Chandigarh

StateCommission

CC/263/2018

Manoj Kumar - Complainant(s)

Versus

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

Rajesh Verma,Adv.

11 Feb 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Manoj Kumar S/o Sh.Virender Prakash Anil, R/o H.No.1238, Sector 15B, Chandigarh.

…… Complainant

V e r s u s

1. Ansal Properties and Infrastructure Ltd., 1202-1204, Antriksh Bhawan, 22, Kasturba Gandhi Mark, New Delhi-110001.
2. Ansal Properties and Infrastructure Ltd., SCO 183-184, Sector 9C, Madhya Marg, Chandigarh, through its Director/Managing Director/Authorized Signatory/Branch Manager.
3. Anil Kumar, Director, Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi-110001.
4. Sushil Ansal, Director, Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi-110001.
5. Pranav Ansal, Director, Ansal Properties and Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi-110001.
6. Axis Bank Ltd., SCO 350-52, Sector 34A, Chandigarh.

…..Opposite Parties

Argued by:-     None for the complainant.

                       Sh.Sandeep Kumar, Advocate for opposite parties no.1 to 5.

                       Sh.Gaurav Gupta, Advocate for opposite party no.6.

Complaint under Section 17 of the Consumer Protection Act, 1986

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

                        MRS. PADMA PANDEY, MEMBER.

                        MR.RAJESH K ARYA, MEMBER.

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                This complaint has been filed by the complainant, seeking possession of plot bearing no.0057-0-1318, measuring 306.53 sq.m., purchased by him, for basic sale price of Rs.69,66,540/-, plus EDC, IDC etc. totaling Rs.76,24,694.70 ps.,  in a project launched by  opposite parties no.1 to 5, under the name and style ‘Golf Links-I, Sector 114, SAS Nagar, Mohali, Punjab, allotment whereof was made in his favour, vide letter dated 04.09.2014, Annexure C-1. It is specific case of the complainant that despite the fact that he made payment of Rs.72,67,653.68ps., as per demands raised by opposite parties no.1 to 5, from time to time, yet, possession of the plot, in question, was not offered and delivered to him, for want of development at the project site, which otherwise was to be delivered on or before 23.03.2018 i.e.  total 42 months (36 months plus (+) 6 months extended period) from the date of execution of the Agreement i.e. from 24.09.2014, as provided under Clause 5.1 thereof. Number of requests, written as well as oral, were made to opposite parties no.1 to 5, for the period from March 2015 to April 2018, to complete development of the project and deliver possession of the plot, but to of no avail. Physical visits made to the project site revealed that there was no development. Basic amenities such as roads, sewerage, electricity etc., were not in existence.  It was stated that the said plot was purchased by the complainant, for his personal use. For making payment towards price of the said plot, the complainant availed housing loan from opposite party no.6, for which he is paying huge amount of EMIs. Neither delayed compensation for the period of delay in handing over possession of the plot was paid by opposite parties no.1 to 5 nor possession thereof was offered to the complainant by the committed date or by the date this complaint was filed, for want to construction and development at the project site.  It was stated that by not offering and delivering possession of the plot, in question, by the stipulated date or even thereafter, the complainant was caused mental agony, harassment and also financial loss. It was stated that the aforesaid act and conduct of opposite parties no.1 to 5, amounted to deficiency in providing service and adoption of unfair trade practice, on their part. Hence this complaint has been filed seeking directions to opposite parties no.1 to 5 to deliver possession of the plot, in question; compensation by way of interest @12% p.a. on the deposited amount for the period of delay; compensation for mental agony & physical harassment to the tune of Rs.5 lacs and Rs.50,000/- as litigation expenses.

