Chandigarh

DF-II

CC/133/2021

Amit Gupta - Complainant(s)

Versus

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

Rachit Kaushal adv

23 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	133/2021
Date of Institution	:	24.02.2021
Date of Decision	:	23.01.2024

 

                     

            

 

Amit Gupta s/o Sh.Sham Sunder Gupta r/o H.No.95-A, Gandhi Nagar, Jammu, J&K currently r/o 2/3 Ascort Court, Glen Waverly, VIC-3150, Melbourn, Australia through his Special Power of Attorney holder Sh.Nitin Panwar s/o Sh.Netra Pal Verma r/o 2316-A, Sector 31-C, Chandigarh vide SPA dated 13.01.2021.

                 ...  Complainant.

Versus

1. M/s Ansal Properties & Infrastructure Ltd. having its registered office at 115, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi 110001 through its Chairman Sushil Ansal.
2. Sushil Ansal, Chairman , M/s Ansal Properties & Infrastructure Ltd. 115, Ansal Bhawan, 16-Kastruba Gandhi Marg, New Delhi 110001.
3. Pranav Ansal, Vice Chairman, M/s Ansal Properties & Infrastructure Ltd. 115, Ansal Bhawan 16-Kasturba Gandhi Marg, New Delhi 110001.
4. Authorized signatory M/s Ansal properties & Infrastructure Ltd. having its Corporate office at SCO No. 12-A, Ansal City Centre , Kharar Ladran  Road, Sector 115, SAS Nagar, Mohali (Punjab).

…. Opposite Parties

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Rachit Kaushal, Counsel for complainant
	Sh.Prateek Garg, Counsel for OPs.

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.     By dint of this common order, we propose to dispose off the following 4 connected consumer complaints in which common questions of law and fact are involved:-

1	2.	3.	4.	5
Sr. No.	C.C. No.	Complainant’s Name	Plot Particulars and Project	Amount (In Rs.)
1.	CC/133/2021	Amit Gupta	Booth No.E36 measuring 33.33 sq. yards In Ansal Golf Links, Sector 114, Mohali	Rs.16,03,877/-
2.	CC/677/2020	Arundeep Sandhu	Commercial Plot No.171 measuring 123 sq. yards (Commercial) in the project known as Ansal Golf Links, Sector 114, Mohali	Rs.70,20,029/-
3.	CC/782/2021	Sandeep Mohla & Niti Mohla	Flat No.232 GF in “Victoria Floors, Golf Links II” at Sector 116, Mohali	Rs.36,37,500/-
4.	CC/430/2022	Lt.Col.Jagmohan Singh Bhabra	Unit No.246, Ground Floor,  measuring 1395 sq. ft. in “Victoria Floors, Golf Links II” at Sector 116, Mohali	Rs.44,95,100/-

2.     The facts are gathered from C.C.No.133/2021- Amit Gupta Versus M/s Ansal Properties & Infrastructure Ltd. and Others. 
3.     The complainant has filed the present complaint stating therein that OPs No. 1 to 4 Company launched  their project under the name and style of “Ansal Golf Links” for the promotion and development of plots for shop cum office establishment/commercial booths  around Village Kailon on Kharar Landran Road, Mohali. On being enticed by the false representations of the OPs the complainant who was looking to set up a small office and start his own office to earn his livelihood entered into an agreement to sell dated 23.05.2021 to purchase a Plot No.E36  measuring 33.33 sq. yards (hereinafter referred to as subject plot) in resale for a sale consideration of Rs.16,73,033/-, which was earlier allotted to Harmeet Kaur and Kiranjit Singh vide allotment letter dated 20.04.2011 (Annexure C-1), Copy of Agreement is Annexure C-2. The basic sale price of the plot was Rs.15,83,175/-. It was assured by the OPs that the possession will be handed over within 3 years from the date of the allotment letter dated 20.04.2011. However, the allotment letter/agreement totally silent on the period of delivery of possession. In this manner the terms of the allotment are unjust and Clause 6 and 13 are biased one. However, the complainant had made the payment of Rs.15,93,877/- to the original allottees (Annexure C-3). He also paid Rs.10,000/- as application fee for transferring the unit in his name to the OP vide application dated 11.12.2011(Annexure C-5). The transfer letter was also issued in the name of the complainant by the OPs and subsequently, the complainant made entire payment to the original allottees.  However, the possession of the plot has not been handed over to the complainant for almost 10 long years despite his repeated requests. Moreover, the completion certificate has not been obtained by the OPs. The OPs are only possessing the partial completion certificate, which did not include the subject plot  of the complainant and in this manner the complainant felt cheated by OPs as the OPs were not in a position to hand over the actual possession of the subject plot. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to refund entire sale consideration of Rs.16,03,877/- along with interest, compensation for mental agony and physical harassment as well as litigation expenses.
4.     After service of notice, the OPs appeared before this Commission and filed their written version taking preliminary objections regarding maintainability, cause of action, jurisdiction, limitation and it is alleged  that the complainant has purchased the shop for earning speculative profits.  The complainant has purchased the shop in question initially from the open market after enquiring each and every aspect. It has been denied that the terms of the allotment of the shop were totally arbitrary and one sided.  It has been denied that the offer of the possession has not been offered to the complainant. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on their part, the OPs prayed for dismissal of the complaint.
5.     Parties filed their respective affidavits and documents in support of their case.
6.     We have heard the Counsel for the contesting parties  and have gone through the documents on record including written submissions.
7.     The facts with regard to the allotment of the unit in question by the OPs in the name of Smt.Harmeet Kaur and Sh.Kiranjit Singh vide allotment letter dated 20.04.2011 (Annexure C-1)  for total basic price of Rs.15,83,175/- and subsequently its purchase by the complainant vide agreement to sell dated 23.05.2011 (Annexure C-2) from Smt.Harmeet Kaur and Sh.Kiranjit Singh  for Rs.16,03,877/- and the transfer of the unit by the OPs in the name of the complainant vide transfer letter dated 11.12.2011 (Annexure C-6) on receipt of the transfer fee are not disputed between the parties. It is also not in dispute that the unit in question was allotted in month of May, 2011 and the OPs have failed to deliver the lawful physical possession of the unit complete in all respects to the complainant so far.
8.     Reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah & Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint.

