Chandigarh

DF-I

CC/431/2022

Reena Chawla - Complainant(s)

Versus

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

Rakesh Bajaj

04 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

[1]

                    

Consumer Complaint No.	:	CC/431/2022
Date of Institution	:	13/04/2022
Date of Decision	:	4/12/2023

             

1.   Reena Chawla Wd/o Vivek Chawla

2.   Arjun Chawla S/o late Sh. Vivek Chawla

3.   Miss Palac Chawla D/o late Sh. Vivek Chawla, all resident of H. No.3469, Sector 35-D, Chandigarh & presently residing in H. No.348, Sector 21-A, Chandigarh.    

… Complainants

V E R S U S

1.   Ansal Properties &  Infrastructure Ltd. Ansal Bhawan, 115 Kasturba Gandhi Marg, New Delhi-110001 through its Director/Manager Authorized signatory.

2.   Ansal Properties &  Infrastructure Ltd.  (APIL), City Centre, CB-12-A, Kharar-Landran Road, Sector 115, SAS Nagar, (Mohali) Punjab through its Director/Manager Authorized signatory.

3.   Pranav Ansal Director of Ansal Properties & Infrastructure Ltd. Ansal Bhawan, 115, Kasturba Gandhi Marg, New Delhi-110001.     

… Opposite Parties

[2]

 

Consumer Complaint No.	:	CC/430/2022
Date of Institution	:	13/04/2022
Date of Decision	:	4/12/2023

             

1.   Mr. Lalit Arora S/o Sh. Vir Bhan R/o 778, Sector 8, Panchkula.

2.   Mr. Rakesh Bajaj S/o Sh. A.L. Bajaj, R/o H. No.3046, Sector 20-D, Chandigarh.    

…. Complainants

V E R S U S

 

1. Ansal Properties &  Infrastructure Ltd. Ansal Bhawan, 115 Kasturba Gandhi Marg, New Delhi-110001 through its Director/Manager Authorized signatory.

2.   Ansal Properties &  Infrastructure Ltd.  (APIL), City Centre, CB-12-A, Kharar-Landran Road, Sector 115, SAS Nagar, (Mohali) Punjab through its Director/Manager Authorized signatory.

3.   Pranav Ansal Director of Ansal Properties & Infrastructure Ltd. Ansal Bhawan, 115, Kasturba Gandhi Marg, New Delhi-110001.

 ….Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                                 

ARGUED BY	:	Sh. Rakesh Bajaj, Advocate for the complainant.
	:	Sh. Prateek Garg, Advocate for OPs.

Per  PAWANJIT SINGH, PRESIDENT

1.     By this order, we propose to dispose of the captioned consumer complaints in which common questions of law and fact are involved.

              For the sake of brevity, relevant details, necessary for the disposal of the aforesaid consumer complaints i.e. plot size, plot No.2 and total consideration  etc., in respect of each consumer complaint, are tabulated as under :-

S. No.	C.C. No.	Plot size (sq.yd.)	Plot No.	Basic sale price
	CC/431/2022	161	16	23,85,602/-
	CC/430/2022	161	61(61A as per revised layout)	23,85,602/-

2.         The facts, for convenience, have been culled out from Consumer Complaint No.431 of 2022 titled as Reena Chawla & Ors  Vs. Ansal Properties &  Infrastructure Ltd. and Ors.     

1. It transpires from the averments as projected in the consumer complaint that the OPs engaged in business of development of real estate projects like residential township, group housing scheme, commercial building and shopping and other related activities of real estate under the name and style of Ansal Golf Links. In the year 2008 Sh. Vivek Chawla predecessor of the complainants has purchased the commercial unit No.16 at Sector 114, Golf link from the OPs for his livelihood who  died on 29.9.2017 and on his demise the complainants are his legal heirs. The subject commercial unit was measuring 161 sq. yards  and the same was purchased by the predecessor of the complainants for total sale consideration of Rs.23,85,602/-. the settlement deed is dated 17.10.2008,  allotment letter Annexure C-5 is dated 21.10.2008 whereas allotment-cum-buyer’s  agreement is Annexure C-6.  The entire sale consideration  was paid by the complainants to the OPs. The complainants purchased the subject commercial unit for earning livelihood by means of self employment as the complainants are running their business of stocks and shares in rented accommodation.  The OPs have not offered the possession of the subject unit till date  and there is no clause  regarding possession of the subject unit though as per PAPRA Act 3 years period is sufficient time for development of any project but there is no development on the site till date . The complainants approached the OPs by sending emails requesting them to  hand over the possession of the subject unit after its development   but with no result.  It has also come to the notice of the complainants that even the OPs have not obtained all the statutory clearances and permissions as per law for the development of the project despite of the fact that they were bound under Section 14 of the PAPRA Act to obtain completion certificate/occupation certificate from the concerned authorities and also to obtain license under Section 5 of the Act before making sale of the subject unit. Finally on 6.11.2021 vide Annexure C-7 the complainant sent legal notice to the OPs but with no result.  The aforesaid act  of OPs amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint
2. OPs resisted the consumer complaint and filed their written version,  inter alia, taking preliminary objection of maintainability, concealment of facts, cause of action. It is alleged that  in fact originally the residential plot was allotted to the predecessor of the complainant and later on through settlement deed the subject commercial unit was allotted to the Sh. Lalit Arora, Mr. Vivek Chawla and Mr. Rakesh Bajaj. It is further alleged that in fact two commercial spaces measuring 161 sq. yd. each  in lieu of surrendered area of the residential plot were allotted to the allottees.  On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

3. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
4. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that  the OPs have allotted subject commercial unit to the complainants  in each above captioned complaints measuring 161 sq. yd.  in lieu of a total sale consideration of Rs.23,85,602/- each and till date neither the letter of offer of possession has been issued by the OPs to the complainants nor the sale deed has been executed in favour of the complainants by the OPs, the case is reduced to a narrow compass as it is to be determined if  there is deficiency on the part of the OPs and the complainant is entitled for the relief as prayed for as is the case of the complainant or the complaint being not maintainable is liable to be dismissed as is the defence of the OPs.   
   2. In order to prove their case the complainants proved on record Exhibit C-1 copy of death certificate of
      Vivek Chawla  the predecessor of the complainants which indicates that he died on 29.9.2017.  Exhibit C-2 to C-4 are copies of Aadhaar cards of the complainants. Exhibit C-5  is the copy of allotment letter dated 21.10.2008 issued by the OPs to the predecessor of the complainants which indicates that the subject unit was allotted to the predecessor of the complainants and it is evident from the said letter that he OPs have acknowledged the receipt of Rs.23,85,602/-  and the balance  amount of Rs.50,312.50 being EDC charges has been shown to be due towards the allottee. Exhibit C-6 is the allotment letter-cum-buyer’s agreement which clearly indicates that the subject unit was allotted to the predecessor of the complainants and as per para 2 of the said agreement the allottee agreed to pay EDC  charges to the OPs. However, the entire agreement is silent about the period during which the possession of the subject unit has to be delivered by the Ops to the complainants. The Ops have also proved on record Annexure R-1 copy of Development Agreement which was executed on 28.2.2005 through which the OPs had earlier agreed to sell the residential plot to the allottee. Annexure R-2  is the copy of settlement deed dated 17.10.2008  through which the OPs had given two commercial spaces measuring 161 sq. yd.  each  in lieu  of the earlier residential area allotted to the allottees and the allottees agreed to pay EDC and IDC charges to the OPs.
   3. Perusal of Exhibit C-6, the Allotment-cum-buyer’s agreement   clearly indicates that the entire agreement is silent about the date by which the possession of the unit will be handed over to the complainants by the OPs, which act is held to be an unfair trade practice on the part of OPs. Thus, in the absence of a specific date of delivery of possession in any of the documents, placed on record, we are of the considered opinion that we cannot make the complainants to wait for an indefinite period in the matter. Thus, if we take a reasonable period of three years from the date of booking of the plot i.e. from 21.10.2008, as period of completion of development works at the project site and delivery of possession of the plot in question to the complainants, which comes to 21.10.2011, in view of principle of law laid down by the Hon’ble Supreme Court of India in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442, relevant part whereof is reproduced hereunder, that will meet the ends of justice:-

“…… 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…”

4.  The complainants have also alleged that the OPs have launched the project without approvals and the said allegations as well as evidence led by the complainants  have gone unrebutted by the OPs making it clear that the Ops were not  having statutory approval from the competent authority at the time of launching of the project. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

 

5. As far as the question as to how the cause of action has arisen to the complainants is concerned,  it has come on record that the OPs  have failed to offer/deliver the lawful possession of the subject plot after obtaining necessary approvals/completion certificate from the competent authorities. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., 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 continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
6.  The  ratio of law settled in the aforesaid judgments is squarely applicable to the facts and circumstances of the above captioned complaints..

5.      In view of the above discussion, both the consumer complaints deserve to succeed and the same are accordingly partly allowed. OPs are directed as under :-

RELIEF IN CC/431/2022

1. to deliver the actual physical possession of the subject unit complete in all respects i.e. after providing all basic amenities on receipt of balance amount of Rs.50,312.50 from the complainants.  
2. to pay   compensation by way of  interest @9% per annum  on the entire deposited amount of the complainants starting from 21.10.2011 i.e. after three years from the date of booking of  the subject unit being the reasonable period of three years of handing over the possession of the subject unit in view of principle of law laid down in Fortune Infrastructure(supra)) till onwards till 30.11.2023.
3. to pay interest  by way of compensation @9% per annum on the entire deposited amount w.e.f. 1.12.2023, onwards (per month) by the 10^th of the following month to the complainants till actual delivery of physical possession of the subject unit complete in all respects. 
4. to pay compensation of ₹.50,000/-to the complainants for causing mental agony and harassment to the complainants and also deficiency in providing service and unfair trade practice;
5. to pay ₹10,000/- to the complainants as costs of litigation.

RELIEF IN CC/430/2022

1. to deliver the actual physical possession of the subject unit complete in all respects i.e. after providing all basic amenities on receipt of balance amount of Rs.1,26,465.34 from the complainants. 
2. to pay   compensation by way of  interest @9% per annum  on the entire deposited amount of the complainants starting from 21.10.2011 i.e. after three years from the date of booking of  the subject unit being the reasonable period of three years of handing over the possession of the subject unit in view of principle of law laid down in Fortune Infrastructure(supra)) till onwards till 30.11.2023.
3. to pay interest  by way of compensation @9% per annum on the entire deposited amount w.e.f. 1.12.2023, onwards (per month) by the 10^th of the following month to the complainants till actual delivery of physical possession of the subject unit complete in all respects. 
4. to pay compensation of ₹.50,000/-to the complainants for causing mental agony and harassment to the complainants and also deficiency in providing service and unfair trade practice;
5. to pay ₹10,000/- to the complainants as costs of litigation.

6. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(ii) (iii) & (iv) in each case above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(i)&(v)in each case above.
7. A certified copy of this order be also placed on the file of other  connected consumer complaint, mentioned above, which shall form part and parcel of the that file.
8. Applications if any pending stands disposed off.
9. Certified copies of this order be sent to the parties free of charge. The file be consigned.

sd/-  [Pawanjit Singh]

President

Sd/-

[Surjeet Kaur] Member 4/12/2023 mp