Chandigarh

StateCommission

CC/240/2017

Kamaljeet Kaur - Complainant(s)

Versus

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

Navneet Jindal,Adv.

09 Apr 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	240 of 2017
Date of Institution	:	21.03.2017
Date of Decision	:	09.04.2018

 

1. Kamaljeet Kaur W/o Sh.Jaspal Singh and
2. Sh.Jaspal Singh S/o Sh.Parkash Singh Kainth.

Both R/o C-7, CDAC Complex, Sector 70, Mohali, Punjab.

…… Complainants

 

V e r s u s

1. Ansal Properties and Infrastructure Ltd., through its Authorized Signatory/Managing Director

Corporate Office Address:-

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

Second Address:- 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001.

2. Safeways Real Estate through its Proprietor/Authorized Agent, SCO 94, First Floor, Sector 44-C, Chandigarh.
3. India Bulls Housing Finance Ltd., SCO No.337/338, Ground Floor, Sector 35-B, Chandigarh-160036, through its Director/Manager/Authorized Signatory.

…..Opposite parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

Argued by:-      Sh.Navneet Jindal, Advocate for the complainants.

                        Sh.Rachit Kaushal, Advocate for opposite parties     no.1 and 2.

                        Sh.Gaurav Bhardwaj, Advocate for opposite      party no.3

                 

PER PADMA PANDEY, MEMBER

                This complaint has been filed by the complainants, seeking refund of entire amount paid towards flat bearing no.0164-0-252SF, purchased by them, for basic sale price of Rs.41 lacs plus external development charges, interest free maintenance security etc.,  in a project launched by opposite party no.1, under the name and style ‘Victoria Floors”, Golf Links-II, Sector 116, Kharar-Landran Road, Mohali, Punjab (in short the unit), as possession thereof was not delivered to them, by the committed date i.e. January 2016 (36 months from July 2012 with extended period of 6 months), or even by the date of filing this complaint. It was stated that the said unit was purchased by the complainants, under subvention scheme, on the assurance given by opposite parties no.1 and 2 that Pre-EMI interest on the housing loan obtained from opposite party no.3 shall be paid by opposite party no.1 till possession of the unit is delivered, however, it was paid only till August 2014. When neither possession of the unit was handed over by the stipulated date, and also at the same time, opposite party no.1 stopped paying Pre-EMI interest aforesaid, the complainants served legal notice dated 28.03.2016, as a result whereof, two cheques in the sum for Rs.2,66,885/- and Rs.2,66,886/-, respectively, in months of April and August 2016, were handed over to them by it (opposite party no.1). However, possession of the unit was not handed over.  On the other hand, visits to the site revealed that construction is not complete and the project is not habitable. It was averred that even in the absence of construction work, opposite party no.3, kept on releasing loan amount to opposite party no.1 and by the time this complaint was filed, more than 90% of the loan amount stood released in favour of opposite party no.1. It was specifically averred that facilities/basic amenities as promised by opposite parties no.1 and 2 are not available at the project site. Feeling aggrieved, the instant complaint has been filed by the complainants, seeking refund of the entire amount paid, alongwith interest, compensation etc. During pendency of the complaint, amended prayer was made by the complainants, in writing, wherein, it was prayed that opposite party no.1 be directed to take over the loan liability of Rs.30,25,000/- and pay it to opposite party no.3 directly and the remaining amount of Rs.13,65,182/- paid by the complainants, towards price of the unit, be refunded to them, alongwith other reliefs.

2.         Opposite parties no.1 and 2, in their joint written version, did not dispute with regard to booking of the unit, in question, by the complainants, in the project aforesaid; payments made by them, as mentioned in the complaint; execution of tripartite agreement between the parties; payment of Pre-EMI interest by opposite party no.1 to proforma opposite party no.3, till August 2014; further payment of Rs.2,66,855/- twice as mentioned in the complaint, towards Pre-EMI interest, directly to the complainants.  However, it was stated that the unit, in question, was purchased for future gain, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986. It was further stated that the period of 30 months plus 6 months, for delivering possession of the unit, was tentative, as such, time was not the essence of contract. It was averred that opposite party no.1 has already applied for completion certificate, in respect of the project, in question, which is pending before the Punjab Government. Possession of the unit cannot be delivered in the absence of the said certificate. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
3.         Opposite party no.3, in its written version, while admitting the factual matrix of the case, with regard to release of amount towards housing loan to opposite party no.1, in respect of the unit, in question, stated that housing loan to the tune of Rs.32 lacs was sanctioned and Rs.30.25 lacs, released in favour of the complainants, strictly as per terms and conditions contained in the Tripartite Agreement. Amount was released in favour of opposite party no.1, as and when demands were raised, under intimation to the complainants. It was pleaded that opposite party no.1 and 3 being separate legal entities have no other relation except that of which has been bonded by way of Tripartite Agreement aforesaid.  The allegations levelled against opposite party no.3 in consumer complaint were denied.
4.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties.
5.         The parties led evidence, in support of their case
6.         We have heard Counsel for the parties and have gone through the evidence and record of the case, very carefully.
7.         The first question, that falls for consideration, is, as to whether, the complainants are speculators, and that they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act., as alleged by opposite parties no.1 and 2. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. In para no.1 of the complaint, supported by their affidavit, it has been specifically stated by the complainants that the unit, in question was purchased by them, for their residential purpose. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no. no.1 and 2 mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, 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. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by opposite parties no. no.1 and 2 in their written reply, therefore, being devoid of merit, is rejected.  
8.         It is not in dispute that the complainants had purchased the unit, in question, in the project of opposite party no.1, for basic sale price of Rs.41 lacs plus external development charges, interest free maintenance security etc. It is also not in dispute that for making payment towards price of the said unit, the complainants obtained loan amount of Rs.32 lacs from opposite party no.3, out of which an amount of Rs.30,25,000/- stood released in favour of opposite party no.1, as is evident from the statement of account Annexure C-10A.  Apart from that amount, the complainants also paid some amount from their pocket. Admittedly, promise was made to hand over possession of the built-up unit, within a total period of 42 months (36 months plus 6 months grace period) commencing from July 2012 i.e. on or before January 2016, however, nothing was done. Even in the written reply also no commitment to hand over possession of the unit in near future was made. It was only said that the Company has applied for completion certificate and possession will be delivered after receiving the same. However, such a plea is not substantiated by any document. It may be stated here that it is well settled law that the onus to prove that construction of the units had been completed and the area/site, in question, is fully developed, is on the builder. It was also 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. Thus, in case, all the development activities, had been undertaken, and construction of  units, is complete at the site, then it was for opposite party no.1, 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 construction and development activities, had been undertaken and completed at the site or not, but it failed to do so. At the time of arguments, Counsel for opposite party no.1 failed to give any positive date/time, as to when, construction, will be completed and possession of the constructed unit will be given. Above facts clearly go to show that opposite party no.1 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 opposite party no.1 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 opposite party no.1 to delay the proceedings and that at the spot construction is not complete. In a similar project (Golf Links-II) of opposite party no.1, 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. ……….. .”

