Chandigarh

StateCommission

CC/14/2015

Ms. Nishi - Complainant(s)

Versus

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

Prahlad Bhagat Vasudeva, Adv.

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

Complaint case No.	:	14 of 2015
Date of Institution	:	27.01.2015
Date of Decision	:	01.04.2015

 

Ms.Nishi wife of Sh. Pankaj Kumar, Local Address: H.No.3260/2, Sector 41-D, Chandigarh.

……Complainant

V e r s u s

1. Ansal Property and Infrastructure Ltd., SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh, through its Senior Executive (Sales and Marketing).

 

2. Ansal Property and Infrastructure Ltd., 1202-04, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi 110001, through its Managing Director.

              ....Opposite Parties

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

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh. Nitish Kumar Vasudeva, Advocate for the                                  complainant.

                  Sh.Vaibhav Narang, Advocate for the Opposite                                 Parties.

 

JUSTICE SHAM SUNDER (RETD.), PRESIDENT

           

            The facts, in brief, are that, the Opposite Parties, floated a scheme, for the allotment of residential independent floors, in their project, under the name and style of “Golf Links”, Mohali, Punjab. In response to the advertisements, in the leading newspapers, as also the assurances, given by the Opposite Parties, with regard to the salient features of the project aforesaid, the complainant applied to them, vide application dated 19.08.2010 Annexure C-1, for the allotment of a residential independent floor. Alongwith the said application, the complainant also deposited an amount of Rs.2,92,000/-, as earnest money, vide cheque No.000026 dated 19.08.2010. As such, vide Allotment Letter dated 19.10.2010 Annexure C-2, the complainant was allotted independent floor No.934-SF, measuring 250 square yards, consisting of three bedrooms, in their Project, namely “Golf Links”, Sector 114, Kharar-Landran Road, Mohali, Punjab. The total cost of the said independent floor was to the tune of Rs.29,40,000/-, which included Rs.28,20,000/- towards its basic cost, Rs.1,00,000/- towards Preferential Location Charges and Rs.20,000/- towards Interest Free Maintenance Charges (IFMS). The payment plan opted by the complainant was construction linked.

