Delhi

StateCommission

CC/224/2014

JAGDISH JOSHI - Complainant(s)

Versus

M.D., PUNJAB NATIONAL BANK - Opp.Party(s)

08 Mar 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :  08.03.2018

Date of Decision :  14.03.2018

Complaint No.224/2014

 

In the matter of:

 

Mr. Somendar Gautam,

2-Apple Cross Lane,

Setauket, New York-11733.                                              …..........Complainant

 

Versus

 

1. Ansal Housing & Construction Ltd.
2. Mr. Deepak Ansal, Chairman Cum Director

Ansal Housing & Construction Ltd.

3. Mr. Kushagar Ansal, Director,

Ansal Housing & Construction Ltd.

4. Mr. Vipin Mehta, Deputy General Manger,

Ansal Housing & Construction Ltd.

5. Mr. A.Kapoor, Deputy General Manager,

Ansal Housing & Construction Ltd.

 

All addressed at:

 

15, UGF Indra Prakash,

21, Barakhamba Road,

New Delhi-110001.                                       …....Opp. Parties

                                                                

CORAM

 

Hon’ble Sh. O. P. Gupta, Member (Judicial)

Hon’ble Sh. Anil Srivastava, Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment?                                       Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

 Present : Sh. Pranjal Saran, Counsel for the Complainant.

                   Sh. Kapil Kher, Counsel for the OPs.

 

 

PER : SHRI ANIL SRIVASTAVA, MEMBER (G)

Judgement

In pursuance of the orders dated 16.12.2014 passed by the Hon’ble National Consumer Disputes Redressal Commission in CC No.111/2017, returning the complaint to file it before the concerned State Commission and directing the State Commission to deal with the complaint in accordance with law and in the light of the pleadings filed and the evidence led by the parties, Sh. Somendar Gautam, for short complainant, has filed this complaint before this Commission against Ansal Housing & Construction Ltd., hereinafter referred to as Opposite Parties, alleging deficiency of service on the part of the OPs due to cancellation of the allotment of the plot and praying for the relief as under :-

1. Allow the complaint and consequently direct the opposite parties to handover possession of “plot in question”. Namely plot no. B-C075 at Golt Links-I, Greater Noida to the complainant.

 

2. In case, opposite parties have unscrupulously / clandestinely allotted the said plot in question to some third person, opposite parties be then directed to cancel that allotment and handover the possession of the plot to complainant.

 

3. Direct the opposite parties to pay a consolidated sum of Rs.25,00,000/- as damages for causing unnecessary harassment, agony and trouble deliberately to the complainant by the negligent, deliberate act of the opposite parties in cancelling the plot in question.

 

4. Direct opposite parties to pay cost of entire litigation to the complainant;

 

5. Pass any other and/or further order that is deemed fit, reasonable and expedient.

 2.      Fact of the case are these.

3.       Plot No.B-C067 admeasuring  359 sq, yards (300 sq. mtrs) in Ansal golf Link, Greater Noida was booked by one Ms. Rajni Bhatia with opposite party No.1 – Ansal housing & Construction Ltd. vide application dated 22.04.1996. The booking was later transferred from Rajni Bhatia to one Mrs. Geeta Singhal. Subsequently, vide letter dated 08.05.1997 Mrs. Geeta Singhal requested the opposite party No.1 to transfer the booking in the name of the complainant Shri Somendar Gatuam. The aforesaid change was allowed and a letter dated 09.05.1997 was issued by opposite party No.1 to the complainant, confirming the said transfer.  This was followed by an allotment letter dated 04.05.1998, allotting plot No.75 in block B admeasuring 359 per sq. yards to the complainant for a consideration of Rs.188.05/- per sq. yard.  The total consideration on the aforesaid basic sale price came to Rs.6,46,217.95/-. The case of the complainant is that on shifting from the place where he was residing at the time of allotment made to him, he had intimated the new address to the opposite party on telephone followed by a letter dated 26.06.2000. The new address of the complainant was 2, Apple Cross lane, Satauket, New York-11733. The grievance of the complainant is that the possession of the aforesaid plot has not been given to him by the opposite party, which amounts to deficiency in the services rendered as well as adoption of unfair trade practices.  The complainant has so far made payment of Rs.5,95,350.83. Being aggrieved due to the cancellation of the plot resulting non-handing over of the possession of the plot, the complainant has approached this Commission for the redressal of his grievances.

4.       The OPs resisted the complainant on the ground of limitation.  Secondly, OPs have averred that the cancellation of the plot has been done in terms of the agreement as indicated in the allotment letter.  The complainant was party to the agreement.  Finally, no cause of action subsists as again the OPs and they are not deficient in the discharge of their obligation under the agreement. The OPs have also taken objection regarding pecuniary jurisdiction which objection, the complaint having been filed before this Commission, no longer subsists.

5.       The matter was listed before us for final hearing on 08.03.2018 when counsel from both sides appeared and advanced their arguments.  We have perused the records of the case and given a careful consideration to the subject matter.

