Haryana

Karnal

CC/306/2019

Madhu Bala - Complainant(s)

Versus

Deepak Ansal Chairman Sum MD, Ansal Housing & Construction Limited - Opp.Party(s)

Vipinder Singh

01 Dec 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                         Complaint No. 306 of 2019

                                                          Date of instt.29.05.2019

                                                          Date of Decision 01.12.2021

 

Madhu Bala aged 55 years w/o Rakesh Chopra resident of house no.1000, Sector-7 Urban Estate, Kurukshetra.

 

                                                …….Complainant.

                                              Versus

 

1.     Deepak Ansal, Chairman cum MD, Ansal housing & Construction Limited, 2^nd floor, Ansal Plaza, Sector-1, near Vaishali Metro Station Vaishali, Ghaziabad, Uttar Pradesh-201010.

2.     Sanjeev Katyal, DGM, Ansal Housing Karnal, Sector 36, Adjoining Sector-4, near Namaste Chowk, Karnal, Haryana.

3.     Gaurav Pundhir, Manager, Ansal Housing Karnal, Sector-36, Adjoining Sector-4, near Namaste Chowk, Karnal, Haryana.

 

                                                                    …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

 

 Argued by: Shri Vipender Singh, counsel for complainant.

                   Shri Dinesh Chauhan, counsel for OPs.

 

                    (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OPs being housing and construction company provide residential and commercial facilities to the consumer. The complainant booked a shop No. GF-010 on 21.5.2021 vide receipt number 505931 at Ansal Galleria, Ansal Town, Sector-36, Karnal for earning her livelihood and deposited whole amount with time. OPs agreed to deliver possession of said shop within two years i.e. in 2014, but the OPs delayed the delivery of possession with a delay of more than three years. The sale deed of said shop was registered in favour of complainant on 12.9.2017 vide registered sale deed No. 5835 for an amount of Rs.21,81,444/-. The OPs gave possession of the said shop vide letter of physical possession on 23.09.2017. That when the complainant visited office of OPs regarding possession of said shop in year 2013, at that time OPs assured her that possession of said shop will be handed over very soon. The OPs also allured her to book a residential plot in their new township in Phase-II, Sector-36 Karnal and she was assured by OPs that there will be a very luxury residential township in near future. It is further averred that on allurement of OPs, complainant deposited total amount of Rs.8,00,000/- with the OPs vide cheque No.211169 dated 3.9.2013 and cheque no.211171 dated 2.10.2013 both of Rs.4,00,000/- each. OPs issued receipts no.551785 and 554724 respectively of the said amounts. The OPs assured the complainant to give possession of residential plot within 8 months but nothing was done at the part of OPs. OPs kept on lingering the matter on one pretext or other by saying that work is in progress. The OPs neither shown the site of the residential township to the complainant nor gave any details regarding the plot booked by her. It is further averred that after sufficiently waiting for possession, the complainant requested the OPs to make refund of her amount of Rs.8,00,000/- alongwith interest @12% per annum as mentioned in the buyer seller agreement of ops. The ops did not supply copy of buyer seller agreement to the complainant. The complainant repeatedly requested the OPs through emails and by visiting the office of OPs at Karnal to return her money with interest and adjust the amount pending for the shop no. GF-010 from the amount paid by complainant for residential plot. The OPs assured her that whole interest will be paid at the rate of 12% per annum. It is further averred that OPs adjusted an amount of Rs.431580/- vide receipts nos. 640863, 640873 & 640876 dated 22.3.2017 on account of amount due of shop no. GF-010 from the amount deposited by complainant for purchasing residential plot. The OPs also leveled hidden charges i.e. fire fighting at the rate of Rs.19539.29, electricity meter cost charge of Rs.15,000/- power backup of Rs.25,000/-, external electrification of Rs.39393.74, main road charges of Rs.7927.99, additional external charges of Rs.6145.42, labour cess charges of Rs.4724.24, customer deposit against VAT of Rs.15,757.50, registration fee of Rs.12,700/- and legal & documentation fee of Rs.16907/- with additional service tax on every deposit by the complainant. The total of the above mentioned receipts comes to Rs.,407,560/- and OPs charged an amount of Rs.4,31,580/- from complainant that too with so many hidden charges by stating that these are mandatory charges. The OPs never gave any written record regarding the above said charges. After adjustment of the amount pending of shop in question, the OPs sent a cheque dated 16.06.2018 of amount of Rs.4,90,317/- and that includes lower interest on amount deposited by complainant for residential plot as well as above mentioned adjustment, which was not as per the law. The said cheque was given to complainant after a long period of one year and three months after adjustment dated 22.3.2017. That upon asking about the details of refund and interest, the ops never gave any heed to the request of complainant and sent her out of their office by saying that this is total and final adjustment of the complainant’s money. It is further averred that interest to be paid by OPs comes out as follows:-

