Chandigarh

DF-II

CC/297/2015

Manish Dang - Complainant(s)

Versus

M/s Ansal Properties - Opp.Party(s)

Sh. Kapil Kumar Bahrdwaj Adv.

30 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	297/2015
Date of Institution	:	04.06.2015
Date of Decision	:	30/08/2016

 

                                                

                                                         

Manish Dang s/o Sh.C.R.Dang r/o H.No.39, HIG (I), Sector 48-C, Mohali working at SCO No.94, Sector 44-C, Ground Floor, Chandigarh

                                      ...  Complainant.

Versus

1. M/s Ansal Properties & Infrastructure Ltd., through its Assistant General Manager Sh.Amit Rana, SCO No.183-184, Sector 9-C, Chandigarh.

 

2. M/s Ansal Properties & Infrastructure Ltd., through its Chairman Sh.Sushil Ansal, Registered Office: # 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi-110001.

 

3. M/s Ansal Properties & Infrastructure Ltd., through its  Chairman Sh.Sushil Ansal, 1202-04, Antrikash Bhawan, 22 Kasturba Gandhi Marg, New Delhi-110001.

…. Opposite Parties.

 

BEFORE:   SHRI RAJAN DEWAN, PRESIDENT

SMT.PRITI MALHOTRA, MEMBER

 

Argued by: Sh.K.K.Bhardwaj, Advocate for the complainant

                   None for the OPs.

 

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that  he applied for residential independent floor in the project namely “Golf Links” Mohali with the OPs. The total basic price of the independent floor was Rs.29.40 lacs i.e. Rs.28.20 as basic cost, Rs.1,00,000/- as preference location charges and Rs.20000/- as interest free maintenance charges.  The complainant deposited a sum of Rs.4.23 lacs as earnest money alongwith the application form through cheque against receipt. Subsequently, he was allotted Unit No.916, Second Floor, measuring 1299 sq. ft.  consisting of three bed rooms and 3 bathrooms in the project of  Exclusive Floors at Golf Link, Sector 114,  Kharar-Landran Road, Mohali, Punjab vide allotment letter/agreement dated 13.11.2010. It has been averred that  as per Clause 12 of the allotment letter-cum-agreement, the construction of the said independent floor was to be completed within 24 to 30 months.   According to the complainant, he has already deposited a sum of Rs.28,05,441/- vide different receipts by 22.12.2014 with the OPs but still he did not receive any payment call letter (s) or offer letter for possession of the independent floor from OPs.  It has further been averred that thereafter he visited the offices of the OPs to know about the reason of not offering the possession of the independent floor but no satisfactory reply was given.  Ultimately, he vide registered letter dated 30.12.2014 requested the  OPs to pay the interest after 24-30 months (2- 2 ½  years) followed by registered reminder dated 30.01.2015 and 17.02.2015 but to no effect. It has further been averred that the OPs have received huge amount of Rs.28,05,441/- from him including the EDC for the independent floor whereas till date no approach roads and infrastructure are there at the site and the OPs have also not bothered to offer the possession of the independent floor to him.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the complainant has filed the instant complaint.
2. OPs put in appearance through their Counsel on 22.7.2015 and the case was adjourned to 20.8.2015 for filing of reply by the Opposite Parties.  However, the OPs did not filed the reply & evidence, despite availing several dates on 20.8.2015, 18.9.2015, 16.10.2015, 18.11.2015, 17.12.2015, 20.1.2016, 18.2.2016 and 15.3.2016 including last opportunity as well as despite imposition of cost.  The Opposite Parties on 18.2.2016, when the case was fixed for filing reply to the application of the complainant for struck off the defence of the Opposite Parties, instead of filing reply, filed an application under Section 8 of the Arbitration and Conciliation Act and they finally filed the reply and evidence on 7.4.2016 only.   The act of the OPs shows that they moved an application under Section 8 of the Arbitration and Conciliation Act, only in order to delay the proceedings, which is not in consonance with the spirit of the Consumer Protection Act, 1986, because the Act provides that the complaint should be decided within a period of 3 months.  Further, the Hon’ble Supreme Court in case Civil Appeal No.10941-10942 of 2013 - New India Assurance Co. Ltd. Versus Hilli Multipurpose Cold Storage Pvt. Ltd., decided on 04.12.2015, has held that

“17.      We are, therefore, of the view that the judgment delivered in the case of Dr. J.J. Merchant (supra) holds the field and therefore, we reiterate the view that the District Forum can grant a further period of 15 days to the opposite party for filing his version or reply and not beyond that.”

                   The case of Dr.J.J.Merchant, relied upon by the Hon’ble Supreme Court is on the same subject, wherein the Hon’ble Supreme Court observed, in Para No.16, as under:-

“13.   The National Commission or the State Commission is empowered to follow the said procedure. From the aforesaid section it is apparent that on receipt of the complaint, the opposite party is required to be given notice directing him to give his version of the case within a period of 30 days or such extended period not exceeding 15 days as may be granted by the District Forum or the Commission. For having speedy trail, this legislative mandate of not giving more than 45 days in submitting the written statement or the version of the case is required to be adhered to. If this is not adhered to, the legislative mandate of disposing of the cases within three or five months would be defeated.

                   Since the written statement has been filed by the OPs beyond the period of 45 days, therefore, the defence of Opposite Party stands struck off vide detailed order dated 14.07.2016 and the case was adjourned to 16.8.2016 for filing of evidence, if any, by the complainant and arguments by the parties.

