DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[1]       Kumud Bhagra aged about 54 years wife of Shri Manohar Lal, resident f House No. D-436, Sector 4, Near D.A.V. School, New Shimla, H.P.

[2]       Manohar Lal aged about 57 years, resident f House No.D-436, Sector 4, Near D.A.V. School, New Shimla, H.P.

                                                 ---Complainants.

V E R S U S

M/s ANSAL LOTUS MELANGE PROJECTS PVT. LTD., Corporate Office at SCO No. 183-184, Sector 9-C, Chandigarh, through its Regional Manager (Regd. Office: 1/18-B, Asaf Ali Road, New Delhi).

---Opposite Party.

BEFORE:          SH. LAKHMAN SHARMA               PRESIDENT

MRS.MADHU MUTNEJA             MEMBER

                    SH.JASWINDER SINGH SIDHU          MEMBER

Argued By:  Sh. Deepak Arora, Adv for the Complainant.

                                Sh. S.S. Chatrath, Adv. for the OP.

PER JASWINDER SINGH SIDHU, MEMBER

1]           Complainants have filed the present complaint against the Opposite Party, on the grounds that the Complainants applied for a residential apartment on the 1^st floor of Tower No. T-11 having a super built up area of 1324 sq. ft. in the scheme floated under the name Orchard Country at Kharar Landran Road, Mohali by the Opposite Party for a total consideration of Rs.35,08,600/-. The copy of brochure/application form contains various terms & conditions are Annexure P-1. The Complainants paid a sum of Rs.5,00,000/- including approximately the 10% of the price of the apartment at the time of booking.  The remaining amount of consideration was to be paid by way of installments as stated in Schedule-I of payments and applicable stamp duty, registration fees and other charges payable under the agreement were to be paid at the time of transfer of possession. The Complainants had also subscribed for the Club Membership and an additional amount of Rs.2,65,880/- was to be paid for the same.

              The Complainants in order to meet the obligations of the remaining amount of consideration applied for a loan of Rs.26,86,000/- from M/s AXIS Bank, SCO NO. 134-135, Sector 34-A, Chandigarh. The same was sanctioned by the Bank at Mortgage Reference Rate of 12.75% and was to be repaid in 120 monthly installments. The sanction letter and the copies of receipts issued by the Opposite Party while receiving this amount the same are annexed at Annexure P-3 to P-5.  It is also stated that the Opposite Party had granted the permission to mortgage the unit no. T-11/104, measuring 1324 sq. ft. on 1^st Floor with AXIS Bank vide its letter dated 19.3.2008 and the same is annexed at Annexure P-6 and memorandum of understanding was executed at Chandigarh and the same is annexed at Annexure P-8.

              The Complainants have alleged that the Opposite Party while floating the present Scheme had promised that it shall endeavour to give the possession of the dwelling unit to the intending allottee within 24 to 30 months subject to Force Majeure circumstances and on receipt of all payments as per the installment plan. It is also mentioned that the Opposite Party on completion of construction shall issue final call notice to the intending allottee who shall within thirty days, thereof, remit all dues and take possession of the unit and in the event of his/her failure the same would be deemed to have taken place and the allottee shall bear all maintenance charges and levies on account of allotted unit.    

              The Complainants have alleged that even after having paid the entire amount as per Schedule, the Opposite Party has failed to utilize the hard earned money of the Complainants and complete the construction of the dwelling unit in question. The Complainants further state that the Opposite Party though had mentioned that in case of a default the delay in payment on the part of the Allottee an interest @18% p.a. would be recovered from him. However the Opposite Party on its part has not come up with an alternate remedy for the allottee in case the said project is delayed or is not completed within the scheduled period of 24 to 30 months from the date of booking.

              The Complainants have categorically mentioned that the Opposite Party had advertised in various newspapers circulated in the entire State of Punjab, Haryana and Chandigarh wherein it has been claimed “no EMI till offer of possession” which as per the Complainants mean that they were not supposed to pay any amount till the offer of possession and the money so collected from them is illegal as the Project in question is delayed beyond the stipulated period of 30 months as mentioned in their offer.

