Chandigarh

StateCommission

CC/229/2019

Dhanveer Singh - Complainant(s)

Versus

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

Rachit Kaushal Adv.

03 Dec 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	229 of 2019
Date of Institution	:	11.10.2019
Date of Decision	:	03.12.2020

 

Dhanveer Singh S/o Lt. Sh. Dayal Singh, R/o House No.6372, Rajeev Vihar, Manimajra, Chandigarh (U.T.).

……Complainant

V e r s u s

1. M/s Ansal Properties & Infrastructure Ltd. having its Registered Office at 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001, through its Chairman Sushil Ansal.

(Email: pranav@ansalapi.com)

2. Sushil Ansal, Chairman, M/s Ansal Properties & Infrastructure Ltd. 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001.
3. Pranav Ansal, Vice Chairman, M/s Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi-110001.

(Email: pranav@ansalapi.com)

Corporate Office Address:-

S.C.O. No.12-A, Ansal City Centre, Kharar-Landran Road, Sector 115, S.A.S. Nagar, Mohali (Punjab). Email: rakeshkumar@ansalapi.com

…..Opposite Parties  No.1 to 3

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-

                        

Sh.Rachit Kaushal, Advocate for the complainant.

Sh.Sandeep Kumar, Advocate for opposite parties no.1 to 3.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   This complaint has been filed by the complainant, seeking directions to the opposite parties to refund the amount of amount of Rs.15,93,873/- paid by him, from time to time, for the period between 31.10.2010 to 12.11.2011, towards purchase of a plot meant for commercial  booth bearing no.39E, measuring 33.33 square yards (in short the unit), in their project named ‘Golf Links-1 Mohali”, Sector 114, SAS Nagar, Mohali, Punjab. Total cost of the said unit was fixed at Rs.15,83,175/-. Allotment Letter/agreement, Annexure C-1, was executed between the parties on 12.11.2010. Unit was purchased under time linked payment plan. It is case of the complainant that the said unit was purchased by him for earning his livelihood, by way of self-employment i.e. to shift his electronics store from Panchkula. It has been stated that despite the fact that the entire sale consideration, referred to above, stood paid to the opposite parties by 12.11.2011, yet, they failed to deliver possession of the unit in question within a period of three years, as committed by them. Finally, vide email dated 08.08.2019, Annexure C-4, the opposite parties offered possession of the unit in question, but the same was mere a paper offer, in the absence of completion certificate. In the said email, the opposite parties offered delayed compensation, in lumpsum, for the petty amount of Rs.1,09,779/-.  However, the said email was challenged by the complainant, by way of writing email dated 14.08.2019, asking the opposite parties to compensate him on equitable grounds but to no avail. Number of visits made by the complainant to the office of the opposite parties, in the matter, also did not yield any result. Hence this complaint.

2.           The claim of the complainant has been contested by the opposite parties on numerous grounds, inter alia, that he has concealed material facts from this Commission; that he did not fall within the definition of ‘consumer’; that he is already running an electronics shop at Panchkula and has not clarified, as to for what purpose he has purchased the unit in question, meaning thereby that he is a speculator; that no time frame was mentioned in the allotment letter to offer and deliver possession of the unit in question as such now the complainant is barred from taking plea in that regard, especially in the face of the reason that it was an immovable property; that the complainant failed to make timely payments; that opposite party no.2 was not Director of the company at the relevant time, as such, he has been wrongly impleaded in this complaint;  that the complaint filed is beyond limitation.
3.           On merits, the fact with regard to payment made by the complainant towards the unit in question as mentioned in the complaint; execution of allotment letter/agreement aforesaid; non delivery of possession of unit in question for a long period of more than 8 years of booking thereof, is not seriously disputed. It has been pleaded that possession of the unit in question has been offered to the complainant vide email dated 08.08.2019, Annexure C-4, after obtaining partial completion certificate from the competent Authorities. It has been stated that the complainant was also offered compensation for delay in offering possession of the unit in question; yet, he failed to come forward to take the same and, on the other hand, has filed the instant complaint.  Prayer has been made to dismiss the complaint with cost.
4.           The parties led evidence in support of their case.
5.           We have heard Counsel for the parties, and have also gone through the evidence and record of the cases, very carefully.
6.           The first question that falls for consideration is, as to whether, the complainant falls within the definition of consumer, as defined under the Act or not.  

