Chandigarh

StateCommission

CC/232/2018

Sunita Kamboj - Complainant(s)

Versus

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

Savinder Singh Gill, Adv.

11 Dec 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	232 of 2018
Date of Institution	:	22.05.2018
Date of Decision	:	11.12.2018

 

1. Sunita Kamboj w/o Sh. Sushil Kumar Kamboj r/o Ward No.04, # 33, Parvati Enclave, Chajjumajra, Kharar, Mohali.

 

2. Sushil Kumar Kamboj s/o Sh.Ram Kishan r/o Ward No.04, # 33, Parvati Enclave, Chajjumajra, Kharar, Mohali.

 

……Complainants

V e r s u s

1. M/s Ansal Properties & Infrastructure Ltd. Having its registered office at 115, Ansal Bhawan, 16, K.G. Marg, New Delhi – 110 001, through its Whole Time Directors, Sh.Sushil Ansal and Sh.Pranav Ansal.

(Also at : M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh through its Whole Time Directors, Sh.Sushil Ansal and Sh.Pranav Ansal).

2.     Sh.Sushil Ansal, Wholetime Director of M/s Ansal Properties & Infrastructure Ltd., having its office at SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh.

3.     Sh. Pranav Ansal, Wholetime Director of M/s Ansal Properties & Infrastructure Ltd. having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh.

4.     Sh.Anil Kumar, Managing Director, M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh.

                                                     .... Opposite Parties  

Argued by:      

 

Sh.  Savinder Singh Gill, Advocate for the complainants.

Sh. Sandeep Kumar, Advocate for the Opposite Parties.

 

 

Complaint case No.	:	233 of 2018
Date of Institution	:	22.05.2018
Date of Decision	:	11.12.2018

 

1. Neeru Bala Anand, w/o Sh. Mohan Lal Vig. r/o H.No.706, Sector 91, JLPL, Mohali.
2. Mohan Lal Vig. s/o Sh.Mohinder Lal Vig. r/o H.No.706, Sector 91, JLPL, Mohali.

……Complainants

V e r s u s

1.             M/s Ansal Properties & Infrastructure Ltd. Having its registered office at 115, Ansal Bhawan, 16, K.G. Marg, New Delhi – 110 001, through its Whole Time Directors, Sh.Sushil Ansal and Sh.Pranav Ansal.

(Also at : M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh through its Whole Time Directors, Sh.Sushil Ansal and Sh.Pranav Ansal).

2.     Sh.Sushil Ansal, Wholetime Director of M/s Ansal Properties & Infrastructure Ltd., having its office at SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh.

3.     Sh. Pranav Ansal, Wholetime Director of M/s Ansal Properties & Infrastructure Ltd. having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh.

4.     Sh.Anil Kumar, Managing Director, M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh.

                                                     .... Opposite Parties  

Argued by:      

 

Sh. Savinder Singh Gill, Advocate for the complainants.

Sh. Sandeep Kumar, Advocate for the Opposite Parties.

        

 

Complaint case No.	:	321 of 2018
Date of Institution	:	16.08.2018
Date of Decision	:	11.12.2018

 

1. Munish Kumar Nauhria s/o Sh.Pawan Kumar Nauhria, r/o B-XIII/1577, Near Muselemania Health Club, Lakhi Colony, Street No.1, Barnala (Punjab) – 148101.
2. Chetan Garg W/o Sh.Munish Kumar Nauhria r/o B-XIII/1577, Near Muselemania Health Club, Lakhi Colony, Street No.1, Barnala (Punjab) – 148101.

……Complainants

V e r s u s

1.     M/s Ansal Properties & Infrastructure Limited, SCO 183-184, Sector 9-C, Madhya Marg, Above British Library, Chandigarh, through its Managing Director.

2.     Sh.Anil Kumar, Managing Director & CEO, M/s Ansal Properties & Infrastructure Limited, 115, Ansal Bhawan, 16, K.G. Marg, New Delhi – 110 001.

3.     Housing Development Finance Corporation Limited, SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh, through its Branch Manager, Chandigarh.

                                                         .... Opposite Parties  

 

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

 

Argued by:      

 

Sh. G.S.Gill, Advocate, proxy for Sh. Sandeep Khunger, Advocate for the complainants.

