Delhi

StateCommission

CC/521/2017

SHRUTI JAIN - Complainant(s)

Versus

ANSAL PROPERTIES & INFRASTRUCTURE LTD. & ANR. - Opp.Party(s)

ARNAV NARAIN

23 Dec 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :23.12.2019

Date of Decision : 15.01.2020

COMPLAINT NO.521/2017

In the matter of:

 

Shruti Jain,

C/o. Mr. Bharat Bhushan Jain,

4239 A/1 Ansari Road,

Shakahar  Building,

Darya Ganj,

New Delhi-110002.                                                                               …..Complainant

 

Versus

 

1. Ansal Properties and Infrastructure Ltd.,

Through CEO/ Managing Director/

Authorised Representative,

Regd. Office:

115 Ansal Bhawan,

16 Kasturba Gandhi Marg,

New Delhi.

 

2. Ansal Hightech Townships Ltd.,

Through CEO/ Managing Director/

Authorised Representative,

56, UGF, Ansal Plaza,

Plot No.1/C, Institutional Area,

Near Pari Chowk,

Greater Noida,

1.  

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The case of the complainant is that she booked a plot of land for her personal use, based on false, misleading and deceptive promises and representations made by OP. Plot no. was 247, measuring 1000 sq. yrds in Sector-4B, Sushant Metropolis, Greater Noida.  It was claimed in the advertisements dated 15.07.08 and 16.05.11 that the project was located on the expressway at just 30 minutes distance from Delhi. It was also represented that plots would be freehold and not leasehold. It was  not disclosed that complainant would be required to pay change of land user charges at  the subsequent stage.
2. OP-1 is developing high-tech township comprising of various plots, raw houses/ flats, bungalows, high rise apartments, schools/ educational institutions, hospitals/ health centers, corporate parks, commercial and retail centers, hotels/ clubs and leisure areas etc. OP-2 is a special purpose vehicle (SPV) formed by the consortium members after getting selected to execute the project and conferred  by its powers of the execution and marketing. In terms of high-tech township policy, OP-2 was permitted to allot plots of different specification and sizes, developed/ constructed to its allottees on its own terms and conditions. OP-2 also authorised to carry out and complete internal and external development of various services on its own as per standard specifications confirming to government policies and relevant BIS codes, guidelines and practices.
3. Agreement dated 16.04.07 was entered into between the complainant and OP-1. The complainant paid Rs.29,40,000/- copy of the receipt is annexure-C/2. OP-2 by letter dated 01.09.08  allotted plot no.247 in Sector-4B and requested the complainant to pay Rs.2,31,354/- within 45 days. According to that  letter the total cost of the plot was Rs.11,93,771 which includes basic sale price, preferential charges and EDC. Out of the said price Rs.7,40,000/- was apportioned out of the payment received vide agreement dated 16.04.07 and Rs.2,22,417/- refundable towards deficit area was to be deducted leaving a balance of Rs.2,31,354/- to be paid within 45 days.
4. It is mentioned in clause 4 of the terms and conditions as set out in the allotment letter that developed plot allotted by government agencies are generally  on leasehold basis, in cases where land is acquired by the government and same is transferred to development company on leasehold basis with  the result  that the buyers of the plot get leasehold rights and if they choose to get land converted, conversion charges are paid by them to the government. However  for the benefit of the complainant and in order to transfer freehold rights in plot of land, OP procured land directly from farmers at market price by paying full stamp duty and other charges. Consequently premium charges of 12% of the sale price was to be charged from all allottees at the time of taking possession of the plot. The complainant paid Rs.2,31,354/- vide receipt annexure-C/4. The complainant protested against demand of premium charges by OP-2 vide letter dated 01.09.08. She attached cheque of Rs.4,18,896/- with  her letter dated 14.10.08.
5. The complainant with her mother Ms. Nirupma Jain filled up application form dated 14.10.08 for allotment of residential plot no.247 measuring 270  sq. mtrs (approximately  322.92 sq. yrds) at the rate of approximately Rs.4,913.41 per sq. mtrs (Rs.4,108.20 per sq. yrds) in Sector-8 in Megapolis. Thereafter she entered into plot allottee(s) arrangement dated 16.10.08 with OP-2. She was required to pay Rs.11,97,452/- within 45 days from the date of booking and Rs.1,29,168/- on or before 10.12.08.  She paid Rs.7,40,000/- and Rs.2,31,354/- vide receipt dated 16.10.08 and 18.10.08 respectively. She also paid Rs.1,11,214 vide receipt dated 12.02.09 which is annexure-C/11. OP-2 sent letter 25.02.09 reminding payment Rs.2,44,052/- as against the basic price of Rs.13,26,620/-. OP-2 sent further reminder dated 08.04.09. The complainant sought clarification as to how further payment of Rs.2,44,052/- has been claimed. Still she sent cheque for said amount without prejudice to her right and contentions. Receipt dated 05.05.09 was received for that amount copy of which is annexure-C/15.