                   It may be stated here that it is well settled law that a purchaser of property falls under the definition of a consumer, unless it is proved that the same has been purchased by him or her, for commercial purpose i.e. reselling the same, for earning profits therefrom. The mere fact that the complainant is already running an electronics store in Panchkula and has decided to shift the said store in the unit in question, just with the same view, to earn his livelihood by way of self-employment, then in no way, it can be said that he is not a consumer. In the complaint supported by affidavit of the complainant, it has clearly been mentioned by him that purpose of purchase of the said unit was to run the same by means of self-employment, for earning his livelihood. Explanation given by the complainant that the unit in question had been purchased by him, for the purpose aforesaid, is perfectly justified and leaves no scope of doubt. At the same time, there is nothing on record to show that the complainant is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. In Laxmi Engineering Works Vs. P.S.G. Industrial Institute,  1995 AIR 1428, 1995 SCC (3) 583, the Hon’ble Supreme Court of India has specifically stated that if the commercial use is by the purchaser himself/herself, for the purpose of earning livelihood, by means of self-employment, such a purchaser of goods is a consumer. It was further said that to know that whether the goods have been purchased for commercial purpose, it is to be decided in the facts of each case. It is not value of the goods that matters, but the purpose, to which the goods bought, are put to. The principle of law laid down in Laxmi Engineering Works` case (supra)  is fully applicable to the facts of the present case.

                   Not only as above, recently also, in the case of Tosoh India Pvt. Ltd. (Formerly Lilac Medicare Pvt. Ltd.) Vs. Ram Kumar & 3 Ors., Revision Petition No. 2833 of 2018, decided on  06 Jan 2020, the Larger Bench of the Hon’ble National Commission has laid down following preposition of law, under which, consumer complaints are admissible, in respect of commercial units:-

“ (a)     Only a person engaged in large scale commercial activities for the purpose of making profit is not a consumer;

(b)     There should be a direct nexus between the large scale commercial activities in which a person is engaged and the goods purchased or the services hired or availed by him, before he can be excluded from the purview of the term ‘consumer’.  Therefore any goods purchased or the services hired or availed even by a person carrying on business activities on a large scale for the purpose of making profit will not take him out of the definition of the term ‘consumer’, if the transaction of purchases of goods or hiring or availing of services is not intended to generate profit through the large scale commercial activity undertaken by him and does not contribute to or form an essential part of his large scale commercial activities.

(c)     What is crucial for the purpose of determining whether a person is a ‘consumer’ or not is the purpose for which the goods were purchased or the services were hired or availed and not the scale of his commercial activities.

 (d)    The explanation below Section 2(1)(d) of the Consumer Protection Act is clarificatory in nature

(e)     A person purchasing goods or hiring or availing services for a consideration, for the purpose of earning his livelihood by way of self-employment is a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act.

 (f)     It is not necessary that a person should be working alone in the commercial activity undertaken by him for earning his livelihood and his family members and / or a few employees can assist him in his commercial venture.  Such assistance by his family members or by a few employees engaged by him does not convert his business or profession into a commercial activity on a large scale, for the purpose of making profit and therefore, does not exclude him from the purview of the term ‘consumer’.”

In the present case also, as stated above, the unit in question was purchased by the complainant for carrying out his business aforesaid, for earning his livelihood, by way of self employment, as such, objection raised by the opposite parties, in this regard, therefore being devoid of merit is rejected.

7.           It is not in dispute that the complainant has paid an amount of Rs.15,93,873/- to the opposite parties, for the period between 31.10.2010 to 12.11.2011, towards the unit in question, total cost whereof was fixed at Rs.15,83,175/-, however, possession thereof was offered for the first time only on 08.08.2019.  

