Chandigarh

DF-II

CC/132/2021

Kausik Chattopadhyay - Complainant(s)

Versus

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

Savinder Singh Gill adv

15 Mar 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	132/2021
Date of Institution	:	23.02.2021
Date of Decision	:	15.03.2023

 

                     

            

 

1.  Kausik Chattopadhyay. S/o Sh. Arun Sankar Chalopadhyay, R/o Apartment No. 303, MJ Block, IISER Mohall, Sector-81. SAS Nagar, Mohall Punjab-140306.

2.  Arunika Mukhopadhaya W/o Sh. Kausik Chattopadhyay, R/o Apartment No. 303, MJ Block, IISER Mohali, Sector-81, S.A.S. Nogar, Mohali, Punjab-140306.

...Complainants

Versus

1. M/s Ansal Properties & Infrastructure Ltd. having its office at CB-12-A. Ansal City Centre, Kharar Landran Road, Sector-115, Sahibzada Ajit Singh Nagar, Mohali, Punjab-140307, through its Whole Time Directors. Sh. Sushil Ansal and Sh. Pranav Ansal and Director, Sh. Anil Kumar.

.....Opposite Party

2.  Housing Development Finance Corporation Limited (HDFC) having its office at SCO No.153-155, Sector-8 G. Madhya Marg, Chandigarh.

... Performa Party

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SMT.PRITI MALHOTRA,	MEMBER
		SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Savinder Singh Gill, Counsel of complainant Sh.Rajiv K Bhatia, Counsel of OP No.1 Ms.Neetu Singh, Counsel of OP No.2

 

 

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

1.     The complainant has filed the present complaint under Section 34 of the Consumer Protection Act, 2019, as amended up-to-date alleging therein that they applied for an independent floor/unit for their family and personal use in the project being developed by the O.P. No. 1 under the name and style of Victoria Floors, Golf Links-II" situated at Kharar-Landran Road, Sector-116, S.AS. Nagar. Mohali, by paying booking amount of Rs.4,00,000/- on 11.11.2011. Accordingly, the apartment No.246 on First Floor measuring approximately 1435 sq. ft. was allotted to the complainants (Annexure C-1). The said unit was purchased under "subvention plan". The Floor Buyer's Agreement for the said apartment was executed between the complainants and the opposite party No.1 on 16.12.2011 (Annexure C-2) for total sale consideration of Rs.42,95,734/-. The complainants have made a total payment of Rs.9,63,506/- from their own pocket and Rs.29,25,000/- were paid by OP No. 2 towards loan disbursement, thereby making it total payment of Rs.38,88,506/- towards the sale consideration of the said apartment which has been received by OP No.1 till date. As per Clause 5.1 of the Buyer's Agreement, the possession of the unit was to be delivered within 30 months with an extended period of 6 months from the date of execution of the said Agreement or the date of sanction of the building plan, whichever falls later failing which as per Clause 5.4 of the Buyer's Agreement, OP No.1 was liable to pay compensation for delay @ Rs.10 per sq. ft. of the super area of the said apartment per month to the allottee till the notice offering the possession. The complainants made all the payments due towards the consideration of the said apartment by September, 2013 whereas the last installment was to be paid at the time of possession. As per Clause 5.1 of the Buyer's Agreement, O.P. No.1 was to deliver the possession of the apartment by 15.12.2014. However, OP No.1 has failed to offer the possession of the apartment even after receiving all the payment due toward the said unit/apartment and there has been inordinate delay in handing over the possession of the said apartment. The complainants had to make the payment of pre-EMIs to OP No.2 which was solely the responsibility of OP No.1 till the date of offer of possession. The complainants were paying the Pre-EMIs from their own pocket and the OP No.1 used to reimburse the same to the complainants later on but since August, 2020, the complainants have been paying the Pre-EMIs to OP NO.2 and OP No.1 has stopped reimbursing the same to the complainants.  It has further been averred that the complainants visited the site of the project in December, 2020 but the OPs expressed their inability to handover the possession of the said apartment. 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 following directions to the OPs:-

1.    Refund the amount of Rs.9,63,506/- paid by the complainants from their own pocket along with interest @15% p.a. from the date of respective deposits till realization.
2.    To direct the O.P. No.1 to clear all the outstanding loan pending towards Opposite party no.2.
3.    To refund the Pre-EMI installments already paid and being paid by the complainants during the pendency of the present complaint i.e. from August, 2020 till the date the same are paid by the complainants from their own pocket since the same was the liability of Opposite Party no.1 till the handing over of possession of the said apartment.
4.    Compensation for mental agony, harassment and deficiency in service amounting to Rs.3,00,000/-.
5.    Compensation for litigation expenses amounting to Rs.1,00,000/-.
6.    And/or any other relief which this Hon'ble District Commission deems fit and proper may kindly be granted in the favour of the complainants.

