Punjab

StateCommission

CC/108/2019

Surinder Kaur Lubana - Complainant(s)

Versus

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

Dheeraj Mahajan

06 May 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

 

                                      Consumer Complaint No.108 of 2019                                                        

Date of institution  :    04.02.2019

Reserved On           :    02.05.2019  

Date of decision     :    06.05.2019

 

Surinder Kaur Lubana wife of Sh. Tarlochan Singh, Resident of House No.567/11, Onkar Nagar, Gurdaspur, Punjab, through her Special Power of Attorney, Sushil Kumar, son of Sh. Dhani Ram, Resident of House No.2665, Sector 44-C, Chandigarh.

Er.akashdeep@gmail.com

 

….Complainant

Versus

Ansal Properties & Infrastructure Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh, through its Managing Director.

E-mail ID: www.ansalapi.com

 

Second Address:

Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi, through its Managing Director.

E-mail ID: vinodthakur@ansalapi.com

                                                                                       .…Opposite Party

 

Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.

Quorum:- 

 

          Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President

                        Mrs. Kiran Sibal, Member.

Present:-

 

    For the complainant      :  Sh. Dheeraj Mahajan, Advocate

    For the opposite party  :   None.  

 

JUSTICE PARAMJEET SINGH DHALIWAL,  PRESIDENT:

 

Misc. Application No.215 of 2019

                   The complainant is co-allottee of the unit, in question, and as such, no such permission is required. Accordingly, the application is disposed of.

Main Complaint

                    The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, “the Act”), through her Special Power of Attorney, Sh. Sushil Kumar, against the opposite party, seeking following directions to it:

i)        to refund the entire amount deposited by her as well as loan   amount credited to the account of the opposite party, totaling      ₹44,23,656/-, along with interest at the rate of 18% per annum         from the respective dates of deposits, which comes to around       ₹44,12,552/-;

ii)       to pay compensation of ₹3,00,000/-, on account of mental agony    and harassment suffered by the complainant.

iii)      to pay further claims, as per order passed by this Commission;        and

iv)      to pay ₹1,00,000/- towards litigation expenses.

          Total Claim:

          ₹44,23,656+44,12,552+3,00,000+1,00,000=92,36,208/-

Facts of the Complaint

2.           Brief facts, as set out in the complaint, are that the complainant, with a purpose to settle in Mohali as the health facilities and lifestyle in this city are better than other places, opted for purchasing a residential unit in the project launched by the opposite party under the name and style of “Victoria Floors”, situated at Ansal Golf Links-II, Sector 116, S.A.S. Nagar. Accordingly, she moved application dated 07.10.2011 for booking the residential unit in the said project. Thereafter, the opposite party allotted flat/dwelling unit No.249 (measuring 1395 sq.ft.), Ground Floor, for the basic sale price of ₹46,00,000/-, as per Agreement dated 01.11.2011, Ex.C-1. As per Clause 5.1 of the said agreement, subject to Clause 5.2 and timely payment by the allottees, the Company was to endeavour to complete the development of the residential colony and the dwelling unit as far as possible within 30 months with an extended period of 6 months from the date of execution of the agreement or the date of sanction of building plan, whichever was later. As per the Payment Plan given in the agreement, a sum of ₹14,00,000/- i.e. 20% of the BSP was payable under Part-1 and 80% thereof was payable under Part-2. The opposite party assured that it was having tie-up with Housing Development Finance Corporation Limited (HDFC Limited) and would arrange housing loan for her, to enable her to pay the sale price to it. Accordingly, the complainant availed home loan from HDFC Limited, vide Loan Account No.605669807, and a Tripartite Agreement was entered into between the parties on 20.11.2012; under which the opposite party agreed to make repayment of EMIs to the HDFC Limited during the period of 24 months. However, the opposite party failed to make repayment of EMIs to the HDFC Limited during that period, as a result of which the financial credibility of the complainant was also degraded and, as such, on account of the default of the opposite party, the complainant would not be in a position to get other loan because of low CIBIL score. The complainant made various payments to the opposite party towards the price of the flat, in question, as per following Table:

Month & Year	Amount
October, 2011	₹50,000/-
October, 2011	₹6,57,768/-
December, 2011	₹39,060/-
April, 2012	₹39,060/-
July, 2012	₹40,268/- with Service Tax
September, 2012	₹4,80,000/-
November, 2012	₹40,268/- with Service Tax
October, 2013	₹1,82,232/-
October, 2013	₹10,000/-
October, 2013 (HDFC Bank)	₹22,29,530/-
October, 2013 (HDFC Bank)	₹5,30,470/-
Demand Draft dated 02.12.2017	₹1,25,000/-
TOTAL	₹44,23,656/-

 

However, the opposite party failed to deliver possession of the unit to the complainant within the stipulated period. The complainant visited the site in the month of August, 2018, but found that there was neither any construction activity nor there was any development work at the site. Accordingly, the complainant served legal notice dated 01.09.2018 upon the opposite party, calling upon it to refund the entire amount deposited by her, but to no effect. The aforesaid act and conduct of the opposite party amount to deficiency in service. Hence, the present complaint.

Defence of the Opposite Party

3.           Upon notice, the opposite party appeared and filed reply, in the shape of affidavit of Sh. Rakesh Kumar, Authorized Signatory, to the complaint, raising preliminary objections that the complainant has not approached this Commission with clean hands. The complainant does not fall under the definition of “consumer”, as defined in the Act, as she purchased the unit, in question, for commercial/speculative purpose. There is express mandate given in Clause 5.1 of the agreement dated 01.11.2011 regarding tentative period of 30 months with an extended period of 6 months for delivery of possession of the unit, from the date all the requisite approvals/sanctions/permissions/ clearances etc. were received, subject to force majeure circumstances. The complaint is alleged to be time barred, on the ground that the complainant never sought refund of the deposited amount earlier, whereas admittedly the cause of action for seeking refund had arisen to her on 01.11.2014. The unit was booked under Subvention Scheme and the HDFC Limited has contributed huge amount as loan and till date of filing of reply, the opposite party continued to pay Pre-EMI interest to the HDFC Limited on the advanced amount and it is still committed to bear the same till offer of possession. Thus, she is not entitled to claim interest on the loan amount advanced by the HDFC Limited. Further, as per Clause 5.4 of the agreement, the opposite party is committed to compensate the complainant for the delayed period of possession. On merits, it was pleaded that the time was not the essence of the contract. The unit, in question, is nearing completion and possession would be offered soon. However, the complainant is herself withdrawing from the contract. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed
4.           Rejoinder to the reply was filed, in which averments of the complaint were reiterated and pleadings of the reply filed by the opposite party were controverted.

Evidence of the Parties

5.           To prove her claim, the complainant, along with the complaint, filed affidavit of her Special Power of Attorney, Sh. Sushil Kumar, and documents Ex.C-1 to Ex.C-7.
6.           As already mentioned above, the opposite party filed reply, in the shape of affidavit of Sh. Rakesh Kumar, Authorized Signatory.

Contentions of the Complainant

7.           We have heard learned counsel for the complainant, as none appeared on behalf of the opposite party at the time of arguments and have gone through the record carefully.
8.           Learned counsel for the complainant has vehemently contended that the opposite party failed to deliver possession of the unit, in question, within the stipulated period despite receipt of substantial amount from the complainant towards the price thereof. No development activity was started at the site and the opposite party kept on utilizing the hard earned money of the complainant, for its own cause. It has been further contended that opposite party has also not obtained the requisite approvals and permissions from the competent authorities before launching the said  project, which amounts to violation of various provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”). On the assurance of the opposite party, the complainant obtained home loan from HDFC Limited, but the opposite party failed to pay pre-EMI interest to the HDFC Limited, as per terms of the Tripartite Agreement, due to which the CIBIL score of the complainant has fallen down; as a result of which there would be difficulties in obtaining any other loan by her in future. There is no possibility of delivery of possession of the unit, in question, in near future and the complainant is entitled to all the reliefs, as prayed for in the complaint.