                   At the time of arguments, Counsel for the opposite parties contended with vehemence that since no time frame was given in the allotment letter/agreement for delivery of possession of the unit in question, as such, at this stage, the complainant cannot seek refund of the amount paid on the ground of delay in offering possession.

                   On the other hand, Counsel for the complainant contended that since there has been an inordinate delay in the matter, the complainant is not bound to take possession of the unit, in question, offered vide email dated 08.08.2019, which too was mere a paper possession, as the same was offered in the absence of completion certificate.

8.           Under above circumstances, the moot question, which needs to be decided first is, as to by which period/date possession of the unit in question was required to be offered and delivered to the complainant. No doubt, in the allotment letter, there was no time frame mentioned with regard to delivery of possession of the unit in question, yet, in our considered opinion, this act of non-mentioning of exact date/period of delivery of possession, in itself amounts to adoption of unfair trade practice. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. Vs. 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”.

 

9.           No doubt, at the time of arguments, Counsel for the opposite parties consistently contended with vehemence that in the absence of any clause regarding exact date of delivery of possession, it cannot be said that there was any delay in the matter, yet, when we asked him to clarify about the candid admission made by the company in its email dated 08.08.2019, having been sent to the complainant, to the effect that “Further your query regarding compensation due to delay in possession, to compensate you we are ready to waive following…..”, he was having no answer to it and tried to wriggle out of the situation by saying that since possession offered in 2019 was a genuine one, as such, the complainant is bound to take over the same. 
10.           Be that as it may, it is settled law that in the cases, where no agreement has been executed or where there is no period mentioned therein, a reasonable period has to be taken into consideration for delivering possession of the plot/unit to the allottee because the allottee cannot be made to wait for an indefinite period in the matter.  What should be the reasonable period, in the cases where no time period is given in the agreement or otherwise, fell for determination before the Hon’ble Supreme Court of India in the case titled as  M/s. Fortune Infrastructure Appellant(s) (Now Known as M/s. Hicon Infrastructure) & anr. Versus Trevor Dlima & Ors. Civil Appellate Jurisdiction Civil Appeal No(S). 3533-3534 of 2017, decided on 12.03.2018, wherein it was held that when there is no delivery period stipulated, a time period of 3 years would be reasonable for completion of the contract. Relevant part of the said order is reproduced hereunder:-

“Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014….”

 

Similar view had been taken by the Hon’ble National Commission in M/s. Ansal Housing & Construction Ltd. & 2 Ors. Vs. Jotinder Singh, First Appeal No. 870 of 2015 decided on 10 Nov 2016.  Relevant part of the said order reads as under:-

“The first question which arises for consideration in this appeal is as to whether there was any delay on the part of the appellants in offering possession of the flat to the complainant and his son.  As noted earlier, the case of the complainant is that the appellant No.1 had assured to deliver possession within 18/24 months.  However, there is no documentary evidence of such an assurance having been given to the complainant and his son.  Ordinarily, in such transaction a particular time for delivery of possession is always given by the builder to the flat buyer and this is not the case of the appellants that they had given a period longer than 24 months to deliver possession of the flat to the complainant and his son.  However, even if it is assumed that no such assurance was actually given, it can hardly be disputed that the appellants were under an obligation to deliver possession of the flat within a reasonable time.  Considering all the facts and circumstances, a maximum period of three years from the date of booking, in my opinion, would be reasonable for completing the construction, finishing of the flat in all respects, obtaining the requisite occupancy certificate and offering possession of the flat to the complainant and his son.  Since according to the appellants, the booking was made on 23.11.2007; the possession ought to have been delivered by 22.11.2010.  That having not been done, the appellant No. 1 is required to pay adequate compensation to the complainant and his son for the delay in offering possession after completing the construction and finishing of the flat in all respects…”.  

