Haryana

Karnal

CC/220/2017

Mukesh Goyal - Complainant(s)

Versus

M/s Ansal Housing And Construction Ltd - Opp.Party(s)

V.K. Gupta

01 May 2019

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

 

                                                          Complaint No. 220 of 2017

                                                          Date of instt. 13.07.2017

                                                          Date of Decision 01.05.2019

 

1. Mukesh Goyal son of Shri Rajesh Goyal, resident of 1130, sectgor-6, Karnal-132001 (Haryana)

2. Smt. Pooja Goyal wife of Shri Mukesh Goyal, resident of 1130, sector-6, Karnal-132001 (Haryana).

                                                                         …….Complainants.

                                        Versus

 

1. M/s Ansal Housing and Construction Ltd. through its Director 15 UGF, Indra Prakash, 21, Barakhamba Road, New Delhi-110001.

2. Mr. Kapil Atreja, authorized representative, M/s Ansal Housing and Construction Ltd., Sector-36, near Sector-4, Karnal.

                                                                        …..Opposite Parties.

 

           Complaint u/s 12 of the Consumer Protection Act. 

 

Before    Sh. Jaswant Singh……….President.      

      Sh.Vineet Kaushik ………..Member

                Dr. Rekha Chaudhary…….Member

 

 Present:  Shri Vinod Kumar Advocate for complainant.

                  Shri Mohit Sachdeva Advocate for opposite party no.1.

                   Opposite party no.2 exparte.

 

                    (Jaswant Singh President)

ORDER:                    