              The Complainants further state that as per the verbal admission of the Opposite Party the construction of Tower-11 is likely to be completed sometimes in 2012 and only then the possession can be offered to the Allottees. In the present circumstances the Complainants claim that they are making payments of Rs.35,000/- approximately since May 2010 against the installments to satisfy the loan arranged from the AXIS Bank. The Complainants allege unfair trade practice as well as deficiency in service on the part of the Opposite Party on the ground that it has failed to honour its commitment of delivery of possession within the stipulated period of 24 to 30 months and pray for the following relief against the Opposite Party:-

[1] Payment of interest on the amount of Rs.25,86,000/- paid by the Complainants from the date of deposit till the possession of the dwelling is handed over to them;

[2] Seek payment of interest being paid by the Complainants  against the loan taken from AXIS Bank;

[3] A compensation of Rs.1,00,000/- towards mental harassment and agony caused due to delay in completion of the project;

[4] Rs.22,000/- as litigation charges;  

2]           On notice, Opposite Party has filed their reply/ version contesting the claim of the Complainants. It is important to mention here that on being served, the Opposite Party without filing any reply had shown an inclination for compromise; hence, the case was listed before the Lok Adalat vide order dated 25.2.2011. Thereafter, the present complaint lingered on till 15^th July, 2011 and ultimately was ordered to be referred back to the main stream.

              The Opposite Party filed its written statement and placed on record evidence on its behalf. The Opposite Party in the opening para of its version has admitted the case of the Complainants and has admitted that due to circumstances beyond its control, the construction could not be completed as per the schedule and the delivery of the flat to the Complainants could not be given in time. The same is mentioned on page 3 of the reply. It is further stated that however as per the terms & conditions of the allotment the Opposite Party is willing and ready to give a flat of the same category and on same terms and conditions, to the Complainants at an alternate site preferably in Towers III & IV. In case the Complainants so desire and agree an alternate flat can be allotted to them in the above mentioned Towers as the flats in these Tower are ready for delivery of possession. It is also stated that these Towers are in the same locality and are of same dimension and category as applied by the Complainants. The only difference is that these flats are located in the Towers other than the one chosen by the Complainants.

              The Opposite Party while replying to the second grievance of the Complainants with regard to the interest that the Complainants were paying on the loan taken by them from AXIS Bank for the flat in question. The Opposite Party submits that in furtherance of the “NO PRE-EMI INTEREST” Agreement made between the parties it had offered to bear all the Pre-EMI Interest subject to the condition that 80% of the BSP has been approved as loan amount. This offer was conveyed to the Complainants vide its letter dated 16.03.2011 and Opposite Party states that the Complainants failed to respond to the said offer of the Opposite Party. The Opposite Party has annexed the sample letter along with postal receipt annexed at Annexure OP-1.  

3]           Parties led their respective evidences.

4]           Having gone through the entire complaint, version of the Opposite Party, the evidence of the parties and with the able assistance of the ld. Counsel for the parties, we have come to the following conclusions.

5]           To begin with it is important to visit cl.no.5 of the application form which is also the Agreement and the same is signed by all the three parties i.e. the Complainants, the Opposite Party and the AXIS Bank. Para 5 at page 3 is reproduced as below:-

“5. THAT the time of punctual payment of installments as stated in Schedule I of payments and applicable stamp duty, registration fee and other charges payable under the Agreement is the essence of this contract. It shall be incumbent on the sale, failing which the entire amount of earnest money deposited by him shall be liable to forfeiture and the allotment of apartment shall be liable to be cancelled at the discretion of the company and the allottee shall be left with no lien on the said premises in any manner, whatsoever, at its sole discretion. The amount[s], if any, paid over and above the earnest money shall be refunded to the Apartment allottee by the company without any interest. In exceptional circumstances, the company may at its sole discretion condone the delay in payment by charging a minimum interest @18% per annum of the amount outstanding, but shall not be bound to do so.”

