Chandigarh

StateCommission

CC/106/2019

Baljinder Kaur - Complainant(s)

Versus

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

H.P.S. Ishar, Mandeep Singh & Vipin Kumar Adv.

10 Feb 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint Case No.	:	106 of 2019
Date of Institution	:	08.05.2019
Date of Decision	:	10.02.2020

Baljinder Kaur w/o Sh.Baljinder Singh r/o VPO Lutheri, Sub Tehsil Morinda, Tehsil Chamkaur Sahib, District Ropar, Punjab 140102.
Manveer Singh s/o S.Baljinder Singh, r/o VPO Lutheri, Sub Tehsil Morinda, Tehsil Chamkaur Sahib, District Ropar, Punjab 140102 (Through Baljinder Kaur being Special Power of Attorney Holder, r/o VPO Lutheri, Sub Tehsil Morinda, Tehsil Chamkaur Sahib, District Ropar, Punjab 140102.

…… Complainants

V e r s u s

Ansal properties & Infrastructure Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh, through its authorized signatory.

2^nd address:- Ansal Properties & Infrastructure Ltd., Registered Office 115, Ansal Bhawan 16, Kasturba Gandhi Marg, New Delhi-110001, through its authorized signatory.

Sushil Ansal, Chairman/Director, Ansal Properties & Infrastructure Ltd., Registered Office 115, Ansal Bhawan 16, Kasturba Gandhi Marg, New Delhi-110001

…..Opposite Parties.

Complaint under Section 17 of the Consumer Protection Act, 1986

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

MRS. PADMA PANDEY, MEMBER.

MR. RAJESH K. ARYA, MEMBER

Argued by:-

Sh. Vipin Kumar, Advocate for the complainants.

Sh. Sandeep Kumar, Advocate for opposite parties

PER RAJESH K. ARYA, MEMBER

This complaint has been filed by the complainants, seeking refund of entire amount paid i.e. Rs.23,17,500/- alongwith interest @18% p.a. form the respective dates of deposits till actual realization and also compensation and litigation expenses, as the opposite parties failed to deliver possession of the plot purchased in their project.

2. It is not in dispute that the complainants purchased the plot measuring 112.50 square yards, in the project launched by opposite parties, under the name and style Golf Links-I, Sector 114, SAS Nagar, Mohali, Punjab, for which they have paid an amount of Rs.23,17,500/- to the opposite parties against total sale consideration of Rs.25,87,500/-. Out of Rs.23,17,500/- paid to the opposite parties, the complainant paid Rs.16,70,625/- through Housing Development Finance Corporation Ltd. vide receipt (Annexure C-6) after availing loan. Loan Agreement is Annexure C-5. As per Clause 5.1 of Agreement dated 31.12.2014 (Annexure C-1), possession of the said plot was to be delivered within a period of 42 months i.e. 36 months plus (+) 6 months extended period from the date of execution of the said Agreement i.e. on or before 30.06.2018. Admittedly, even lapse of stipulated period of more than one and a half years for delivering possession, it has not been offered or delivered by opposite parties till date as admitted during the course of arguments by their Counsel. In Para no.3 of their written statement, opposite parties have admitted that the development at the project, in question, is nearing completion and soon possession shall be offered to the complainants. It has also been stated that the complainants had already received an amount of Rs.3,40,000/- approx.. from the opposite parties towards the delay compensation, which they have not disclosed.

3. In addition to above plea, opposite parties have also raised a preliminary objection that the complainants are speculators and as such did not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act.

4. As regards the preliminary objection qua the complainants being speculators and not consumers, 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 their complaint in Para 3, the complainants have specifically averred that they booked the plot in question for their residential purpose. The averment made in the complaint to above extent is further testified by the complainants in their affidavit filed alongwith the complaint. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties 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, therefore, being devoid of merit, is rejected.

5. As stated above, in the instant case, possession of the plot in question has not been delivered to the complainants, by the date, when this complaint was filed, for want of development works at the project site. However, no cogent and convincing evidence has been placed on record to convince this Commission, as to why possession has not been delivered to the complainants. Thus, under above circumstances, at the time of arguments, we asked Counsel for opposite parties, who failed to give any positive date/time, as to when, development will be completed and possession of the plot will be given to the complainants. However, he said that it will take some more time. Despite receipt of substantial amount, referred to above, opposite parties have failed to complete development works and hand over possession thereof to the complainants. The date of offer of possession of the plot already stood expired, as far as back in June 2018. Now it is 2020. Still the complainants are empty handed. They cannot be made to wait for an indefinite period, at the whims and fancies of opposite parties.

6. Under above circumstances, it can be said that there is a material violation on the part of opposite parties, in not offering and delivering possession of the plot, in question, to the complainants, by the promised date or even as on today, thereby committing material violation on their 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. 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 complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

7. In a common judgment dated 02.04.2019 of Hon’ble Supreme Court of India in the cases of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan and Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr., it has been held that the builder cannot compel the buyer to accept possession of a residential unit after causing an inordinate delay in handing over the same to the Buyer.

8. In the present case, there is nothing on record to show that opposite parties suffered any force majeure circumstances, on account of which, development work could not be completed.

9. In the absence of any force majeure circumstances having been actually faced by opposite parties, they were bound to deliver possession of the plot, by June 2018, as such, time was, unequivocally made the essence of contract. Opposite parties also cannot evade their liability, merely by saying that since the words “shall endeavor” was mentioned in 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 plot/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 plot(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, in this regard, also stands rejected

10. 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, in view of principle of law laid down by Honble 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. Recently also, under similar circumstances, the Hon’ble National Commission in Anil Kumar Jain & Anr. Vs. M/S. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019, ordered refund of the amount paid, alongwith interest @12% p.a.

11. In view of above facts of the case, opposite parties are 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 other point, was urged, by the contesting parties.

13. For the reasons recorded above, the complaint is partly accepted with costs against the opposite parties and they are jointly and severally held liable and directed as under:-