Chandigarh

StateCommission

CC/612/2017

Prem Kumar Kanwar - Complainant(s)

Versus

Ansal Properties & Infrastructure - Opp.Party(s)

19 Feb 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	612 of 2017
Date of Institution	:	17.08.2017
Date of Decision	:	19.02.2018

 

1. Prem Kumar Kanwar son of Sansar Chand, R/o #47, Gossamer Avenue, Mirrabooka, Western Australia, 6061.
2. Rekha Kanwar W/o Sh.Prem Kumar Kanwar, R/o #47, Gossamer Avenue, Mirrabooka, Western Australia, 6061.

…… Complainants

V e r s u s

Ansal Properties and Infrastructure Ltd., through its Authorized Signatory/Managing Director.

Corporate Office Address:

S.C.O. No.183-184, Sector 9-D, Madhya Marg, Chandigarh-160009.

    Second Address:-

115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-    110001.

…..Opposite party

Complaint under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:-      Sh.Sawinder Singh, Advocate for the        complainants.

Sh.Rachit Kaushal, Advocate for the opposite party.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainants are husband and wife respectively.  It is their case that with a view to settle near to Chandigarh, they purchased a flat bearing no.251, First Floor, measuring 1435 square feet, from the opposite party, in a project launched by them, under the name and style ‘Victoria Floors, Golf Links II”, Sector 116, Mohali, Punjab. The said flat was purchased by the complainants, under the scheme, in which no EMI/Interest was to be paid till handing over possession thereof. Total price of the unit was fixed at Rs.39 lacs, excluding external development charges. Floor Buyer’s Agreement was executed between the parties on 16.12.2011. The complainants opted for construction linked payment plan. As per Clause 5.1 of the Agreement, after construction, possession of the unit was agreed to be given within 30 months, from the date of signing of the above said Agreement with extended period of 6 months, total 36 months i.e. on or before 15.12.2014. Relevant condition no.5.1 of the Agreement reads thus: -

“5. POSSESSION OF FLOOR

5.1 Subject to Clause 5.2 and further subject to all the buyers of the Dwelling Units in the said scheme, Golf Links II, making timely payment, the Company shall endeavor to complete the development of residential colony and the Dwelling Unit as far as possible within 30 (Thirty) months with an extended period of 6 (six) months from the date of execution of this Agreement or the date of sanction of the building plan whichever falls later”

On making demand, from time to time, the complainants have deposited an amount of Rs.38,15,469/-, towards price of the said unit. To confirm the above said fact, copy of customer account ledger has been placed on record as Annexure C-2 dated 17.04.2017. It is specific case of the complainants that as per condition no.5.4 of the Agreement, in case of delay in handing over possession of the unit, the opposite party committed to pay compensation @Rs.10/- per square feet, per month of the super area of the unit, however, the said commitment was not fulfilled. It is further specific case of the complainants that whereof the month of December 2014, to get possession of the unit, they have contacted many Officers of the opposite party, many a times. Each time during meetings, they were given false promises and dates to hand over possession of the unit. It is stated that for delay caused, till the filing of this complaint, approximately an amount of Rs.4,44,850/- was due/payable to the complainants. It was specifically alleged that construction of the unit till the filing of this complaint was not complete and the opposite party has not applied to the concerned Authority for grant of occupation certificate. Fed-up with the behaviour of the opposite party, the complainants sent a legal notice on 20.07.2017, Annexure C-3, to the opposite party stating above fact and claiming refund of amount paid, alongwith interest, compensation etc. but to no avail. Hence this complaint.

