Chandigarh

StateCommission

CC/111/2023

AJAY DHANESHWAR - Complainant(s)

Versus

M S INNOVATIVE HOUSING & INFRASTRUCTURE P LTD HAVING TRADE NAME PCL THROUGH ITS DIRECTOR NIRMAL KA - Opp.Party(s)

VARINDER ARORA

09 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	111 of 2023
Date of Institution	:	29.09.2023
Date of Decision	:	09.04.2024

 

 

 

 

 

1]       Sh. Ajay Dhaneshwar, aged 55 years, son of Sh. B. S. Dhaneshwar (Aadhaar No.8339 5831 9512)

2]       Smt. Avkash, aged 50 years, W/o Sh. Ajay Dhaneshwar (Aadhaar No.7408 8593 9780)

          Both residents of House No.145, Sector 38-A, Chandigarh.

 

...Complainants.

Versus 

 

1]       M/s Innovative Housing & Infrastructure (P) Ltd. (having Trade Name PCL), Corporate Office: PCL House, SCO No.198, Opp. Sports Complex, Sector 7-C, Chandigarh through its Director – Nirmal Kaur.

 

2]       M/s Innovative Housing & Infrastructure (P) Ltd. (having Trade Name PCL), Corporate Office: PCL House, SCO No.198, Opp. Sports Complex, Sector 7-C, Chandigarh through its Director – Jagjit Singh.

 

…..Opposite Parties.

 

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MR. RAJESH K. ARYA, MEMBER.

 

 

ARGUED BY:-    

Sh. Ashish, Advocate proxy for Sh. Varinder Arora, Advocate, for the complainants.

Sh. Suryansh Dubey, Advocate for the opposite parties (on VC).

 

 

 

 

 

PER  RAJESH  K. ARYA, MEMBER

Brief facts:-

                   The complainant was interested for a plot and the opposite parties have shown the plan of the area, where the opposite parties have started the town planning in accordance to the plans approved by the GMADA. The complainant was shown residential Plot No.165, measuring 500 Sq. Yds., in the project known as PCL Gateways, situated at Sector 17 & 18, New Chandigarh, District SAS Nagar (Pb.). The opposite parties conveyed that the said plot was having approximate value ₹1,02,26,425/- and a letter of allotment for residential plot was issued by the opposite parties having Ref. No.PCL/2020/2077 dated 12.12.2020, Annexure C-2, in the name of the complainants duly signed by the authorized signatory of the opposite parties. After the initial allotment and receiving the entire sale consideration ₹1,02,26,425/-, payment receipt was executed by the opposite parties. It has been further stated that the initial payment was received by the opposite parties on 02.12.2020 but the letter of allotment was issued to the complainants on 12.12.2020, which proves the fact that the plot was to be handed over to the complainants in accordance to the letter of allotment. However, it was conveyed to the complainants through letter of allotment dated 12.12.2020 and agreement to sell dated 02.12.2020 executed at the time of initial payment that in accordance to clause-8 of the same, it has been clearly stated by the opposite parties that "the company shall endeavor to make available the absolute, vacant and encumbrance free unit/ plot for possession by 31.12.2021 (with a grace period of three months) subject to the allottee not being in breach of any of the terms of the application form/ letter of allotment. In the event of any force majeure situations (including but not limited to inordinate delay in issuance of NOCs/Connections/approvals/ licenses from the competent local authority and/or judicial or regulatory orders), the date of such possession for unit/plot shall stand extended accordingly".

2]                It has further been stated that none of the above conditions has been breached by the complainants, rather on the contrary, the opposite parties have failed to offer the possession to the complainant from the date of certificate of registration which was executed on 12.12.2020 in favour of the complainants, which means that since 12.12.2020, maximum the possession could have been offered to the complainants within 15 months from the date of issuance of letter of allotment i.e. maximum by March 2022 but till date, the opposite parties have failed to offer the possession to the complainants, which strengthens the case of the complainants that due to unfair trade practice, the opposite parties have failed to offer the possession of the plot, for which they have already received the entire sale consideration.

3]                It has further been stated that it was stipulated in the letter of allotment dated 12.12.2020 that in case the scheduled payment is not made, then the default shall attract interest at SBI Bench Mark Lending Rate + 2% p.a. from the said date of delivery i.e. 31.03.2022. It has further been stated that this fact is also mentioned in Clause-9 of the allotment letter dated 12.12.2020, which is applicable to both the parties, hence, this complaint has been filed demanding possession of plot No.165 measuring 500 Sq. Yds., in the project known as PCL Gateways, situated at Sector 17 & 18, New Chandigarh, District SAS Nagar (Mohali); pay interest at SBI Bench Mark Lending Rate + 2% p.a. from the date from which the possession was delayed till the actual handing over of the possession to the complainants i.e. from 01.04.2022; pay ₹10 Lakhs for harassment, unfair trade practice and ₹1 Lakh towards litigation expenses.

4]                It may be stated here that although the opposite parties were proceeded exparte vide order dated 29.11.2023 as none had appeared on that date, however, on 05.01.2024, Sh. Suryansh Dubey, Advocate appeared on behalf of the opposite parties and sought an adjournment as he wanted to file reply. In fact, in this case, the service of the opposite parties was affected on 14.10.2023 through registered post. Sh. Suryansh Dubey, Advocate appeared on 14.11.2023 and he was specifically apprised that if reply is not filed within 45 days from the date of service, the right to file reply shall be extinguished. However, no reply was filed up-to 29.11.2023. Period of 45 days’ for filing reply had already elapsed. As such, right of the opposite parties to file reply stood extinguished vide order dated 05.01.2024 in view of judgment of Hon’ble Supreme Court of India in case titled as New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeal No.10941-10942 of 2013. However, the opposite parties were allowed to join proceedings in view of judgment of Hon’ble Apex Court in case titled ARN INFRASTRUCTURE INDIA LIMITED versus HARA PRASAD GHOSH, 2023 LiveLaw (SC) 763.

