SCO No.12A, Ansal City Centre, Kharar Landran Road, Sector 115, S.A.S. Nagar, Mohali.

Head Office Address:-

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

…..Opposite party  no.1

2. Housing Development Finance Corporation Limited, through its Chairman/Managing Director/Authorized Signatory, SCO No.14, Green Park Avenue, Canal Colony, Near Nehru Sidhant Kendra, Pakhowal Road, Ludhina-141001

E-mail:- gurpeetgs@hdfc.com

…..Opposite party  no.2

Present through Video Conferencing:-

                             Sh.Rachit Kaushal,  Advocate for the complainant.

                             Sh.Sandeep Kumar, Advocate for opposite party no.1.

                             Ms.Neetu Singh, Advocate for opposite party no.2.

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1. Gurpreet Kaur, W/o Sh. Gurmit Singh, House No. I-A, Preet Hospital, Bhupindra Road, Opposite PWD Rest House, Patiala, Punjab-147001.
2. Harshpreet Singh, S/o Sh. Gurmit Singh, House No. I-A, Preet Hospital, Bhupindra Road, Opposite PWD Rest House, Patiala, Punjab-147001.

...Complainants

Versus

1. M/s Ansal Properties & Infrastructure Ltd. having its registered office at 115, Ansal Bhawan, 16, K.G. Marg, New Delhi - 110 001, through its Whole Time Directors, Sh. Sushil Ansal and Sh. Pranav Ansal.

(Also at: M/s Ansal Properties & Infrastructure Ltd. having its office at SCO 183-184, Sector 9 C, Madhya Marg, Chandigarh through its Whole Time Directors, Sh. Sushil Ansal and Sh. Pranav Ansal).

2. Sh.Sushil Ansal, Wholetime Director of M/s Ansal Properties & Infrastructure Ltd. having its office at SCO 183-184, Sector 9 C, Madhya Marg, Chandigarh.
3. Sh.Pranav Ansal, Wholetime Director of M/s Ansal Properties & Infrastructure Ltd. having its office at SCO 183-184, Sector 9 C, Madhya Marg, Chandigarh.
4. Sh.Anil Kumar, Managing Director of M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9 C, Madhya Marg, Chandigarh.

.....Opposite Parties

5. Housing Development Finance Corporation Limited (HDFC) having its office at SCO No. 153-155, Sector- 8 C, Madhya Marg, Chandigarh.

 …..Performa Party

Present through Video Conferencing:-

                         Sh.Savinder Singh Gill, Advocate for the complainants.

                         Sh.Sandeep Kumar, Advocate for opposite parties no.1 to 4.

                         Ms.Neetu Singh, Advocate for opposite party no.5.

Complaints under Section 17 of the Consumer Protection Act, 1986

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER

                             MR. RAJESH K. ARYA, MEMBER.

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   By this order, we propose to dispose of aforesaid two consumer complaints. Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts are the same. Since, the facts involved in the above complaints, by and large, are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