2.         Notice was served upon the opposite party, whereupon, it filed its written statement, wherein, numerous objections were taken, to defeat the claim of the complainants.  It was averred that the complaint filed is beyond limitation. It was stated that the unit, in question, was purchased for future gain, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of the Consumer Protection Act, 1986.
3.         On merits, it was admitted that the complainants had purchased the residential unit, in question, in the manner, referred to above. Payments made by the complainants towards price of the unit, are also not disputed. Fact qua price of the unit, as mentioned in the complaint was also not disputed. In the reply filed, it is no where stated that possession of the unit was ever offered to the complainants, by the opposite party. Reading of the reply filed by the opposite party, indicates that it was not mentioned therein that the unit was complete or that occupation and completion certificates were obtained by it, from the Competent Authorities.  
4.          It was stated that as per Clause 5.1 of the Agreement, possession of the unit was to be delivered within a maximum period of three years, from the date of booking/allotment, subject to force majeure circumstances. It was further stated that three years for delivery of possession of the unit was only tentative period, as such, time was not the essence of contract. It was further stated that in case of delay in delivery of possession of the unit, vide Clause 5.4 stipulated penalty @Rs.10/- per square feet of super area of the unit, for the period of delay, has been provided, which safeguarded the interest of the complainants. The remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
5.         The contesting parties, led evidence in support of their case and also raised arguments in terms of pleadings noted in earlier part of this order, which were heard, in detail.
6.         The first question, that falls for consideration, is, as to whether, the complainants are speculators, as they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act, as alleged by the opposite party. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. On the other hand, the complainants, in para no.12 of their complaint, supported by affidavit of complainant no.1, clearly stated that the unit, in question, was purchased by them, for their personal use.  In the absence of any cogent evidence, in support of the objection raised by the opposite party, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. 

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the opposite party, in its written reply, therefore, being devoid of merit, is rejected.  

7.         It is not in dispute that the opposite party has failed to deliver possession of the unit, in question, within the stipulated period as provided in the Agreement or even till date, for want of construction at the site and also necessary approvals, from the Competent Authorities. The complainants have sought refund of the amount paid, alongwith interest, compensation etc. It is to be analyzed as to whether, in view of facts noted above; pleadings on record and arguments raised, it is open to the complainants, to claim above said relief or not.

                It is not in dispute that the complainants purchased the unit, in question, for which Floor Buyer’s Agreement was signed between the parties on 16.12.2011. Constructed unit was sold in favour of the complainants, for an amount of Rs.39 lacs, excluding external development charges. As per condition no. 5.1 of the Agreement, it was incumbent upon the opposite party, to hand over possession within a period of 30 months, with extended period of 6 months i.e. total 36 months from the date of execution of the said Agreement i.e. on or before 15.12.2014. The date of offer of possession of the unit i.e. 15.12.2014 already stood expired. Now it is February 2018. More than three years have lapsed.

                Contention of Counsel for the complainants that construction at the spot is virtually stopped, needs acceptance. By the date, when arguments were addressed before us, possession has not been offered to the complainants. At the time of arguments, Counsel for the opposite party failed to give any positive date/time, as to when, construction, will be completed and possession of the constructed unit will be given. In the written reply also, no commitment was made, as to by which time and date, possession of the unit will be delivered, after construction. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, is on the builder/opposite party. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, by the opposite party, in respect of the unit, in question, to prove that the construction is complete and it is actually ready for offer and delivery of possession. In case, all the development activities had been undertaken and construction of the flats is complete at the project site, then it was for the opposite party, 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 and construction activities, had been undertaken and completed at the site or not, but it failed to do so. At the same time, the opposite party was also required to produce on record, a copy of the occupation and partial/final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove its case, but it miserably failed to do that also.

                At the time of arguments, a very strange objection was raised by Counsel for the opposite party that construction of the units could not be completed, due to force majeure circumstances, faced by the opposite party i.e. non-approval of the project building plans, by the Officers of the Govt. Department concerned. It was stated that frivolous objections were raised by the Department, without any reasons. We have perused the reply filed. There is nothing on record, to show that any such alleged objections were ever raised by the Govt. Department, in respect of the project in question. Furthermore, no details in the reply have been given by the opposite party, as to at what stage and when, the alleged frivolous objections were raised by the Department, before granting approvals of the building plans etc. in respect of the project, in question. Such a plea taken by the opposite party, without any basis, needs rejection and is accordingly rejected.