6. Complainant vide letter dated 09.06.11 and 30.06.11 requested that name of her mother be struck down for plot no.4B/247 which will be solely owned by her. She paid Rs.13,26,620/- in addition to Rs.29,40,000/- paid at the time of entering into an agreement dated 16.04.08.
7.  OP-2 sent letter dated 22.10.11 intimating that possession of certain houses and plots including plot no.247 in Sector-4B was being offered around Diwali. OP-2 requested the complainant to pay Rs.1,97,298.98/- for interest free security for maintenance, interest payable as on date and CIC & CLU charges within 15 days failing which interest was to accrue and holding charges of Rs.2 per sq. yrd per month from  sixteenth day from the date of offer. Vide letter dated 20.03.12 OP-2 demanded Rs.2,53,250.65/- towards different heads and Rs.64,584/- towards total interest free security for maintenance within 30 days  vide email dated 24.04.12 OP-2 clarified that freehold charges in respect of plot no.247, Sector-4B were to be charged @6% instead of 12% as mentioned in the agreement. Vide letter dated 20.03.12 OP-2 requested the complainant to clear dues  and take possession of the plot and to get the sale deed executed.
8. Vide letter dated 05.07.13 OP-2 demanded Rs.1,74,960/- with interest of Rs.20,290/-, totalling Rs.1,95,250/- for City Infrastructure charges and change of  land use charges. She had already objected to  said charges in respect of plot no.4B/247, Plot no.4B/231 and 232 vide letter dated  30.11.13 on the ground that she had already paid entire sale consideration at the time of entering into an agreement with OP-1. OP-2 sent another letter dated 13.02.14 demanding Rs.1,95,668.13/-. Yet another letter dated 27.04.14 was sent informing that holding charges were being levied @Rs.5/- per sq. yds. Per month w.e.f. 01.06.12. The OPs were offering possession but plots were not developed and basic amenities were yet  not provided. The map shows plot next to wide road whereas the photos show the road of only 9 meters. The Ops have not provided any amenities including water, electricity and roads. The plots were not levelled and there  was no infrastructure development in the area. The alleged offer of possession was merely  a paper possession. Photos of the plot are annexure-C/29.
9. No firm date for the delivery of possession was given  at the time of booking. The same  amounts to unfair trade practice. There was delay of more than 8 years as on the date of filing the complaint which is deficiency in service and negligence on the part of OP. The OPs have illegally collected Rs.13,26,620/-. The OPs have charges preferential location charges including EDC and  preferential location charges which amounts to deceptive practice and falls within the meaning of unfair trade practice. The OPs increased interest free security for maintenance from Rs.47,840/- to Rs.64,584/-. Similarly they  increased CIC and CLU from Rs.1,28,168/- to Rs.1,74,959.67/- besides Rs.5,000/- as water connection charges, Rs.5,500/- as sewer connection charges, Rs.5,500/- as rain water connection charges and Rs.42,000/- as electrical connection charges totalling a sum of Rs.2,53,250.65/- including interest free security for maintenance. Hence this complaint for directing OP to cease and desist order, to hold that agreement dated 16.04.07 would prevail and subsequent agreement, setting aside demand for interest free security for maintenance, CIC charges, CLU charges, water connection charges, sewer connection charges, rain water connection charges and electrical connection charges totalling Rs.2,53,250.65/- demanded by letter dated 23.02.12. The complainant has also prayed for directing the OP to give immediate legal possession of plot no.4B/247 Sushant Metropolis without charging holding charges and not to take ay coercive step again the complainant. She has prayed for waiving of subsequent demand including premium charges with interest @36% compounded annually  from dates of respective deposits till the date of payment. Further she has claimed compensation of Rs.20 lakhs on account of pecuniary loss, mental agony and physical harassment. She has demanded interest @  18% p.a. on entire amount deposited by her from the date of deposit till the date of handing over possession and Rs.5 lakhs as cost of litigation.