2.           In consumer complaint bearing no.187 of 2019 titled as Ajay Prasher Vs. Ansal Properties & Infrastructure Ltd. and anr., it is the case of the complainant that on submitting an application form dated 23.04.2012 (Annexure C-1) to opposite party no.1, vide allotment letter (Annexure C-2), he was allotted an apartment bearing no.0164-0-191, Second Floor, measuring 1245 square feet, in the project launched by it, under the name and style  “Victoria Floors Golf Links –II”, basic sale price whereof was fixed at Rs.39,22,000/-.  Thereafter, he was relocated to Unit No.B-191, Second Floor in Victoria Floors, Sector 116, Mohali, vide letter dated 12.11.2013 (Annexure C-3). However, despite the fact that substantial amount of Rs.38,54,826/-, stood paid by him to opposite party no.1, yet, it failed to deliver possession of the said relocated unit by 23.03.2017 i.e. within a period of 36 months (30 months plus (+) 6 months extended period) as per Clause 5.1 of the Agreement dated 24.03.2014 (Annexure C-4) for dearth of construction and development works at the project site. Number of requests made by the complainant, written as well as oral, to opposite party no.1 to deliver possession of the relocated unit, did not yield any result.
3.           It has been averred that for making payment towards price of the said unit, the complainant has availed housing loan from opposite party no.2, under subvention scheme, under which, opposite party no.1 committed to pay Pre-EMIs till possession of the unit is delivered, yet, it has also come to his knowledge that opposite party no.1 has defaulted in making payment of the said Pre-EMIs also, which is effecting the CIBIL score of the complainant. It has been pleaded that it has also come to the knowledge of the complainant that necessary approvals/sanctions have also not been obtained by opposite party no.1 for launching the project in question.
4.           Similarly, in consumer complaint bearing no.235 of 2019 titled as Gurpreet Kaur and anr. Vs. Ansal Properties & Infrastructure Ltd. and ors., it is the case of the complainants that on submitting an application form dated 08.06.2011 (Annexure C-1) to opposite parties no.1 to 4, they were allotted an apartment bearing no.0164-0-256 GF, measuring 1395 square feet, in the project launched by it under the name and style ‘Victoria Floors, Golf Links –II’, vide allotment letter (Annexure C-2). Total sale price of the said unit fixed at Rs.49,56,240/-.  However, in this case also, despite the fact that substantial amount of Rs.46,33,829/- stood paid by the complainants to opposite parties no.1 to 4, yet, they failed to deliver possession of the said unit by 04.03.2015 i.e. within a period of 36 months (30 months plus (+) 6 months extended period) as per Clause 5.1 of the Agreement dated 05.03.2012 (Annexure C-3) for dearth of construction and development works at the project site. It has been averred that for making payment towards price of the said unit, the complainants have availed housing loan from opposite party no.5, under subvention scheme, under which, opposite parties no.1 to 4 committed to pay Pre-EMIs till possession of the unit is delivered, yet, it has also come to their knowledge that opposite parties no.1 to 4 have defaulted in making payment of the said Pre-EMIs also, as a result whereof, the complainants had to make payment of the said Pre-EMIs. 
5.           By stating that the aforesaid act and conduct of opposite party no.1 (in CC No.187 of 2019) and opposite parties no.1 to 4 (in CC No.235 of 2019) [hereinafter called as the builder/Company),  amount to deficiency in providing service and adoption of unfair trade practice, these complaints have been filed by the complainants seeking directions to the builder/Company, to refund the amount paid alongwith interest, compensation and litigation expenses.
6.           The claim of the complainants, in both the complaints, has been contested by the builder/Company, on numerous similar grounds, inter alia, that the complainants have concealed material facts from this Commission; that they did not fall within the definition of ‘consumer’, as defined under Section 2 (1) (d) of the Act; that because the period of 36 months, for delivering possession of the units was tentative, as such, time was not to be considered as essence of the contract; and that the complaints filed are beyond limitation
7.           On merits, the fact of payments made by the complainants towards the units in question, as mentioned in the complaints; execution of agreements; non delivery of possession of the units by the promised dates or by the dates when these complaints have been filed, has not been disputed. However, it has been stated that the builder/Company  is committed to pay Pre-EMI to the Bank(s) concerned, under subvention scheme and also delayed compensation as per terms  and conditions of the agreements till offer of possession of units is delivered to the complainants; that construction of the units is almost complete; that the builder/Company, has applied for statutory permissions with the competent authorities which have not been issued till date; that the Company has already applied for occupation certificates with the competent authorities, and as soon as the same are received, possession of the respective units will be delivered to the complainants.
8.           In consumer complaint bearing no.235 of 2019, an additional objection has been raised by the builder/Company, that opposite party no.2 i.e. Sh.Sushil Ansal, has been wrongly impleaded as necessary party in this complaint, as he was not the Director of the Company at the relevant time, and as such, his name be deleted from the array of parties in the complaint. Prayer has been made to dismiss the complaints.
9.           HDFC Limited (opposite party no.5 in CC No.235 of 2019 and opposite party no.2 in CC No.187 of 2019) in its respective written versions pleaded that since no specific allegations have been levelled against it, as such, it has no concern, with the dispute, qua the complainants and builder/Company However, its Counsel pleaded that, in case, this Commission comes to the conclusion that the complainants are entitled to refund of amount paid, then first charge be ordered in favour of HDFC Limited (opposite party no.5 in CC No.235 of 2019 and opposite party no.2 in CC No.187 of 2019), so that it is able to seek apportionment of its dues, in the respective cases.
10.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavits. In pursuance thereof, they have adduced evidence and also produced numerous documents.
11.           We have heard the contesting parties and have gone through the evidence and record of the cases, very carefully.
12.           First we will deal with the objection raised to the effect that the complainants did not fall within the definition of  ‘consumer’. It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the builder/Company to establish that the complainants, in both the complaints, have purchased the respective units in question to indulge in ‘purchase and sale of units/flats’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainants, in both the complaints, are consumers as defined under Section 2(1)(d) of the Act.
13.           There is no dispute with regard to the fact that, the complainants had booked the units, in question, in the project of the builder/Company, against which substantial amounts, referred to above, have been  received by the Company. It is also not in dispute that  possession of the units booked by the complainants, was not offered to them, by the promised dates i.e. by 23.03.2017 [within a period of 36 months (30 months plus (+) 6 months extended period] as per Clause 5.1 of the Agreement dated 24.03.2014 (Annexure C-4) in CC No.187 of 2019 and by 04.03.2015 [ within a period of 36 months (30 months plus (+) 6 months extended period] as per Clause 5.1 of the Agreement dated 05.03.2012 (Annexure C-3) in CC No.235 of 2019, for dearth of construction and development works at the project site. This fact has also not been disputed by the Company, in the written replies filed in these complaints. However, in the written replies filed, no firm commitment to hand over possession of the units in the near future has been made by the Company. It has only been casually stated that work is almost complete and possession  of the unit will be delivered soon, on receipt of statutory clearances and occupation certificates from the competent Authorities.  