6.       The sole argument of the counsel for the complainant is that this act of the OP in cancelling the allotment amounts to deficiency of service since no offer of possession of the plot was ever sent though he had made the substantial payment.  His argument  is that he had applied for two plots. While offer of possession in respect of one plot was sent and in response thereto possession has been taken over, no reference was made with respect to the plot in question leading to an inevitable conclusion that the OPs were deficient.  The complainants have objected to the defence of the OPs that the change of address for communication was not brought home to them.  There appears to be no cogent reason for the communication offering the possession not received, which if sent as was received with respect to other plot, the necessary action would have been taken. Worse happened when the OPs cancelled the allotment for no valid reason  or ground. The complainant is aggrieved by the conduct of the OPs which is aimed at unjust and unlawful enrichment at the cost of the complainant.  It is alleged that the OPs have unilaterally and illegally cancelled the allotment of the complainant vis-à-vis plot in question. No fault can be attributed to the complainant, but only to the Ops since it was itself in breach of not having developed the plot in question on time and misleading the complainant regarding development of the said plot. Besides this, the complainant is also aggrieved since the OPs have defaulted in not keeping their own record straight; the complainant had timely informed the OPs of the change in address. The complainant has further alleged arbitrariness, unfairness, ‘Deficiency in Service’ and ‘Unfair Trade Practice’ on part of OPs.

7.       The ld. Counsel for the OP in his arguments had submitted in the first instance that this Commission lacks the pecuniary jurisdiction to hear this complaint.  We are unable to accept this arguments since Hon’ble NCDRC by its order dated 16.12.2004 has returned the complaint for filing before the State Commission which has since been done and thus the arguments to this effect is not maintainable.

8.       Their second leg of the arguments of the OPs is that the complaint having been filed seven years after the cancellation of the allotment beyond the prescribed time as contemplated under Section 24A of the Consumer Protection Act 1986 is barred by limitation.

9.       We are not impressed with this argument as nothing is available on record to show that the OPs have sent offer of possession to the complainant on his available address and thus the complainant having made the payment, there exists continuous cause of action. The Hon’ble NCDRC in the matter of Rukmani Yamna & Ors. Vs. Kirloskar Investment and Finance Ltd. as reported in II [2012] CPJ 284 (NC) is pleased to hold as under :

“Cause of action arose on 25.04.1995/July.  August 1995. Complaint was filed on 09.02.1998.  Allegedly barred by limitation.  Construction regarding delay not accepted since cause of action continued even after possession as defects remained to be rectified.”

10.     The NCDRC in yet another case, in the case of Karnataka Housing Board Vs. D. Shantappa as reported in IV[2014] CPJ 655 (NC) is pleased to hold as under:-

“ Karnataka Housing Board did not stop at demand survey, but simultaneously had obtained initial deposits as well from applicants. Neither sites were allotted nor deposits for same were refunded to complainant. Situation continued till consumer complaint was filed. Case is of continuing cause of action”.

11.     In view of the discussion done and the law laid down, we are of the considered view that the contention raised regarding limitation is not sustainable and accordingly is rejected.

12.     Thirdly, the OPs, relying on clause 3 of the allotment letter, have averred that the complaint is not maintainable as the cancellation of the plot was done due to the complainant not having deposited the amount as per schedule. Clause 3 of the allotment letter posits as under :-

“payment of instalment towards the plot will be made by the Allottee at intervals as per the payment plans opted by him/her.  Other charges pertaining to the Plot shall be paid as and when demanded by the Developer. Timely payment of instalment and other charges is the essence of the terms of the Allotment Letter.  If the payment are not received which the stipulated period given in the payment plan or as per the demand and / or in the event of breach of any of the terms and conditions of the Allotment Letter by the Allottee, the allotment can be cancelled by the Developer and forfeiture shall be made as per the rules and regulations of the Developer/Authority and the balance amount if any, will be; refunded without any interest after compliance of the necessary formalities.  However, in exceptional circumstances the Developer may in its absolute discretion condone the delay in payment by charging penal interest @24% per annum on the delayed payment/outstandings. The allottee agrees to make al payments through demand draft/cheques payable at New Delhi/Delhi only”.

13.     The said clause 3 envisage a condition precedent to the effect that a demand would be raised by the OP and in response to which the payment would be made by the complainant. There is no record to suggest that the demand notice was sent to the complainant on his address.  In the absence of such a demand letter having been sent reliance of Clause 3 to cancel the allotment of the plot would be misplaced. The defence of the OP that the fresh address of the complainant having not been intimated leading to the issuance of the letter on the old address, does not carry conviction since the OPs with respect to another plot of the complainant have raised the demand letter on the new address and thus, the OPs cannot take this argument to cancel the subject plot, relying on Clause 3 (supra). Accordingly, its contention to this effect being not tenable is rejected.