        The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there  was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

        Further, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed as under:-

    “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

        The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed as under:- 

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/ apartments, invites offers and collects money from the buyers. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

9.     Since, the complainant has specifically pleaded in the complaint that the unit was purchased by the complainant for earning livelihood by way of self employment and as such the complainant is a consumer and the said fact has not been disputed by the OPs and as such the complainant is a consumer in this case. The Hon’ble Apex Court in case of Sunil Kohli Vs. Puearth Infrastructure Ltd. (2020) 12 SCC 235 held that if commercial property has been booked by a person for earning his livelihood by way of self employment , then he is a consumer.
10.     Keeping in view the facts and circumstances of the case, we are of the considered view that the complainant cannot be made to wait for an indefinite period and the OPs who are not in a position to deliver the lawful possession within the reasonable period of three years from the date of its booking have no right to retain the hard earned money of the complainant.  A buyer to have a comfortable life and having paid his/her hard earned money to have a house, are not supposed to wait indefinitely for possession. Thus, the complainant cannot be made to wait indefinitely for the possession of the unit allotted to him/her and the complainant is entitled to seek the refund of the amount paid along with interest.
11.     Almost similar facts have been pleaded in other connected complaints and similar evidence has been led in them.  Therefore, in all these cases, deficiency in service as well as unfair trade practice on the part of the OPs is proved. All the consumer complaints deserve to be partly allowed and the same are accordingly partly allowed.
12.     In C.C.No.133/2021-Amit Gupta Versus M/s Ansal Properties & Infrastructure Ltd. and Others, the OPs are directed to :-

i)      refund Rs.15,83,175/- to the complainant along with interest @ 9% p.a. from the respective dates of its receipt till the date of its actual realization.

ii)     pay Rs.20,000/- as lump sum compensation to the complainant on account of mental tension and harassment as well as litigation expenses.

13.     In C.C.No.677/2020-Arundeep Sandhu Versus M/s Ansal Properties & Infrastructure Ltd. and Others, the OPs are directed to :-

i)      refund Rs.70,20,029/- to the complainant along with interest @ 9% p.a. from the respective dates of its receipt till the date of its actual realization.

ii)     pay Rs.20,000/- as lump sum compensation to the complainant on account of mental tension and harassment as well as litigation expenses.

14.     In C.C.No.782/2021-Sandeep Mohla and Another Versus M/s Ansal Properties & Infrastructure Ltd. and Others, OPs No.1 and 2 are directed to :-

i)      refund Rs.36,37,500/- to the complainants along with interest @ 9% p.a. from the respective dates of its receipt till the date of its actual realization.

ii)     pay Rs.20,000/- as lump sum compensation to the complainant on account of mental tension and harassment as well as litigation expenses.

15.     In C.C.No.430/2022-Lt.Col.Jagmohan Singh Bhabra Versus M/s Ansal Properties & Infrastructure Ltd. and Others, OPs No.1 to 4 are directed to :-

i)      refund Rs.44,95,100/- to the complainant along with interest @ 9% p.a. from the respective dates of its receipt till the date of its actual realization.

ii)     pay Rs.20,000/- as lump sum compensation to the complainant on account of mental tension and harassment as well as litigation expenses.

16.      This order be complied with within ninety days from the date of receipt of its certified copy.
17.     The pending application(s) if any, stands disposed of accordingly.
18.     Certified copy of this order be communicated to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission 23.01.2024
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/-
	(B.M.SHARMA) MEMBER