                   At the time of arguments also, Counsel for the builder-Company failed to apprise this Commission, as to by which date, construction will be completed and possession of the units, can be handed over to the complainants. Not even a single reason has been given for delay in offering possession of the units in question to the complainants. It may be stated here that during pendency of these complaints, this Commission vide orders dated 29.08.2019 and 22.10.2019 directed the builder-Company through its Counsel, to produce on record the following documents, duly authenticated, to apprise us, as to whether, the Company was competent to launch the project and sell units/plots therein to the general public including the complainants or not:-

1. “ Registration Certificate of the project with the competent authority.
2. Copy of requisite Licence issued by the Competent Authority under Punjab Apartment and Property Regulation Act 1995.
3. Change of Land Use (CLU) pertaining to the project in question.
4. Letter of Intent (LOI).
5. Copy of approved site plan of the project.
6. Completion Certificate of the project.

1. Latest photographs of the site/unit in dispute.

7. Current list of Managing Director/Director(s) of the Company.
8. Detail of Bank Accounts of the Company.
9. List of properties both moveable and immoveable of the company and its Managing Director/Director(s) which can be attached in execution of the decree”.  

However,  it is significant to mention here that even thereafter also during pendency of these complaints, despite the fact that number of opportunities were given to the builder-Company  to place on record the aforesaid documents, yet, it failed to furnish the same for the reasons best known to it. Under these circumstances, we are of the considered view that by not placing on record the aforesaid documents, the builder-Company has attracted an adverse inference that the project in question had been launched in contravention of the Punjab Apartment and Property Regulation Act, 1995 i.e. it has failed to obtain necessary approvals/sanctions for launching the  said project and selling the units therein to the prospective buyers. Our view is further fortified from the contents of joint written replies filed by builder-Company, in the respective complaints, wherein, it has been candidly stated that period of possession was to run from the date when all approvals/ sanctions/permissions in respect of the project in question were received, which are still awaited, which clearly means that the same had not been obtained before launching the project in question. This act of builder-Company amounts to deficiency in providing service and adoption of unfair trade practice.

14.           It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present cases, not even an iota of evidence has been placed on record by the builder-Company to prove as to at what stage, construction and development work has reached at the project site and that as to whether approvals/sanctions have been obtained from the competent Authorities to launch the said project. In case, the development/construction activities are being undertaken and almost complete at the project site, then it was for the builder-Company, 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/construction activities, are being undertaken and almost complete at the site or not, but it failed to do so.

                   Furthermore, there is nothing on record to show that the builder-Company suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of units was not delivered to the complainants by the committed dates, referred to above, or even thereafter.