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986 on the averments that the complainants have purchased an office space/shop bearing no.083 the upper ground floor, measuring 15 sq. ft. The basic cost of the said office space was Rs.3750/- per sq. ft. cost amounting to Rs.5,81,250/-. The preferential location charges of Rs.40,687/- were also attached with the said space. The net basic cost of the said office space was Rs.6,21,937/-. The complainants booked the said office space/shop with the OPs on 10.07.2009 and paid a sum of Rs.51000/- as a booking amount through cheque on the same day. At the time of booking Shri Kapil Atreja, the authorized representative of the OP company promised and assured the complainants that the company shall complete the said project within 2.5 years and handover the possession of the shop to the complainants within three years as per the company guidelines. He also assured the complainants that the area of the complex shall be developed. He also assured that the complainants would not have to pay the maintenance charges etc. The complainants believing in the veracity of the promises and assurances of OP no.2, the authorized representative of the OP no.1 co. started paying regular EMI of Rs.17,437/- per month from 11.08.2009. The complainants had paid and the OPs had received Rs.4,86,930/- till August, 2011, which was more than 70% of the Basic price of the booked shop bearing no.UGF-083. Thereafter, the OP no.1 did not raise any demand of the EMI’s from the complainants. After the expiry of 14 months from August, 2011 the complainants were informed by the OP no.1 company that the OP no.1 company has revised its layout plan and as a result the area of the booked shop/office space bearing no.UGF-083 was revised from 155 sq. ft to 254.53 sq.ft. As a consequence the rate of the shop was also revised from Rs.9,54,487.50Ps. The OP company did not take prior consent of the complainants to revise the area of the booked shop and made these material and major changes unilaterally the OP no.1 company has violated the term of the agreement. The company could not complete the construction within the time as committed by them at the time of booking. OPs have revised the layout plan and due to the revision there are changes in their booking. On enquiry, officials of the OP no.1 told that their layout plan for the construction has not been sanctioned by the competent authority and due to this reason, OP no.1 has changed the layout plan of the building, which itself is illegal, null and void and is an act of unfair trade practice, because OP no.1 has been taking money from the complainants and after a long period, i.e. in October 2012 they issued letter for revision of layout plan. The complainants refused to accept the revised shop as the cost of the revised shop too high and beyond their budget. The complainants asked the OP no.1 to cancel the agreement and refund their money but representative of OP no.1 refused to cancel the agreement and refund their money and said that the demand of the installments against the booking shop bearing no.UGF-083 had gone beyond 70% of the basic price of the said shop. As per the company’s policy the complainants were not entitled to cancel the agreement. OP no.1 left no choice with the complainants except to accept the revised shop, the complainants were again forced to wait for getting possession of the shop. The complainants were bound to bear the extra financial burden of the difference of amount in the rate of the old office space/shop and new shop which was to the tune of Rs.3,33,487/-. On asking of the OP no.1 complainants returned the old agreement letter to the OP no.1 and OP no.1 executed a fresh allotment letter for the shop bearing no.FF-152 on 16.01.2013. In the new agreement the basic price of the shop was stated to be Rs.9,54,487.50Ps. It is further alleged that complainant had paid all the EMI’s regularly as per OPs demand upto the period of 4.5.2016. Complainants paid more than Rs.9,53,575/-. On 23.09.2016 OPs sent a letter to the complainants regarding offer of possession for the said shop subject to clearing all outstanding dues against the said shop. The complainants were asked to pay approximately Rs.3,70,000/- against outstanding dues for possession within 30 days otherwise the OP no.1 will not delay the possession but also charge interest @ 24% per annum compound quarterly towards delayed payments and also will charge holding charges @ Rs.5/- per sq. ft. per month for 90 days from the date of offer of possession letter. Hence, the OPs are failed to fulfilled their promise as per their first agreement but also failed to deliver the possession of the revised shop within the time agreed between the parties.  In this way there was deficiency in service and unfair trade practice on the part of the OPs. Hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, OP no.1 appeared and filed written version raising preliminary objections with regard to maintainability; locus standi; cause of action; complainant is estopped from filing the complaint by his own act and conduct; complaint is barred by limitation and concealment of true and material facts. On merits, it is pleaded that OP no.2 i.e. Mr. Kapil Atreja is no longer an employee of the organization i.e. OP no.1. The complainants have invested in the commercial project of the OP no.1. It is further pleaded that unit was purchased for office purposes. Further, it can be concluded that the space booked by the complainants, was for a commercial purpose within the meaning of section 2(1)(d) of the Consumer Protection Act. The complainants have invested in the shop for mere commercial purpose. The complainant is not a consumer rather he is an investor. It is further pleaded that complainants are educated persons and doctor by profession and they have signed the application for booking and the said allotment letter after going through all the contents of the same and they had very much knowledge to pay the said charges at the time of possession as well as registration of the said commercial shop before the Sub-Registrar Karnal. It is further pleaded that vide the allotment letter dated 25.07.2009, shop no.83 admeasuring 155 sq. ft was allotted in the name of Mr. Mukesh Goyal and Mrs. Pooja Goyal, vide the clause 3 complainants “had authorized the developer to carry out additions, alterations deletion…..” Further vide clause 19 the complainant had full knowledge “that layout plans are sought to be modified/amended either by the developer or sanctioning authority….”  OP vide letter dated 12.10.2012 informed the complainant about change in number of the shop and change in area and the complainants willfully accepted the same and signed the new allotment letter. It is further pleaded that complainants never approached the company after receiving the letter dated 12.10.2012. It is only in the year 2016 when the shop was ready for possession and after receiving the offer of possession dated 19.09.2016 the complainant sent a notice dated 12.10.2016 raising false objection and that too after a long period of 4 years. It is further pleaded that as the unit number and the area of the shop was changed therefore, as a procedure of the company a fresh Allotment Letter was to be executed between the parties. The said allotment letter for shop no.FF-152 was agreed and signed on 16.01.2013. It is further pleaded that the allotment letter clearly mentions that the Total Unit Sale Price was Rs.9,54,487.50/- which was excluding allied charges. Other charges are clearly mentioned in the terms of the Allotment Letter. The complainants by way of his free will invested in the project of the company and it is not after receiving the offer of possession that the complainant is raising false objections. It is further pleaded that the company has already sent the offer of possession of the shop and the complainant is merely defaulting in clearing the outstanding due. The project is fully developed and the said unit is ready for physical possession. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             OP no.2 did not appear and proceeded against exparte, vide order of this Forum dated 4.4.2018.