Sh. Sandeep Kumar, Advocate for Opposite Parties No.1 & 2.

Sh. Himanshu, Advocate, proxy for Ms. Rupali Shekhar Verma, Advocate for Opposite Party No.3.  

 

PER PADMA PANDEY, MEMBER

              By this order, we propose to dispose of, following cases:-

1.	CC/232/2018	Sunita Kamboj & Anr.	Vs.	M/s Ansal Properties & Infrastructure Ltd. & Ors.
2.	CC/233/2018	Neeru Bala Anand & Anr.	Vs.	M/s Ansal Properties & Infrastructure Ltd. & Ors.
3.	CC/321/2018	Munish Kumar Nauhria & Anr.	Vs.	M/s Ansal Properties & Infrastructure Ltd. & Ors.

2.             Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.

3.             At the time of arguments, on 30.11.2018, it was agreed between the parties/their Counsel, that facts involved in the aforesaid complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.             Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 232 of 2018, titled as “Sunita Kamboj & Anr. Vs. M/s Ansal Properties & Infrastructure Ltd. & Ors.”

5.             The facts, in brief, are that the complainants applied for an independent floor/unit in the project of the Opposite Parties under the name and style of “Victoria Floors, Golf Link-II”, situated at Kharar – Landran Road, Sector 116, SAS Nagar, Mohali by paying booking amount of Rs.7,50,000/- on 11.05.2012. Accordingly, apartment No.0164-0-254GF measuring 1395 sq. ft. was allotted to the complainants vide allotment letter dated 17.05.2012 (Annexure C-1). It was further stated that the said unit was purchased under “subvention plan.” Thereafter, Buyer’s Agreement was executed between the parties on 13.06.2012. The total consideration of the said apartment was fixed at Rs.47,56,240/- (Annexure C-2), out of which, the complainants paid an amount of Rs.43,17,680/-. It was further stated that as per Clause 5.1 of the Agreement, possession of the unit, in question, was to be handed over to the complainants within a period of 36 months from the date of execution of the Agreement or the date of sanction of the building plan, whichever falls later, failing which, the Opposite Parties liable to pay compensation for delay @Rs.10/- per sq. ft. per month to the complainants till the notice offering the possession.  It was further stated that the complainants also availed loan facility of Rs.36,80,000/- from Indiabulls Housing Finance Limited, vide which, Tripartite Agreement was executed between the parties on 30.07.2012 (Annexure C-5). It was further stated that the said unit was purchased under “subvention scheme” and, as such, the Opposite Parties had undertaken to pay the pre EMI interest to the Bank till offer of possession but they failed to pay the same and the same was paid by the complainants. The complainants also sent an email dated 21.01.2015 reminding the Opposite Parties regarding the commitment made by them regarding EMIs to be paid by them till offer of possession (Annexure C-6), which was duly replied by them (Opposite Parties) vide email dated 22.01.2015 (Annexure C-7), in which, they undertook to pay the same. It was further stated that the Opposite Parties on 23.03.2017 (Annexure C-8) sent an email to the complainants assuring that possession would be delivered soon and through the said email, the Opposite Parties would compensate the complainants with 8% p.a. on amount paid by the complainants and further would provide interest @4% p.a. on monthly pre-EMI amount being paid to the bank from the date of refund of these amounts. It was further stated that the said promise has not been kept by the Opposite Parties and further the complainants have been forced to pay pre-EMI and they have been reimbursing the same in an arbitrary manner. It was further stated that the complainants made all the payments due towards the said apartment by 2013 and possession of the said unit was to be handed over by 12.06.2015 but despite repeated requests/correspondence, the Opposite Parties failed to give possession of the same. It was further stated that the complainants visited the site of the project in March, 2018 but the Opposite Parties expressed their inability to hand over possession of the said apartment. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