We fee that such clauses which are one sided and are to  benefit  only one party to the agreement are nothing but an attempt by the party which is in a dominant position to take away all the rights as well as the interests of the party who is on the receiving end.  Hon’ble National Commission while delivering its judgment in case “PRASAD HOMES PRIVATE LIMITED VS. E.MAHENDER REDDY & ORS., I (2009) CPJ 136 (NC) has clearly observed that the Builder cannot be allowed to take shelter under agreement clause to usurp money deposited by the Complainants – agreement clause heavily loaded in favour of builder and against purchasers – it entitles forfeiture of deposited amount even if fault is on part of Builder itself –such agreement clearly amounts to unfair trade practice.   We feel that the ratio of the above judgment is clearly applicable to the present complaint, and hence, the deficiency in service, as well as unfair trade practice on the part of the Opposite Party is writ large.  

6]           As the Opposite Party had admitted to all the bare facts of the complaint as well as has specifically answered to the two basic allegations of the Complainants with regard to the delay in possession and payment of Pre-EMI installments by the Opposite Party. We feel that as the Complainants have not come forward with their desire to consider the offer of alternate flat as offered in Para 3 of its version by the Opposite Party we feel that the Complainants are at liberty to choose the same and as there is no desire by them hence the offer of the Opposite Party stands rejected by the Complainants. It is important to give our observation about this aspect of offer of an alternate flat by the Opposite Party and that too after the Complainants have moved the present complaint against it is nothing but an effort to dilute the claim of the Complainants as averred in the present complaint. It is also an effort to win the sympathy of this Forum by making this offer, however, there is no answer as to why the same offer was not made to the Complainants in the very beginning when a notice dated 16.8.2010 annexed at pg. 43 & 44 (Annexure P-12 & P-13) was served upon the Opposite Party.

7]           While looking into the aspects of the 2^nd allegation of the Complainants with regard to “no EMI till offer of possession” and the admission on the part of the Opposite Party that a letter to this effect was written to the Complainants. The Opposite Party in support of this has annexed a specimen copy of the letter which is undated but as per the version of the Opposite Party it was dispatched to the Complainants on 17.3.2011.  While going through this letter, it is observed that the Opposite Party has clearly admitted to “No Pre-EMI Interest Scheme” which according to them was mutually agreed upon and was to be borne by the company, subject to the fact that up to 80% of B.S.P. has been approved as loan amount. In case of any delay in the offer of possession beyond XX months. Though this offer of the Opposite Party also dates to a time when the present complaint had already been filed against them. And as such, is an effort to deny the claim of the Complainants as mentioned in the present complaint. It is surprising to note that if such an offer was part and parcel of the agreement, what stopped the Opposite Party to pay the “Pre-EMI Interest” to the Bank from the very beginning.  The agreement in question is a Tripartite Agreement between the Opposite Party, the Complainants and the AXIS Bank from whom the Complainants had taken the loan. We feel that there was no need of writing this letter and seeking any permission from the Complainants to pay the interest to the Bank as is specifically mentioned in the letter annexed as Annexure OP-1. We feel that by writing this letter to the Complainants and that too during the pendency of the present complaint; the Opposite Party has actually tried to act sympathetic towards the grievances of the Complainants and also is an effort to tone down the harsh penalties that such an attitude actually attracts under the provisions of the Consumer Protection Act.  

8]           In the light of the above observations, we feel that the present complaint succeeds against the opposite party and we direct the Opposite Party to pay the entire interest amount on the loan amount as charged by the loanee bank, from the date of sanction of the loan, till the actual possession of the dwelling unit in question is delivered. We further saddle the Opposite Party with a consolidated amount of compensation to the tune of Rs25,000/- on account of deficiency in service, mental agony and harassment. The Complainants are also awarded costs of litigation to the tune of Rs.10,000/-.

9]           The above said order shall be complied within 30 days of its receipt; thereafter, the Opposite Party shall be liable for an interest @18% per annum on the aforesaid amount of compensation and the amount of interest that has been paid by the Complainants to the Axis Bank till date, except for the cost of litigation.

10]            Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

09^th January, 2012.                                                                   

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)