Chandigarh

StateCommission

CC/633/2017

Sulochna Rani - Complainant(s)

Versus

Ansal Properties & Infrastructure - Opp.Party(s)

Arun Kumar Adv.

06 Mar 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	633 of 2017
Date of Institution	:	22.08.2017
Date of Decision	:	06.03.2018

 

1. Sulochna Rani wife of Sh.Milap Chand.

 

2. Milap Chand son of Sh. Prabhu Ram

 

Both resident of House No.RZ 379/80, Jai Vihar Colony, Block-A, Phase I, Near Holly Mission School, Najafgarh, New Delhi – 110043.

……Complainants

V e r s u s

1. Ansal Properties & Infrastructure Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh, through its Director/Managing Director/Authorized Signatory.
2. Anil Kumar, Managing Director, Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi 110 001.
3. Sushil Ansal, Director, Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi – 110 001.
4. Pranav Ansal, Director, Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi – 110 001.

                                                    .... Opposite Parties           

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

Sh.  Varun Bhardwaj, Advocate for the complainants.

Sh. Rachit Kaushal, Advocate for the Opposite Parties.

 

PER PADMA PANDEY, MEMBER

              The facts, in brief, are that complainant No.2 (Sh.Milap Chand) was serving in Indian Army and after his retirement in 2015, he with an intention to settle down near Chandigarh applied for allotment of a flat in the upcoming project named as “Golf Links’II”, Sector 116, SAS Nagar, Mohali in the year 2012 vide application form dated 17.08.2012 for their personal use. The basic cost of the flat was Rs.42,33,000/-, out of which, the complainants deposited an amount of Rs.29,59,839/-, as detailed in para Nos.4 & 9 of the complaint. As per Clause 13 of the application form, possession of the flat was to be given within a period of 36 months with a grace period of 6 months from the date of execution of the Agreement. The Opposite Parties allotted dwelling unit No.236 FF, Victoria Floors to the complainants in the project of the Opposite Parties and executed Floor Buyer Agreement in the year 2012. It was further stated that as per Clause 5.1 of the Agreement, the Opposite Parties were to develop the flat in the said project within 30 months alongwith an extended period of 6 months and the same superseded the terms and conditions of the application form. It was further stated that the complainants visited the site and found that there was no development at all. Therefore, the complainants have no alternative but after his retirement to take the house on rent.  It was further stated that the Opposite Parties sent email to the complainants on 12.12.2016, wherein, they specifically mentioned that possession of the flat was to be given within 36 months but they failed to hand over the same and delayed the possession due to their own fault. It was further stated that the Opposite Parties agreed to pay the interest with regard to delay in handing over of possession. It was further stated that the complainants enquired telephonically from the representative of the Opposite Parties with regard to handing over of possession of the flat but they showed their inability and gave the proposal to the complainants to change the unit from FF 236 to FF 258. The complainants having left with no other alternative agreed to the same and they sent letter to the Opposite Parties to change flat No.FF 236 to flat No.FF 258 but the Opposite Parties even failed to hand over possession of the aforesaid flat No.FF 258. It was further stated that the complainants again visited the site in the month of August, 2015, March, 2016 and afterwards in the month of July, 2017 and found that there was no development at the site. It was further stated that the complainants made repeated requests to the Opposite Parties to refund the amount deposited by them alongwith interest etc. but to no avail. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

2.           The Opposite Parties, in their joint written version, have taken objection that the complainants did not fall within the definition of “consumer” under the Consumer Protection Act, 1986, since the said investment in the property of the Opposite Parties is purely for commercial/speculative purposes instead of personal use. It was stated that the complainants willfully breached the terms and conditions of the allotment letter and regularly defaulted in payment of the demanded installments. It was further stated that the clause mentioned in the Agreement only gave a tentative period for delivering possession of the allotted unit and did not give a fixed period of time for the possession. It was admitted that the amount was deposited by the complainants and receipts of the same were issued. It was further stated that this Commission has no jurisdiction to entertain the complaint, as the property is situated in Mohali.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

3.           The Parties led evidence, in support of their case.

4.           We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

5.           The objection taken by the Opposite Parties, to the effect that the complainants did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986 because the said property was bought by the complainants merely for speculation and not for any personal use, also deserves rejection. The complainants in para No.1 of the complaint clearly stated that complainant No.2 was serving in Indian Army and he was to retire in the year 2015 and he with an intention to settle down near Chandigarh after his retirement and to own a residential flat for his residential purpose. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Parties that the  complainants being investor/speculator, did not fall within the definition of a consumer, 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. Not only this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.”