4.             Complainants tendered into evidence affidavit of Mukesh Goyal Ex.CW1/A and documents Ex.C1 (page17) to Ex.C36 and closed the evidence on 30.10.2018.

5.             On the other hand, OPs tendered into evidence affidavit of Neha Kapoor Ex.OP1/A and documents Ex.O1 to Ex.O6 and closed the evidence on 17.12.2018.

6.             We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.             The case of the complainants in nutshell is that in the  year 2009, they purchased an office space/shop bearing no.083 at the upper ground floor, measuring 155 sq. feet for the cost of Rs.3750/- per sq. feet and total cost amounting to Rs.581250/-. The professional location charges were of Rs.40,687/- and thus, net basic cost of the said office space was Rs.6,21,937/-. On 10.07.2009, complainants booked the abovesaid space and paid a sum of Rs.51000/-as booking amount. At the time of booking, OPs promised and assured the complainants that the company shall complete the said project within 2.5 years and handover the possession of the space in question within 3 years. The complainants started paying regular EMI of Rs.17,737/- per month and complainants paid Rs.486930/-till August 2011. After expiry of fourteen month, in August 2011, the OP revised the area of space from 155 sq. ft. to 254.53 sq. ft. As a consequence the rate of the shop was also revised from Rs.6,21,000/- to Rs.9,54,487.50/-, without the prior consent of the complainants. The company failed to complete the construction within the time as committed by them at the time of booking.

8.             Further, the OP no.1 has changed the lay out plan of the building, which itself is an illegal, null and void and is an act of the unfair trade practice, because OP no.1 has been taking money from the complainants and after a long period i.e. in October, 2012 they issued a letter for revision of the lay out plan. The complainants refused to accept the revised shop as the cost of the revised shop was too high and beyond their budget. The complainants asked the OP no.1 to cancel the agreement and refund their money but OP no.1 refused to do so. The complainants had no choice except to accept the revised shop, they were again forced to wait for getting possession of the shop. The complainants were bound to bear the extra financial burden of the difference of the amount in the rate of old office, space and new shop, which was at the tune of Rs.3,33,487/-. OP no.1 executed a fresh allotment letter for the shop bearing no.FF-152. On 16.01.2013, the OP no.1 offered the possession and complainants were asked to pay approximately Rs.3,70,000/- on account of outstanding dues. Same is unjustified and OP no.1 not only failed to fulfill the terms of the first agreement but also failed to deliver the possession of the revised shop within the time agreed between the parties.

9.             On the other hand, the case of the OP no.1 is that at the time of booking of the said shop, all the terms and conditions and mode of payment was described to the complainants by the OP no.1 and same is also written at page no.3 of the said application for booking of the         which reads as “The professional charges, if any, external development charges, other allied charges and tax shall be charged extra. Stamp duty, registration charges and maintenance charges are extra and to be borne by the applicants.” The said terms and conditions are also written in the allotment letter dated 25.07.2009 as well as allotment letter dated 16.01.2013. The complainants had signed the allotment letter dafter going through all contents of the same. Vide letter dated 12.10.2012, the company informed the complainants about the change in number and area of the shop and the complainants never objected the same. It is only in the year of 2016 when the shop was ready for possession and after receiving the offer of the possession dated 19.09.2016, the complainants sent a notice making false objections and too after a long period of 4 years.

10.            Further, the complainants are doctors by profession. There is no ambiguity that the complainants read, agreed and then signed allotment letter. The allotment letter clearly mentions that the total unit sale price was Rs.9,54,487.50/-which was excluding allied charges. The complainants are merely trying to turn a blind eye to the terms of the allotment letter and have not paid the outstanding dues towards the company.

11.            Admittedly, initially in the year of 2009, complainants booked an office space/shop bearing no.083 at the upper ground floor, measuring 155 sq. ft. for the basic cost of Rs.3750/- per sq. ft. The net basic cost of the said space was Rs.6,21,937/-. As per the version of the complainant OPs’ company promised and assured the complainant that the company shall complete the project within 2 and half years.

