Chandigarh

StateCommission

CC/20/2022

Mr. Manoj Vashisht - Complainant(s)

Versus

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

Rakesh Bajaj Adv.

07 Jul 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	20 of 2022
Date of Institution	:	15.02.2022
Date of Decision	:	07.07.2022

 

1. Mr. Manoj Vashisht S/o Dr. R.N. Vashisht
2. Dr.Mrs. Puja Vashisht W/o Mr. Manoj Vashisht,

Both residents of Flat No.248/1, Sector 45-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 e-mail info@ansalapi.com
2. Ansal Properties & Infrastructure Ltd. (APIL), City Center, CB-12-A, Kharar-Landran Road, Sector 115, SAS Nagar, (Mohali) Punjab, through its Director/Manager Authorized Signatory e-mail info@ansalapi.com
3. Pranav Ansal Director of Ansal Properties & Infrastructure Ltd. Ansal Bhawan, 115 Kasturba Gandhi Marg, New Delhi-110001. e-mail info@ansalapi.com.

…..Opposite parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                           MRS. PADMA PANDEY, MEMBER.

                           MR.RAJESH K. ARYA, MEMBER.

 

Present:-               Sh.Rakesh Bajaj, Advocate for the complainants.

Sh. Rajiv K. Bhatia, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   The facts necessary for disposal of this complaint are that in order to earn their livelihood, the complainants, vide application dated 05.10.2008, Annexure C-1, in the year 2008 purchased  a commercial plot bearing no.174, measuring 123 square yards (in short the unit), from the opposite parties, in their project named “Ansal Golf Link”, Sector 114,  Mohali, Punjab, for total sale consideration of Rs.67,65,000/-. After allotment of the said unit, buyer’s agreement dated 11.11.2008, Annexure C-3 was executed between the parties. As per Clause 12 of the  said application dated 05.10.2008, the opposite parties committed to deliver possession of the said unit within a period of 3 years to 3.5 years from the date of commencement of construction at the project site.  It has been stated that as per demands raised by the opposite parties total amount of Rs.59,65,870/- stood paid by the complainants and remaining 5% was to be paid at the time of delivery of possession of the said unit. It has been pleaded that  despite the fact that substantial amount of Rs.59,65,870/- stood paid by the complainants  to the opposite parties, yet, possession of the said unit was not offered by the committed date, for dearth of development activities.  When after waiting for some time, still possession was not delivered to the complainants, they served legal notice dated 16.04.2021, Annexure C-8 but to no avail.  Hence this complaint has been filed by the complainants seeking possession of the unit in question alongwith compensation etc. or in the alternative refund of the amount paid alongwith interest, compensation etc.

2.           The opposite parties in their joint written reply while admitting factual matrix of the case with regard to purchase of the said unit by the complainants; execution of agreement; and payments made by them; took numerous pleas/ objections as under:-
   1. that the complainants have concealed material facts from this Commission;
   2. that since the unit in question is a commercial one, as such, it was purchased by the complainants for earning profits;
   3. that partial outstanding amount of Rs.89,180/- was demanded by the complainants vide letter dated 11.10.2010, Annexure R-2 which was paid by them;
   4. that possession of the unit in question, complete in all respects, was offered to the complainants vide letter dated 06.12.2012, Annexure R-1, yet they failed to take over the same, on making remaining payment;
   5. that this complaint is beyond limitation;
   6. that the project in question is exempted from the provisions of PAPR Act;
   7. that partial certificate in respect of the project in question was received on 30.06.2017, Annexure R-8; and
   8. that still an amount of Rs.4,57,290/- is payable by the complainants towards remaining cost of the unit in question alongwith delayed interest.
3.           Remaining averments made in the complaint have been  denied being wrong. Prayer has been made to dismiss the complaint.
4.           In the rejoinder filed, the complainants reiterated all the averments contained in their complaint and controverted those contained in written statement filed by the opposite parties.
5.           This Commission afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the contesting parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments filed by the complainants.
6.           We have heard the contesting parties and have carefully gone through the entire record of the case, including the written arguments.
7.           First, we will deal with the objection taken by the opposite parties to the effect that the complainants did not fall within the definition of ‘consumer’ as they purchased the unit in question to earn profits. It may be stated here that the complainants in their complaint, supported by their affidavit, have clearly stated that the unit in question was purchased with a view to earn their livelihood. The definition of a consumer has been defined under Section (2) (7) of the Act, 2019 as under:-

 

‘....(7) "consumer" means any person who—

 

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.…’

 

The explanation to section 2 (7) stipulates that “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment. In Tosoh India Pvt. Ltd. (Formerly Lilac Medicare Pvt. Ltd.) Vs. Ram Kumar & 3 Ors., Revision Petition No. 2833 of 2018, decided on  06 Jan 2020, the Larger Bench of the Hon’ble National Commission has laid down following preposition of law, under which, consumer complaints are admissible in respect of commercial units:-

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

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

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

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

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

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

Further, under similar circumstances, in Sunil Kohli and anr. Vs. M/s Purearth Infrastructure Ltd., Civil Appeal nos.9004-9005/2018, decided on 01.10.2019, the Hon’ble Supreme Court while interpreting the legal term of consumer, has categorically observed as under:-

 “As laid down by this Court in Laxmi Engineering Works, the explanation to Section 2(1)(d) of the Act clarifies that “in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’”. This Court went on to observe that what is “Commercial Purpose” is a question of fact to be decided in the facts of each case.