10. OP filed WS raising preliminary objection that there is arbitration clause in para-49 of the plot allottee arrangement. This Commission has no pecuniary jurisdiction as the basic sale price of the plot is Rs.13,26,620/- only, the complainant is an investor as she has mentioned in the complaint itself that she booked plot of 1000 sq. yrds. This commission has no territorial jurisdiction as subject matter  of the dispute is near township of Dadri, adjoining Greater Noida, UP. The complaint is barred by limitation. Clause 22 of the agreement mention that in the event of force majeure, the date of possession may get extend and shall not be deemed to be deficiency on the part of OP. Development linked payment schedules were critical to the subject of the project and complainant failed to make payments demanded by OP. On merits it pleaded that no other allottes has any grievance with regard to the charges  levied because they understand  that OP is levying only  legitimate charges. PLC is charged on the basis of plot buyers agreement. OP is not entitled to receive interest. OP has already offered possession of the plot and is still willing to offer possession provided, the complainant paid its dues.
11. The complainant filed rejoinder controverting the defence of the OP and reiterating her own stand in the complaint. Three member bench of NC in CC no.501/15 titled as Aftab Singh vs. Emmar MGF Land Ltd decided on 31.08.16 held that consumer disputes cannot be referred to arbitration. The complainant has paid Rs.29,40,000/- besides Rs.13,26,620/-. She has paid Rs.42,66,620/- which squarely falls within the pecuniary jurisdiction of this Commission. Clause 18 of the buyers agreement dated 16.04.07 provide that only courts at Delhi/ New Delhi have jurisdiction to entertain any dispute relating to the subject matter. Hence this Commission has territorial jurisdiction. The OP has failed to deliver complete/ vacant/ peaceful possession of the flat and there exist a continuous  cause of action for filing the complaint. The OP has failed to produce any evidence to show existence of any force majeure condition.
12. The  complainant filed her own affidavit in evidence reaffirming. The averments in the complaint and exbiting the documents as exbt. C/1 to C/29.
13. On the other hand the OP no.2 filed affidavit of Shri Amit Kumar Shukla, AR which is on the lines of WS.
14. I have gone  through the  material on record and heard the arguments. Booking by the complainant, and payment made by complainant and non handing over of possession by the OP are not in dispute. As regards the objection of arbitration clause it may be observed that Hon’ble Supreme Court has affirmed the view of National Commission in the case cited by complainant in her replication. The same is reported in I (2019) CPJ 5. It was held that remedy under Consumer Act is in addition to other remedies.
15. As regards pecuniary jurisdiction, it may be mentioned that it is not the price of the plot alone which is to be seen. The aggregate value of the relief claimed are to be seen. It was held by three members bench of NC in Amrish Kumar Shukla that interest has also to be counted. The payment was made in 2007 and now we are in 2020. If the interest for 13 years is added, this Commission would get pecuniary jurisdiction. The complainant has also claimed compensation of Rs.20 lakhs and cost of litigation to the extent of Rs.5 lakhs. The aggregate value exceeds much above Rs.20 lakhs from where the pecuniary jurisdiction of this Commission starts.
16. Regarding territorial jurisdiction it is sufficient to say that consumer court at a place where the registered office of the OP is situated, has jurisdiction. For this reliance may be placed on decision of NC in R.P. no.3263/11 titled as Housing Board Haryana vs. Inderjit Garg decided on 29.02.12 and FA no.1728/16 titled as Rohit Srivastava vs. Paramount Villas (P) Ltd decided on 05.07.17. Decision in Pratap Chand Sinha vs. Kindle Developers 2017 SCC online NCDRC 1252 is to the same effect.  The agreement was executed in Delhi, payment was made in Delhi. Thus the objection of the OP in that regard is over ruled.
17. The plea of OP that complainant is investor is farce upon farce. Size of the plot is not decisive whether it is investment. The OP has to show that complainant booked other plots in the same project or other projects and disposed of the same. OP has to adduce evidence in that regard. In Venkatesh vs. Ashwini Kumar Harinath Babu IV (2016) CPJ 552 NC held that number of flats is immaterial for deciding whether booking was commercial. OP has to give evidence that complainant was engaged in business of  sale and purchase. Similar view was taken by Hon’ble SC in CA  10611/13 titled as Sanjay Bansal vs. Vipul Ltd. decided on 12.04.19.
18. The plea of complaint being barred by limitation is to be mentioned for being rejected only. The complainant has sought possession of the plot. In such cases cause of action is continuous as per decision of NC in Satish Pandey III (2015) CPJ 440.
