Chandigarh

StateCommission

CC/938/2016

Sh. Gurpinder Singh - Complainant(s)

Versus

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

R. C.Sharma, Adv.

07 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	938 of 2016
Date of Institution	:	20.12.2016
Date of Decision	:	07.03.2017

 

Sh.Gurpinder Singh son of Sh.Balwant Singh, resident of House No.108, New Officers Colony, Patiala.

……Complainant

V e r s u s

1. M/s Ansal Properties and Infrastructure Limited, 115, Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi-110001, through its Managing Director.
2. Regional Manager, M/s Ansal Properties and Infrastructure Limited, SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh.

              .... Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER.

 

Argued by:        Sh.Pankaj Khullar, Advocate proxy for Sh.R.C. Sharma, Advocate for the complainant.

                         None for the opposite parties (Defence struck of).

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                The complainant moved an application dated 05.02.2012, to the opposite parties, for purchase of a residential unit, in their project launched by them, under the name and style of ‘Golf Links-II’, Mohali, Punjab. He was allotted unit no.275, ground floor, measuring 1395 square feet. Total price of the said unit was fixed at Rs.48.50 lacs, including preferential location charges, external development charges etc. It is case of the complainant that to book above said unit, he paid an amount of Rs.4,97,488.75ps., as booking amount. It was specifically assured by the opposite parties, at the time of sale of the said unit, that all the necessary approvals, to raise construction and sell the project were available with them. Floor Buyer’s Agreement was executed between the parties on 14.03.2012. Clause 5.1 of the said Agreement reads thus:-

“Subject to Clause 5.2 and further subject to all the buyers of the Dwelling Units in the said scheme, Golf Links II, making timely payment, the Company shall endeavor to complete the development of residential colony and the Dwelling Unit as far as possible within 30 (Thirty) months with an extended period of 6 (six) months from the date of execution of this Agreement or the date of sanction of the building plan whichever falls later.”

2.         Clause 5.2 of the Agreement envisages that Company can ask for reasonable extension of time to hand over possession of the unit, under force majeure circumstances. It is case of the complainant that as per Agreement, he was offered construction linked payment plan, however, subsequent thereto, it was revised.  Other terms and conditions of the Agreement remained the same.  It is further case of the complainant that he had paid all the installments, as per schedule. For some delay, penal interest was paid. It is further case of the complainant that to make payment towards price of the said flat, he also raised loan from the HDFC Bank. By 16.04.2015, he had paid an amount of Rs.37,47,404.72Ps., in the following manner:-

Receipt No.	Cheque Clearing Date	Amount
212480	17.02.2012	497488.75
223237	11.04.2012	424331.47
242173	24.07.2012	60000
247430	28.08.2012	15655.53
281084	21.03.2013	173620
282762	03.04.2013	305203.97
293383	18.06.2013	100000
294352	26.06.2013	171157
327036	10.01.2014	900000
333725	08.03.2014	600000
379112	16.04.2015	499948
	Total	3747404.72

 

3.         End date to deliver possession of the constructed unit, after development was fixed on 13.03.2015. The complainant had paid more than 90% of amount towards price of the unit, however, delivery of possession was not in sight. Matter was taken up with the opposite parties, however, the complainant failed to get any positive response, indicating firm date of possession. As such, he wrote an email to the opposite parties on 17.10.2016, making request to refund amount paid by him. Contents of the said email read thus:-

“Sir as per my meetings and telephone conversation with Ansal officials at your Sec 9 office i get the impression that the company has no definite plan and the resources and the will to complete this project in sec 116 Mohali. The construction work hasn’t been started in last two years once its stopped. Nobody knows when the work will begin again. I visited the site it was same there. Sir I have put all my savings in this project and availed a loan too. It’s getting difficult for me to manage a emi and rent of the house. I humbly request you to give back my payment with interest within fifteen days or else I will have to go to court.