2.       It was stated that according to Clause 12 of the Allotment Letter dated 19.10.2010 Annexure C-2, the Opposite Parties were to hand over physical possession of the said independent floor, in favour of the complainant, within a maximum period of 30 months, from the date of commencement of construction work. It was further stated that, however, the Opposite Parties never intimated to the complainant, regarding start of construction of the said independent floor.
3.       It was further stated that, on the other hand, the complainant kept on making payment of instalments, in respect of the said independent floor, as per the payment plan, agreed to between the parties. It was further stated that despite making the payment of Rs.33,065,44.25Ps., to the Opposite Parties, in respect of the unit, in question, possession thereof, was not offered to the complainant, what to speak of delivery thereof. 
4.       It was further stated that the complainant visited the site, a number of times, but was surprised to see that there was no construction of the residential floors. It was further stated that the complainant contacted the Opposite Parties, to apprise her, with regard to delivery of possession of the independent floor, in question, to  her, whereupon, she was assured that the same could be delivered by 05.01.2015, but to no avail.
5.       It was further stated that the complainant against visited the site, to see the progress of construction but was surprised to the see that a lot of work, was still pending to be done, and only a structure of the independent floor was standing there. Even the basic amenities like roads, electricity etc. were not made available. As such, email dated 10.01.2015 Annexure C-6, was sent by the complainant to the Opposite Parties, to remove the deficiencies, complete the basic amenities and deliver possession of the independent floor in question, but to no avail.
6.       It was further stated that the Opposite Parties collected the huge amount of Rs.33,065,44.25Ps., towards the part price of independent floor, in question, by making a false promise, that physical possession thereof, shall be handed over within a period of 30 months, from the date of start of construction, but they did not abide by their commitment. It was further stated that, as such, the amount deposited by the complainant, towards the part price of independent floor, was utilized by the Opposite Parties, as a result whereof, she was caused huge financial loss. It was further stated that, as such, the complainant underwent a lot of mental agony and physical harassment, on account of non-delivery of possession of the unit, in question, at the hands of the Opposite Parties.
7.       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 complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to deliver  possession of the unit, in question, complete in all respects, as promised vide Allotment Letter dated 19.10.2010 Annexure C-2; pay interest @18% P.A., on the amount deposited by her, from the respective dates of deposits, till possession of the unit, in question, was delivered; compensation, to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.1 lac.
8.       The Opposite Parties were served and put in appearance on 02.03.2015. In their joint written version, they pleaded that the complainant being a Non-Resident Indian (NRI), residing in Dubai, as also because she owned a house in Sector 41, Chandigarh, had purchased independent floor, in question, by way of investment, and, as such, she did not  fall within the definition of a consumer. It was further pleaded that since as per Clause 32  of  the Allotment Letter dated 19.10.2010 Annexure C-2, any dispute arising out, in respect of the said independent floor, was subject to the Jurisdiction of New Delhi Courts, as such, this Commission has got no territorial Jurisdiction to entertain and decide the complaint. It was further pleaded that time was not the essence of the contract, as it was made clear, vide Clause 12 of  the  Allotment Letter dated 19.10.2010 Annexure C-2 that possession of the unit, in question, was likely/proposed to be delivered within a maximum period of 30 months, from the date of commencement of construction work. It was further stated that the complainant defaulted in making payment of instalments, towards the said independent floor, as a result whereof, delayed payment interest was also levied upon her, which she paid without any protest. It was further stated that possession of the unit, in question, had already been offered to the complainant, on 30.06.2014, vide Annexure R-3, subject to payment of  final dues, to the tune of Rs.6,94,516/-, but she did not come forward to pay the same and take over the possession. It was further stated that since the construction of independent floor, in question, was started in March 2011 and the offer of possession thereof, was made to the complainant, on 30.06.2014, vide Annexure R-3, as such, there was no inordinate delay. It was further stated that, on the other hand, the complainant requested the Opposite Parties that she would visit India, in the month of August 2015, and would take over possession, on making payment of the outstanding amount of Rs.6,94,516/-. 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. The remaining averments, were denied, being wrong.
9.       In the rejoinder filed by the complainant, she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
10.       The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
11.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Amit Raina, their Authorized Signatory, by way of evidence, alongwith which, a number of documents were attached. 
12.       We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 