To similar effect are the observations of this Court in Cheema Engineering Services wherein it was observed in para 6 thus:

“6. In other words, the Explanation excludes from the ambit of commercial purpose in sub-clause (i) of Section 2(1)(d), any goods purchased by a consumer and used by him exclusively for the purpose of earning his livelihood by means of self-employment. Such purchase of goods is not a commercial purpose. The question, therefore, is whether the respondent has been using the aforesaid machine for self-employment? The word “self-employment” is not defined. Therefore, it is a matter of evidence. Unless there is evidence and on consideration thereof it is concluded that the machine was used only for self- employment to earn his livelihood without a sense of commercial purpose by employing on regular basis the employee or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacture and sale of bricks in a commercial way may also be to earn livelihood, but “merely earning livelihood in commercial business”, does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of manufacture by employing himself in working out or producing the goods for earning his livelihood.

‘He’ includes the members of his family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them. Therefore, the Tribunals were not right in concluding that the respondent is using the machine only for self-employment and that, therefore, it is not a commercial purpose. The orders of all the Tribunals stand set aside. The matter is remitted to the District Forum. The District Forum is directed to record the evidence of the parties and dispose of it in accordance with law within a period of six months from the date of the receipt of this order.” The issue therefore is whether the evidence on record is suggestive or indicative of the fact that the premises in question were booked by the complainants with the intention of self-employment or self-use.

The affidavit of evidence as quoted above clearly points that the complainants wanted to dispose of the property in DENMARK and wanted to come down to Delhi to start a business. It is for this purpose that the premises in question were booked. The evidence also discloses that the Complainant no.1 was not employed any more in DENMARK and as a matter of fact, he was serving RED CROSS, a charitable organization. In the circumstances, it cannot be ruled that the case of the Complainants would not come within the definition of “consumer” as defined under the provisions of the Act.”

Thus, if in the present case, the complainants have purchased the unit in question in order to carry out their business to earn their livelihood therein, as such, in no way it can be said that the complainants are not consumers. In this view of the matter, objection taken by the opposite parties in this regard stands rejected. 

8.           There is no dispute with regard to the fact that the complainants had paid Rs.59,65,870/- to the opposite parties, towards purchase of the unit in question, in the project aforesaid. It has also not been disputed that as per Clause 12 of the application dated 05.10.2008, the opposite parties committed to deliver possession of the said unit within a period of 3 years to 3.5 years from the date of commencement of construction at the project site. Counsel for the opposite parties while placing reliance on letter dated 06.12.2012, Annexure R-1, has vehemently contended that  possession of the unit in question was offered to the complainants on 06.12.2012, but they failed to take over the same. On the other hand, Counsel for the complainants contended with vehemence that neither possession of the unit was offered to the complainants nor the opposite parties were in a position to deliver the same on 06.12.2012, for dearth of development work and basic amenities, and also completion certificate.
9.           Be that as it may, under above circumstances, the moot question which falls for consideration before this Commission is, as to whether, the opposite parties were in a position to deliver possession of the unit in question by 06.12.2012 or not?  Before answering this question, it is relevant to reproduced the contents of  letter dated 06.12.2012, as under:-

 

“……Sub: Commercial SCO No-8 B, Sector-114, Golf Links-I, Mohali

 

Dear Sir,

 

We are pleased to inform you that the development work at Golf Links, Mohali is being carried out as per schedule and is in its advanced stage. We are offering you the possession of commercial Sco's (Plots) as they are ready for possession. You will be delighted to know that societies like AWHO (Army Welfare Housing Organization) have been allotted area in our township which is positive indication towards development and growth of our township and will certainly raise the standard of living.

 

We are glad to inform you that in consultation with the Town Planning Department, which is the competent approving authority, we have provisioned leisure valley in the Township which will enhance the attraction of the Township. However, as a result some changes had to be incorporated in consultation with the Town Planning Department. The improvements are in the overall long term interest of the Township.

 

Kindly take note of the fact that the provision of the trunk services, storm water drainage, electrification, sewage, roads network, water supply etc. has been done. Further, to add to the beauty of the Township and to make it a prestigious address, we have started the work for making a beautiful entrance which have been launched within the same township whose construction work has been started.

 

The details of the plot allotted are mentioned in the statement of accounts. You are also requested to pay the outstanding amount as per the attached statement of account and take possession as plots are ready. Any delay in taking the possession would cause the application of holding charges. as per policies.…….”