2.         Upon notice, reply was filed by opposite parties no.1 to 5, wherein, allotment of the plot, in question, in favour of the complainant; payment made by him as stated in the complaint; and execution of the agreement dated 24.09.2014 was not disputed. However, it was stated that the plot, in question, was purchased for future gain, as such, the complainant being investor, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of Act. It was further stated that the period of 36 months plus 6 months, for delivering possession of the plot, was tentative. Since the said period was to run from the date of receiving requisite approvals/sanctions from the Competent Authorities, as such, time was not to be considered as essence of contract. Pecuniary jurisdiction of this Commission was also challenged. It was stated that the dispute being a contractual one, consumer complaint is not maintainable, and only a Civil Court, could adjudicate the same. It was averred that the complainant did not buy any goods and also there was no complete transaction, as such, consumer complaint was not maintainable. It was pleaded that development work at the project site is near completion; partial completion certificate has been received from the Competent Authorities and possession of the plot will be delivered shortly to the complainant. Opposite parties no.1 to 5 will pay compensation for the period of delay in handing over possession of the plot to the complainant. The remaining averments were denied being wrong. It was prayed that the complaint having no substance, be dismissed.
3.         Opposite party no.6 in its written version pleaded that it has no concern, whatsoever, with the allegations levelled by the complainant against opposite parties no.1 to 5, in respect of possession of the plot, in question. In case, this Commission orders refund of the amount paid, opposite party no.6 will have the first charge/right to seek apportionment of its dues. Request was made to dismiss the complaint against opposite party no.6. 
4.         In the rejoinder filed, the complainant 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.         On the date of arguments, none put in appearance on behalf of the complainant. As such, we have heard Counsel for opposite parties no.1 to 6, 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 complainant is a speculator, and that he has purchased the plot, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, he would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act., as alleged by  opposite parties no.1 to 5. 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 his complaint, it has been specifically stated by the complainant that the plot, in question, was purchased by him, for his personal use. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 to 5 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, decided 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.
8.         Now coming to the objection taken regarding pecuniary jurisdiction, it may be stated here that we have gone through the record of the case and found that if the total sale consideration of the plot, in question, plus interest @12% p.a. on the deposited amount, claimed by way of compensation for the period of delay; as also Rs.5 lacs claimed towards harassment suffered, are clubbed, it exceeds Rs.50 lacs but remain below Rs.1 crore. As such, this Commission has pecuniary jurisdiction to entertain this complaint, in view of Section 17 (1) (a) (i) of the Act and also in view of law laid down by a Large Bench of the National Commission in the case titled as Ambrish Kumar Shukla and 21 ors. Vs. Ferrous Infrastructure Pvt. Ltd., Consumer Case No.97 of 2016, decided on 07.10.2016. Objection taken in this regard, as such deserves rejection.
9.         It is not in dispute that the complainant purchased the plot, in question, in the project of  opposite parties no.1 to 5, for basic sale price of Rs.69,66,540/- plus external development charges, etc., referred to above. Admittedly, promise was made to hand over possession of the developed plot, within a total period of 42 months (36 months plus 6 months extended period) from the date of execution of the agreement dated 24.09.2014. End date to hand over possession of the plot, in question, stood expired on 23.03.2018, however, nothing was done. At the time of arguments, Counsel for opposite parties no.1 to 5 stated that the project is near completion and possession of the developed plot will be offered to the complainant, within a period of six months. Above statement makes it very clear that even by the date, when arguments were heard in this complaint, the project was not complete. As stated above, possession of the developed plot was to be delivered on or before 23.03.2018, however, opposite parties no.1 to 5 failed to do so. As such, there is a delay on their part, which act amounted to deficiency in providing service. It appears that promise to handover possession was made without any intention to do so, as such, this act amounts to adoption of unfair trade practice on their part.

                Furthermore, there is nothing on record to show that  opposite parties no.1 to 5 suffered any force majeure circumstances, on account of which, development at the project site, could not be completed. In the absence of any force majeure circumstances having been faced by  opposite parties no.1 to 5, they were bound to deliver possession of the developed plot, by 23.03.2018, as such, time was, unequivocally made the essence of contract, by way of Clause 5.1 of the Agreement, referred to above. Opposite parties no.1 to 5 cannot evade their  liability, merely by saying that since the words “shall endeavor” was mentioned in Clause 5.1 of the Agreement, for delivery of possession of the plot, 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 residential plot/unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of Condition no.3(2) (g) of the 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 plot(s)/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 parties no.1 to 5, in this regard, also stands rejected.

10.         Furthermore, from the contents of reply filed by opposite parties no.1 to 5, to the effect that the period to  deliver possession of the plot, as mentioned in the Agreement, was to run, once all necessary approvals and sanctions have been obtained from the Competent Authorities, it is proved that the project in question was launched and sold to the buyers including the complainant, without having necessary sanctions in their hands. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions and sanctions is an unfair trade practice on the part of the project proponent. It was so said by the National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads thus:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

                The principle of law, laid down in the aforesaid case, is fully applicable to the present case. In view of above, it can safely be said that by adopting unfair trade practice, the project was sold/launched by opposite parties no.1 to 5.

11.         An objection was also raised by opposite parties no.1 to 5 that the dispute being related to contractual nature, the consumer complaint is not maintainable, and only a Civil Court can decide the case. It may be stated here that the complainant hired the services of opposite parties no.1 to 5, for purchasing the plot, in the manner, referred to above. According to Clause 5.1 of the Agreement, physical possession of the developed plot was to be delivered within a period of 42 months, from the date of execution of the same (Agreement) i.e. latest by 23.03.2018 alongwith all basic amenities required for smooth habitation. By not doing so, opposite parties no.1 to 5 have breached the terms and conditions of the agreement, leading to deficiency in providing service, negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable before this Commission. Not only as above, Section 3 of the Act provides an alternative remedy. Even if it is assumed for the sake of arguments only that the complainant has a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can also be availed of by him, as he falls, within the definition of consumer. In this view of the matter, objection taken by opposite parties no.1 to 5, to the effect that the dispute being related to contractual nature or that the plot, in question, being immovable property, as such, no relief can be granted by this Commission, as the consumer complaint is not maintainable, being devoid of merit, must fail and the same stands rejected.
12.         Now the question that needs consideration, is, as what relief can be granted to a consumer, in case of delay in offering possession of residential plot/unit purchased, in the absence of any force majeure circumstances having been faced by the builder. The said question, came up for consideration before this Commission in Ankur Gupta Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. and another, Consumer Case No.309 of 2016 decided on 22.11.2016, wherein, it was observed as under:-