13.       The first question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. The complainant, no doubt, is a Non-Resident Indian (NRI). It was the residential unit, which was allotted, in favour of the complainant. The mere objection of the Opposite Parties that the complainant being a NRI, though, originally belonged to India, as also that she owned a second house in Sector 41, Chandigarh, purchased the plot by way of investment, to gain huge profits, by selling the same, as and when there was escalation in prices, does not carry any weight and the same is liable to be rejected. First coming to objection of the Opposite Parties, that since the complainant is the owner of house No.3260/2, Sector 41-D, Chandigarh, the independent floor, in question, was purchased by her for commercial purpose, i.e. for selling the same, as and when there was escalation in the prices of real estate, it may be stated here, that no evidence was produced by the Opposite Parties, to prove that the complainant is the owner of the said house. Even no evidence was produced by the Opposite Parties, to the effect that the complainant owned a number of other residential properties, in the tricity, and, as such, the independent floor, in question, was purchased by her, 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 evidence, having been produced by the Opposite Parties, to the effect that the complainant is the owner of the aforesaid house, it could not be said that the unit, in question, purchased by her, was for the purpose of investment, with a view to resell the same, as and when, there was escalation, in the prices of real estate. The mere fact, that a person is residing, in a particular house, does not mean that she/he is the owner thereof.  As such, the objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stand rejected.
14.        Now coming to the second objection taken by the Opposite Parties, regarding the complainant being an NRI, it may be stated here, that the mere fact that it was a residential independent floor, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant, may be off and on, on her visit to India. There is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No law of the land, debars an NRI, though originally belonging to India, to purchase a residential property, in India, with a view to reside therein. The complainant, thus, availed of the services of the Opposite Parties, for the allotment of a residential floor, in question, with a view to reside in the same. The complainant, thus, falls within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.  
15.         The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. According to Section 17 of the Act,  a  consumer complaint could be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. In the instant case, the application form Annexure C-1, in respect of the independent floor in question, was signed and executed between the parties, at Chandigarh, as is evident from pages 17 and 18 of the file. Even the payment of instalments towards the price of the unit was made at Chandigarh. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission.  This Commission has, therefore, got territorial Jurisdiction to entertain and decide the complaint.
16.       No doubt, the Counsel for Opposite Parties, while placing reliance on M/s Swastik Gases P. Ltd. Versus Indian Oil Corporation Ltd., Civil Appeal No. 5086 of  2013,  arising out of SLP (Civil) No.5595 of 2012,  decided on 03.07.2013, and Balaji Coke Industry Pvt. Ltd. Vs. M/s Maa Bhagwati Coke (Guj.) Pvt. Ltd., Transfer Petition (Civil) No.78 of 2009, decided on 09.09.2009, by the Hon'ble Supreme Court of India, wherein it was held that where the agreement/contract specified the Jurisdiction of the Court at a particular place, all other Courts are excluded from invoking the same (Jurisdiction), contended that  since as per Clause 32 of  Allotment Letter dated 19.10.2010 Annexure C-2, the Parties by mutual consent, agreed that the Courts, at New Delhi, shall have Jurisdiction, to entertain and adjudicate the complaint, as such, the Jurisdiction of this Commission was barred. It may be stated here, that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13(4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down,  by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are  not  the Courts. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.  In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31(NC) and  Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr., I (2013) CPJ 169 (NC)  the  agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad.  The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts at Delhi, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainant, to file the complaint. No help, therefore, can be drawn, by the Counsel for Opposite Parties, from M/s Swastik Gases P. Ltd.'s and Balaji Coke Industry Pvt. Ltd.'s cases (supra). The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected
17.       The next question, that falls for consideration, is, as to within which period, possession of the unit, in question, was to be delivered to the complainant, by the Opposite Parties. The complainant submitted an application dated 19.08.2010, for the purpose of allotment of independent floor, in the aforesaid project. She was allotted the unit, in question, vide Allotment Letter dated 19.10.2010 Annexure C-2. According to Clause 12 of the Allotment Letter dated 19.10.2010 Annexure C-2, the complainant was to be handed over possession of the independent floor, in question,  within 24 to 30 months, from the date of start of construction. The date of start of construction mentioned in Annexure R-2 payment plan/schedule was 24.03.2011. Admittedly, the amount of Rs.33,065,44.25Ps., had been received by the Opposite Parties, towards part price of the said unit. On the other hand, the Opposite Parties, in their joint written version, clearly averred that the construction of the unit, in question, was started on 24 March 2011. It may be stated here, that it is not known, as to why, in the absence of any force majeure conditions, the Opposite Parties took seven months, to start the construction of independent floor. Otherwise also, even if it assumed that the construction was started on 24^th March 2011, then also as per Clause 12 of the allotment letter, physical possession of the independent floor, allotted in favour of the complainant, complete in all respects, was to be delivered to her, at the most, within 30 months, from March 2011. The complainant was, thus, required to be handed over the physical possession of flat, in question, on or before 24.09.2013. However, the complainant was not delivered physical possession of the unit, allotted in her favour complete in all respects, by the stipulated date, despite the fact that she had made the payment of Rs.33,065,44.25Ps., to the Opposite Parties. By making a misleading statement to the effect, that physical possession of the floor, in question, shall be delivered within 24 to 30 months, from the date of start of construction, and not adhering to the commitment, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. It is, therefore, held that the complainant is entitled to physical possession of the floor, in question, complete in all respects, allotted in her favour.
