1

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.    Kumud Bhagra, aged about 56 years, wife of Shri Manohar

       Lal, resident of House No.D-436, Sector 4, Near D.A.V.     School, New Shimla, H.P.

2.    Manohar Lal, aged about 59 years, resident of House        No.D-436, Sector 4,Near D.A.V. School, New Shimla, H.P.

……Appellants/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 (Registered Office: 1/18-B, Asaf Ali Road, New Delhi)

....Respondent./Opposite Party

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by:  Sh. Deepak Arora, Advocate for the appellants.

              Sh. Manish Joshi, Advocate for the respondent.

BEFORE:    MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             Vide our separate detailed order of the even date, recorded, in connected First Appeal No.47 of 2012 tilted as M/s Ansal Lotus Melange Projects Pvt. Ltd., Vs.  Kumud Bhagra and another, this appeal has been dismissed, with no order as to costs. A copy of that order be placed on this file.

2.             Certified copies of the main order alongwith this order be sent to the parties, free of charge.

3.             The files be consigned to Record Room, after completion.

Pronounced.

April 20,  2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

M/s  Ansal Lotus Melange Projects Pvt. Ltd., through its Authorized representative, Regional Office at SCO No. 183-184, Sector 9-C, Chandigarh.

……Appellant/Opposite Party

V e r s u s

1. Kumud Bhagra, aged about 54 (infact 56) years, wife of Shri Manohar Lal.

2. Manohar Lal aged about 57 (infact 59) years.

Both  residents House No.D-436, Sector 4,Near D.A.V. School, New Shimla, H.P.

              ....Respondents/complainants

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by:  Sh.Manish Joshi, Advocate for the appellant.

              Sh.Deepak Arora, Advocate for the respondents.

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1. Kumud Bhagra, aged about 56 years, wife of Shri Manohar Lal, resident of House No.D-436, Sector 4, Near D.A.V. School, New Shimla, H.P.

2. Manohar Lal, aged about 59 years, resident of House No.D-436, Sector 4,Near D.A.V. School, New Shimla, H.P.

……Appellants/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 (Registered Office: 1/18-B, Asaf Ali Road, New Delhi)

              ....Respondent./Opposite Party

Appeal under Section 15 of the Consumer Protection Act, 1986.

Argued by:  Sh. Deepak Arora, Advocate for the appellants.

              Sh. Manish Joshi, Advocate for the respondent.

BEFORE:    MR. JUSTICE SHAM SUNDER, PRESIDENT.

                   MRS. NEENA SANDHU, MEMBER.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.             This order, shall dispose of the aforesaid two appeals, titled as M/s Ansal Lotus Melange Projects Pvt. Ltd., Vs.  Kumud Bhagra and Anr. and  Kumud Bhagra  and Anr. Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd.,  arising out of the common order dated 09.01.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted Complaint Case No.674 of 2010 and directed the Opposite Party (now appellant in First Appeal No.47 of 2012  and respondent in  First Appeal No.50 of 2012), as under:-

“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/-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”

2.              The facts, in brief, are that the complainants (now respondents in First Appeal No.47 of 2012 and appellants in First appeal No.50 of 2012), applied for a residential apartment, on the 1st floor of Tower No. T-11/104, having a super built up area of 1324 sq. ft.,  in the scheme floated under the name Orchard County, situated at Kharar-Landran Road, Greater Mohali,  by the Opposite Party,  for a total consideration of Rs.35,08,600/-. A copy of the brochure/application form containing various terms & conditions are Annexure P-1. The complainants paid a sum of Rs.5,00,000/-, approximately 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-1 of payments, applicable stamp duty, registration fees, and other charges, payable under the agreement, 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 payment of the remaining amount of consideration, applied for a loan of Rs.26,86,000/- from AXIS Bank, SCO No. 134-135, Sector 34-A, Chandigarh, and the same was sanctioned by it (Bank), at Mortgage Reference Rate of 12.75%, which was to be repaid in 120 monthly installments.  The Opposite Party granted the permission to mortgage unit no. T-11/104, measuring 1324 sq. ft., on 1st Floor with AXIS Bank, vide its letter dated 19.3.2008, Annexure P-6. A memorandum of understanding Annexure P-8, was executed, between the Opposite Party and the AXIS Bank,  at Chandigarh.