“What relief can be granted to a consumer, in case of delay, in offering possession, came up for consideration before the Hon’ble National Commission, in a case titled as Parsvnath Exotica Ghaziabad Resident's Association Vs. Parsvnath Buildwell Pvt. Ltd. & Anr., consumer complaint no.45/2015, decided by the Hon’ble National Commission, on 06.05.2016, wherein, it was argued by the project proponent that at the maximum, as provided in the Agreement, the consumer will be entitled to claim penalty for delayed compensation @Rs.5/- per square feet, per month. Noting that in case of delay in making payment, the project proponent was charging heavy penal interest, instead of penal amount, the interest on the deposited amount, for the period of delay was granted, by holding as under:-

“Though, the Agreement between the developer and the flat buyers provides for payment of compensation in case of delay @ Rs.5/- per square feet of the super area per month, such clauses have been found to be unfair trade practice and have been consistently rejected by this Commission in several decision, including  Consumer Complaint No. 427 of 2014 Satish Kumar Pandey & Ors. Vs. Unitech Ltd. and connected matters decided on 08.6.2015.  Therefore, the aforesaid clauses cannot be taken into consideration, while determining the compensation payable to the members of the complainant association for the aforesaid delay in completion of construction.”

Not only this, in another case, titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, if interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, is awarded, that would meet the ends of justice.”

                Not only as above, in H.P. Housing Board Vs. Janak Gupta [2009] INSC 627 (26 March 2009) (Civil Appeal No. 6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India that in the cases of delay, in delivery of possession, award of interest @ 12% per annum, on the deposited amount, for the period of delay, would meet the ends of justice.

                Taking note of above said proposition of law, in the present case also, ends of justice will meet, if interest on the entire deposited amount, is granted for delayed period, to the complainant, whereof 23.03.2018 till possession is actually offered and delivered to him, by opposite parties no.1 to 5. Apart from that, they are also liable to compensate the complainant, for causing him mental agony, physical harassment and also financial loss.

13.           No other point, was urged, by Counsel for opposite parties no.1 to 6.
14.         For the reasons recorded above, this complaint is partly accepted, with costs. Opposite parties no.1 to 5, jointly and severally, are directed as under: -
    1. To hand over physical possession of the plot, in question, to the complainant, within a period of six (06) months, from 29.01.2019 (date of arguments) as committed by them (opposite parties no.1 to 5), during arguments, complete in all respects, after obtaining completion certificate, from the competent authorities, on receipt of legally due amount from him (complainant), towards remaining sale consideration, if any, as per the Agreement.
    2. To execute and get registered the sale deed, in respect of the plot, in question, in favour of the complainant, within two months, from the date of handing over possession of the plot as mentioned in clause (i) above, on payment of registration and stamp duty charges, by him to the Registering Authorities.
    3. To pay compensation, by way of interest @10% p.a., on the entire deposited amount, to the complainant, from 23.03.2018 i.e. promised date till 28.07.2019 (06 months from 29.01.2019 the date when arguments were heard), within 45 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry penal interest @12% p.a. instead of 10% p.a. from the date of default, till payment is made.

                However, it is made clear that, in case, possession of the plot is not delivered by 28.07.2019, then  opposite parties no.1 to 5 shall further be liable to pay interest @12% p.a., on the entire deposited amount, to the complainant, from 28.07.2019 onwards by the 10^th of the following month, till the said payment is made, which will continue till possession of the plot is delivered.

1. To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment and financial loss caused to the complainant, as also deficiency in providing service and adopting unfair trade practice, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @10% p.a., from the date of filing this complaint till realization.
2. To pay cost of litigation, to the tune of Rs.50,000/- to the complainant, within 45 days, from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @10% p.a., from the date of filing this complaint till realization.
3. Complaint against opposite party no.6 is dismissed with no order as to cost.

15.         Certified Copy of this order be sent to the parties, free of charge.
16.         The file be consigned to Record Room, after completion.

Pronounced.

11.02.2019

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

Sd/-

(PADMA PANDEY)

        MEMBER

Sd/-

[RAJESH K ARYA]

 MEMBER

Rg.