• For cheque dated 3.9.2013, period from 4.9.2013 to 21.3.2017 (date till adjustment of pending amount of shop no. GF-010) with simple interest @12% for 1293 days, the interest comes out to be Rs.170038/-
• For cheque dated 2.10.2013, period from 9.10.2013 to 21.3.2017 (date till adjustment of pending amount of shop) with simple interest @12% for 1259 days, the interest comes out to be Rs.165567/-
• Interest from 21.03.2017 to 16.06.2018 (date of clearance of cheque issued by ops on account of total refund with interest) with simple interest @12% for 453 days, the interest comes out to be Rs.84483/-.
•  

3.             On notice, OPs appeared and filed written version raising certain preliminary objections that complaint is not legally maintainable in its present form as the complainant does not fall under the definition of Consumer as per Section 2 of the Consumer Protection Act, 1986 and as such complaint is liable to be dismissed, that no cause of action has arisen in favour of complainant against the ops, as such complaint is liable to be dismissed, that complaint is bad for mis joinder and non joinder of the necessary parties, that complainant is estopped to file the present complaint against ops by her own act and conduct and stand taken by him, that no proper court fee has been affixed on the complaint, that complainant has not approached the Commission with clean hands and that this Commission does not have territorial and pecuniary jurisdiction to try, entertain and decide the complaint, therefore, the same is liable to be dismissed on this score also. On merits, it is submitted that OPs being a housing and construction company provides residential and commercial facilities to the consumers and complainant booked a shop number GF-010 on 21.5.2012 vide receipt number 505931, at Ansal Galleria, Ansal Town, Sector-36, Karnal. The complainant had booked the shop for investment purposes for getting financial gain which covered under commercial activities, so the complaint filed by complainant does not fall under the ambit of Consumer Protection Act, 1986. It is further submitted that sale deed of said shop was executed on 12.09.2017 vide registered sale deed no.5835 for an amount of Rs.21,81,444/- and possession of said shop has been given vide letter of physical possession on 23.09.2017. It is a fact to submit that offer of possession was sent to the complainant on 30.08.2016 and letter dated 23.09.2017 regarding physical possession was also sent after execution of sale deed. It is further submitted that complainant deposited amount of Rs.8,00,000/- vide cheques as mentioned by complainant but remaining contents of complaint are totally false, frivolous and denied in toto. It is further submitted that OPs had adjusted an amount of Rs.4,31,580/- vide receipt No.640863, 640873, 640876 dated 22.03.2017 on account of amount due of shop no. GF-010 from the amount deposited by complainant on account of purchasing of residential plot and after adjustment of the amount pending for shop in question, the OPs had sent a cheque dated 16.06.2018 of the amount of Rs.4,90,317/-. While denying all other contents of complainant specifically about charging of hidden expenses, it is submitted that said allied charges and mandatory Govt. fees/ taxes were mentioned in Builder Buyer Agreement and the same was signed by allottee with his free consent. It is also submitted that allottee/ complainant is well aware about the allied charges to be paid by her. It is also submitted that a cheque of Rs.4,90,316/- on account of interest (simple interest @10% per annum) and refund (Interest amount Rs.1,45,482/- plus refund amount of Rs.3,44,834.50) was given as agreed between the parties. But now complainant has leveled false and frivolous allegations against the OPs which have no resemblance with the truth. It is submitted that interest amount has been calculated on the interest rate of 10% per annum instead of 12% per annum and exorbitant calculation has been made unilaterally by the complainant in order to extract unlawful monies from the OPs and thereby causing wrongful gains to herself and loss to the ops. The cheque of Rs.4,90,316.50 was issued to the customer towards full and final settlement. All other contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.