Regards

Sent from my iphone.”

       

4.         Further emails were sent on 21.10.2016 and 26.10.2016, showing anguish by the complainant in not handing over possession of the unit to him of a constructed unit. Relevant contents of those emails read thus:-

“21.10.2016= Sir, Received your mail. In which you are talking about companies losses. It’s their Business. I am without a home. Paying rent and emi at the same time. You did not give a date when work will start. You are going on giving these tentative dates since last one and half years. You yourself don’t seem to be sure about the completion of this project. Every time I visit your office there’s  a tentative date nothing else. Can you please give me the date when the construction work will start again and when it will be completed. I wish well for the company. I invested my money with trust. But now seeing your people giving different reasons every time i visit your office the trust factor has gone down. How can you even give a tentative date when there is no work going on. These mails have no legal value. If you want that I should not go to court please give me in writing on stamp paper which has is valid in court about the date of possession. Or you will return my money with 18 percent interest if you fail to give possession on that date. If you give possession it will be with late possession charges. Hope I have made myself clear. I pray to god for the good health of your company because many people’s dreams and livelihoods depend on it.

Regards

Sent from my iPhone.”

“26.10.2016=Greetings sir

Sir you have not specified when the work will begin. You can give any kind of possession dates only when work begins. I was given assurances and many dates when your work will start. Last of the assurance was work will begin on October 15, 2016. But nothing has happened. I fail to understand how you keep on giving these completion dates when your work is not taking off. Tentative completion dates have been given many times before. But all those commitments proved false. How long do we have to believe in those false promises. For completion it has to begin first. Hope you will provide a practical date of commencement of your work. Then I will make my decisions.

Regards

Sent from my iPhone”

 

5.         Reading of contents of emails above, make it very clear that construction was not complete at the spot. No firm date to hand over possession was given by the opposite parties. Despite request made, amount paid was not refunded. Under above circumstances, this complaint was filed seeking refund of amount paid with interest; compensation for mental agony and physical harassment and litigation expense.
6.         Notice in this complaint was sent to the opposite parties on 22.12.2016 for 19.01.2017. Admittedly on that date, report qua service was not received. The matter was adjourned to 23.01.2017, on which date, Sh.Rachit Kaushal, Advocate put in appearance and filed his power of attorney, on behalf of the opposite parties. He sought time to file reply and evidence and the matter was adjourned to 14.02.2017. On the said above, Ms.Kashika Kaur, Advocate, proxy for Sh.Rachit Kaushal, Advocate, put in appearance. She sought further time to file reply and evidence, by way of detailed affidavit, to which, no objection was raised by Counsel for the complainant. The matter was adjourned to 01.03.2017, on which date, following order was passed:-

“Called third time at the end of the entire list. Neither reply filed nor anybody has come present to assist this Commission on behalf of the Opposite Parties. It is clear from the record that on 23.01.2017, Sh.Rachit Kaushal, Advocate put in appearance on behalf of the Opposite Parties. He sought time to file reply and evidence and on his request, the matter was adjourned to 14.02.2017. On the said date, Ms. Kashika Kaur, Advocate put in appearance on behalf of the Opposite Parties and she sought further time to file reply and evidence. To the prayer made, very graciously no objection was raised by the Counsel for the complainant. The matter was adjourned to today. Reply and evidence could have been filed by the Opposite Parties in the office of this Commission. However, it was not done. Today, none is present to give any explanation for not filing any reply and evidence. Hence, the defence of the Opposite Parties is struck of.

Arguments heard.

Reserved for orders.”

