Punjab

StateCommission

CC/740/2017

Amrik Singh Gill - Complainant(s)

Versus

M/s Ansal Properties and Infrastructure Ltd. - Opp.Party(s)

Kulwinder Singh

03 Oct 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,       PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.740 of 2017

 

                                                          Date of Institution   : 28.08.2017         

                                                        Order Reserved on :27.09.2018

                                                         Date of Decision     : 03.10.2018

 

1.      Amrik Singh Gill s/o Deva Singh r/o H.No.686, Phase 2, SAS Nagar, Mohali.

 

2.      Rajinder Kaur Gill w/o Amrik Singh Gill r/o H.No. 686, Phase 2, SAS Nagar, Mohali.

 

                                                                              ….Complainants

 

                   Versus

 

1.      M/s Ansal Properties & Infrastructure Ltd., SCO 183-184, Madhya Marg, Sector 9-C, Chandigarh through its Manager Director/Incharge/Manger.

 

2^nd Address :- M/s Ansal Properties & Infrastructure Ltd., 1202-04, Antriksh Bhawan, 22-Kasturba Gandhi Marg, New Delhi through its Managing Director/Director/Incharge/Manager.

 

2.      Mr. Deepak Ansal MD M/s Ansal Properties & Infrastructure Ltd., SCO 183-184, Madhya Marg, Sector 9-C, Chandigarh through its Manager Director/Director/Incharge/Manager.

 

2^nd Address :- M/s Ansal Properties & Infrastructure Ltd., 1202-04, Antriksh Bhawan, 22-Kasturba Gandhi Marg, New Delhi through its Managing Director /Director/Incharge/Manager.

 

                                                                             Opposite parties.

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Kiran Sibal, Member.

Present:-

          For the complainant         :  Sh.Kulwinder Singh, Advocate

          For opposite parties         :  Sh.Subhash Chand, Advocate

…………………………………………………………………………………….

 

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs floated a scheme for allotment of plots Bay Shop /commercial booths under the name and style of M/s Ansal Properties & Infrastructure Ltd  named “Ansal Golf Links” situated at Kharar-Landran Road, Mohali Punjab. On the assurance of OPs, they booked one bay shop exclusively for the purpose of earning livelihood by means of self-employment by opening  a consultancy office therein. They booked the bay shop @ Rs.36,000/- per sq. yard, vide an application form dated 04.05.2010 situated at Kharar-Landran Road Mohali Punjab. OPs allotted bay shop no. 44 for shop-cum-office establishment /commercial booth having a total area of approximately 75 sq. yard  in the above project for total sale consideration of Rs.27,00,000/- including development of internal services, such as laying of roads, laying of water lines, laying of sewer lines within peripheral limits of the colony. OPs agreed to hand over the possession of the above bay shop to them within a period of one year from the date of allotment. They paid total amount of Rs.27,24,000/- including EDC, water and sewerage and star security charges to OPs, as per clause 1(a) of the allotment letter dated 04.05.2010. OPs received extra amount of Rs.24,000/- from complainants as price of the plot Rs.27,00,000/- covered development of internal services such as laying of roads, water lines, sewer lines within the peripheral limits of the colony.  But OPs failed to hand over the possession of the bay shop to them and kept postponing the matter on one pretest or the order. Approximately seven years have passed by, but OPs failed to hand over the possession of the plot for bay shop to them. They visited the site on 12.04.2017 and found that no development work was undertaken by OPs till that date despite receipt of entire sale consideration amount of Rs.27,10,553/- in January 2012. They sent email dated 14.04.2017 to OPs in this regard, but to no effect. OPs failed to undertake external development work on the site even after receipt of EDC charges from them. They also sent reminders dated 12.05.2017, 18.05.2017 and 22.05.2017  to OPs, but to no effect. They have, thus, alleged deficiency in service and unfair trade practice on the part of OPs. They prayed for refund of the amount of Rs.27,10,663/- along with interest @ 18% per annum for non-delivery of possession after developing the project within the specified period, besides Rs.50,000/- as compensation for mental harassment and Rs.1,00,000/- as litigation expenses.

2.                Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that the complainant has concealed the material facts from the Form by misrepresenting them. It was denied by OPs that complainant is consumer of OPs. The complainants invested the amounts in the property purely for commercial purposes and for speculative investments and they are not consumers at all.  OPs offered plot no.B0024 & B-0074 in the project to complainants, vide letter dated 30.08.2017 in pursuance of development agreement dated 12.01.2011. OPs controverted the other averments of the complainants, as pleaded in the complaint. Clause 12 of application form dated 04.05.2010 states that OPs shall endeavour to give the possession of the unit to the intending allottees within three years and three and half years period from the date of the commencement of development  and construction, subject to force majeure circumstances. OPs prayed for dismissal of the complaint.

3.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-16 and closed evidence. As against it; OPs tendered in evidence affidavit of Rakesh Kumar authorized signatory of OPs as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-3 and closed the evidence.