3.              It was stated that the Opposite Party, while floating the Scheme, had promised that it shall endeavor to give possession of the dwelling unit, to the intending allottee(s), within 24 to 30 months, subject to Force Majeure circumstances, and, on receipt of all payments, as per the installment plan. It was further stated that the Opposite Party, also assured that, on completion of construction, it shall issue “final call notice” to the intending allottee(s), who shall, within thirty days, thereof, remit all the dues and take possession of the unit. It was further stated that, in the event of his/her failure to take possession, the allotment was deemed to have taken place, and the allottee(s), was/were to bear all maintenance charges, and levies, on account of allotted unit(s).  It was further stated that even after having paid the entire amount, as per the Schedule of the agreement, the Opposite Party failed to complete the construction of the dwelling unit, in question. It was further stated that as per the terms and conditions, in case of delay, in making the payment, the Opposite Party was to charge interest @18% p.a., from the allottee(s). However,  no alternative remedy for the allottee(s),  in case, the said project was delayed, or was not completed within the scheduled period of 24 to 30 months, from the date of booking, was provided. It was further stated that the Opposite Party had advertised, in various newspapers, circulated in the entire States of Punjab, Haryana and Chandigarh,  claiming that “no EMI till offer of possession”, which according to the complainants, meant, that they were not to pay any amount, till the offer of possession, and the money, so collected from them, was, thus, illegally recovered. It was further stated that, as per the verbal admission of the Opposite Party, the construction of Tower-11 was likely to be completed sometimes in 2012 and only then, the possession of dwelling units could be offered to the Allottees. It was further stated that the complainants were making payment of Rs.35,000/- approximately, since May 2010, against the installments, to satisfy the loan, arranged from the AXIS Bank. It was further stated that by neither delivering possession of the allotted unit to the complainants, within the time frame, nor compensating them, in any other manner, the Opposite Party, failed to honour its commitments. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for payment of interest, on the amount of Rs.25,86,000/- paid by them,  from the date of deposit till the delivery of possession of unit, in question; payment of interest, being paid by the complainants  against the loan raised from AXIS Bank; compensation to the tune of Rs.1,00,000/- towards mental agony and physical harassment caused due to delay, in completion of the project; and Rs.22,000/- as litigation costs, was filed.

4.             The Opposite Party, in its written version, admitted the factual matrix of the case of the complainants. It was, however, stated that due to the circumstances, beyond its control, the construction could not be completed, on time, and the delivery of possession, of the allotted unit, could not be made, on the promised date. It was further stated that, as per the terms & conditions of the allotment letter/agreement, the Opposite Party was willing and ready to deliver possession of an apartment, of the same category, on the same terms and conditions, to the complainants, at an alternate site, preferably in Towers III & IV.  It was further stated that the Opposite Party in furtherance of the “NO PRE-EMI INTEREST” agreement, executed between the parties, had offered to bear all the Pre-EMI Interest, subject to the condition that 80% of the Basic Sale Price had been approved as loan amount. It was further stated that this offer was conveyed to the complainants, vide letter dated 16.03.2011. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

5.             The Parties led evidence, in support of their case.

6.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 

7.             Feeling aggrieved, First Appeal No.47 of 2012 tilted as M/s Ansal Lotus Melange Projects Pvt. Ltd., Vs.  Kumud Bhagra and another  and  First Appeal No.50 of 2012, titled as Kumud Bhagra  and another Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd.,  have been filed

8.             We have heard the Counsel for the parties, and, have gone through the evidence and record of the cases, carefully. 

9.             The Counsel for the appellant/Opposite Party in First Appeal No.47 of 2012 tilted as M/s Ansal Lotus Melange Projects Pvt. Ltd., Vs. Kumud Bhagra and another, submitted that, the District Forum, was wrong, in directing the Opposite Party, to pay interest on the loan amount, as charged by the loanee bank, from the date of sanction of loan, till the actual possession of the dwelling unit, in question,  was delivered.  He further submitted that upto 20.04.2010, no interest was paid by the complainants, to the bank, on the loan amount, and, as such, they were not entitled to the same. The Counsel for the respondents/complainants in this appeal, also fairly conceded, during the course of arguments, that the appellant/Opposite Party, could not be made liable to pay interest, on the loan amount earlier to 20.04.2010 and the District Forum was wrong, in granting the same, from the date of sanction of loan. In view of the aforesaid submission of the Counsel for the appellant/Opposite Party, in First Appeal No.47 of 2012, which was duly acknowledged to be correct, by the Counsel for the respondents/complainants, in our considered opinion, the District Forum was wrong, in directing the appellant/Opposite Party, to pay interest on the loan amount, from the date of sanction of the loan, till the actual possession of the dwelling unit, in question, was delivered. The order of the District Forum, therefore requires modification, to this extent. It is, therefore, held that the appellant/Opposite Party, i.e. M/s Ansal Lotus Melange Projects Pvt. Ltd., was only liable  to pay interest, on the loan amount, as charged by the Axis Bank, from 20.04.2010, till the delivery of possession, of the dwelling unit, in question, as admitted by the Counsel for both the parties. The order of the District Forum,  is modified, to this extent.