                Under above circumstances, it can be said that there is a material violation on the part of the opposite party, in not offering and delivering possession of the unit, in question, to the complainants, by the promised dated i.e. 15.12.2014 or even as on today, thereby leading material violation on its part, apart from deficiency in providing service and guilty of adoption of unfair trade practice. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so said by the Hon’ble National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon’ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.

 

Furthermore, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the Hon’ble National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                However, in the present case, as stated above, the position is worst. It is not the case of the opposite party that construction could not be completed on account of some force majeure circumstances, actually encountered by them, as such, it be granted reasonable extension of time. Not even an iota of evidence has been placed on record to prove that the opposite party actually suffered any force majeure circumstances. Under these circumstances, the complainants are held entitled to get refund of amount deposited by them. In view of above facts of the case, the opposite party is also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them, as also escalation in prices.

8.         An objection raised by Counsel for the opposite party that since it was mentioned in Clause 5.1 of the Agreement that the Company shall endeavor to complete the development and dwelling unit, as far as possible, within maximum period of three years from the date of execution of the said Agreement dated 16.12.2011, as such, time was not the essence of contract, is also devoid of merit. In the absence of any force majeure circumstances having been actually faced by the opposite party or any other valid and legal reason beyond its control, the stand taken by it, in this regard, for condoning the delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Under these circumstances, the opposite party was bound to deliver possession of the unit, within a maximum period of three years from 16.12.2011 i.e. on or before 15.12.2014, as such, time was, unequivocally made the essence of contract.

                The opposite party also cannot evade its liability, merely by saying that since the words “shall endeavor” was mentioned in the Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement/Allotment Letter, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the opposite party in this regard also stands rejected

9.         It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainants. It is not in dispute that an amount of Rs.38,15,469/- was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the opposite party, for its own benefit. There is no dispute that for making delayed payments beyond period of three months, the opposite party was charging heavy rate of interest (ranging between 18%  to @21% compounded quarterly) as per Clause 4.5  of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainants are certainly entitled to get refund of the amount deposited by them, alongwith interest @12% p.a., from the respective dates of deposits (less than the rate of interest charged by the opposite party, in case of delayed payment, as per Clause 4.5 of the Agreement), till realization. 
10.         The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, is within limitation or not.  It may be stated here that since it is an admitted case that offer of possession of the unit, in question, could not be made till date, for want of basic amenities; necessary approvals by the competent Authorities, and on the other hand, amount deposited was not refunded to the complainants alongwith interest, as such, there is a continuing cause of action, in their favour, in view of principle 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). Under these circumstances, it is held that the complaint is not at all time barred. The submission of Counsel for opposite party, in this regard, being devoid of merit, must fail, and the same stands rejected.
11.         Since it has already been held above that the complainants are entitled to refund of the amount deposited, alongwith interest and compensation, as such, plea taken by Counsel for the opposite party, that in case of delay in delivery of possession of the unit, stipulated penalty @Rs.10/- per square feet, per month of super area of the unit, has been provided in the Agreement, which safeguarded the interest of the complainants or that the opposite party is ready to pay compensation for the period of delay in delivering possession of the unit, has no legs to stand and is accordingly rejected. The complainants cannot be made to wait for an indefinite period, at the whims and fancies of the opposite party.
12.         No other point, was urged, by the contesting parties.
13.         For the reasons recorded above, this complaint is partly accepted, with costs. The opposite party is directed as under:-

1. To refund the amount of Rs.38,15,469/- to  the  complainants, alongwith interest 12% p.a.,  from the respective  dates of  deposits onwards.
2. To pay compensation, in the sum of Rs.1,25,000/- for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.33,000/-  to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of two (2) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a. instead of @12%, from the respective dates of deposits onwards, and interest @15% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

14.         However, it is made clear that, if the complainants have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
15.         Certified Copies of this order be sent to the parties, free of charge.
16.         The file be consigned to Record Room, after completion.

Pronounced.

19.02.2018

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER

Rg.