Chandigarh

DF-I

CC/134/2021

Rajbir Singh Bhangal - Complainant(s)

Versus

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

Narender Yadav

13 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/134/2021
Date of Institution	:	3.3.2021
Date of Decision	:	13/2/2024

 

RAJBIR SINGH BHANGAL S/o Late Sh. Avtar Singh Bhangal, Premanent Address R/o H. No. 3046, Sector-19-D, Chandigarh

2nd Address

RAJBIR SINGH BHANGAL S/o Late Sh. Avtar Singh Bhangal, 69 Springacre Road, ThornsLands, Queensland, Australia.

 

........Complainant

 

Versus

 

1. ANSAL PROPERTIES & INFRASTRUCTURE LTD., through its Managing Director, 1202-04, Antriksh Bhawan 22-Kasturba Gandhi Marg, New Delhi - 110001.

 

2. ANSAL PROPERTIES & INFRASTRUCTURE LTD., through its Branch Manager, office at Sco 183-184, Sector 9 C, Madhya Marg, Chandigarh- 160009

Both  OPs No.1&2 deleted vide order dated 27.3.2023

 

3. CONCORD HOSPITALITY PRIVATE LIMITED through Sh. Harpinder Singh Gill Managing Director, Registered office at 1, VPO Bal Sachander, Airport Road, Ajnala Road, Amritsar - 143101.

 

4. CONCORD HOSPITALITY PRIVATE LIMITED office at 38, Court Road, Amritsar-143001 through its authorized personel.

 

5. AMRITSAR WORLD TRADE CO. PRIVATE LIMITED through its Managing Director, registered office at Radisson Blu Hotel (blessing Project Office) Airport Road, Amritsar-143001.

Opposite Parties

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR	MEMBER

                       

ARGUED BY	:	Sh. Narender Yadav, Advocate for complainant.
	:	OP No.1&2 deleted vide order dated 27.3.2023
	:	Sh. Gunjan Rishi, Advocate for OP No.3 to 5.

Per surjeet kaur, Member

     Briefly stated the complainant purchased a commercial unit from OPs for his livelihood, through one Jotinder Singh the previous purchaser who booked the same with OP on 11.9.2007 and  with the said Jotinder Singh, the complainant entered into an agreement  for purchase of the unit in question. Accordingly the OPs transferred the unit in question in the name of the complainant vide endorsement dated 17.10.2008 and as such the complainant stepped into shoes of Jotinder Singh.  The total cost of the unit in question was Rs.48,00,000/- and the complainant has paid an amount of Rs.33,60,000/-. As per clause 11 of the agreement the possession of the unit was to be handed over in three years from the date of booking/allotment after obtaining all necessary sanction from the competent authority. However on 15.10.2013 the complainant received a letter from OPs intimating that the above said OPs entered into an agreement dated 11.06.2013 vide which the OP No. 3 & 4 has agreed to takeover the business of the said project completely including its management, all obligation, warrantees, representation made to the allottes by the OP No. 1 and 2 in entirely in accordance with the terms of the agreement entered into between the parties with any consent of the complainant.  The complainant objected the said action and filed various complaints before the appropriate forums. It is alleged that the OPs even after receiving huge amount from the complainant neither handed over possession of the unit in question nor refunded the deposited amount. 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 Parties NO. 3 to 5 while admitting the factual matrix of the case stated that the complainant has no jurisdiction to file complaint before this Commission as he is not a Indian Citizen and  he is resident of Australia. However, it is admitted that the complainant had paid an amount of Rs.33,60,000/- towards the payment of the unit in question out of the total sale consideration of Rs.48,00,000/-. It is alleged that the complainant is defaulter in payment of the remaining amount despite of various  reminders sent to him from 2013 to 2019. It is averred that the answering OPs offered possession to the complainant vide letter dated 12.11.2013 and asked for remaining price, however, the complainant did not come forward. Thus the complainant is himself a defaulter and there is no deficiency on the part of the OPs. All other allegations made in the complaint has been  denied being wrong.
3. OP No.1&2 deleted vide order dated 27.3.2023.
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 admitted fact as well evident from Annexure C-4  that the complainant paid Rs.33,60,000/- towards the price of the unit in question. The total sale consideration of the unit was Rs.48,00,000/-. As per case of the complainant he entered into agreement with Ops No.1&2 earlier but later on OPs No.3&4 agreed to take over the business of the said   project completely including its management, all obligations, representation made to the allottees, which is evident from Annexure C-5 letter dated 15.10.2013 in which there is reference of MOU among the parties dated 11.6.2013 and admitted fact of the parties as well.  
8. The grouse of the complainant is that despite of depositing huge chunk of his hard earned money with the OPs neither the possession of the unit in question has been taken over by the complainant due to the changed circumstances  of taking over the project in question by the OPs 3&4 being stranger to him and due to this change of ownership the complainant has lost his faith and interest to buy the unit in question nor the  refund has been made by OPs No.3,4, and 5 despite of the present litigation.
9. Undoubtedly, as per Exhibit OP-1-2 at page 28 and 32 dated 11.6.2013 it is very much clear that the OPs No.1&2  handed over the project to OPs No.3&4. Admittedly,  money was received by the OPs in the year 2008-2009 and as per agreement the possession of the unit was to be delivered by the developer to the allottee in 3 years time from the date of booking/allotment after obtaining all necessary approval and sanctions from the sanctioning authorities. Surprisingly it is an admitted fact that the offer of possession was made to the complainant on  12.11.2013 vide Annexure OP-3/1 that too without having necessary permissions with them and consequently the complainant did not pay further to the Ops as a result of which the Ops cancelled the unit in question vide Annexure OP-3/7.
10.  The OPs have received a huge amount of his hard earned money from the complainant without having necessary approvals from the competent authorities and used the hard earned money of the complainant but did not hand over the physical possession of the same after obtaining necessary permissions from the authorities concerned. Hence, there is deficiency on the part of the OPs. The OPs have failed to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainant knowing fully well in absence of necessary clearances by the competent authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject flat.  If the OPs chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are to blame themselves for the same as the purchaser of the subject unit has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

11.      It has thus been proved on record that money had been collected from the prospective buyers including the complainant, without obtaining statutory approvals/ clearances. Collecting money from the prospective buyers and selling the units in the project, without obtaining the required licence/approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble 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 31.5.2018 and the relevant portion of the order reads as under:-

“…………….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…………”

12. The complainant’s case is also covered by the judgment of Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 in which it was held that non delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of the builder and in those cases, allottees are well within their rights to seek refund of the amount paid. The above view is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
13. Recently, the Hon’ble National Commission in Sanjiv Kumar Jain & Anr. Vs. Lodha Crown Buildmart Private Limited, II (2023) CPJ 271 (NC) has held that inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund on this ground alone and if unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined.  The relevant headnote of the order is reproduced below for ready reference :-

“(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Housing — Booking of duplex flat — Non-delivery of possession — Deficiency in service — Inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund, on this ground alone — If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined — As there was unreasonable delay in offer of possession, complainants are entitled for refund of full amount under Clause 11.3 of agreement — Home buyer cannot be made to wait for possession of flat for indefinite period — Opposite party is directed to refund entire amount deposited by complainants with interest @ 9% per annum from date of respective deposit till date of payment.”

 

14. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs No.3,4 and 5 are directed as under:-

1. to refund Rs.33,60,000/- with interest @9% P.A. from the respective dates of deposit till onwards.
2. to pay Rs.50,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

15.      This order be complied with by the OPsNo.3,4, and 5 within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
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.

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member