12.            It is also admitted that in the month of August, 2011 the company has revised its layout plan and as a result the area of the booked shop was revised from 155 sq. ft. to 254.53 sq. ft and the rate was also revised from Rs.6,21,000/- to 9,54,487.50. The said act was done without taking prior consent of the complainants. The OP also changed the shop number from UGF-083 to FF-152.

13.            The OP offered the possession of the said shop on dated 19.09.2016 but as per the version of the complainants, the possession was to be handed over within two and half year from the date of the booking i.e. 10 July 2009 and OP offered the possession after an inordinate delay of almost 7 years i.e. on 19.09.2016. On account of the inordinate delay, complainants could not be compelled to take possession of the shop after such a long delay.

14.            There is a very surprising clause in the allotment letter to offer the possession to the allottee(s). As per the said clause, the possession will be handed over within reasonable time from the date of execution of the allotment letter (Ex.O3). The reasonable time was expired on 19.09.2016 and shop in question was booked on 10.07.2009 i.e. after expiry of long seven years, which is not justifiable in eye of law. Reasonable time does not mean create sufferings for other party. It is a quite long time for persons seeking their source of livelihood. This clause is one sided and OP cannot compel the complainants to take the possession after delay of seven years.

15.            Initially the shop number was UGF-083 and lateron the OP changed the shop number as FF-152 and area from 155 sq. feet to 254.53 sq. feet, without the consent of the complainants. Due to that the complainants born financial burden of Rs.3,33,487.50paise. The complainants were bound to pay the same having no other option.

16.            The counsel for the OP argued that the complainants booked the shop in question for the commercial purpose, as the complainants are doctors by professions and complainant do not fall under the definition of consumer. On the other hand, counsel for the complainants argued that the complainants had booked the said shop for their earning livelihood and maintaining their family. He further argued that complainants have no other source of income and other space to do the practice of their profession. The OP failed to prove that the complainants are having any other space or source of income. So, plea of OP is not tenable.

17.            Section 2(r) of the Consumer Protection Act, 1986 defines ‘Unfair Trade Practice’ in the following words:

        “Unfair Trade Practice’ means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice……”, and includes any of the practices enumerated therein. The version is illustrative, and not exhaustive.

In Central Inland Water Transport Corporation Limited and Ors Versus BrojoNathGanguly and Ors., 4 the Hon’ble Apex Court held that:

“89…. Our judges are bound by their oath to ‘uphold the Constitution and the law.’ The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and equal protection of the laws. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contracts, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affair of men. One can only attempt to give some illustrations.

For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situation in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them.

It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction……

…..These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.”

18.            A term of a contract will not be final and binding if it is shown that the shop purchasers had no option but to sign on the dotted line, on a contract framed by the builder.

The contractual terms of the Allotment letters dated 16.01.2013 (Ex.OP3) and 25.07.2009 (Ex.OP4) are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an allotment letter constitutes an unfair trade practice as per section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the shops by the Builder.

19.            In view of the above discussion, we have no hesitation in holding that the terms of the buyer-seller allotment letters dated 16.01.2013 (Ex.OP3) and 25.07.2009 (Ex.OP4) were wholly one sided and unfair to the complainants. The builder could not seek to bind the complainants with such one-sided contractual terms. Thus, the act of the OP no.1 amounts to deficiency in service and unfair trade practices.

20.            In view of the above, complaint is allowed. OP no.1 is directed to pay Rs.9,53,575/- to the complainant alongwith interest @ 12% per annum from the date of its respective deposits till the date of realization. We further direct the OP no.1 to pay Rs.25000/- to the complainants on account of mental agony and harassment suffered by them and Rs.10,000/-towards the litigation expense. The entire amount be paid by the OP no.1 to the complainant within period of 45 days from the date of receipt of the order. Otherwise, it will carry interest @ 15% per annum, till realization and it call for pointed notice that under section 27 of the Act, if the OPs fails or omits to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to 3 years or fine or both. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:01.05.2019                                                                       

                                                                      President,

                                                              District Consumer Disputes

                                                               Redressal Forum, Karnal.      

 

        (Vineet Kaushik)          (Dr. Rekha Chaudhary)

            Member                           Member