4.             The parties then led their respective evidence.

5.             Complainant has tendered in evidence her affidavit Ex.CW1/A, copy of application for provisional booking/ allotment of commercial shops dated 21.5.2012 Ex.C1, copies of various receipts Ex.C2 to Ex.C19, copy of conveyance deed Ex.C20 including copy of challan of the amount of Rs.12,503/- Ex.C21, site of shop Ex.C22, and last page of sale deed Ex.C23, copy of physical possession letter dated 23.9.2017 Ex.C24, copy of application regarding request for refund of advance money deposited by her for purchase of residential plot Ex.C26 and subsequent emails in this regard Ex.C27 to Ex.C30 and copy of cheque of the amount of Rs.4,90,316.50 dated 16.06.2018 Ex.C31. 

6.             On the other hand, OPs have tendered in evidence affidavit of Sh. Gaurav Pundhir, Manager as Ex.OW1/A.

7.             No other evidence was produced by OPs despite availing numerous opportunities including last opportunities and thereafter, as OPs failed to conclude their evidence, the evidence of OPs was closed by order.

8.             We have heard learned counsel for the parties and have perused the case file carefully.

9.             At the very outset, we would like to mention here that on 11.09.2019 alongwith written version, the OPs also filed an application for rejection of the complaint and after filing of reply to the application on behalf of complainant, on the request of both the parties, it was ordered that the aforesaid application will be decided at the time of decision and the case was adjourned for evidence of parties.

10.           So, first of all, it would be appropriate to consider the application of OPs moved for rejection of complaint in which preliminary objections have been taken. The OPs have taken the plea for rejection of complaint that complainant is not a bonafide consumer as she is a property dealer who used to purchase and sell property for getting of property appreciation in market value, moreover she purchased the above shot not for her livelihood. Further, the OPs have pleaded that complaint is barred by law as the complainant has not impleaded Ansal Housing & Construction Ltd, 2^nd Floor, Ansal Plaza, Sector-1, Near Vaishali Metro Station, Vaishali, Ghazibad (U.P) because the complainant is not the consumer of Ansal Housing & Construction Ltd. Further objection of OPs is with regard to the pecuniary Jurisdiction of this Commission. According to OPs, Consumer Forum (now Commission) has power to entertain the complaint of complainant up to the value of Rs.20,00,000/- but the subject matter involved in the present complaint is excess from Rs.20,00,000/- as the sale consideration of the shop in question is Rs.21,82,444/- and moreover she has settled all the dispute before the execution of sale deed amicably and the rate of interest has also been decided unanimously without any protest and this Forum (now Commission) has got no jurisdiction to entertain, try and decide the present complaint.

11.           The complainant resisted the above said application on the ground that complainant is bonafide consumer of OPs and she is not a property dealer as alleged. The complainant has impleaded all the necessary and proper parties and she has already impleaded Managing Director of Ansal Housing & Construction Ltd, so question of non impleading of Ansal Housing & Construction Ltd. does not arise at all. That this Commission has got jurisdiction to entertain, try and decide the present complaint. It is correct that the sale consideration of the shop in question is Rs.21,82,444/-. However, in the present complaint, the dispute is not regarding the shop in question, rather the matter involved in the present complaint is regarding the residential plot, for which the complainant had deposited total sum of Rs.8,00,000/- with the OPs, but the OPs failed to show the site of the residential township nor gave any detail regarding plot booked by the complainant. The complainant has sent several emails to the OPs but all in vain.

12.           In so far as preliminary objection taken in the application by OPs that complainant has not impleaded Ansal Housing & Construction Ltd. 2^nd Floor, Ansal Plaza, Sector-1, Near Vaishali Metro Station Vaishali, Ghaziabad, U.P. is concerned, we found no substance in this objection of OPs because said Ansal Housing & Construction Limited with same address as given by OPs has been duly impleaded by the complainant through its Chairman cum Managing Director as OP no.1, so this objection raised on behalf of OPs is misconceived and not entertainable and as such same is hereby rejected.