3. We have heard the learned counsel for the complainant and have gone through the documents on record.
4. During the course of arguments, the Counsel for the complainant has submitted that the OPs have failed to offer the possession of the unit in question within 24-30 months of the commencement of the construction work as per Clause 12 of the allotment letter-cum-agreement and as such they are liable to pay the interest on the deposited amounts after 30 months from the date of the agreement till the date of handing over the actual possession of the unit in question.
5. The only question to be determined in this case is, as to whether, the complainant is entitled to interest on the deposited amounts on account of non-issuance of the offer of possession of the unit in question or not.
6. As per clause 12 of the allotment letter, the construction of the said independent floor is likely to be completed within 24-34 months of the commencement of the work.  However, neither in the complaint nor in the documents on file, any specific date regarding the commencement of the work/construction was mentioned.  Although, the perusal of the installment plan at page 10 of the allotment letter-cum-agreement issued by the OPs shows that 25% of the basic price of the unit to the tune of Rs.7.30 lacs through three installments i.e. 10% at time to the booking, 10% at the time of the allotment and 5% on the start of the construction was to be received from the complainant.  In the instant case, the OPs  had received Rs.7.78 lacs by 14.06.2011 from the complainant i.e. more than 25% of the basic price of the unit in question, meaning thereby that the construction of the project was started in the month of June, 2011 by the OPs and as such as per the allotment letter-cum-agreement, the offer of possession of the unit in question was required to be made by the OPs  on or before December, 2013, but the same has not been offered to the complainant till the filing of the instant complaint even  till date despite receiving 95% of the entire basic price of the unit in question and remaining amount was to be paid at the time of the possession of the unit. What to talk of offering the possession of the flat in question, the OPs did not even bother to reply the letters/reminders dated 30.12.2014, 30.01.2015 and 17.02.2015 written by the complainant.
7. In the case titled as Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., Consumer Complaint bearing no.603/2014, decided on 02.05.2016, the Hon’ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

 “8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)     xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

8. Besides this, the OPs cannot be allowed to take shelter of any terms of the unilateral allotment letter-cum-agreement because the same are heavily loaded in favour of the OPs/builder. Surprisingly there is no penal clause in the allotment letter-cum-agreement against the builder in case of any default on their part. Whereas there are so many clauses find mentioned in the terms of allotment letter-cum-agreement against the allottee(s).   It is also important to mention here that in the event of delayed payment due or payable by the allottee(s), in terms of Clause 19 of the allotment letter, the Opposite Parties are charging penal interest @18% per annum on the delayed amount.  As per Clause 21 of the agreement, the OPs are also charging holding charges @ Rs.5/- sq. ft. of the sale able area per month in case the allottee fails to take possession of the said floor within 30 days from the date of intimation in writing by the Company.
9.  In Prasad Homes Pvt. Ltd. Vs E.Mahender Reddy & Ors. 1(2009)CPJ 136 (NC),  no development work had been  carried out, at the site. Thus, the   payment of further  installments, was stopped by the complainant. It was, in these circumstances, held by the Hon’ble National Commission, that the builder could not be allowed to take shelter, under any clause of the agreement, to usurp the money deposited by the complainant. It was further held that, if any clause, in the agreement, entitled the builder to forfeit the deposited amount, even if, the fault was on his part, that could be said to be heavily loaded, in his favour, and it amounted to indulgence into unfair trade practice. The National Commission, ultimately, upheld the order of the State Consumer Disputes Redressal Commission directing the refund of the deposited amount, with interest. The principle of law, laid down in Prasad Homes Pvt. Ltd.’s case (supra)  is fully applicable to the facts of the instant case.  
10. The act of the Opposite Parties, after collecting an amount of Rs.28,05,441/- against the total basic price of the flat in question i.e. Rs.29,40,000/- from the complainant against a unit and not confirming till date, any firm date of handing over of the physical possession of the unit, complete in all respects, amounts to a “Deceptive Practice” which falls within the meaning of “Unfair trade practice” as defined under the Consumer Protection Act, 1986. By not indicating the true picture with regard to their project to the complainant, the OPs induced the complainant to part with his hard earned money, which also amounts to unfair trade practice. Thus, the OPs by not delivering the legal physical possession of the fully developed unit to the complainant till date, even after having received 95% of the price, is not only amounts to deficiency in rendering proper service but is also guilty of indulging into unfair trade practice. 
11. It is worth mentioning here that the OPs in the present case “wants to have the cake and eat it too”, as admittedly it had received 95% of the cost of the unit. Thus, the OPs being the builder, is enjoying the possession of the unit as well as the substantial amount of consideration paid by complainant. On the other hand, the complainant after having paid 95% of the price of the unit in question, is still empty handed. The OPs are enjoying and utilizing the money of the complainant but does not want to hand over the possession on one pretext or the other.  The OPs want the complainant to run from one fora to other, so that they can go on enjoying the complainant’s money without any hindrance.  
12. Keeping in view the overall facts and circumstances of the present case, since the OPs have failed to deliver the possession of the unit in question after a lapse of 30 months from the date of commencement of the work even till today after the receipt of 95% of the basic price of the unit in question, therefore, the complainant is held entitled to interest @12% per annum w.e.f. 14.12.2013 till handing over of actual physical possession of the plot, in question, complete in all respects.
13. In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The opposite parties are directed as under ;-

1. To pay interest @12% per annum on the deposited amounts to the complainant w.e.f. 14.12.2013 (i.e. after 30 months from the date of start of the construction) onwards till the handing over of actual physical possession of the plot, in question.
2. To pay Rs.25,000/- as compensation for mental agony and physical harassment.
3. To pay Rs.10,000/- as costs of litigation expenses.

14.         This order be complied with by the Opposite Parties, within 45 days from the date of receipt of its certified copy, failing they shall pay the amount at Sr. No.(ii) above with interest @12% per annum from the date of this order, till actual payment, besides complying with the directions at Sr. No.(i) and (iii) above.
15. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

30.08.2016

Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

Sd/-

(PRITI MALHOTRA)

MEMBER