 

11.           Since in the present case also, there is no period mentioned in any of the documents or in the allotment letter/agreement issued in respect of the unit in question, as such a reasonable period of three years from the date of booking if taken into consideration, for completing the construction/ development of the project and handing over possession of the unit in question to the complainant, will meet the ends of justice. In the present case, since booking of the unit was made on 30.10.2010, as such, the opposite parties were liable to deliver possession thereof to the complainant latest by 29.10.2013 i.e. three years from 30.10.2010. However, admittedly in the present case, possession of the unit in question was not delivered to the complainant by the said date (29.10.2013), whereas, on the other hand, it was offered vide email dated 08.08.2019 i.e. after a huge delay of more than 5 ½  years.  

                   When confronted with the situation, Counsel for the opposite parties contended that the Company had already obtained partial completion certificate dated 30.06.2017, Annexure OP-1, in respect of the project, in question, wherein the unit in question is located, as such, the complainant was bound to take over possession of the unit in question. However, when a specific question was put to him, that when the partial completion certificate was obtained on 30.06.2017, what stopped the Company to offer possession of the unit to the complainant till 07.08.2019; he was having no answer to the same. Even otherwise, perusal of contents of the said partial completion certificate reveal that the opposite parties were bound to obtain various permissions/approvals from different Govt. Departments, before having final completion certificate in their hands. However, it is not known as to whether the said final completion certificate has been obtained or not, as the same has not been placed on record, by the opposite parties. The opposite parties have failed to produce on record any documentary evidence, having been issued by the competent Authority, whereby they were exempted from obtaining final completion certificate in respect of the project in question.  Thus, in the absence of completion certificate, possession offered vide letter dated 08.08.2019 and that too after an inordinate delay is nothing but mere a paper possession, which is not sustainable in the eyes of law and the complainant was not obliged to take over the same. Our this view is fully supported by the observations made by the Hon’ble National Commission in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015, wherein, it was held that in the absence of completion certificate, the allottee is not bound to take possession of the unit. Relevant part of the said order is reproduced hereunder:-

“……..  Admittedly in the year 2012 or even in 2013, when the possession is claimed to have been offered, the Respondent was not possessed of the completion certificate from the authorities concerned.  As a matter of fact, it is conceded that requisite completion certificate has been recently received in the year 2015.  If that be so, offer of possession, stated to have been made to the Complainant in the year 2012, was no offer at all………….”

12.           Not only as above, even this much has not been proved by the opposite parties that when the project in question had been launched, they were in possession of necessary approvals/sanctions or not. This Commission vide order dated 15.10.2019, directed the opposite parties, 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 therein to the general public including the complainant 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.
7. Latest photographs of the site/unit in dispute.
8. Current list of Managing Director/Director(s) of the Company.
9. Detail of Bank Accounts of the Company.
10. 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 this complaint, despite the fact that number of opportunities were given to the opposite parties to place on record the aforesaid documents, yet, they failed to furnish the same for the reasons best known to them. Under these circumstances, we are of the considered view that by not placing on record the aforesaid documents, the opposite parties have attracted an adverse inference against them that the project in question had been launched in contravention of the Punjab Apartment and Property Regulation Act, 1995 i.e. they have failed to obtain necessary approvals/sanctions for launching the  said project and selling the units therein to the prospective buyers. As such, in the present case, it is held that irrespective of the fact that the opposite parties were having partial completion certificate in their hands (though no final completion certificate had been obtained) and possession of the unit, in question, has been offered to the complainant after an inordinate delay of more than 5 ½ years of the reasonable period referred to above and more than about 9 years after booking of the unit, in question, yet, the complainant was not obliged to take the same and is entitled to get refund of the amount paid, in view of 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. In that case, possession had been offered during pendency of the complaint after obtaining occupation certificate, though after a delay of 2 years of the stipulated date. The Supreme Court upheld the order of refund of amount paid alongwith interest, passed by the Hon’ble National Commission, while holding as under:-

        “In the present case, admittedly the Appellant – Builder obtained the Occupancy Certificate almost 2 years after the date stipulated in the Apartment Buyer’s Agreement. As a consequence, there was a failure to hand over possession of the flat to the Respondent – Flat Purchaser within a reasonable period. The Occupancy Certificate was obtained after a delay of more than 2 years on 28.08.2018 during the pendency of the proceedings before the National Commission.