13.           The other objection raised on behalf of OPs in the above said application is that complainant is not a bonafide consumer as she is a property dealer and she purchased the shop in question for earning profit and not for her livelihood. However, this objection of OPs is also baseless and not supported with any document. The OPs have not proved on record that complainant is a property dealer. On the other hand, the complainant has specifically stated in her complaint that she purchased the shop in question for her livelihood. Furthermore, the dispute in the present complaint is qua refund of the advance money which was deposited by complainant with OPs for purchase of a residential plot, therefore, OP should have been debarred from taking such frivolous pleas. As such the said objection of OPs is also hereby rejected. Similarly, the objection of OPs regarding pecuniary jurisdiction of this Commission is also liable to be rejected because grievances of complainant is regarding refund of the amount of Rs.3,15,869/- out of advance amount of Rs.8,00,000/- alongwith interest from the OPs which amount was paid by her for residential plot and therefore, subject matter of the shop and its price of Rs.21,82,444/- cannot be taken into consideration and cannot be involved in the present complaint by OPs. Taking into account, the advance money of Rs.8,00,000/- of residential plot which was to be purchased by complainant, this Commission (earlier Forum) has pecuniary jurisdiction to entertain and try and decide the present complaint. So, all the objections taken by the OPs found to be vague, frivolous and liable to be rejected and accordingly, same are hereby rejected. Resultantly, the application moved on behalf of OPs is also dismissed.

14.           Now, coming to the merits of the case, the complainant has sought refund of the amount of Rs.3,15,869/- alongwith interest out of the amount of Rs.8,00,000/- deposited by her on account of purchase of residential plot. Admittedly, out of said amount of Rs.8,00,000/- deposited by complainant in year 2013 for purchase of residential plot, an amount of Rs.4,90,317/- has been refunded by OPs to the complainant only on 16.6.2018 and therefore, complainant claims remaining amount of Rs.3,15,869/- alongwith interest from the OPs. The OPs have taken the plea that an amount of Rs.4,31,580/- out of the deposited amount of Rs.8,00,000/- for purchase of residential plot has been adjusted towards balance amount of shop No. GF-010 of the complainant on 22.3.2017 and an amount of Rs.4,90,317/- including interest amount at the rate of 10% per annum has been refunded to the complainant vide cheque dated 16.6.2018 as full and final payment and same has been accepted by complainant without any protest and the matter has been amicably settled by complainant, therefore, now complainant is estopped from filing the present complaint by her own act and conduct. But we found no substance in this plea of OPs because OPs have not placed on file any document showing that complainant showed her willingness to accept the above said amount of Rs.4,90,317/- as full and final payment/ settlement without any protest and furthermore, OPs have not placed on file any document to show that complainant herself entered into compromise with the OPs to settle the matter amicably with them. It appears that complainant has accepted the above said amount under protest and under constrained circumstances keeping in view the fact that OPs were not making refund of such huge amount and were detaining the hard earned money of complainant without any reason. The OPs have got deposited the amounts from complainant in the year 2013 and have refunded the part amount in year 2018 after retaining the amount for such a long time of five years which constrained the complainant to receive amount though as part payment and as such she has filed the present complaint seeking refund of the remaining amount. The OPs have not placed on file any document bearing signatures of the complainant to show that complainant received the said amount as per her willingness.

