Chandigarh

StateCommission

CC/221/2019

Gagandeep Kaur - Complainant(s)

Versus

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

Navneet Jindal Adv.

13 Mar 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	221 of 2019
Date of Institution	:	26.09.2019
Date of Decision	:	13.03.2020

 

1. Gagandeep Kaur D/o Mohinder Singh, resident of H.No.18, Mehar Singh Colony, Tirpuri, Patiala, Punjab.
2. Mohinder Singh S/o Sunder Singh, resident of H.No.18, Mehar Singh Colony, Tirpuri, Patiala, Punjab.

…… Complainants

V e r s u s

1. Ansal Properties & Infrastructure Ltd., through its Authorized Signatory/Managing Directors

Corporate Office Address:- SCO No. 183-184, Sector 9-D, Madhya Marg, Chandigarh-160009.

Second Address:- 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, Chandigarh-110001.

Third Address:- Ansal API, Golf Links II, Sector 116, Mohali, Punjab.  

 

2. Managing Director, Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, Chandigarh-110001.

…..Opposite Parties No.1 and 2

 

3. Housing Development Finance Corporation Limited (HDFC) through its Authorized Signatory/Managing Directors: SCO No.153-155, Sector 8C, Madhya Marg, Chandigarh-160018.

…..Proforma opposite party  no.3

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR. RAJESH K. ARYA, MEMBER.

 

Argued by:-      Sh.Navneet Jindal, Advocate for the complainants.

                         Sh.Sandeep Kumar, Advocate for opposite parties no.1 and 2.

                         Ms.Neetu Singh, Advocate for proforma opposite party no.3

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

         

                   The above captioned complaint has been filed by the complainants seeking refund of amount of Rs.38,41,283/-, paid by them towards purchase of flat bearing no.0164-0-195SF, measuring 1245 square feet, in a project launched by  opposite parties no.1 and 2, under the name and style ‘Victoria Golf Links-II”, Sector 116, SAS Nagar, Mohali, Punjab (in short the unit), total sale price whereof was fixed at Rs.42,47,940/-. It is the case of the complainants that opposite parties no.1 and 2 failed to deliver possession of the unit in question by 08.04.2015  i.e. within a period of 36 months (30 months plus (+) 6 months extended period) as per Clause 5.1 of the Agreement dated 09.04.2012 (Annexure C-2) for dearth of construction and development works at the project site. It has been stated that when possession of the said unit was not delivered, the complainants, after waiting for some time, filed an application bearing no.A/66/2018 before the Permanent Lok Adalat, Mohali (in short the PLA), seeking refund of the amount paid, yet, during pendency of the said application,  compromise was arrived at between the parties, vide settlement deed dated 10.05.2018 (Annexure C-6). Vide the said settlement deed, the complainants were relocated to flat no.258 FF, measuring 1435 square feet. Addendum agreement dated 10.05.2018 (Annexure C-8) to allotment letter dated 30.06.2012 was also executed in that regard, wherein, it was clearly mentioned that except flat no., size and its location, rest of the terms and conditions of the agreement dated 09.04.2012 are kept intact. It has been specifically stated that despite the fact that opposite parties no.1 and 2 vide the settlement deed aforesaid, committed to deliver possession of relocated unit within a period of four months from 10.05.2018, yet, they failed to do so.

                   It has been averred that for making payment towards price of the said unit, the complainants have availed housing loan from proforma opposite party no.3, under subvention scheme, under which, opposite parties no.1 and 2 committed to pay EMIs till possession of the unit is delivered, yet, it has also come to the knowledge of the complainants that they have defaulted in making payment of the said EMIs to proforma opposite party no.3. It has been pleaded that already a period of more than 8 years has lapsed neither possession of the original allotted unit or relocated unit has been offered for want of construction and development activities and also necessary occupation and completion certificates nor the amount paid has been refunded.  

                   By stating that the aforesaid act and conduct of opposite parties no.1 and 2,  amount to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the complainants seeking directions to opposite parties no.1 and 2 to refund the entire amount paid alongwith interest, compensation; litigation expenses etc. 