7.         It was felt by this Commission that there is an attempt to delay the matter and further, noting that neither reply has been filed, nor anybody came present to assist the Commission, defence of the opposite parties was struck of. Arguments of Counsel for the complainant were heard and the matter was reserved for orders on 01.03.2017
8.         Sequence of events mentioned above, clearly indicate that there is a grave deficiency in providing service, on the part of the opposite parties.  Built-up unit was purchased by the complainant, by moving an application on 05.02.2012. As per Agreement, price of the unit was fixed at Rs.48.50 lacs, including EDC, PLC etc. It is case of the complainant that by 16.04.2015, he paid an amount of Rs.37,47,404.72Ps. This was reflected in the receipts, placed on record. It is further case of the complainant, that possession of the unit was to be given within 30 months from the date of signing the Agreement, with extended period of six months, i.e. at the maximum within 36 months i.e. on or before 13.03.2015. However, it was not so offered. Matter was taken up with the opposite parties. Several emails were sent. Reading of contents of the emails afore-extracted, makes it very clear that the complainant was fed-up with behavior of the opposite parties, in not completing construction of the unit. It is also proved on record that to make payment towards price of the unit, the complainant had raised loan through Bank, for which, he was making payment of equal monthly installments. His request to refund amount deposited, was not accepted.  All the averments made by the complainant, in the complaint, went unrebutted. In view of above, it can safely be said that there was deficiency in providing service on the part of the opposite parties and further by making false promise and not delivering possession of the constructed unit, after receipt of huge amount, they further indulged into unfair trade practice. As such, it has been proved on record that there was a material violation on the part of the opposite parties, in not delivering possession of the unit, by the stipulated date or thereafter. It is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer, even if the same is made at a belated stage and on the other hand, can seek refund of amount paid. It was so held by the National Commission, in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, wherein, under similar circumstances, while negating the plea taken by the builder, it was held  as under:-

“I am in agreement with the learned senior counsel for the complainants that considering the default on the part of opposite parties no.1 and 2 in performing its contractual obligation, the complainants cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him along with reasonable compensation, in the form of interest.”

 

9.         Not only as above, in a case titled as Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, this Commission, while relying upon the judgments rendered by the Hon`ble National Commission, ordered refund to the complainants, while holding as under:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same.”

 

10.         Further, in another case titled as M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, under similar circumstances, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

 

                Position in the present case is worst, as possession has not even been offered, what to speak of delay in delivery thereof. Under these circumstances, it is held that since there was a material violation on the part of the opposite parties, in not offering and handing over possession of the unit by the stipulated date and also still, after expiry of period of more than about 02 years of the stipulated date the position is the same, the complainant is entitled to get refund of amount deposited by him.

11.         At the same time, it is also held that there is nothing on record to show that this Commission may come to the decision that it did not vest with territorial jurisdiction and pecuniary jurisdiction to entertain and decide this complaint or that the complainant is not a consumer.  The complaint is, thus, maintainable before this Commission. 
12.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. The amount of Rs.37,47,404.72Ps. paid by the complainant has been used by the opposite parties, for their own benefit. There is no dispute that for making delayed payments, the opposite parties were charging heavy rate of interest @18% p.a. for first three months and 21% compounded quarterly thereafter, as per Clause 4.5 of the Agreement, for the period of delay in making payment of instalments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, alongwith interest @12%, from the respective dates of deposits till realization.  
13.         No other point, was urged, by Counsel for the complainant.
14.         For the reasons recorded above, the complaint is partly accepted, with costs. The  opposite parties are jointly and severally directed as under:-

1. To refund the amount Rs.37,47,404.72Ps. to  the  complainant, alongwith interest @ 12 % p.a.,  from the respective  dates  of  deposits onwards.
2. To pay compensation, in the sum of Rs.2 lacs, for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @ 15% p.a., instead of @12% , from the respective dates of deposits onwards, and interest @ 15% p.a., on the amounts mentioned at sr.nos.(ii) to (iii), from the date of filing of this complaint, till realization.

15.         However, it is made clear that, if the complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by him (complainant).
16.         Certified Copies of this order be sent to the parties, free of charge.
17.         The file be consigned to Record Room, after completion.

Pronounced.

07.03.2017

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Rg.