15.           Now, we come to the foremost point as to for what actual amount, the complainant is entitled to refund from the OPs. The basic price of the shop was Rs.18,12112.50 and an amount of Rs.1,26,847.80 was to be charged on account of preference location charges and therefore, total basic cost including PLC was Rs.19,38960.30 which fact is evident from copy of application for provisional booking/ allotment of commercial shop Ex.C1 as well as from letter of allotment. But from various receipts placed on file by complainant as Ex.C2 to Ex.C14 and Ex.C16 to Ex.C19, it is evident that complainant has deposited an amount of Rs.23,11,027.75 with the OPs towards price of the shop in question including allied charges regarding fire fighting, electricity meter cost charges, power backup charges, external electrification charges, taxes, external development charges, infrastructure development charges, charges for main road, additional external development charges, labour cess charges etc. The abovesaid shop No. GF-010 was allotted to the complainant on 21.5.2012, but sale deed of said shop was got executed and registered by OPs in favour of complainant on 12.9.2017 for an amount of Rs.21,81,444/- on account of delay of three years on the part of OPs and in the meantime, OPs also got deposited an amount of Rs.8,00,000/- from the complainant for purchase of a residential plot from them in year 2013 and this amount of Rs.8,00,000/- also remained deposited with the OPs without any fault of complainant for a period of four years. It is proved on record from copy of application of complainant dated 5.10.2015 regarding refund of advance of Rs.8,00,000/- Ex.C26 and subsequent emails Ex.C27 to Ex.C30 that complainant was requesting the OPs to make refund of the amount of Rs.8,00,000/- with interest time and again as neither any residential plot was allotted to her by OPs nor any site of residential plot was shown to her but despite this fact the OPs did not pay any heed to the requests of complainant. According to complainant, even at the time of adjustment of pending amount of above said shop on 22.03.2017, an amount of Rs.11,35,605/- (Rs.8,00,000 plus Rs.3,35605/-) of the complainant was due against the OPs and even after adjustment of the amount of Rs.4,31,580/- by OPs towards shop, his amount of Rs.7,04,025/- remained due towards OPs on 22.03.2017 but even then after expiry of about one year and three months, OPs issued cheque of Rs.4,90,317/- to the complainant on 16.6.2018. The OPs have not justified the above said delay of refund and have also not justified as to how they have refunded amount of Rs.4,90,317/- instead of Rs.7,04,025/-. So, we are of the considered view that OPs are indulged in monopolistic attitude and have caused deficiency in service as well as harassment and mental agony to the complainant as OPs have got deposited huge amount of Rs.8,00,000/- from the complainant on the pretext of allotment of a residential plot. The complainant claims refund of an amount of Rs.3,15,869/- alongwith interest @24% per annum from the date of deposit of amount for the purchase of plot in question from the OPs and OPs have failed to rebut the said demand of the complainant by leading cogent and convincing evidence. Rather, it is proved on record from terms and conditions of allotment letter of shop, that OPs were at liberty to charge interest on account of delay in making payment of outstanding amount, so they are liable to pay the above said amount at the rate of 9% per annum to the complainant on account of their fault in delay of payment of above said amount of Rs.3,15,869/- to the complainant.  But, however, complainant is found entitled to that amount of interest from the date 22.3.2017 when the OPs should have refunded the extra amount after adjustment of the balance amount towards shop in question as according to complainant herself she was requesting to pay the remaining amount after adjustment of the balance amount towards above said shop and balance amount of shop was adjusted by OPs on 22.3.2017. But despite adjustment of above said amount on 22.3.2017, the OPs refunded the amount of Rs.4,90,317/- only on 16.6.2018 i.e. after one year and three months. Though, during the pendency of this complaint, on 7.9.2021 learned counsel for OPs submitted that OP no.1 has expired and undertaken to produce his death certificate on next date of hearing but OPs have failed to produce on record any death certificate of OP no.1. So, OPs have also failed to prove on record that MD of OP no.1 is no more. Moreover, Ansal Housing & Construction Limited has vast property business and is being represented by DGM and Manager at its office at Karnal, therefore, they alongwith company will be liable and responsible to make the payment to the complainant if Managing Director of said company has expired.  

16.           In view of our above discussion, we allow this complaint and direct the opposite parties to pay the aforesaid amount of Rs.3,15,869/- to the complainant alongwith interest @9% per annum from 22.3.2017 till actual realization. We further direct the OPs to pay Rs.20,000/- to the complainant on account of mental agony and harassment suffered by her and Rs.11,000/- for the litigation expense. This order shall be complied with within 45 days from the date of receipt of copy of this order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:01.12.2021                                                                     

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

(Vineet Kaushik)          

                     Member