Chandigarh

DF-I

CC/138/2021

Poonam Datta - Complainant(s)

Versus

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

Rachit Kaushal

24 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

[1]

                    

Consumer Complaint No.	:	CC/138/2021
Date of Institution	:	4/03/2021
Date of Decision	:	24/11/2023

               

1.   Poonam Datta W/o Sh. Sanjay Sharma resident of H. No.145K, Ward No.20, F-Block, Sri Ganganagar,Rajasthan.

2.   Sanjay Sharma S/o Sh. Gian Chand Sharma, resident of H. No.145K, Ward No.20, F-Block, Sri Ganganagar, Rajasthan.

   … Complainants

V E R S U S

1.   M/s Ansal properties & Infrastructure Ltd. having its registered office at 115, Ansal Bhawan, 16-Kasturna Gandhi Marg, New Delhi-110001 through its Chairman Sushil Ansal.

2.   Sushil Ansal, Chairnman M/s Ansal Properties & Infrastructure 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001.

3.   Pranav Ansal vice Chairman M/s Ansal Properties & Infrastructure 115, Ansal Bhawan 16-Kasturna Gandhi Marg, New Delhi 110001.

4.   Authorized signatory M/s Ansal Properties & Infrastructure Ltd. having its Corporate office at SCO 12-A, Ansal City Centre, Kharar-Landran Road, Sector 15, SAS Nagar, Mohali (Punjab).

5.   M/s HDFC Bank Limited through Sh. Deepak S. Parekh, Chairman/Managing Director/ Authorized signatory Branch office Address: HDFC Bank limited SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

… Opposite Parties

[2]

 

Consumer Complaint No.	:	CC/139/2021
Date of Institution	:	4/3/2021
Date of Decision	:	24/11/2023

               

1.  Lt. Col Gursharan Singh s/o Sh. Ranbir Singh permanent resident of H. No.230, Street No.4B, Ram Basti, opposite civil hospital Dhuri Road, Sangrur, Punjab 148001.  
2.  Harveen Kaur W/o Sh. Gursharan Singh permanent resident of H. No.230, Street No.4B, Ram Basti, opposite civil hospital Dhuri Road, Sangrur, Punjab 148001.

…. Complainants

V E R S U S

2.   M/s Ansal properties & Infrastructure Ltd. having its registered office at 115, Ansal Bhawan, 16-Kasturna Gandhi Marg, New Delhi-110001 through its Chairman Sushil Ansal.

2.   Sushil Ansal, Chairnman M/s Ansal Properties & Infrastructure Ltd. 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001.

3.   Pranav Ansal vice Chairman M/s Ansal Properties & Infrastructure Ltd. 115, Ansal Bhawan 16-Kasturna Gandhi Marg, New Delhi 110001.

4.   Authorized signatory M/s Ansal Properties & Infrastructure Ltd. having its Corporate office at SCO 12-A, Ansal City Centre, Kharar-Landran Road, Sector 15, SAS Nagar, Mohali (Punjab).

5.   M/s HDFC Bank Limited through Sh. Deepak S. Parekh, Chairman/Managing Director/ Authorized signatory Branch office Address: SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

….Opposite Parties

 

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

              

 

ARGUED BY	:	Sh. Rachit Kaushal, Advocate for complainants.
	:	Sh. Abhinav, Advocate for Sh. Prateek Garg, Advocate for OP No.1 to 4.
	:	Ms. Neetu Singh, Advocate for OP No.5.

