Punjab

Ludhiana

CC/19/119

Kanwal Nain Singh Bedi - Complainant(s)

Versus

M/s AIPL Ambuja Housing & Urban Inf.Ltd - Opp.Party(s)

L.C.Bector Adv.

26 Dec 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 119 dated 26.02.2019.       

                                                Date of decision: 26.12.2022. 

 

1. Kanwal Nain Singh Bedi aged about 80 years son of Sh. Prabhjot Singh,
2. Kirandeep Kaur daughter of Sh. Kanwal Nain Singh Bedi, both residents of House No.6887/4, Kalal Majri, Near Khera, Ambala City (Haryana)                                                                       ..…Complainants

                                                Versus

1. M/s. AIPL Ambuja Housing and Urban Infrastructure Ltd., G.T. Road, Khanna, through its G.M./M.D.
2. M/s. AIPL Ambuja Housing and Urban Infrastructure, Delhi through its G.M./M.D.                                                                                                                                                                          …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. L.C. Bector, Advocate.

For OP1                         :         Sh. Gurkirpal Singh Gill, Advocate.

For OP2                         :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that complainant No.1, a Non Resident Indian along with his daughter complainant No.2 wished to construct a house in the colony of the opposite parties and to fulfill their wish, the complainant purchased a plot measuring 200 sq. yards from the opposite parties and made full amount of Rs.12,40,900/- on 23.05.2012 inclusive of membership charges etc. At the time of purchase of the plot, the opposite parties assured the complainants that the possession will be given shortly. It was agreed by the opposite parties that if they failed to deliver the possession of the plot to the complainants within 15 months from the date of purchase i.e. up to 22.08.2013, the opposite parties will be liable to pay Rs.1/- per day per square yard. At the time of the sale, the opposite parties gave a very alluring offer to the complainants to make swimming pool, Tennis court, Badminton, T.T. Club, Billiard Room, restaurant and GYM in the colony as well. The complainants visited the office of the opposite parties many times but the opposite parties failed to deliver the possession of the plot to the complainants. On 06.04.2017, the complainant received a notice from the opposite parties intimating them that they have been allotted a plot of 194 sq. yards in place of 200 sq. yards though the complainants had made full and final payment of 200 sq. yards. Even thereafter the opposite parties failed to deliver the possession to the complainants in terms of original allotment certificate.  

                   After a long time, on 07.02.2019, the opposite parties registered a sale deed in favour of the complainants for an area of 194 sq. yards and all the dreams of the complainants to construct a house came to an end as by that time, complainant No.1 had attained the age of 80 years. The complainants issued a legal notice dated 06.02.2019 to the opposite parties calling upon the opposite parties to fulfill the agreed conditions but they refused to receive the same. The act and conduct of the opposite parties amounts to grave deficiency in service and unfair trade practice of highest degree as the delivery of possession of the said plot has been delayed by almost six years. The complainants have suffered physically as well as mentally. In the end, the complainants have prayed for the following reliefs:-

1. Compensation for mental agony, harassment and deficiency in service amounting to Rs.2,00,000/-;
2. Compensation at the rate of Rs.1/- per day per square yard to the complainant w.e.f. 23.08.2013 to 01.02.2019;
3. Compensation for litigation expenses amounting to Rs.22,000;
4. Interest at the rate of 12% per annum on club fee received by the opposite parties.

2.                Notice was sent to opposite party No.2 through registered post but the same was not received back either served or unserved even after elapse of period of 30 days. As such, the opposite party was proceeded against exparte vide order dated 23.11.2020.         

3.                Upon notice, opposite party No.1 appeared and filed written reply by taking preliminary objections that the complaint is false and based on erroneous and misconceived facts and has just been filed to extort money from the opposite party. Opposite party No.1 never gave alluring offers to the complainants to make swimming pool, tennis court, badminton, T.T. Club, billiards room, restaurant and Gym. However, these facilities are under development and will be operational in due course of time. In fact, opposite party No.1 received the consideration amount for 194 sq. yards and not for 200 sq. yards with consent of the complainants. Even the complainants have not made full payment of sale consideration of the said plot. The total sale consideration of 194 sq. yards was Rs.14,52,819/- (including EDC, Club charges and all other applicable charges/taxes) and as a gesture there was some delay on the part of the opposite party in delivery of possession. The complainant was offered a discount of Rs.1,97,638/-. The opposite party has waived EDC charges, power back up charges and other taxes (total amounting to Rs.1,97,633/-). Further the sale deed of the property in question has already been given on 01.02.2019 and as per article 6b that after taking physical possession or from the deemed date of taking possession of the plot whichever is earlier, the vendee shall not be entitled to put forward any claim, whatsoever, against the vendor. In fact, the complainant cannot be permitted to raise any claim whatsoever against the opposite party. On merits, opposite party No.1 reiterated the facts mentioned in the preliminary submissions. Opposite party No.1 has denied that they have not received any legal notice or indulgence in unfair trade practice at highest degree or the complainants have been harassed. In the end, a prayer for dismissal of the complaint has been made.