10.           The Counsel for the appellants/complainants in First Appeal No.50 of 2012, titled as Kumud Bhagra  and another Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd., submitted that a sum of Rs.5 lacs, was also paid by the appellants/complainants, to the Opposite Party, over and above, the loan amount,  obtained by them, from the Axis bank. He further submitted that the complainants were also entitled to interest on that amount, at a reasonable amount of 12% p.a., from 20.04.2010. He further submitted that the District Forum wrongly declined the same. The submission of the Counsel for the appellants/complainants in this appeal,  does not appear to be correct. It is settled principle of law, that the Consumer Foras cannot grant any relief, which was not claimed, by the complainants, in the complaint. In the complaint, in prayer clause, no relief was sought by the complainants, that they be also granted interest on the amount of Rs.5 lacs, paid by them to the Opposite Party, over and above the loan amount. The submission of the Counsel for the appellants/complainants, in this regard, being without merit, must fail, and the same stands rejected.

11.           It was next submitted by the Counsel for the appellant/Opposite Party, in First Appeal No.47 of 2012 tilted as M/s Ansal Lotus Melange Projects Pvt. Ltd., Vs.  Kumud Bhagra and another, that the District Forum, did not pass any order that the remaining sale consideration and other charges as per the agreement/terms and conditions shall be paid by the respondents/complainants, to the appellant/Opposite Party, at the time of delivery of possession of the dwelling unit, in question.  He further submitted that, in the absence of payment of the remaining sale consideration, and other charges, as per the agreement/terms and conditions, delivery of possession, of the dwelling unit, in question, could not be effected, in favour of the complainants. The submission of the Counsel for the appellant/Opposite Party, appears to be correct. Since, a particular sale consideration, was fixed in respect of the apartment, the delivery of possession of the same could only be made, after the entire payment of the same, was made to the Opposite Party. No doubt, a sum of Rs.25,86,000/- plus(+) Rs.5,00,000= Rs.30,86,000/-has  already been paid by the complainants, to the Opposite Party,  and the remaining amount of sale consideration, alongwith other charges, as per the agreement/terms and conditions, are yet to be paid. Such direction was required to be given by the District Forum, but it failed to do so. However, it is made clear, that at the time of delivery of possession, of the dwelling unit, in question, the remaining sale consideration,  alongwith other charges, as depicted in the agreement/terms and conditions, executed between the parties, shall be paid by the complainants, to the Opposite Party.

12.           Coming to the next submission of the Counsel of the appellant/Opposite Party, in  First Appeal No.47 of 2012 tilted as  M/s Ansal Lotus Melange Projects Pvt. Ltd., Vs.  Kumud Bhagra and another,  that an alternative apartment  was offered to the complainants, in some other Tower, having the same features, but they rejected the same, and, as such, the Opposite Party was not liable to make any payment of interest, it may be stated here, that a particular apartment was allotted to the complainants, in a particular Tower, having unique features, location and view, and, as such, they  could not be forced to opt for an alternative apartment, in some other Tower, which may not be having the same features, location and view. Even if, such an offer of an alternative apartment, was made to the complainants, in another Tower, which did not have the same features, location and view, and the same was rejected by the complainants, that did not deprive them of their legal right to claim the reliefs, set out, in the complaint. The District Forum was also right, in holding so. The findings of the District Forum, in this regard, being correct, are affirmed. 

13.           In this case, penal interest @18% p.a., was granted by the District Forum. In our considered opinion, the penal interest, which was granted by the District Forum, was on the higher side. The maximum interest, on the fixed deposit, for Senior Citizens, now days, for the period of 555 days, or more, is only @10.25% p.a., which is being paid by some Nationalized Banks. Under these circumstances, the penal interest, is required to be scaled down to 14% p.a. instead of 18% p.a., awarded by the District Forum.  

14.           No other point, was urged by the Counsel for the parties, in both the appeals.

15.           For the reasons recorded above, First Appeal No.47 of 2012 tilted as M/s Ansal Lotus Melange Projects Pvt. Ltd., Vs. Kumud Bhagra and another, is partly accepted, with no order as to costs, with the modification, in the following manner:_

                        i.   The appellant/Opposite Party, is directed to pay interest on the loan amount, as charged/to be charged  by the loanee bank, from 20.04.2010, till the delivery of possession, of the dwelling unit, in question, to the complainants/respondents, subject to the condition, that the remaining sale consideration, alongwith other charges, as per the agreement/terms and conditions executed between the parties, shall be paid by the respondents/complainants at that time (delivery of possession).

                       ii.   The appellant/Opposite Party, shall pay the penal interest @14% p.a., instead of 18% p.a., as granted by the District Forum.

                     iii.   The other reliefs  granted  and the directions given by the District Forum, subject to the aforesaid modification, shall remain intact.

16.           First Appeal No.50 of 2012, titled as Kumud Bhagra and another  Vs. M/s Ansal Lotus Melange Projects Pvt. Ltd.,, being devoid of merit, is dismissed, with no order as to costs.

17.           The original order, shall be placed, in Appeal File No.47 of 2012.

18.           Certified copy of the order, shall be placed, in Appeal File No.50 of 2012.

19.           Certified Copies of this order, be sent to the parties, free of charge.

20.           The files be consigned to Record Room, after completion

Pronounced.

April 20,  2012

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Rg