Per SURJEET KAUR, Member

1.      By this order, we propose to dispose of the captioned consumer complaints in which common questions of law and fact are involved.
2.      The facts, for convenience, have been culled out from Consumer Complaint No.138 of 2021 titled as Poonam Datta and anr. vs. M/s Ansal Properties & Infrastructure Ltd. and Ors.
3.      Briefly stated the complainants booked a flat in the project of OP No.1 by paying booking amount of Rs.6,32,381/-. The complainants entered into Floor Buyers’s Agreement dated 20.12.2011 with OP No.1 whereby unit No.0164-0-246 second floor having tentative area measuring 1435 Sq. ft. allotted to the complainants in the project namely Victoria floors and the total sale consideration  of the subject flat was Rs.41,00,000/-  alongwith PLC @Rs.69.69 per sq. ft.. As per agreement the possession of the flat was to be handed over within three years from the date of the agreement i.e. latest by 20.12.2014, if the commencement date of delivery is taken to be date of execution of floor buyer’s agreement. However, even after lapse of 6 years possession has not been handed over. The complainants opted for subvention scheme and availed loan of Rs.35,00,000/-  from OP No.5. Out of which an amount of Rs.32,80,000/- was got disbursed by the complainant directly to OP No.1 and the rest of the amount was contributed by the complainant out of their own resources thereby paid a total amount of Rs.42,78,591/- to the OPs. As per subvention scheme  OP No.1 was liable to pay pre-EMI interest payable to the financial institution till the offer of possession. However,  the OP No.1 is not making regular payment of the pre-EMI interest to OP No.5 as a result of which the CIBIL Score of the complainants has suffered adversely.  It is alleged that since the buyer’s agreement is dated 20.12.2011 but the construction work is still pending and even completion certificate has not been obtained by OPs for the said project. The complainants approached the OPs No. 1 to 4 numerous time but the flat in question has not been constructed and they are not in a position to handover the possession. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, complainant has filed the instant consumer complaint. 
4.    Opposite Party Nos. 1 to 4 in the reply while admitting the factual matrix of the case stated that as per clause 5.1 of the floor buyer agreement the possession of the allotted unit was to be delivered in 12 months time with an extended period of six months from the date of execution of agreement or the date of sanction of the building plan/allotment after all the necessary approvals and sanctions had been obtained from the Government/local authorities/sanctioning authorities.  Thus time is not the essence of the contract and that the period of 12 months with an extended period of six months for delivery of possession was given on estimate basis. It is  vehemently denied that they are not making the payment of pre-Emi as they have  already paid huge amount as pre-emi till the completion of unit in question. It is averred that the complainants themselves have not approached the Ops till date for possession of the unit in question which is complete in all respect except final finishing work. It has further been contended that they are committed to abide by clause 5.4 subject to taking possession by the complainants. Denying any deficiency on its part a prayer for dismissal of the complaint has been made.
5. The opposite Party No.5 in its reply stated that no cause of action has arisen against it as no relief has been sought against the answering OP. It is averred that Tripartite Agreement was executed between the parties  and as per the terms and conditions of the same  the sole liability to repay the loan amount is of the complainants. However, there is an inter se arrangement between the OP No.1 and the complainants in the form of subvention scheme, whereby the liability to repay pre-emi was upon the OP No.1 for the period of 18 months. It is averred that a loan of Rs.32,80,000/- was sanctioned and out of which Rs.30,75,000/- stands disbursed. Denying any deficiency on its part a prayer for dismissal of the complaint has been made.
6. Rejoinder was filed and averments made in the consumer complaint were reiterated.
7. Contesting parties led evidence by way of affidavits and documents.
8. We have heard the learned counsel for the contesting parties and gone through the record of the case.
9. Evidently as per Annexure C-2 the Floor Buyer’s Agreement dated 20.12.2011, the complainants were allotted unit No.246SF at 5^th floor with area 1435 sq. ft.  in the project of OPs. As per page 41 of this buyer agreement the complainant had to pay amount of Rs.41,00,000/- being basic sale price and pas per clause 5.1 of the  said agreement the dwelling unit in question was to be handed over by the OPs within 30 months with extended period of 6 months  from the date of execution of the agreement making thereby clear that the OPs had to handover he possession of the property in question till 20^th December, 2014. But till today even after delay of 9 years no offer of possession has been made by the OPs. Hence, this complaint has been filed by the complainant.
10. Admittedly, the complainant paid Rs.9,98,591/- from his own source towards the sale price of the unit in question and an amount of Rs.32,80,000/-  was given to the OPs by availing loan from the OP No.5. Annexure C-5 is the Tripartite Agreement  executed  amongst the parties and pertinently the OP No.1 vide letter Annexure C-7 committed that it shall bear the pre-EMI interest payable to the financial institution. In case of any delay in the offer of possession the pre-EMI interest for unit under the subvention scheme shall also be borne by it till the offer of possession. However, due to not making the regular payments of the Pre-emi interest to OP No.5 by OP No.1 the CIBIL score of the complainants has suffered adversely and the complainants’ financial credibility for the raising of loan has suffered huge set back.
11. Further it is important to note that as per clause 5.4 of the agreement, it is mentioned that in case the complainant/buyer failed to take possession of the unit once it is offered he shall be liable to pay holding charges @Rs.10/- per sq. ft. per month alongwith interest when not paid by the buyer on the total super area besides refurbishing charges as application on the date of  taking the possession. Interestingly, in the same clause it is stated that in the event if the company fails to deliver  the possession within the period of 36 months which may be extended by a period of 90 days of applying an obtaining the occupation certificate subject to force majeure  the company shall pay to the buyer compensation @Rs.10/-  per sq. ft.  of the super area of dwelling unit per month for period of default.  As per buyer’s agreement the possession was to be handed over to the complainants by 20.12.2014 but till date no offer of possession has been made which clearly shows  that the OPs are themselves not adhering to the their own terms and conditions.
12.   Furthermore, there is nothing on record to show that opposite party no.1 to 4 suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of units was not delivered to the complainants by the committed dates.
13.    Thus, from the peculiar circumstances of this case, it has been proved that the builder-Company made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in a disadvantageous contract with builder-Company and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainants to enter into the contract by way of signing agreements, referred to above, and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the builder-Company.
14.    As far as objection taken by opposite party no.1 to 4 to the effect that  time was not the essence of contract, it may be stated here that, in the absence of any force majeure circumstances, having been faced by it, it was legally bound to deliver possession of the units in question, by the committed dates, referred to above, as per Clause 5.1 of the respective agreement. Thus, opposite party no.1 to 4 cannot wriggle out of the commitments made vide the Clause(s) aforesaid, with regard to time/period for delivery of possession of the units, in each complaint. It is therefore held that time was unequivocally made the essence of contract. In view of above, plea of opposite party no.1 to 4 to the effect that time was not essence of the contract or that no definite period was given to offer possession of the units, being devoid of merit stands rejected.
15.   Moreover it is apparent from record that there has been an inordinate delay in the matter. Still, opposite party no.1 is not sure, as to by which date, possession of the units can be delivered to the complainants, in each complaint. The complainants cannot be made to wait for an indefinite period on the bald assurances given by opposite party no.1 to 4 that it is ready to pay compensation for the period of delay in delivering possession or that it is committed to pay Pre-EMI to HDFC Limited, from where loan has been obtained by the complainants, under subvention scheme, in the complaints concerned.
16.  It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. Our view is supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present cases also, since there has been an inordinate delay in offering possession of the units, in question, and the same is still continuing one, as opposite party no.1 is not sure as to by which date/year possession of the units could be delivered to the complainants, as such, we are of the considered opinion that if we order refund of the amount paid by the complainants alongwith interest, in each complaint, that will meet the ends of justice. 
17.   Since, it is an admitted fact that possession of units in question, in both complaints, has not been offered to the complainants neither by the promised dates nor by the date these complaints have been filed or even thereafter, as explained above, as such, there is a continuing cause of action in their favour to file these complaints in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=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 a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard, as such, stands rejected.
18.      In view of the above discussion, both the consumer complaints deserve to succeed and the same are accordingly partly allowed. OPs No. 1 to 4 are directed as under :-