5]                Though in the absence of reply, the averment made in the complaint have gone unrebutted, yet in their written arguments, the opposite parties have stated that it was specifically agreed in the agreement to sell that in the eventuality of force majeure due to delay in issuance of NOC/Approval/ License from the competent local authority, the date of delivery of possession of the plot shall stand extended accordingly. It has further been stated that  since the government is processing the grant of approval of this scheme, therefore, the opposite parties cannot be fastened with any liability much less of any deficient services. It has further been stated that it is the delay in grant of necessary permission, which is on account of inertia of the authorities. It has further been stated that the actual physical possession of the plot cannot be handed over by the developer without these essential procedural requirements. It has further been stated that the opposite parties are still willing to offer possession of the said plot to the complainants, which is very much depicted in the plans of the developer and as such, there is no cause of unfair trade practice or deficient service by the opposite parties.

6]                We have heard the counsel for the parties, have gone through the record and the written arguments carefully.

7]                Admittedly, despite payment of an amount of ₹1,02,26,425/-, the possession has still not been delivered by the opposite parties to the complainants. It was stipulated in the Agreement (Developer-Purchaser) dated 02.12.2020, Exhibit C-1 and letter of allotment dated 12.12.2020, Exhibit C-2 that possession of the plot in question was to be delivered by the opposite parties by 31.12.2021 with grace period of three months i.e. latest by 31.03.2022 subject to the allottee not being in breach of any of the terms of the application/letter of allotment. In the instant case, the complainants paid hefty amount of ₹1,02,26,425/- in the year 2020 as per payment receipt issued by the opposite parties on 12.12.2020, Annexure C-3 and the unit was allotted to them vide allotment letter dated 12.12.2020, Annexure C-2. It is admitted position on record that as per Clause-8 of the Letter of Allotmnet dated 12.12.2020, the opposite parties were to make available the absolute, vacant and encumbrance free plot for possession by 31.12.2021 (with a grace period of three months) subject to the allottee not being in breach of any of the terms of the application form/letter of allotment. Per record, there is no breach on the part of the complainants as they have already paid the entire sale consideration of the plot in question i.e. ₹1,02,26,425/- by December 2020, as stated above. It was only in the event of any force majeure situations (including but not limited to inordinate delay in issuance of NOCs/Connections/ approvals/licenses from the competent local authority and/or judicial or regulatory orders), the date of such possession for unit/plot was to be extended. However, in the instant case, in their written arguments, the opposite parties have only stated that there is delay in the grant of necessary permission by the State Government/Authorities and they are still willing to offer possession of the plot in question to the complainants. The opposite parties have totally failed to show any force majure, which stopped them in offering possession of the plot in question. The opposite parties were to deliver a plot after obtaining necessary approvals from the competent authorities. It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. It is very strange that in the present case, not even an iota of evidence has been placed on record by the opposite parties to prove as to at what stage, construction and development work has reached at the project site and that as to whether approvals/sanctions have been obtained from the competent Authorities to launch the said project. In case, the development/construction activities are being undertaken or complete at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons to testify    as to whether, all these development/construction activities, are being undertaken or complete at the site or not, but they failed to do so.

8]                Furthermore, there is nothing on record to show that opposite parties suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of unit was not delivered to the complainants by the committed date, referred to above, or even till date.

9]                Thus, all the allegations leveled by the complainants in their complaint and also by their Counsel during arguments have gone un-rebutted/unchallenged by the opposite parties as they chose not to appear and file written statement or evidence.

10]              From the peculiar circumstances of this case, it has been proved that the builder-Company made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in a disadvantageous contract with builder-Company and suffered financial loss, mental agony and physical harassment. All the facts established that from the very inception there was intent to induce the complainants to enter into an unfair contract and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the builder-Company.

11]          On account of delay in actual delivery of possession within the stipulated period, the complainants suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, The Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today..…..”

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the complainants purchased the plot in question, as far as back in the year 2020, the complainants are empty handed and they are forced to approach this Commission for redressal of their grievance. The opposite parties have played fast and loose with the complainants and have caused harassment and mental agony to them, which is unacceptable and this practice needs to be deprecated. In our considered opinion, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession onwards till delivery of possession thereof, that will meet the ends of justice.

12]              Since fault lies with the opposite parties in not delivering the possession of the plot in question, therefore, they are not entitled to any delayed interest or penalty from the complainants. 

13]              For the reasons recorded above, the complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-

1. To deliver actual physical possession of Plot No.165 measuring 500 sq. yards in the project “PCL-Gateway” situated at Sector 17 & 18, New Chandigarh, Distt. SAS Nagar, (Pb.), to the complainants, complete in all respects, after obtaining occupation and completion certificate from the competent Authority, within a period of 03 months from the date of receipt of a certified copy of this order.  However, it is made clear that the complainants shall also pay the Govt. Fee, if any, before taking over the actual physical possession of the plot in question.   
2. To pay to the complainants, interest @9% p.a. on the amount deposited i.e. ₹1,02,26,425/- towards sale consideration, starting from 31.03.2022 (committed date for possession + three months) till 30.04.2024, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainants.
3. To pay to the complainants, interest @9% p.a. on the amounts deposited w.e.f. 01.05.2024, onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the plot, complete in all respects. 
4. To pay to the complainants, compensation to the tune of Rs.75,000/- for causing them mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.

14]              Certified copies of this order be sent to the parties free of charge.

15]              File be consigned to Record Room after completion.

Pronounced.

09.04.2024.

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

 

(RAJESH K. ARYA)

MEMBER

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