19. The plea of force majeure is usual plea taken by all builders and seldom accepted by court. Non availability of labour, slow down, civil commotion are not force majeure as per decision of NC in Satish Pandey vs. Unitech. III (2015) CPJ 440. It is only natural calamity which can be termed as force majeure.
20. The OP has not denied the averments of the complainant in  para-5 (XXVII) that plots are not developed and basic amenities are  yet not provided as agreed by the OP. The Ops have not provided any amenities in the plot including water, electricity and roads. The plots are not levelled and there is no infrastructure development in the said area. Under these circumstances the alleged offer of possession by the OPs was merely a paper possession. Thus the said averments of the complainant must be deemed to have been admitted by the OP.
21. Still further the complainant has filed photograph of the plot which are annexure-C/29. The photos are placed at pages-100 to 104 of the complaint file. The same show that lots of vegetation are growing on the entire chunk of land.
22. The OPs have not filed any photo to counter the photos filed by the complainant. Thus it must be held that the land is still undeveloped. In this circumstances  the offer of possession in letter dated 22.09.12 which is annexure-C/23 is a fraudulent offer.
23. It is true that the agreement does not provide any date by which possession was to be handed over. Still it does not mean that it was an indefinite period. At the most the OP can be excepted to  it hand over possession within three years meaning thereby the OP should have handed over possession till 2010.
24. Clause  1.8 of agreement dated 16.10.08 which is annexure-C/7 at page 40 of the file reveals that the price was inclusive  of external development charges. Still the OP has been demanding charges under one hand or the other.
25. The agreement is one sided and unconscionable it provides for interest claimable by the OP, holding charges claimable by the OP. But it does not provide as to what the complainant would be entitled if there is a delay in developing the plot and handing over the possession.
26. It is shocking that complainant made entire payment for plot of 1000 sq. yrds. To the extent of Rs.29,40,000/-. Later on the plot was bifurcated in three plots and the complainant had been required to pay from time to time, she had been making the payment though under protest. She paid Rs.13,26,620/- subsequently. Still the OP demanded interest on late payment.
27. It is settled law that maintenance charges can be claimed only from the date of handing over possession. In this regard reference with advantage may be made to decision of NC in 1 (2016) CPJ 371 demand for holding charges and security for maintenance stand on the same footing. When there is no development at the site, no plot has been ear-marked, there is no question of maintaining the same or providing security for the same.  On the same analogy there is no occasion for claiming holding charges.
28. In Khandelwal Cooperative Housing Society vs. Orra Realtors (P) Ltd. III (2017) CPJ 541 NC directed OP to pay penalty @Rs.125/- per sq. ft. till occupancy certificate.
29. In CC no.949/16 titled as Parbha Chandran vs. Parsvnath decided on 14.07.17 NC directed OP to pay interest @9% p.a. till completion certificate.
30. In Treaty Construction & anr. Vs. Ruby Tower Co-op. Housing Society, II (2018) CPJ 54 NC granted compensation  when occupancy certificate was not there.
31. In Mahima Real Estate (P) Ltd. Vs. Sameer Rajoria III (2017) CPJ 30B CN Raj held that offer of possession without occupancy certificate is not genuine offer.
32. In Union of India vs. Tata Chemicals (2014) 6 SCC 335 it was held that obligation to refund money received and retained without right, carries interest.
33. To sum up it is held that OPs are guilty of unfair trade practice and is deficit in service. OPs are directed to give physical possession of plot no.4B/247 Sushant Megapolis as soon as the development in the area is completed and not to take any coercive step against the complainant till that date. They are further directed not to claim any amount on account of holding charges. The OP are directed not to charge maintenance charges or security charges till the date of handing over possession. They are further directed to pay interest @12% p.a. from the committed date of possession i.e. 16.04.10 till the date of actual handing over of possession on the amounts paid by the complainant from time to time, as compensation for delay in handing over possession. The complainant is also allowed compensation of Rs.5 lakhs for mental agony, physical harassment and Rs.1 lakhs as cost of litigation. However the complainant would pay stamp duty and registration charges at the time of handing over possession. 
34. Copy of the order be sent to both the parties free of cost.
35. File be consigned to record room.

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)