RELIEF IN CC/138/2021

1. to refund the deposited amount of Rs.42,78,591/-to the complainants alongwith interest @9% per annum from the respective date(s) of deposit,  till realisation.
2. to pay ₹1,00,000/- to the complainants as compensation on account of mental agony and physical harassment.
3. to pay ₹10,000/- to the complainant as costs of litigation.

     However, it is made clear that the financier M/s HDFC Bank. Ltd. i.e. OP No.5 from whom  admittedly the  complainants availed loan shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainants towards the discharge of loan liability, if any.

RELIEF IN CC/139/2021

1. to refund the deposited amount of Rs.44,38,858/-to the complainants alongwith interest @9% per annum from the respective date(s) of deposit,  till realisation.
2. to pay ₹1,00,000/- to the complainants as compensation on account of mental agony and physical harassment.
3. to pay ₹10,000/- to the complainant as costs of litigation.

     However, it is made clear that the financier M/s HDFC Bank. Ltd. i.e. OP No.5 from whom  admittedly the  complainants availed loan shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainants towards the discharge of loan liability, if any.

19. This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) in each case above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) in each case above.
20. The complaint qua OP No.5 stands dismissed in both the complaints.
21. A copy of this order be also placed in aforementioned connected complaint.
22. Certified copies of this order be sent to the parties free of charge. The file be consigned.

 

sd/- [Pawanjit Singh]

President

m

24.11.2023 mp

sd/- [Surjeet Kaur] Member Sd/-

[Suresh Kumar Sardana]

Member