2.           The claim of the complainants has been contested by opposite parties no.1 and 2, on numerous grounds, inter alia, that they 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 unit was tentative, as such, time was not to be considered as essence of the contract; and that the complaint filed is beyond limitation
3.           On merits, payments made by the complainants as mentioned in the complaint; execution of buyer and addendum agreements aforesaid; non delivery of possession of the originally allotted unit by the promised date or of relocated unit even by the date when this complaint has been filed, has not been disputed. However, it has been stated that opposite parties no.1 and 2 are committed to pay Pre-EMI to  proforma opposite party no.3, under subvention scheme till offer of possession of relocated unit is delivered to the complainants; that construction of the unit is almost complete; that opposite parties no.1 and 2 have applied for completion certificate; and that possession of the relocated unit will be delivered after receipt of the said certificate. It has been stated that the complainants were given benefit of waiver of balance amount towards relocated unit and also benefit of increased area i.e. nothing was charged towards relocated unit having area of 1435 square feet whereas the original allotted unit was having an area of 1245 square feet. It has been pleaded that since the complainants had filed application before the PLA, which had been withdrawn in the manner explained above, as such, now it is not open to them to approach this Commission and rather they should have got their case reopened for refund, before the PLA only. Prayer has been made to dismiss the complaint.
4.           Opposite party no.3 in its written version pleaded that since no specific allegations have been levelled against it, as such, it has no concern, with the dispute, qua the complainants and opposite parties no.1 and 2. However, it has been 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 opposite party no.3, so that it is able to seek apportionment of its dues.  
5.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence and also produced numerous documents.
6.           We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
7.           From the pleadings of parties and other material available on the record, following points have emerged for consideration in this case: -
   1. Whether the complainants fall under the definition of consumer?
   2. Whether time was essence of the contract?
   3. Whether the complaint filed is within limitation?
   4. Whether there was any deficiency in rendering service on the part of opposite parties no.1 and 2?
   5. Whether this complaint is maintainable before this Commission?
   6. Whether the complainants are entitled to get refund of the amount deposited and if yes, at what rate of interest?

 

8.           First coming to 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 opposite parties no.1 and 2 to establish that the complainants have purchased the unit 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 are consumers as defined under Section 2(1)(d) of the Act.
9.           There is no dispute with regard to the fact that in the first instance,  the complainants booked flat bearing no.0164-0-195SF, measuring 1245 square feet in the aforesaid project for which they had paid an amount of Rs.38,41,283/- against total sale consideration of Rs.42,47,940/-. It is also an admitted fact that because opposite parties no.1 and 2 failed to deliver possession of the said unit by the promised date i.e. 08.04.2015  (within a period of 36 months as per Clause 5.1 of the Agreement dated 09.04.2012), for dearth of construction and development works, as a result whereof, the complainants had filed application bearing no.A/66/2018, before the PLA seeking refund of the amount paid, yet, during pendency of the said application, a compromise was arrived at between the parties, vide settlement deed dated 10.05.2018 (Annexure C-6) and the complainants were relocated to flat no.258 FF, measuring 1435 square feet in the said project. Addendum agreement dated 10.05.2018 (Annexure C-8) to agreement dated 09.04.2012 was also executed in that regard and except flat no., size and its location rest of the terms and conditions of the agreement dated 09.04.2012 were kept intact. Perusal of clause 7 of the said settlement deed clearly depicts that opposite parties no.1 and 2 promised to hand over possession of the relocated flat, within a period of 4 months i.e. on or before  09.09.2018, yet, they miserably failed to do so. Even in the joint written reply filed, no commitment to hand over possession of the relocated unit in the near future has been made by opposite parties no.1 and 2. It has only been said that the Company has applied for completion certificate and other statutory permissions and as soon as the same are received possession of the relocated unit will be delivered to the complainants.

                   At the time of arguments also, we specifically asked Counsel for opposite parties no.1 and 2, to apprise this Commission, as to by which date, construction will be completed and possession of the relocated unit, can be handed over to the complainants; he was having no satisfactory answer and stated that the Company is committed to pay Pre-EMIs to proforma opposite party no.3, under subvention scheme,  till possession of the relocated is not delivered. It may be stated here that during pendency of this complaint, this Commission vide order dated 30.09.2019, directed opposite parties no.1 and 2 through their 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.
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 opposite parties no.1 and 2 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, opposite parties no.1 and 2 have attracted an adverse inference that the project in question had been launched by them 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. Our view is further fortified from the joint written reply filed by opposite parties no.1 and 2, wherein, in para no.6 it has been candidly stated that statutory clearances in respect of the project in question are awaited from the competent Authorities.