14.     The ld. Counsel during the course of argument has also raised the point that the complainant is not a consumer since has made the investment having applied for two plots. This argument is also not sustainable since no evidence has been led showing that the purpose of purchase of more than one plot is for trading purpose as also for making profit. The Hon’ble NCDRC in their judgement in CC No.346/2013 rendered on 02.05.2016 in the matter of Lt. Col. Anil Raj & Anr. Vs. M/s. Unitech Limited & Ors. has held in para 11 as under :-

“As regards the plea that since at the time of booking of the plot, the Complainants were already owning a house and therefore, the plot was booked for resale/commercial purpose and hence they were not "Consumers" within the meaning of Section 2(1)(d) of the Act, in a number of decisions rendered by this Commission, it has been held that unless there is evidence on record to show that a Complainant had booked more than one property/plot for the purpose of trading in the same, a bald assertion by the Opposite Party that plot/property had been bought for the purpose of making profits is not sufficient to hold that the transaction was for "Commercial purpose."  The ratio of the said decisions is on all fours on the facts of the present case. Except for a bald plea in the written version that the plot had been purchased by the Complainants with a view to sell it on premium and make profits, Unitech has not said even an additional word in this behalf, leave alone leading evidence to prove the assertion”.

15.     Similar view was taken by the NCDRC in the matter of DLF Vs. Nirmala Devi Gupta as reported in II [2016] CPJ 316 (NC) and in Sai Everest Developers Versus Harbans Singh Kohli (FA-530/15 – decided on 21.07.2015) holding that booking of more than one flat is not commercial.  Hence  the contention to this effect is rejected.

16.     The Ld. Counsel for the respondent has taken objection to the effect that the complainant being an NRI is not a consumer since apparently he has purchased the unit for making investment as also for making profit.  This argument is not sustainable in view of the judgement of the Hon’ble NCDRC in the matter of Reshma Bhagal Vs. Supertech as reported in IV [2016] CPJ 548 (NC) holding that NRI can book a flat in India and he is a consumer.

17.     In that view of the matter the inescapable and inevitable conclusion is that there was a gross deficiency as defined in Section (2(1) (g) of the Consumer Protection Act 1986, on the part of OP in cancelling the booking of the plot in terms of agreement to sell.

18.     The OPs having cancelled the booking of the unit, forfeited the amount relying on the judgement of the Hon’ble NCDRC in the matter of M/s. Ansal Housing & Construction Ltd. Vs. Indian Machinery Co. [RP-1931/2013 – decided on 23.02.2017].  The facts of that case however, are not apposite to this case. In that case letter raising the demand was served and the complainant did not make the payment but in the given case the demand letter was not served and thus reliance of the ratio of that judgement for dealing with this case would be misplaced.

19.     In the meanwhile, the unit after its cancellation has been sold to one Smt. Sushma and the sale deed to this effect has been executed.  Having regard to this restoration of the plot is out of question.

20.     Having bestowed our anxious consideration to the fact at hand, we are of the opinion, that the complaint deserves to be accepted.  Having arrived at the said conclusion, the core question for consideration is as to how the complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OP on account of non-delivery of the allotted flat.

 

21.     The provisions of the act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental, or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action on the part of the part of the OP. In Ghaziabad Development Authority vs. Balbir Singh-(2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon’ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations, given in the said decision was between the cases, where possession of a booked/ allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in our view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc., if it happens to be a plot of land, like in the present case.

 

22.     They have relied on yet another judgment passed by the Hon’ble NCDRC in the matter of Swarn Talwar and two ors. vs Unitech Ltd. passed in CC 347/2014 decided on 14.08.2015 holding as under:

 

For the reasons stated hereinabove, we direct the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount, at the rate of 18% per annum from the date of deposit til the date of payment. The payment shall be made within six weeks from today. In the facts and circumstances of the case there shall be no order as to cost. The complaints stand disposed of.

 

23.     The Hon’ble NCDRC in the matter of Puneet Malhotra Versus Parasvnath Developers Ltd. CC-232/2014 decided on 29.01.2015 is pleased to hold as under :-

For the reasons stated hereinabove, we direct the opposite party to refund the amount paid to it by the complainants, along with compensation in the form of simple interest on that amount, at the rate of 18% per annum from the date of deposit till the date of payment. The payment shall be made within six weeks from today. In the facts and circumstances of the case there shall be no order as to cost. The complaints stand disposed of.

 

24.    We have given our careful consideration to the subject matter, as also the law laid down by their Lordship. The complainant has prayed for the refund. Physical possession of the plot at this stage having already been sold is out of question.

 

25.     Accordingly we direct the OP to refund the principal amount with simple interest @ 12% per annum. This refund and the interest be paid to the complainant by the OP within a period of three months from the date of receipt of this order.

 

26.     We order accordingly.

27.     Copy of this order be forwarded to the parties to the case free of cost as statutorily required. File be consigned to Record Room.

 

(ANIL SRIVASTAVA)                                                         (O.P.GUPTA)

MEMBER (GENERAL)                                                       MEMBER (JUDICIAL)