         In Lucknow Development Authority v. M.K. Gupta,  this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.

        In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors.,  this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

        The Respondent – Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant –

Builder. The Respondent – Flat Purchaser was justified in terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation.”

 

13.           It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainant and, if yes, from which date. It is not in dispute that an amount of Rs.15,93,873/- was received by the opposite parties, in the above-said manner, by 12.11.2011. The said amount has been used by the opposite parties, for their own benefit, for a long time and they are still using the same. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest @18% p.a. as per Clause 16 of the Allotment Letter, for the period of delay in making payment. It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. The complainant is thus held entitled to interest from the respective dates of deposits till refund of the entire amount is actually made.  
14.           As far as objection taken to the effect that this complaint is time barred, it may be stated here that if a period of two years are taken from 08.08.2019 i.e. the date when possession of the unit was offered to the complainant, though belatedly and in the absence of completion certificate, then this complaint having been filed on 11.10.2019 is well within limitation. Objection taken in this regard, as such, stands rejected.
15.           Another objection was raised by Counsel for  the opposite parties, that since the dispute is related to unit which is an immovable property, as such, it is not maintainable before the Consumer Fora, under the Act. In other words, it was tried to say that only the Civil Court has power to adjudicate the same.  It may be stated here that the complainant hired the services of the opposite parties, for purchasing the unit, in question, on making payment of sale consideration, referred to above. The opposite parties were to deliver possession of the unit, in question, in a reasonable period, referred to above, with complete basic amenities. By not doing so, the opposite parties were deficient in providing service, negligent and guilty of 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. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed 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 be availed of by him, as he falls within the definition of consumer, as stated above. In this view of the matter, objection taken stands rejected.
16.           As far as objection taken to the effect that the complainant has defaulted in making payment towards price of the said unit, it may be stated here that in the absence of any documentary evidence in that regard, the said objection needs rejection. Even otherwise, when the opposite parties themselves were at fault in not completing the development works and offering possession of the unit to the complainant within a reasonable period aforesaid and on the other hand, despite the fact that by 2011 the entire sale consideration stood received by them, yet, possession thereof was offered after a long delay in 2019 which too was a paper possession, they are barred from taking such a plea.
17.           As far as objection taken to the effect that opposite party no.2 has been wrongly impleaded in the complaint, as he was not Director of the company at the relevant time, it may be stated here that vide order dated 15.10.2019, the opposite parties were given opportunity to place on record the list of Managing Director/Directors of the company, which they miserably failed to do so, as a result whereof, an adverse inference could easily be drawn that it was done so, only with a view to escape opposite party no.2 from his liability. The opposite parties could have easily got the name of opposite party no.2 deleted by placing on record the convincing document, starting from the inception of the Company, showing that opposite party no.2 had no role in the affairs of the company, but they miserably failed to do so. As such, objection taken in this regard stands rejected.
18.           No other point was urged by the contesting parties.
19.           For the reasons recorded above, this complaint is partly accepted with cost and the opposite parties, jointly and severally, are directed as under:-  

1. To refund the amount of Rs.15,93,873/- to the complainant, alongwith interest @12 % p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.15,93,873/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay Rs.50,000/-, in lumpsum towards compensation caused to the complainant for mental agony and harassment and cost of litigation, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

20.           However, it is made clear that, if the complainant, has availed loan facility from any banking or financial institution, for making payment of installments towards the unit in question, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.
21.           Certified Copies of this order be sent to the parties, free of charge.
22.           The file be consigned to Record Room, after completion.

Pronounced.

03.12.2020

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

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[PADMA PANDEY]

MEMBER

         

         

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(RAJESH K. ARYA)

MEMBER

 Rg