10.           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 observed 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 case, not even an iota of evidence has been placed on record by opposite parties no.1 and 2 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 by them from the competent Authorities to launch the said project. In case, the development/construction activities are being undertaken and are about to complete at the project site, then it was for opposite parties no.1 and 2, 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 about to complete at the site or not, but they failed to do so.
11.           Furthermore, there is nothing on record to show that opposite parties no.1 and 2 suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of originally allotted unit was not delivered to the complainants by the committed date, referred to above or even thereafter.  Even this much has not been proved that the originally allotted unit was in existence or not. However, deficiency in providing service and adoption of unfair on the part of opposite parties no.1 and 2 is write large because even after making commitment in the settlement deed, referred to above, to the effect that possession of the relocated unit will be delivered within a period of four months from 10.05.2018, they failed to do so. It appears that the settlement was done  by opposite parties no.1 and 2, just with a view to wriggle out of the situation, to refund the amount paid by the complainants.  Under these circumstances, it could very well be said that once the terms and conditions of the said settlement deed have been violated by opposite parties no.1 and 2, later on, they cannot take any advantage out of it, by saying that the complainants are debarred from filing this consumer complaint.  It is not the case of opposite parties no.1 and 2 that they have offered possession of the relocated unit complete in all respects within the promised time, but even then the complainants have filed this complaint seeking refund of the amount paid.  Opposite parties no.1 and 2 in the present case want to have the cake and eat it too. It clearly shows the high-handedness of opposite parties no.1 and 2 towards the poor consumers like the complainants. As such, objection taken by opposite parties no.1 and 2 to the effect that the present complaint is not maintainable before this Commission being devoid of merit is rejected.
12.           From the peculiar circumstances of this case, it has been proved that opposite parties no.1 and 2 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 disadvantageous contracts with opposite parties no.1 and 2 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 contracts by way of signing agreement and settlement deed, 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 opposite parties no.1 and 2.
13.           As far as objection taken by opposite parties no.1 and 2 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 opposite parties no.1 and 2, they were legally bound to deliver possession of the originally allotted unit in question, by the committed date i.e. 08.04.2015  (within a period of 36 months as per Clause 5.1 of the Agreement dated 09.04.2012) or of the relocated unit within a period of 4 months, as committed by way of Clause 7 of the settlement deed dated 10.05.2018 (Annexure C-6).  Other than the Clauses referred to above, there is no Clause, which speaks about the period/date for delivery of possession of the originally allotted unit or the relocated unit to the complainants. Thus, opposite parties no.1 and 2 cannot wriggle out of the commitments made vide the Clauses aforesaid, with regard to time period for delivery of possession of the unit. It is therefore held that time was unequivocally made the essence of contract. In view of above, plea of opposite parties no.1 and 2 to the effect that time was not essence of the contract or that no definite period was given to offer possession of the unit, being devoid of merit stands rejected.
14.           The complainants had booked the unit as far as back in the year 2012 and now it is 2020, and still they are empty handed despite the fact that substantial amount of Rs.38,41,283/- against total sale consideration of Rs.42,47,940/- stood paid to opposite parties no.1 and 2. Still the opposite parties no.1 and 2 are not sure, as to by which date, possession of the relocated unit can be delivered to the complainants. The complainants cannot be made to wait for an indefinite period on the bald pleas  taken by opposite parties no.1 and 2 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 proforma opposite party no.3 from where loan has been obtained by the complainants, under subvention scheme.

                   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 case also, since there has been an inordinate delay in offering possession of the unit, in question, and the same is still continuing one, as the opposite parties no.1 and 2 are not sure as to by which period possession of the unit could be delivered to the complainants, as such, we are of the considered opinion that if we order refund of the entire amount paid by the complainants alongwith interest, that will meet the ends of justice. 

15.           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. 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. Recently also, under similar circumstances, the Hon’ble National Commission 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 Punjab Apartment and Property Regulation Act, 1995, 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, that will meet the ends of justice.

16.           Since, it is an admitted fact that possession of unit in question has not been offered to the complainants by the date this complaint has 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 this complaint 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.
17.           For the reasons recorded above, this complaint is partly accepted, with costs and opposite parties  no.1 and 2, jointly and severally, are directed as under:-

1. To refund the entire amount, actually paid by the complainants from their own sources/pocket, at the time of booking and thereafter also, towards part price of the unit in question, alongwith interest @12% p.a., from the respective  dates  of  deposits onwards.
2. To refund the amount to the complainants, if any, paid by them to proforma opposite party no.3, towards equated monthly installments, on the loan amount, as it was the liability of opposite parties no.1 and 2, under subvention scheme, as admitted by them in their written statement also.  
3. To repay the entire loan amount to proforma opposite party no.3, released by it in favour of the Company, in respect of the unit in question alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to proforma opposite party no.3, opposite parties no.1 and 2 shall be bound to pay the equated monthly installments/Pre-EMI interest to proforma opposite party no.3, till realization.
4. To pay compensation for causing mental agony and physical harassment and also litigation expenses, in lumpsum, to the tune of Rs.50,000/- to the complainants.
5. The payment of amounts mentioned at sr.nos.(i), (ii) (if any) and (iv) shall be made by opposite parties no.1 and 2 to the complainants within a period of 30 days from the date of receipt of a certified copy of this order, failing which the amount mentioned at sr.nos.(i) and (ii) (if any), thereafter shall carry interest @15% p.a., from the date of  default and interest @9 % p.a., on the amount mentioned at sr.no. (iv) from the date of filing of this complaint, till realization, besides compliance of other directions given.
6. Complaint against proforma opposite party no.3 is dismissed with no order as to costs, subject to directions aforesaid.

18.           Certified Copies of this order be sent to the parties, free of charge.
19.           The file be consigned to Record Room, after completion.

Pronounced.

13.03.2020

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

         

          Sd/-

(RAJESH K. ARYA)

MEMBER

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