 

 

               

                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 Parties, in their written reply, therefore, being devoid of merit, is rejected.  

6.           Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall “endeavour” to deliver possession of the unit within a period of 30 months with an extended period of 6 months from the date of execution of the Agreement and, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 5.1 of the Agreement (Annexure C-10), which was signed between the parties, that the Company shall endeavour to complete the development of 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 the building plan, whichever falls later. It is pertinent to note that in the present case, the Opposite Parties failed to prove that due to force majeure circumstances, the possession was delayed, which was beyond the control of the Opposite Parties. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 5.1 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 36 months from the date of execution of the Agreement, as such, time was,  unequivocally made the essence of contract.

                Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/ proposed was mentioned in the Agreement, for delivery of possession of the unit and, 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, 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 Parties in this regard also stands rejected.

7.            The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainants. As per Clause 5.1 of the Agreement, it is clear that possession of the unit was to be delivered within a maximum period of 36 months from the date of execution of the Agreement and not more than that. In the present case, the Agreement signed between the parties was undated. The Opposite Parties in their written statement failed to mention that Agreement was executed between the parties. The complainants in their complaint have stated that the Agreement was executed between the parties in the year 2012. It also appears that stamp of Apr. 2012 affixed on the first page of the Agreement. Application Form (Annexure C-1) is dated 17.08.2012 and the Agreement also refers to application dated 17.08.2012. Therefore, it is presumed that Agreement was executed between the parties after 17.08.2012. If we count 36 months from 17.08.2012, the possession was to be delivered to the complainants latest by 17.08.2015 and not more than that but the Opposite Parties failed to offer/deliver possession of the unit, complete in all respects, within the stipulated period, as mentioned in the Agreement or by the time when the complaint was filed.  Moreover, the Opposite Parties already admitted receipt of the amount of Rs.29,59,839/-, towards the said unit. By making a misleading statement, that possession of the unit, was to be delivered within a period of 36 months, from the date of execution of the Agreement, the Opposite Party failed to abide by the commitments and, as such, it was not only deficient, in rendering service, but also indulged into unfair trade practice.

8.           The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount of Rs.29,59,839/-, as claimed by them. It is the admitted fact that after receipt of the huge amount from the complainants, the Opposite Parties failed to deliver  possession of the unit, in question to the complainants. The complainants in their complaint clearly mentioned that when the Opposite Parties failed to deliver possession of unit No.FF236, they gave proposal to change the unit from FF236 to FF258, which was accepted by the complainants. In this regard, the complainants also annexed email dated 26.08.2017 & letter (Exhibits C-24 & C-25). Even the Opposite Parties failed to hand over possession of flat No.FF 258 also. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount deposited by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

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.29,59,839/-, was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the  Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the  Opposite Parties were charging heavy rate of interest @18% p.a. for first three months of delay but if the delay is beyond three months then the interest shall be applicable @21% p.a. compounded quarterly, as per Clause 4.5 of the Agreement, for the period of delay in making payment of installments.  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, to the tune of Rs.29,59,839/- alongwith interest @9% p.a. (simple), from the date of deposit, till realization. 

10.          As far as the plea taken by the Counsel for the Opposite Parties, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that it was ready with possession of the unit, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of the Opposite Parties or for any personal reason, and are seeking refund of the amount deposited. Had this been the case of the Opposite Parties, that they were willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the amount deposited, after deduction of the earnest money, as per the Agreement. In this view of the matter, the plea taken by the Counsel for the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

11.          No other point, was urged, by the Counsel for the parties.

12.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally are directed, as under:-

1. To refund the amount Rs.29,59,839/-, to  the  complainants, alongwith interest @9% p.a.  from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.30,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) 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 @12% p.a., instead of @9% p.a., from the date of default i.e. after expiry of two months, and interest @9% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

13.          However, it is made clear that, if the  complainant(s), in the aforesaid cases, 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 the complainant(s).

14.          Certified Copies of this order be sent to the parties, free of charge.

15.          The file be consigned to Record Room, after completion.

Pronounced.

March 6^th , 2018.                                           Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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