2.     In its written version, OP No.1 took preliminary objections with regard to the territorial jurisdiction and that the complaint filed by the complainants are barred by limitation.  On merits, the facts with regard to the execution of the agreement and the payments made by the complainants are not disputed. However, as per Clause 5.1 of the agreement which simliciter gave a tentative period of 12 months with an extended period of 6 months fro delivering possession of the allotted unit from the date of allotment which as stipulated therein would run from the date all requisite sanctions/approvals/permissions/clearances from the government/local authorities/sanctioning authorities were received subject to force majeure circumstances.  It has further been stated that the apartment booked was under the subvention scheme and the bank contributed towards the sale consideration and till date OP No.1 continued to pay pre-EMI interest to the said bank on the said advanced amount and as such the complainant is not entitled to claim interest on the loan amount advanced by the Bank against which the interest has been already been paid.  It has further been stated that there is specific clause in the agreement that in case the possession due to any reason could not be offered in that case, they are committed to pay Rs.10/- per sq. ft. per month to the complainants during the period of delay.  It is submitted that the possession is ready and construction has already been completed. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, OP No.1 prayed for dismissal of the complaint.
3.     In its separate written statement, OP No.2  has stated that the grievance of the complainants, if any, is qua OP No.1  who failed to adhere the terms and conditions of the Buyer Agreement. As regards the finance advanced by it is concerned, the rights of the parties to the present lis are governed by the home loan agreement and tripartite agreement dated 28.03.2012. In case of cancellation of the unit or in the contingency of termination of the buyer agreement, OP No.2 has the first charge/right to seek apportionment of its dues.  The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, OP No.2 has also prayed for dismissal of the complaint qua it.
4.     The complainant filed replication to the written reply of OP No.1 controverting its stand and reiterating his own.
5.     The 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.     An application dated 13.02.2023 has been filed by OP No.1 for stay of the proceedings in view of the order dated 16.11.2022 passed by the Hon’ble National Company Law Tribunal (NCLT), New Delhi. However, the application filed by the OP No.1 deserves to be dismissed because the Hon’ble NCLT, New Delhi vide its order dated 13.01.2023 passed in Company Appeal (AT) (Insolvency) No.41/2023 (Annexure R-1) has clarified that the order of the adjudicating authority admitting Section 7 Application shall confine to ‘Fernhill Project’ situated at District Gurgaon. Similar view has been taken by our Hon’ble State Commission in its order dated 27.02.2023 passed in MA/32/2023 filed in CC/82/2022 titled as Rajesh Aggarwal etc. Vs. M/s Ansal Properties & Infrastructure Ltd. and Others (Annexure R-4). Hence, the application of OP No.1 is dismissed.

 

8.     As regards the objection of OP No.1 regarding the territorial jurisdiction is concerned, the same deserves to be rejected because when the agreement (Annexure C-2) and tripartite agreement (Annexure OP-2/2) were entered between the parties, the complainant were residing at the Chandigarh address. Besides this, OP No.1 company has its office at Chandigarh as is evident from some of the payment receipts attached with the complaint as Annexure C-3 (Colly.) were issued by OP No.1-Company itself to the complainant. Thus, this Commission has got the territorial jurisdiction to entertain and try the present complaint.
9.     The next submission of the counsel for the OP No.1 is that the complaint barred by limitation. However, as per law laid down in the judgment Meerut Development Authority Versus Mukesh Kumar Gupta, reported as IV (2012) CPJ 12 (SC) and  Vasant Mahadero Kate Vs. Shastri Gruha Nirman Sahkari Sanstha Ltd. II (2015) CPJ 4 (NC),  purchaser of plot has continuous cause of action available to him unless and until possession of plot handed over to him.
10.     The Hon’ble National Commission in “Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr.” 2016(2) CLT 457 has also held that unless or until the Complainants get possession of the flats, complete in all respects, they have got continuous cause of action. In Para-8 of the said judgment, it has been observed as under:-

“8.     The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in “Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association” Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012.”

        So in view of availability of recurring cause of action in favour of complainants till refusal, certainly the complaint is not barred by limitation and submission of counsel for OPs to the contrary has no force and the same is rejected accordingly.

11.     The payment of Rs.9,36,506/- by the complainants to OP No.1 and Rs.29,25,200/- by OP No.2-Bank to OP No.1 in respect of the unit in question is not disputed.
12.     The perusal of the record reveals that OP No.1 did not deliver the possession of the allotted flat/unit to the complainants despite receipt of substantial amount of the flat. OP No.1 has failed to fulfil its contractual obligation by offering possession of the Unit to the complainants, having all basic amenities, within the stipulated time or within a reasonable time, so the complainant/purchaser cannot be compelled to kept on waiting that too much after the agreed period.
13.     Pertinently, OP No.1 was not having all the required sanctions from the competent authorities when they took the initial amount from the complainants.  It is evident from the record that the hard-earned money of the complainants is in the possession of OP No.1  since the year 2011.
14.     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”.

         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 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?”

15.     Hence, the act of OP No.1 to collect the money before getting all the necessary approvals for the project and not handling over possession of the unit in question within the stipulated period certainly proves deficiency in service and their indulgence in unfair trade practice. 
16.     A buyer/complainants to have a comfortable life and having paid their/her hard earned money to have a house, are not supposed to wait indefinitely for possession. Thus, the complainants 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.
17.     OP No.1-Company accepted the money, but failed to honour the commitment/promise made with complainants, therefore, the deficiency in service as well as unfair trade practice adopted by OP No.1, is clearly established, which not only caused financial loss to the complainants, but also caused them immense harassment & mental agony.
18.     In the light of above observations, we are of the considered view that OP No.1 is found deficient in rendering proper service to the complainants and having indulged in unfair trade practice. Hence, the present complaint deserves to succeed against OP No.1.  Accordingly, the present complaint is allowed with following directions to OP No.1 to:-

1.   refund the amount of Rs.9,63,506/- paid by the complainants along with interest @9% p.a. from the date of respective deposits till the date of its actual re-payment.
2.   to clear all the outstanding loan pending towards Opposite Party No.2 till the date of this order.
3. to refund the Pre-EMI installments already paid to the Bank by the complainants during the pendency of the present complaint i.e. from August, 2020 till the date of this order.
4.   pay Rs.15,000/- as compensation to the complainant on account of mental tension and harassment as well as litigation expenses.

         The above said order shall be complied with by OP No.1 within a period of 60 days from the date of receipt of its copy.

19.     The pending application(s) if any, stands disposed of accordingly.
20.     Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced 15/03/2023
	sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	sd/- (PRITI MALHOTRA) MEMBER
	sd/- (B.M.SHARMA) MEMBER