Consideration of Contentions

9.            We have given our thoughtful consideration to the contentions raised by the learned counsel for the complainant.
10.           First of all, we would like to decide the preliminary objection raised by the opposite party that the complainant does not fall under the definition of ‘consumer’, as defined in the Act, as she purchased the unit, in question, for commercial purpose.
11.           In this regard, it is relevant to mention that there is no evidence from the side of the opposite party to prove that the complainant is indulging in sale/purchase of properties for commercial purpose and simple assertion in this regard in its reply is not sufficient to prove this fact. Hon’ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVIT AHUJA & OTHERS v. SHIPRA ESTATE LTD.  & JAI KRISHNA STATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already discussed above, there is no evidence led by the opposite party to prove that the complainant indulged in sale/purchase of properties or that she purchased the unit, in question, for further sale or for earning profits. Accordingly, the above said objection of the opposite party is rejected and the complainant is held to be ‘consumer’, under the Act.
12.           So far as the other objection of the opposite party that the complaint is time barred on the ground that the complainant could have sought refund of the deposited amount only upto 01.11.2014, whereas the present complaint has been filed beyond the limitation period, is concerned, it is relevant to mention that the complainant purchased the unit, in question, vide agreement dated 01.11.2011. However, the opposite party has neither delivered its possession within the stipulated period of 36 months, as per Clause 5.1 of the agreement, nor has refunded the entire amount deposited by the complainant and, as such, there is continuous cause of action in favour of the complainant to file the complaint.
13.           Now, coming to the merits of the case, admittedly, the complainant entered into Agreement, Ex.C-1, with the opposite party on 01.11.2011, whereby a unit, No.249, GF, measuring 1395 sq.ft. was allotted to her in the project of the opposite party namely “Victoria Floors”. Basic price of the said unit was ₹46,00,000/-. The complainant obtained loan of ₹32,00,000/- from HDFC Limited and Tripartite Agreement, Ex.C-2, was executed between the complainant, opposite party and the HDFC Limited on 20.11.2012. As per Clause-3 of the Tripartite Agreement, the opposite party agreed to make repayment of EMIs to the HDFC Limited during the period of 24 months. Home Loan Agreement, Ex.C-3, was also executed on 14.10.2013, as per which, loan of ₹30,00,000/- was granted. Thus, it stands proved that the complainant deposited a total sum of ₹44,23,647/- with the opposite party towards the price of the said unit, as per receipt given on Home Loan Agreement, Ex.C-3, as well as receipts Ex.C-4 (colly.). As per Clause 5.1 of the Agreement dated 01.11.2011, Ex.C-1, subject to Clause 5.2 and timely payment by the allottees, the Company was to endeavour to complete the development of the residential colony and the dwelling unit as far as possible within 30 months with an extended period of 6 months from the date of execution of the agreement or the date of sanction of building plan, whichever was later; failing which the opposite party was liable to pay compensation at the rate of ₹10/- per sq.ft. per month of the super area of the unit for delayed period beyond the stipulated period. It is not the case of the opposite party that the complainant has committed any default in making payment of the instalments, nor any such fact has been proved by it on record. However, the opposite party failed to carry out any development works at the site, so as to deliver possession of the unit, in question, to the complainant within the stipulated period, without any sufficient cause. No force majeure circumstance has been alleged and proved by the opposite party on record, which might have prevented it from completing the project and delivering possession of the unit to the complainant within the stipulated period. No doubt, the opposite party has pleaded in its reply that the project is nearing completion and it would offer possession of the unit to her soon, yet there is no evidence led by the opposite party on record to prove this fact. No document has been produced by the opposite party on record, along with its reply, by way of affidavit, to prove its pleadings made therein. Thus, there is also no evidence to prove that the opposite party has obtained the requisite approvals/permissions from the competent authorities before launching its above said project. The above said stipulated period of 36 months has already expired on 01.11.2014, but there is evidence of completion of the project and delivery of possession of the unit to the complainant. Hence, she cannot be made to wait for delivery of possession for an indefinite period, as has been held by the National Commission in its recent verdict given in Prakash Vishwanath Tiwari v. M/s Monarch & Qurwshi Builders & 2 Ors. Consumer Case No.1833 of 2016, decided on 22.04.2019. It has held in Para No.18 as under:

