of possession of the unit by the OP No.1 to the Complainant, and till that time, the "Pre-EMI Interest" was to be borne by the OP No.1 The complainant  has already paid Rs.44,58,810/- to the OPs out of which the complainant has paid 10,68,810/- from his own pocket and Rs.33,90,000/- was disbursed by OP No.2  out of the total sanctioned loan of Rs.37,88,200/-. It is alleged that the OP No.1 failed to honour the tripartite agreement and failed to pre-emi  to OP No.2 as a result of which the complainant had made payment of interest to OP No.2 to the tune of Rs.9,99,871/- . It is alleged that despite repeated requests made by the complainant the OPs have failed to offer possession of the unit in question nor paid any delayed compensation to the complainant. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Party No.1  in its reply stated that the allegations leveled in the complaint to the effect that the possession of the demised premises/ allotted unit had not been handed over to the Complainant within the time period stipulated in the allotment letter  is invalid in view of the express mandate of Clause 5.1 of the Floor Buyer Agreement which simpliciter gave a tentative period of 12 months with an extended period of 6 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 Government/Local Authorities/Sanctioning Authority were received subject to force majeure circumstances. The language used in Clause 5.1 of the Floor Buyer Agreement duly highlights the fact that the possession of the Allotted Unit was proposed to be delivered in 12 months' time with an extended period of six months 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 Government/Local Authorities/Sanctioning Authority. As per aforesaid clause time was not the essence of the contract and that the period of 12 months with an extended period of six months for delivery of possession was given on estimate basis. 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 apartment booked by the complainant was under subvention scheme and the bank has contributed towards sale consideration and till date the answering OP continued to pay Pre Emi interest to the said bank on the said advanced amount. Thus the complainant is not entitled to claim interest on the loan amount advanced by bank and against which interest has already been paid by answering OP. It is averred that the unit in question is almost complete and only statutory clearances are being awaited from the concerned authorities, the complainant in order to wriggle out and in order to earn interest income intentionally and willfully filed the present complaint.  The answering OP is committed to bear the Pre Emi Interest till offer of possession and they have already paid a huge amount in this respect. Denying any deficiency on its part all other allegations made in the complaint has been  denied being wrong.
3. OP No.2  in its reply stated that the grievance of the complainant is against the developer-promoter and nothing substantial has been stated or claimed against answering OP. The complainant along with Sh. Amandeep Singh are borrowers of HDFC Ltd. and the inter-se obligations are governed by a separate loan agreement. The consequences of the default in repayment of the loan are governed by the terms and conditions of the loan agreement, which are not in dispute. Further, default in complying with the terms and conditions of the loan agreement entitles HDFC Ltd. to recover its dues in accordance with law. The tripartite agreement upholds the terms and conditions of the loan agreement executed between the complainant/borrower and HDFC Ltd. It is a settled law that obligation to repay the loan is only of the complainant/borrower. The said obligation is independent of any other agreement/understanding/dispute amongst the builder/developer and the allottee. Denying any deficiency on its part a prayer for dismissal of the complaint has been made.
4. Rejoinder was filed and averments made in the consumer complaint were reiterated.
5. Contesting parties led evidence by way of affidavits and documents.
6. We have heard the learned counsel for the contesting parties and gone through the record of the case.
7. It is evident from Annexure C-1 that the complainant booked a flat measuring 1435 sq. ft.  with basic sale price of Rs.45,20,000/-  alongwith another additional  charges  for preferential  location charges to the tune of Rs.2,15,250/-  making the total price of the flat to the tune of Rs.48,93,808/-. Annexure C-2 is the allotment letter issued by the OPs. Annexure C-3 is the Floors Buyer’s Agreement dated 9.4.2012 according to which as per clause 5.1 the possession  of the flat was to be handed over to the within 30 months with extended period of 6 months from the date of execution of agreement dated 9.4.2012. Meaning thereby  the possession was to be handed over to the complainant on or before 8.4.2015. But as per the case of the complainant neither the possession of the flat has been handed over till date to the complainant even after a gap of 9 years of the promised date nor the clause 5.4  of agreement has been honoured, according to which the OPs were liable to pay compensation for delay at the rate of Rs.10 per sq. ft. per month  of the super area of the flat in question till offer of possession.
8. Admittedly, neither the possession has been handed over nor the terms and conditions of the Floor Buyer’s Agreement has been honoured. The complainant has paid his hard earned money of Rs.10,68,810/- to OP No.1 on different dates apart from availing loan from OP No.2 and executed Tripartite agreement with the OPs. Annexure C-4 is the proposal letter of the same.  The complainant opted the subvention scheme  where the EMIs  were to start from the date of offer of possession of the unit by OP No.1 to the complainant and till that time the pre-emi interest was to be borne by the OP builder. The complainant made timely payments to the OPs but till date nothing fruitful has come out.  It is also admitted fact that an amount of Rs.33,90,000/-  has been disbursed by OP No.2 directly to OP No.1 out of the total sanctioned loan and also the complainant has paid an amount for Rs.10,68,810/- from his own pocket to the OP builder as is evident from Annexure C-7(colly)   and it is also evident from record that the complainant has paid Rs.9,99,871/- towards loan EMI to the OP No 2 which was in fact to be paid by the OP No.1 till offer of possession of the flat in question. However, despite of that till date no possession has been handed over to the complainant and the Ops have failed to honour their own terms and condition.
9. Keeping in view the facts and circumstances of the present case, we are of the considered view that the complainants cannot be made to wait for an indefinite period and the OP builder, who is not in a position to deliver the possession of the unit(s) as promised, have no right to retain the hard earned money of the complainant. 
10.      Further, the Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018 has observed that a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Hence the aforesaid act of OP No.1 amounts to deficiency in service.
11. Through the present complaint the complainant has prayed for refund of entire amount  alongwith execution of clause 5.4 of the Floor Buyer’s Agreement. However during the oral arguments the complainant vide his separate statement stated that she does not press her claim in respect of clause 3 of the prayer clause of the complaint.
12. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OP No.1 is directed as under:-

1. to refund ₹54,58,681/- (Rs.44,58,810/- + 9,99,871/-) to the complainant alongwith interest @ 9% per annum (simple) from the respective dates of deposit till onwards
2. to pay ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

13. This order be complied with by the OP No.1 within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
14. Complaint qua OP No.2 stands dismissed.
15. However, it is made clear that the financier (OP-2) shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainant towards the discharge of loan liability, if any, of the deceased/insured.
16. Pending miscellaneous application(s), if any, also stands disposed off.
17.        Certified copies of this order be sent to the parties free of charge. The file be consigned.

			[Pawanjit Singh]
			President
			[Surjeet Kaur] Member
25/10/2024			[Suresh Kumar Sardana]
mp			Member