Corporate Office Address;-

SCO No.12-A, 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 184-185, Ground Floor, Sector 17, Commercial Belt, Near Mini Secretariat, Jagadhri-135003.

Email:- sumeets@hdfc.com

…..Opposite party  no.2

Present through Video Conferencing:-

                             Sh.Rachit Kaushal,  Advocate for the complainants.

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

                             Mrs.Rupali Shekhar Verma, Advocate alongwith Ms.Neetu     Singh, Advocate for opposite party no.2.

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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 the aforesaid three consumer complaints. Since, the facts involved in the above complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

2.           The aforesaid complaints have been filed by the respective complainants, seeking refund of the amount paid alongwith interest; compensation etc., as they are aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite party no.1 - Ansal Properties & Infrastructure Ltd., because there has been an inordinate delay with regard to delivery of possession of the respective units booked by them, in the project in question, for dearth of construction and development activities. Details with regard to the project in dispute; units booked; payments made by the complainants etc. of these complaints are given below:-

3.           It has been pleaded that despite the fact that substantial amounts, as mentioned in the chart above, stood paid to opposite party no.1, yet, actual physical possession of the units purchased by the complainants, has not been delivered by the date these complaints have been filed. It has been stated that it has also come to the knowledge of the complainants that opposite party no.1 did not possess requisite permissions/sanctions in respect of the project in question and the same was launched in violation of provisions of relevant Acts, Rules etc. applicable to the projects situated in Punjab.
4.           By stating that the aforesaid act and conduct of opposite party no.1, in all the three complaints, amount to deficiency in providing service and adoption of unfair trade practice, these complaints have been filed by the complainants, seeking directions to opposite party no.1, to refund the amount paid alongwith interest, compensation etc..
5.           The claim of the complainants, in all the three complaints, has been contested by opposite party no.1, on numerous similar grounds, inter alia, that the complainants have concealed material facts from this Commission; that this Commission did not vest with territorial jurisdiction; that they did not fall within the definition of ‘consumer’, as  they are speculators; that because the period of 36 months, for delivering possession of the units was tentative and possession was to be delivered on receipt of statutory clearances from the competent Authorities, as such, time was not to be considered as essence of the contract; and that the complaints filed are beyond limitation
6.           On merits, booking of respective units, detail of which have been given in above chart; execution of agreements; non delivery of possession of the units by the promised dates or by the dates when these complaints have been filed, have 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 made to the complainants; that construction of the units is almost complete; that the Company has applied for statutory permissions with the competent authorities which have not been issued till date, as such, delay if any is on the part of the Competent Authorities; that the Company has also 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. In all the complaints, receipt of payments, as mentioned in the chart above has been denied by the opposite parties. 
7.           HDFC Limited (opposite party no.2 in CC No.79 of 2020 and 81 of 2020) 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.2 in CC No.79 of 2020 and 81 of 2020), so that it is able to seek apportionment of its dues.
8.           The parties led evidence in support of their cases.
9.           We have heard the contesting parties and have gone through the evidence and record of the cases, very carefully.
10.           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 opposite party no.1 to establish that the complainants, in these 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 it failed to discharge its onus, hence we hold that the complainants are consumers. Mere fact that the complainants in CC No.80 of 2020 who are residents of Himachal Pradesh and Delhi respectively and are presently residing at Dubai and that the complainants in CC No.81 of 2020 are presently residing at Jalandhar, Punjab, is not a ground to shove them out of the purview of the consumer. Objection taken in this regard, as such, stands rejected. 
11.           Now we will deal with the objection regarding territorial jurisdiction of this Commission, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. It may be stated here that the complainants, in all the three complaints have stated that the complainants were dealing with the company having its branch office at Chandigarh i.e. SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh. The fact that the company was carrying on its business from its branch office at Chandigarh, is fortified from email dated 28.07.2018, Annexure C-2,  having been sent by one Rakesh Kumar, on behalf of the company from Chandigarh, whereby the statement of account in respect of  unit no.175SF in CC No.80 of 2020 was sent to the complainants and the landline no. of Chandigarh office is also mentioned therein as 0172-5035035. Not only as above, even the payment receipt dated 24.04.2015 (at page 14 of CC No.80 of 2020) also reveals that the same has been received by the said Chandigarh office of  opposite party no.1, as it bears round stamp as SCO No.183-184, Sector 9-C, Chandigarh.

                   Similarly, in CC No.79 of 2020 also, on the application form itself, the said address of Chandigarh Office i.e. SCO No.183-184, Sector 9-C, Chandigarh is found mentioned. Not only as above, it is also evident in this case that letters dated 17.08.2020, Annexure OP-2/2 colly. with regard to loan account of the complainants, to which, the company is also a party in the tripartite agreement, have been issued by opposite party no.2 from its Chandigarh Office i.e. SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh.

                   Similarly, in CC No.81 of 2020 also, on the allotment letter itself, it has been in a very candid manner mentioned that the office address of the Company is “Ansal Properties and Infrastructure Ltd. SCO 183 & 184, Sector 9 C, Madhya Marg, Above British Library, Chandgiarh-1600170”. In this case also, the payment receipt dated 07.07.2015  (at page 56 of CC No.81 of 2020) reveals that the same has been received by the said Chandigarh office of  opposite party no.1, as it bears round stamp as SCO No.183-184, Sector 9-C, Chandigarh.  Not only as above, it is also evident in this case that letters dated 17.08.2020, Annexure OP-2/2 colly. with regard to loan account of the complainants, to which, the company is also a party in the tripartite agreement, have been issued by opposite party no.2 from its Chandigarh Office i.e. SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh.