“18. It is a fit case to place reliance on the judgement of the Hon’ble Supreme Court dated 25.03.2019 in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra (Civil Appeal NO. 3182 of 2019), in which the Hon’ble Supreme Court has observed that the flat purchasers cannot be made to wait for inordinate period of time hoping to seek possession…………..”

 

14.           As per Section 5 (Development of land into Colony) of Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”), the opposite party was liable to obtain permission from the competent authority for developing the colony, but it failed to produce on record any such permission. So, it violated Section 5 of PAPRA.

15.              As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite party was required to make full and true disclosure of the nature of their title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. It was also required to give inspection on seven days’ notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite party failed to comply with Section 3 of the PAPRA.

16.              As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite party to prove that any account has been maintained by it in this respect. As such, it also violated Section 9 of the PAPRA.

17.           As per Rule 17 of the “Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided as under:-

17.     Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.”

 

18.              The opposite party had been collecting huge amounts from the buyers for the development of the project. It is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is also to be bound by the reciprocal promises of performing its part of the agreement. The opposite party has failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of unit within the stipulated period amounts to deficiency in service on its part.

19.           The Act came into being in the year 1986. It is one of the benevolent pieces of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant has made payment of substantial amount to the opposite party, with the hope to get the possession of the unit within a reasonable time. The circumstances clearly show that the opposite party made false statement of facts about the goods and services i.e. allotment of land and development thereof within a stipulated period and ultimate delivery of possession.  The act and conduct of the opposite party is a clear case of misrepresentation and deception, which resulted in injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the unit within a reasonable period. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite party, i.e. builder, knew from the very beginning that it had not complied with various provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period and, thus, by misrepresentation induced the complainant to book the unit, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon’ble Supreme Court and the Hon’ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, the complainant is entitled to the refund of the amount deposited by her, along with interest and compensation.
20.           As already discussed above, the complainant obtained loan from HDFC Limited and Tripartite Agreement dated 20.11.2012, Ex.C-2, and Home Loan Agreement dated 14.10.2013, Ex.C-3, were executed. As such, out of the refundable amount, first of all the outstanding loan amount advanced by HDFC Limited is to be refunded to it, who will issue NOC and, thereafter, the remaining amount, if any, shall be refunded to the complainant.
21.           In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite party:

i)        refund the entire amount deposited by the complainant i.e.      ₹44,23,647/-, along with interest at the rate of 12% per annum     from the respective dates of deposit till realization, as per Rule         17 of PAPRA.

          It is made clear that out of the refundable amount, first of all the       outstanding loan amount advanced by HDFC Limited is to be   refunded to it, who will issue NOC and, thereafter, the      remaining amount,  if any , shall be refunded to the           complainant;

ii)       pay ₹1,00,000/-, as compensation for the harassment and      mental agony suffered by the complainant, including cost of        litigation.

22.           The compliance of this order shall be made by the opposite party within a period of 30 days of the receipt of certified copy of the order.

 

                                        (JUSTICE PARAMJEET SINGH DHALIWAL)

                                                                    PRESIDENT

 

 

                                                              (KIRAN SIBAL)

                                                                   MEMBER 

May 06, 2019.                                              

(Gurmeet S)