4.                In evidence, the complainant No.1 tendered his affidavit as Ex. CA and reiterated the averments made in the complaint. The complainant also placed on record the documents Ex. C1 is the allotment certificate dated 23.05.2012, Ex. C2 is the payment details, Ex. C3 is another allotment letter dated 06.04.2017 mentioning a plot No.B01 measuring 194 sq. yards, Ex. C4 is the payment details consisting of five pages, Ex. C5 is the copy of sale deed dated 01.02.2019, Ex. C5A and Ex. C5B are the photographs, Ex. C5C is the welcome letter, Ex. C6 is the Application Form cum General Terms and Conditions Plots, Ex. C7 is the legal notice, Ex. C8 is  and Ex. C9 are copies of the postal receipts and closed the evidence.

5.                On the other hand, the counsel for the opposite party No.1 submitted affidavit Ex. RA of Sh. Gurbinder Singh, Manager of opposite party No.1 along with document Ex. R1 certificate of registration, Ex. R2 is the sale deed, Ex. R3 is the payment schedule and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties. We have also gone through the written arguments submitted by opposite party No.1.    

7.                The counsel for the complainants has drawn the attention of this Commission towards Ex. C5C which is a brochure/advertisement published by the opposite parties along with photos and description. The project is known as Dream City. It is mentioned therein by way of photographs that the DC Club is a landmark within a landmark. Located within Gobindgarh-Khanna’s most sought after township. Dream City. The Club boasts of the facilities and entertainment the city has never witnessed before. It is the beginning of a lifestyle that will announce the arrival of Gobindgarh-Khanna into the new India. A regular gathering of the select few that define the future of the city in a setting that compliment their taste and style.

                   Further it is mentioned by way of photographs that a swimming pool with a spacious poolside for large functions and a toddler’s swimming pool. Tennis, squash, badminton courts and a separate aerobics room with yoga and multi-purpose hall. A state-of-the-art spa with Jacuzzi, steam and sauna and with gymnasium. Carrom, billiards and table tennis rooms. An ambience fit only for the elite make the DC Club the destination for networking, relaxing and entertainment.

                   So from the photographs, it is crystal clear that the opposite party No.1 had given alluring offers to the complainants with regard to the above mentioned facilities and induced by such offers, the complainants have chosen to built a “dream house” in their so called Dream City by paying huge amount in advance. In fact, these facilities never game into existence at the spot and even in the written statement as well as affidavit Ex. RA, it was admitted by opposite party No.1 that these facilities are under development and will be operational in due course of time. The complainant had paid the amount of payment schedule annexed along with Ex. C4=Ex. R3, clearly shows that the amount was paid in advance as per terms and conditions of the letter i.e. Rs.2,50,000/- as club membership charges and Rs.30,900/- as tax on club membership.  The complainants are  entitled to interest on the amount of Rs.2,50,000/- @ 8% per annum from 04.08.2022 till date of actual payment.

8.                Perusal of application form cum general terms and conditions of plots Ex. C6 enlists the various conditions about the eligibility of an applicant, allotment procedure, time of payment of allotment money/installment of the dues, possession, compensation for delay in possession and other conditions running under 23 heads. A closure scrutiny of terms and conditions of this letter shows that these are heavily loaded in favour of the opposite parties. In case of default the part of the allottee there is a hefty sum in form of penalty, penal interest or otherwise as stipulated whereas in case of default of any of conditions by the opposite parties, a minor penalty or no penalty has been prescribed.

9.                The possession was to be given to the allottee within 15 days from the date of allotment as per clause 7 of Ex. C6 which is reproduced as under:-

          ‘Possession

1. The company shall subject to force majeure, give possession of the plot(s) to the allottee(s) within 15 months from the date of allotment subject to timely payment by the allottee(s) of all dues including stamp duty and registration charges as applicable under the law. The physical possession of the plot(s) shall be withheld if all dues are not cleared by the allottee(s).
2. The company shall give intimation to the allottee(s) of the date on which the Company will be handling over possession of the plot(s) shall be required to take possession in person or through agent or attorney within 30 (Thirty) days from the date of issuance of intimation of possession. In the event the allottee(s) fails or neglect to accept or refuse to take over possession of the plot(s) within the time specified, delivery of the plot(s) shall be deemed to have been taken by the allottee(s) on the date indicated in the intimation letter for possession irrespective of the date when the allottee(s) actually takes physical possession of the plot(s), provided that up to date payments have been made by the allottee(s)
3. After taking physical possession or from the deemed date of taking Possession of the plot(s) whichever is earlier, the allottee(s) shall not be entitled to put forward any claim against the company.
4. ‘Force majeure’ shall, inter-alia, mean and include non-availability or delayed availability or irregular availability of essential inputs, water supply, sewerage disposal connection, electric power etc. from concerned authority(s) or slow down or strike by contractor/construction agencies employed/to be employed, litigation, acts of God or statutory authorities, delay in certain decision/clearance from statutory bodies or any notice, order, rules or notification of the government and/or Authority, acts of any statutory agency or government or any court order and such other reasons which are beyond the control of the company as may be so decided by the company at its sole discretion.’