                   Thus, from the documents referred to above, it is clearly proved that the company was actually and voluntarily residing and carrying on its business, from the said Chandigarh Office i.e.  SCO No.183-184, Sector 9-C, Chandigarh and personally work for gain thereat. As such, objection taken with regard to territorial jurisdiction of this Commission stands rejected. 

12.           There is no dispute with regard to the fact that the complainants had booked the units, in question, in the project of opposite party no.1, 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, in all the three complaints, has not been offered to them by the promised i.e. in CC No.79 of 2020 latest by 28.08.2014 [within a maximum period of 36 months (30 months +6 months grace period] from agreement dated 29.08.2011;  in CC No.80 of 2020 latest by 29.07.2016 [within a maximum period of 36 months (30 months +6 months grace period] from agreement dated 30.07.2013;  in CC No.81 of 2020 latest by 11.05.2015 [within a maximum period of 36 months (30 months +6 months grace period] from agreement dated 12.05.2012 or even by the dates when these complaints were filed or even thereafter. 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 units will be delivered soon, on receipt of statutory clearances and occupation certificates from the competent Authorities.  

                   At the time of arguments also, Counsel for opposite party no.1 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 01.07.2020 respectively, directed opposite party no.1 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 opportunity was available with opposite party no.1 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, opposite party no.1 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 written replies filed by opposite party no.1, 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 opposite party no.1 amounts to deficiency in providing service and adoption of unfair trade practice.

13.           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 opposite party no.1 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 opposite party no.1, 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 opposite party no.1 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. However, as far as plea taken by the company to the effect that delay, if any, took place in delivery of possession is only on account of the reasons that the  Govt. Departments did not issue statutory permissions. We do not agree with the plea taken because not even a single letter has been placed on record by the company showing that it ever reported the Govt. Authorities concerned that there is a delay on their part in granting statutory permissions in respect of the project in question or occupation certificates in respect of the units in dispute, or that any such letter, by which the company has given notice to the said Authorities that in case the needful is not done in a prescribed time, the Company shall move to the appropriate platform of law, in the matter. Under these circumstances, bald plea taken in this regard has no value and is accordingly rejected.

14.           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.
15.           As far as objection taken by opposite party no.1 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, as per Clause 5.1 of the respective agreements. Other than the Clause 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, in each complaint. Thus, opposite party no.1 cannot wriggle out of the commitments made vide the Clause(s) 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 opposite party no.1 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.
16.           Facts of the cases reveal that there has been an inordinate delay in the matter. Still, opposite party no.1 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 opposite party no.1 that it is ready to pay compensation for the period of delay in delivering possession or that it is committed to pay Pre-EMI to HDFC Limited, from where loan has been obtained by the complainants, under subvention scheme, in the complaints concerned.

                   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 opposite party no.1 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. 

17.           Since, it is an admitted fact that possession of units in question, in all the three complaints, has not been offered to the complainants neither by the promised dates nor by the date these complaints have been filed or even thereafter, 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, stands rejected.
18.           It is submitted that opposite party no.1 has disputed with regard to the payments, as mentioned by the complainants, in their complaints, yet, when we go through the record of these cases, we find that in CC No.79 of 2020  and 80 of 2020, the company itself has placed on record statement of accounts, Annexure OP/1 respectively, showing that in these cases it has received an amount of Rs.42,91,038/- and Rs.33,86,313/- respectively and at the same time, the complainants have also sought refund of these amounts only in CC No.79 of 2020  and 80 of 2020.
19.           In CC No.81 of 2020, the company is taking a plea that only an amount of Rs.39,19,721/- stood received from the complainants and not Rs.42,13,598/-. The plea taken in this regard stand rejected because perusal of payment receipts placed on record in this case reveal that actually an amount of Rs.42,13,598/- has been paid by the complainants to opposite party no.1 in the following manner:-

20.           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.

21.           For the reasons recorded above, these complaints are partly accepted, with costs, as under:-

In Consumer Complaint bearing No.79 of 2020, opposite party no.1 is 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 opposite party no.2, towards equated monthly installments, on the loan amount, as it was the liability of opposite party no.1, under subvention scheme, as admitted by it in its written statement also.  
3. To repay the entire loan amount to opposite party no.2, 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 opposite party no.2, opposite party no.1 shall be bound to pay the equated monthly installments/Pre-EMI interest to opposite party no.2, alongwith up-to-date interest on the loan account, 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 party no.1 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 opposite party no.2 is dismissed with no order as to costs, subject to directions aforesaid.

In Consumer Complaint bearing No.80 of 2020, the opposite party is directed as under:-

1. To refund the amount of Rs.33,86,313/- to the complainants, 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.33,86,313/- 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 compensation for causing mental agony and harassment and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainants, 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.

3. However, it is made clear in this case that if the complainants have availed loan facility from any Bank/Financial Institution, for making payment towards price of 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 complainants.

In Consumer Complaint bearing No.81 of 2020, opposite party no.1 is 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 opposite party no.2, towards equated monthly installments, on the loan amount, as it was the liability of opposite party no.1, under subvention scheme, as admitted by it in its written statement also. 
3. To repay the entire loan amount to opposite party no.2, 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 opposite party no.2, opposite party no.1 shall be bound to pay the equated monthly installments/Pre-EMI interest to opposite party no.2, alongwith up-to-date interest on the loan account, 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 party no.1 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 opposite party no.2 is dismissed with no order as to costs, subject to directions aforesaid.

22.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected cases, referred to above.
23.           The files be consigned to Record Room, after completion.

Pronounced.

05.01.2021

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

[PADMA PANDEY]

MEMBER

Sd/-

(RAJESH K. ARYA)

MEMBER

 Rg