 

9.         In the instant case also, despite receipt of huge amount, opposite party no.1 has failed to complete construction of the unit, in question, and hand over possession thereof to the complainants. The date of offer of possession of the unit already stood expired, as far as back in January 2016. Now it is April 2018. Still the complainants are empty handed. They cannot be made to wait for an indefinite period, at the whims and fancies of opposite parties no.1.

                Under above circumstances, it can be said that there is a material violation on the part of opposite party no.1, in not offering and delivering possession of the unit, in question, to the complainants, by the promised dated 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 opposite party no.1 suffered any force majeure circumstances, on account of which, construction could not be completed.

10.          In the absence of any force majeure circumstances having been actually faced by opposite party no.1, it was bound to deliver possession of the unit, by January 2016, as such, time was, unequivocally made the essence of contract. Opposite party no.1 also cannot evade its liability, merely by saying that since the words “shall endeavor” was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

Furthermore, non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/allotment letter, is an unfair trade practice on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the plots/unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of opposite party no.1 in this regard also stands rejected

11.         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 huge amount equal to more than about 90% was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by opposite party no.1, for its own benefit. There is no dispute that for making delayed payments beyond period of three months, opposite party no.1 was charging heavy rate of interest @20% compounded quarterly, as per Clause 6 of the application form Annexure C-3, 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 opposite party no.1, in case of delayed payment, as per Clause 6 aforesaid, till realization. 

                In view of above facts of the case, opposite party no.1 is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

12.         No doubt, the complainants by way of making request through amended prayer, sought directions that out of the entire amount received by opposite party no.1, directions be given to it (opposite party no.1), to take over the loan liability of Rs.30,25,000/- and pay it directly to opposite party no.3, however, we are of the considered opinion, that once a tripartite agreement has been got executed between the parties, in respect of the said housing loan, no such directions can be given to opposite party no.1, in that regard. It will be fair enough, if we order refund of the entire amount received by opposite party no.1 to the complainants, with first charge to opposite party no.3 of the loan amount due.  
13.         Since it has not been proved on record that any amount was received by opposite party no.2, from the complainants towards price of the said unit, and only booking was made through it, being dealer, as is evident from the application form (at page 20 of the file), as such, the complaint is dismissed against it, with no order as to costs.
14.         No other point, was urged, by Counsel for the parties.
15.         For the reasons recorded above, this complaint is partly accepted, with costs, with following directions to opposite party no.1 only:-

1.       To refund the entire amount paid by the complainants (from their pocket as well as through opposite party no.3), towards price of the said unit, alongwith interest 12% p.a., from the respective dates of deposits onwards, after adjusting/deducting the entire Pre-EMI interest paid by it (opposite party no.1) to opposite party no.3 under subvention scheme and Rs.2,66,885/- and Rs.2,66,886/-, which admittedly, have been received by the complainants, from opposite party no.1, vide two cheques, aforesaid, in the months of April and August 2016, on account of refund of interest paid by them (complainants) directly to opposite party no.3.
2.       To pay compensation, in the sum of Rs.1,00,000/- 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.33,000/- to the  complainants.

16.         The payment of awarded amount, in the manner referred to above, at sr.nos.(i) to (iii), 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 further carry penal interest @15% p.a. instead of @12%, in the manner, referred to therein, from the date of default and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.
17.         However, it is made clear that since in the instant complaint, the complainants have availed loan facility from opposite party no.3, 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).
18.         Complaint against opposite parties no.2 and 3 is dismissed, with no order as to costs.
19.         Certified Copies of this order be sent to the parties, free of charge.
20.         The file be consigned to Record Room, after completion.

Pronounced.

09.04.2018

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Rg.