4.                We have heard learned counsel for the parties and also examined the record of the case.

5.                The first submission of OPs is that complainants are not consumers, because they have purchased bay shop, which is commercial property for investment purposes. The complainants have specifically pleaded in paragraph no.2 (c) of the complaint that they booked one bay shop exclusively for the purpose of earning livelihood by means of self-employment by opening a consultancy office therein. The complainant no.1 also tendered his affidavit Ex.C-A, wherein he also stated on oath that he booked bay shop exclusively for the purpose of earning  livelihood by means of self-employment by opening consultancy office. This evidence led by complainants has gone unrebutted by OPs on the record on this point. There is no evidence by OPs that complainants are either property dealers or habitual in sale and purchase of the property. Consequently, relying upon above evidence of complainant, we hold that complainants fall within the explanation to clause 2(i)(d) of Consumer Protection Act and they are held to be consumers of OPs as he/they have purchased the commercial services or goods for the purpose of earning livelihood exclusively by means of self-employment. The contention of OPs is rejected on this score.

6.                The complainants tendered in evidence affidavit Ex.C-A in support of the case. The complainants proved an allotment letter Ex.C-1 dated 04.05.2010 by OPs for sale consideration of Rs.27,00,000/-. As per clause 12 of the allotment letter, allottee agreed to take physical possession of plot within a period of 30 days on receipt of letter offering possession after making the payment. In the event of failure, allottee were to make payment of penalty as fixed by the company. The Apex Court held that three years period for delivery of possession is quite reasonable and builder is expected to deliver possession within three years, where the time period for delivery of possession is not specified. Section 6 of PAPRA Act 1995 makes it mandatory for promoter/builder to specify the time for delivery of possession in the buyers agreement. We take period of three years as reasonable one from the date of allotment letter Ex.C-1 dated 04.05.2010 for delivery of physical possession of the bay shop to complainants after developing it properly. The complainants placed on record receipts Ex.C-3 to Ex.C-11 to the effect that they have paid the entire sale consideration amounts to OPs. Ex.C-13 to Ex.C-16 are the emails sent by the complainants to OPs for alleged deficiency in service. Even OPs have not disputed this fact this fact in para no.2 of the written reply on merits to the effect that they were to deliver the possession within half over three years from the date of commencement of the development of the project to allottee. The date of commencement or development is taken to be date of allotment of bay shop. There are no force majeure circumstances specifically pleaded by OPs or proved on record by them to this effect that the circumstances were out of their control in not delivering the possession within specified period. The development agreement as relied upon by OPs is Ex.OP-1 dated 12.01.2011. The application form for sale of bay shop is Ex.OP-3, as applied by the complainants. As per terms and conditions of clause 12 of this application form, the OP/company was to give possession of the unit to allottee within a period of three and half years.

7.                To counter this evidence, OPs relied upon affidavit of Rakesh Kumar authorized signatory of OPs as Ex.OP-A on the record.  Similarly, we have examined other documents Ex.OP-1 to Ex.OP-3 on the record.

8.                From perusal of evidence and hearing respective submissions of counsel for the parties, we find that there are no force majeure circumstances proved by OPs in this case. The period of three years or taken to be three and half years from the date of allotment letter 04.05.2010 vide Ex.C-1, which  has already expired. OPs have not yet completed the project and delivered possession of the allotment of bay shop to complainants. In this regard, reference be also made to law laid down in "EMMAR MGF Land Limited Vs. Parvinder Singh and another" II(2015)CPJ-359 (NC) by the National Commission, wherein it has been held that entire sale consideration deposited - non-delivery of possession - deficiency in service- unfair trade practice. The National Commission also held in "EMAAR MGF Land Limited and another Vs. Dilshad Gill" III(2015)CPJ-329(NC) that non-delivery of possession amounts to unfair trade practice and deficiency in service. We also find support from law laid down by the National Commission in case titled as "EMAAR MGF Land Limited and another Vs. Dyal Singh, Gurdev Singh Badial" IV(2015)CPJ-294(NC) that non-delivery of possession is deficiency in service and unfair trade practice on the part of builder.

9.                As a result of our above discussion, we hold that OPs have been found accountable of unfair trade practice and deficiency in service in not delivering the possession of the allotted property to complainants despite receipt of entire sale consideration amount from them. OPs cannot utilize the hard-earned money of the complainants for an indefinite period in the wait of delivery of possession. The complaint of the complainants is, thus, accepted and below noted directions are issued against OPs :-

1. OPs are directed to refund the entire deposited amounts of Rs.27,10,663/- to complainants with interest @ 12% per annum from the date of their deposits till actual payment.
2. OPs are also directed to pay compensation of Rs.50,000/- for mental harassment and Rs.15,000/- as cost of litigation to complainants.

10.              Arguments in this complaint were heard on 27.09.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

11.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                          (KIRAN SIBAL)

                                                                                MEMBER

October 3,   2018                                                           

(ravi)