 

10.            Bare perusal of the above said letter clearly transpires that nothing has been mentioned therein, as to whether, completion certificate has been obtained by the opposite parties from the Competent Authority.  Furthermore, there is a valid reason with this Commission to believe that by 06.12.2012, the opposite parties were not in a position to offer and deliver possession of the unit to the complainants and that is the partial completion certificate dated 30.06.2017, Annexure R-8 placed on record by the opposite parties themselves. It has not been made clear by the opposite parties, as to how, the unit was ready for delivery by 06.12.2012, when there was no partial completion certificate issued by the Competent Authority till 30.06.2017. Not only as above, it is further evident from condition no.xvii) that “The Promoter shall take the Partial completion/Completion Certificate for the built up commercial/Group Housing/Independent Floors separately”. In the first instance, the fact that partial completion certificate aforesaid has been issued by the Competent Authority only on 30.06.2017, in itself is sufficient to say that the opposite parties were not in a position to deliver possession of the unit in question by 06.12.2012. Secondly, as per condition no.xvii) of the said certificate, the opposite parties were under obligation to obtain separate Partial completion/Completion Certificates for the built up commercial units/group housing/independent floors separately. There is nothing on record to convince this Commission that the opposite parties have separately obtained those  certificates even. It is settled law that before offering possession of the unit, the builder/developer is legally bound to obtain completion certificate from the competent authorities. The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:

5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."

 

11.           Furthermore, Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") deals with responsibility of the builder/promoter to obtain completion and occupation certificates from the competent authority, which reads as under:

“…..14. It is the responsibility of the promoter-

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

 

(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate…."

12.           However, in the present case, since completion certificate, if at all, issued by the competent authority have not been produced by the opposite parties on the record, which itself is violation of above reproduced Section 14 of PAPR Act, as such, we are of the considered opinion that even if for the sake of arguments, it is assumed that possession of the unit was offered vide letter dated 06.12.2012, even then the complainants were not obliged to take over the same. Mere obtaining partial completion certificate dated 30.06.2017 aforesaid, in the absence of completion certificate has not value in the eyes of law. Even otherwise, there is nothing on record that possession of the unit in question was offered to the complainants after obtaining partial completion certificate dated 30.06.2017. Thus, in view of the law laid down by the Hon'ble National Commission in the above noted authorities, without issuance of completion certificate by the competent authority, the opposite parties cannot be said to be in a legal position to hand over possession of the unit, in question, to the complainants. In view of findings given above, we are of the considered opinion that the possession so allegedly offered vide letter dated 06.12.2012, Annexure R-1 (though its delivery is not proved, as full address is not mentioned on the postal receipt and at the same time the complainants have disputed the receipt thereof), has no significant value in the eyes of law.
13.           Furthermore, 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 including completion certificates 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. However, it is very strange that in the present case not even an iota of evidence has been placed on record by the opposite parties to prove that development works and basic amenities were completed at the project site, in the year 2012. In case, the development/construction activities were undertaken and completed at the project site by December 2012, then it was for the opposite parties, 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, by December 2012, all these development/construction activities, were completed at the site or not but they failed to do so. As such, it is held that possession of the unit in question, complete in all respects, was never delivered to the complainants.
14.           Since, it is has been held above that actual physical possession of unit in question had not been delivered either by the committed date or even thereafter, as explained above, as such, there is a continuing cause of action in favour of the complainants 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 delivered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard also stands rejected.
15.           Now, we will like to decide as to what amount of compensation should be granted to the complainants, for the period of delay in delivery of possession, starting from 10.05.2012 (3.5 years from the date of execution of agreement being 11.11.2008 as no exact date of construction has been provided by the opposite parties). It may be stated here that failure on the part of the opposite parties to provide possession of the unit within the stipulated period aforesaid amounts to deficiency in service and negligence. It is also matter of common parlance that for purchasing the unit/plot, the purchasers take loans from their family members, relatives and friends or financial institutions. On account of delay in actual delivery of possession within the stipulated period, the complainants suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer.

                   In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, The Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

 

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 Of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the complainants have already paid huge amount of Rs.59,65,870/- as far as back by 2012 and remained empty handed for more than 10 years and have to approach this Commission for redressal of their  grievance. Their hopes to have their own unit for running their business to earn their livelihood have been dashed to the ground. The opposite parties have played fast and loose with the complainants and have caused harassment and mental agony to them, which is unacceptable and this practice of the opposite parties needs to be deprecated. In our considered opinion, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession onwards till  delivery of possession thereof, that will meet the ends of justice.

16.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-
    1. To deliver actual physical possession of the unit in question,  to the complainants, complete in all respects, after obtaining completion certificate from the competent Authority, within a period of 02 months from the date of receipt of a certified copy of this order, on receipt of remaining sale consideration from the complainants without charging any delayed payment interest.
    2. To pay to the complainants, interest @9% p.a. on the amounts deposited, starting from 10.05.2012 till 30.06.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated payment is made to the complainants.
    3. To pay to the complainants, interest @9% p.a. on the amounts deposited, w.e.f. 01.07.2021, onwards (per month), by the 10^th of the following month to the complainants till actual delivery of physical possession of the unit, complete in all respects. 
    4. To pay to the complainants, compensation to the tune of Rs.75,000/- for causing them mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  passing of this order till realization.
17.           Certified copies of this order be sent to the parties, free of charge.
18.           The file be consigned to Record Room, after completion.

 

Pronounced.

07.07.2022

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 Rg.