18.       No doubt, according to the Opposite Parties, possession of the unit, in question, was offered, for the first time, on 30.06.2014, vide Annexure R-3, but the complainant refused to take the same, on the ground that she would come back to India, in August 2015 and take over the same, on payment of the remaining part price thereof. However, at the same time, in paragraph number 7 of the written statement, it was also stated by the Opposite Parties, that the complainant, however, came to take over the possession of the said unit, in December 2014, and visited the site, when she pointed out certain defects, in the same, and now the same (finishing work) had been rectified and the same (unit) was ready for delivery of possession. The question arises, as to whether, the actual physical possession of the unit, complete in all respects, was offered to the complainant, on 30.06.2014, vide Annexure R-3. It may be stated here that in the written version, it was, in clear-cut terms, stated by the Opposite Parties that in December 2014, after Annexure R/3 letter of offer of possession was issued, there were certain deficiencies, in the unit, in question, which were later on rectified. It was also clearly admitted by the Opposite Parties, in their written version, that now the possession of unit, in question, was ready for delivery thereof to the complainant. In case, all these deficiencies, had been removed,  in the independent floor, then it was for the Opposite Parties, to submit some cogent and convincing 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 deficiencies, had been removed, in the independent floor. However, no evidence of the Engineer or the Architect,  was produced by the Opposite Parties, that the deficiencies, were actually rectified,  and, thereafter, possession of the unit, in question, complete in all respects, was offered   to the complainant.  It is, therefore, held that no actual legal physical possession of the unit, in question, complete in all respects, was offered to the complainant, on 30.06.2014, vide Annexure R-3. If the offer of possession of an incomplete unit, was made to the complainant, vide letter Annexure R/3, that could only be said to be the paper possession. Under these circumstances, the submission of the Counsel for the Opposite Parties, to the effect, that the possession of  the unit, in question, complete, in all respects,  was offered to the complainant, on 30.06.2014, vide Annexure R-3, being devoid of merit, must fail, and the same stands rejected.
19.       The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, for mental agony and physical harassment or not. The unit, in question, was allotted to the complainant, on 19.10.2010. The possession of the unit, in question,  was to be delivered to the complainant, complete in all respects, on or before 24.09.2013, as held above, but she was not offered/handed over physical possession thereof, complete in all respects, despite the fact that the amount of Rs.33,065,44.25Ps., being part price of the sale consideration, thereof had been deposited by her.  One could well imagine the plight of   a person, who had deposited her hard earned money, to the tune of Rs.33,065,44.25Ps., but she was not offered the actual physical possession of the independent floor, in question, complete in all respects, by the stipulated date. On the other hand, she was offered a mere paper possession, that too with number of deficiencies in the unit. Compensation, in the sum of Rs.1,00,000/-,  if granted, to the complainant, for mental agony and physical harassment, caused at the hands of the Opposite Parties, in our considered opinion, would be just, fair and adequate.
20.       It may be stated here, that vide calculation sheet, copy whereof is Annexure R/2, the Opposite Parties raised a demand of Rs.7,60,402/- i.e. Rs.4,23,000/- towards balance basic sale price of the unit, in question, plus (+) Rs.1,12,218/- as interest towards delayed payment plus (+) Rs.20,601/- towards service tax plus (+) Rs.1,96,718/- towards area increase plus (+) Rs.7,865/-, towards water and sewerage charges. In the said calculation sheet, the Opposite Parties have shown the total amount received, from the complainant towards all the heads aforesaid, as Rs.27,20,988/- out of the total sale consideration of Rs.34,81,390/-. However, it is very pertinent to mention here that, on the other hand, the complainant has placed on record, copies of receipts issued by the Opposite Parties, which clearly establish that the total amount of Rs.33,065,44.25Ps., has already been paid by her, out of the total sale consideration of Rs.34,81,390/-, demanded by them (Opposite Parties). It is, therefore, held that out of the amount of Rs.7,60,402/- demanded by the Opposite Parties, vide Annexure R-2,  the complainant is only liable to pay Rs.1,74,845.85Ps., i.e. (Rs.34,81,390/- minus (-) Rs.33,065,44.25Ps. already paid by her). The demand is, thus, held to be partially legal.
21.       No other point, was urged, by the Counsel for the parties.
22.       For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:-
    1. To hand over the actual legal physical possession of independent floor No.934-SF, measuring 250 square yards, consisting of three bedrooms, in their Project, namely “Golf Links”, Sector 114, Kharar-Landran Road, Mohali, Punjab, complete in all respects to the complainant, within a period of 45 days, from the date of receipt of a certified copy of this order, on payment of the  amount  of Rs.1,74,845.85Ps., as indicated above by her (complainant).
    2. The Opposite Parties are further directed to pay compensation, in the sum of Rs.1,00,000/-, for mental agony and physical harassment, to the complainant, within 45 days, from the date of receipt of a certified copy of this order.
    3. The Opposite Parties are further directed to pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
    4. In case the amount of compensation as mentioned clause (iii) above, is not paid, within a period of 45 days, from the date of receipt of a certified copy of this order,  the same shall carry interest @12% P.A., from the date of filing the complaint, till realization, besides payment of costs and compliance of other directions given above.
23.       Certified Copies of this order be sent to the parties, free of charge.
24.       The file be consigned to Record Room, after completion.

Pronounced.

April 1, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

Rg