15.           From the peculiar circumstances of this case, it has been proved that the builder-Company made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in a disadvantageous contract with builder-Company and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainants to enter into the contract by way of signing agreements, referred to above, and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the builder-Company.
16.           As far as objection taken by the builder-Company to the effect that  time was not the essence of contract, it may be stated here that, in the absence of any force majeure circumstances, having been faced by it, it was legally bound to deliver possession of the units in question, by the committed dates, referred to above.  Other than the Clauses referred to above, with regard to delivery of possession of the units by the stipulated period, there is no Clause, which speaks about the period/date for delivery of possession of the units to the complainants. Thus, the builder-Company cannot wriggle out of the commitments made vide the Clauses aforesaid, with regard to time/period for delivery of possession of the units, in each complaint. It is therefore held that time was unequivocally made the essence of contract. In view of above, plea of the builder-Company to the effect that time was not essence of the contract or that no definite period was given to offer possession of the units, being devoid of merit stands rejected.
17.           In CC No.187 of 2019 possession of the unit in question was to be delivered by 22.03.2017 and in CC No.235 of 2019 on 04.03.2015, yet, the same has not been done so far. There has been an inordinate delay in the matter. Still, the builder-Company is not sure, as to by which date, possession of the units can be delivered to the complainants, in each complaint. The complainants cannot be made to wait for an indefinite period on the bald assurances given by the builder-Company that they are ready to pay compensation for the period of delay in delivering possession or that they are committed to pay Pre-EMI to HDFC Limited, from where loan has been obtained by the complainants, under subvention scheme, in both the complaints.

                   It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. Our view is 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 Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present cases also, since there has been an inordinate delay in offering possession of the units, in question, and the same is still continuing one, as the builder-Company is not sure as to by which date/year possession of the units could be delivered to the complainants, as such, we are of the considered opinion that if we order refund of the amount paid by the complainants alongwith interest, in each complaint, that will meet the ends of justice. 

18.           Now, we will deal with the question, as to what rate of interest should be awarded to the complainants, while ordering refund of amount paid, in each case. It may be stated here that a similar question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver possession of residential units/plots, by the stipulated date, fell for determination before the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon`ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. The Hon’ble National Commission also, in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019 while ordering refund of the amount paid, awarded interest @12% p.a.  

                   Not only as above, even under Section 12 of the PAPR Act, read with Rule 17 of the Rules thereunder,  it has been specifically mentioned that if the amount is to be refunded, it is to be refunded alongwith interest @12% p.a. It is therefore held that if interest @12% p.a. is awarded on the amount to be refunded to the complainants, in each case, that will meet the ends of justice.

19.           Since, it is an admitted fact that possession of units in question, in both the complaints, has not been offered to the complainants by the date these complaints have been filed or even thereafter, nor the Company is in position to do so, as explained above, as such, there is a continuing cause of action in their favour to file these complaints in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard, as such, is rejected.
20.           As far as objection taken by the builder-Company, in CC No.235 of 2019, that Sh.Sushil Ansal-opposite party no.2 has been wrongly impleaded as party to this complaint as he was not the Director, at the relevant time, it may be stated here that the complainants by way of placing on record signatory details (Annexure C-8) of the Company (wherein the CIN/LLPIN has been mentioned), has proved that opposite party no.2 remained the Whole time Director of the Company starting from 30.06.1967 till 11.08.2018. In this complaint, the complainants have booked the unit on 08.06.2011 and made payments to the company starting from 11.06.2011 to 13.01.2014 i.e. during the period when opposite party no.2 was holding the position of Whole Time Director in the Company. Opposite party no.2 alongwith other Directors, names of whom have been mentioned in this complaint, are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company and will be jointly and severally liable alongwith the Company, for all the acts done. Similar view was taken by the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017. In this view of the matter, objection taken stands rejected.
21.           At the time of arguments, another objection was taken by Counsel for the builder-Company to the effect that since the parties by way of Clause 11.2 of the agreement have agreed that any dispute arising out of the units, in question, shall be got resolved by the courts, wherein the project in question is located i.e. Mohali, as such, jurisdiction of  this Commission is ousted. We do not agree with the objection raised, for the reasons to be recorded hereinafter.