10.              As per clause 8 of this letter/agreement Ex. C6, a compensation for delay in possession ahs been provided which is reproduced as under:-

          ‘Compensation for delay in possession:

1. The company shall pay compensation @ Rs.1/- per square yard per day till the handing over of possession of the plot, in case it fails to deliver possession of the plots within the stipulated time, subject to force majeure and timely payments, as stated herein above.
2. In case the allottee(s) fails or neglects to take possession of their plot(s) as and when called upon by the company or where physical delivery has been withheld by the company, the allottee(s) shall be liable to pay “Guarding Charges” @ Rs.1/- per square yards per day from the deemed date of possession to the actual date when the physical possession is taken by the allottee(s). In addition, each allottee shall be required to pay for proportionate share of common areas maintenance charges of the township from the deemed date of possession.

11.              The sale deed Ex. C5=Ex. R2 in this case was executed admittedly on 01.02.2019 and its, Article 2, stipulates that in pursuance to the allotment of the said plot to the vendee, the vendee herein has paid to the vendor a sum of Rs.9,31,200/- as basic sale price in advance. The Article 6a also provides that the opposite parties have handed over the possession of the said plot to the vendee, which the vendee confirms on execution of this sale deed. It becomes crystal clear that the possession which was required to be delivered on or before 22.08.2013, the same has been delivered on 01.02.2019 and as such, there is an inordinate and unexplained delay in handing over the possession of the plot on the part of the opposite parties. The factum of delay has also been admitted by the opposite parties and have not offered any explanation resulting in delay or any other act solely attributable to the complainants. In this regard, a reference can be made to Pioneer Urban Land and Infrastructure Limited Vs Govindan Raghavan and others in AIR 2019 SC 1779 whereby the Hon’ble Supreme Court of India has held that ‘an ordinate delay in handing over possession of the flat clearly amounts to deficiency of service.”

                   Also reference can be made to Wg. Cdr. Arifur Rahman Khan and Aleya Sultana Vs DLF Southern Homes (P) Ltd. (now known as Begur OMR Homes Pvt. Ltd. in 2021 SCC Online SC 14 whereby it has been held by the Hon’ble Supreme Court of India as under:-

“24 A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.

12.              The counsel for the opposite parties has contended that the complainants being Non Resident Indians had purchased the property only for the purpose of investment and commercial use and not for building a house. The contentions of the counsel for the opposite parties is devoid of any merits. The complaint No.1 is an old aged person having more than 80 years of age had purchased this plot about more than 10 years ago from now with a desire to live in a house with his daughter as and when he comes to India  but the dreams of a respectable old man stood shattered by the act and conduct of the opposite parties.

13.              The case of the complainants is also covered in the citation Kavita Ahuja Vs Shipra Estate Ltd. and others in C.C. 137 of 2010 decided on 12.02.2015 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. As such, the complainants are entitled to Rs.1/- per square yards per day from 22.08.2013 to 01.02.2019.      

14.              As a result of above discussion, the complaint is allowed with an order that the opposite parties are directed to pay Rs.1/- per square yards per day to the complainants from 22.08.2013 to 01.02.2019. The opposite parties are also directed to pay interest on the amount of Rs.2,50,000/- i.e. Club Membership fees @ 8%  per annum from 23.05.2012 till date of actual payment. The opposite parties shall further pay a composite costs of Rs.25,000/- (Rupees Twenty Five Thousand only) to the complainants. Compliance of this order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

15.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:26.12.2022.

Gobind Ram.

 

 

Kanwal Nain Singh Bedi Vs M/s. AIPL Ambuja Housing        CC/19/119

 

Present:       Sh. L.C. Bector, Advocate for complainants.

                   Sh. Gurkirpal Singh Gill, Advocate for OP1.

                   OP2 exparte.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with an order that the opposite parties are directed to pay Rs.1/- per square yards per day to the complainants from 22.08.2013 to 01.02.2019. The opposite parties are also directed to pay interest on the amount of Rs.2,50,000/- i.e. Club Membership fees @ 8%  per annum from 23.05.2012 till date of actual payment. The opposite parties shall further pay a composite costs of Rs.25,000/- (Rupees Twenty Five Thousand only) to the complainants. Compliance of this order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:26.12.2022.

Gobind Ram.