6.             The Opposite Parties, in their joint written version, have taken objection that the complainants did not fall within the definition of “consumer” under the Consumer Protection Act, 1986, since the said investment in the property of the Opposite Parties is purely for commercial/speculative purposes instead of personal use. It was further stated that in Clause 5.1 of the Agreement, possession of the allotted unit was proposed to be delivered in 30 months time with an extended period of six months from the date of execution of the 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 Authority. It was further stated that a bare perusal of the said clause would thus reveal that time was not the essence of the contract and that the period of 30 months with an extended period of six months for delivery of possession was given on estimate basis. It was further stated that the complaint was time barred, as the cause of action for seeking refund was arisen on 13.06.2015.  It was further stated that the complainants took loan from IndiaBulls Housing Finance Ltd. but they failed to implead the said financial institution as a party to the present case. It was further stated that the apartment booked by the complainants was under subvention scheme and the aforesaid bank has contributed Rs.34,35,505/- and till date, the Opposite Parties continued to pay pre EMI interest to the said bank. It was further stated that till date, a sum of Rs.18,02,172/- was paid by the replying Opposite Parties to the said bank as pre EMI interest on the said loan amount, whereas, the complainants contributed Rs.8,82,375/- only from their own pocket. It was further stated that the complainants are not entitled to claim interest on the loan amount advanced by the Bank against which interest has already been paid by the replying Opposite Parties. It was denied that the complainants had made several visits at the office of the Opposite Parties.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

7.             The complainants, filed rejoinder to the written statement of the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

8.             The Parties led evidence, in support of their case.

9.             We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

10.           The objection taken by the Opposite Parties, to the effect that the complainants did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986 because the said property was bought by the complainants merely for speculation and not for any personal use, also deserves rejection. The complainants in para No.1 of the complaint clearly stated that the complainants applied for an independent floor/unit for their family and personal use in the project being developed by the Opposite Parties. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Parties that the  complainants being investor/speculator, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.”

 

 

               

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainants, thus, fall within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

11.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, was within limitation or not.  It the admitted fact that the Opposite Parties failed to deliver possession of the unit, in question, to the complainant within the stipulated time frame, as mentioned in the Agreement or even the time when the complaint was filed and on the other hand, amount deposited was also not refunded to the complainants alongwith interest and, as such, there is continuing cause of action, in his favour, in view of principle 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). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for   the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

                At the same time, once a plea has been taken by the Opposite Parties that the complaint filed is beyond limitation, as such, in the same breath, taking another plea to say that time is not to be considered as essence of the contract, in case of immovable property, has no legs to stand and, is accordingly rejected. 

12.           The next question that falls for consideration before us is as to whether Indiabulls Housing Finance Ltd., from which, the complainants took loan is a necessary party or not. The answer to this question is in the negative. It is, no doubt, true that the complainants booked the unit in the project of the Opposite Parties, for which, they took loan from the financial institution i.e. Indiabulls Housing Finance Ltd. The main purpose of the complainants to take loan from the said financial institution and the said institution had already done their duty and released the amount for the unit, in question. The dispute regarding the loan amount is between the complainants and Indiabulls Housing Finance Ltd. Moreover, no relief has been claimed by the complainants against the said financial institution. Even it is the duty of the complainants to discharge their liability of the financial institution. So, we are of the view that the plea taken by the Opposite Parties have no legs to stand and the same stands rejected. 

13.           Another objection raised by Counsel for the Opposite Parties that since it was mentioned in the Agreement that the Company shall “endeavour” to deliver possession of the unit within a period of 30 months with an extended period of 6 months from the date of execution of the Agreement and, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 5.1 of the Agreement (Annexure C-2), which was signed between the parties, that the Company shall endeavour to complete the development of residential colony and the dwelling unit as far as possible within 30 months with an extended period of 6 months from the date of execution of the Agreement or the date of sanction of the building plan, whichever falls later. It is pertinent to note that in the present case, the Opposite Parties failed to prove that due to force majeure circumstances, the possession was delayed, which was beyond the control of the Opposite Parties. In the absence of any force majeure circumstances having been faced by the Opposite Parties or any other valid and legal reason beyond their control, the stand taken by them, in this regard, for condonation of delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 5.1 of the Agreement, the Opposite Parties were bound to deliver possession of the unit, within a maximum period of 36 months from the date of execution of the Agreement, as such, time was,  unequivocally made the essence of contract.

                Even otherwise, the Opposite Parties cannot evade their liability, merely by saying that since the word tentative/ proposed was mentioned in the Agreement, for delivery of possession of the unit and, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is an unfair trade practice, on the part of the Builder. The builder is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

“Merely making possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

In view of above, the plea of the Opposite Parties in this regard also stands rejected.

14.           The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainants. As per Clause 5.1 of the Agreement, it is clear that possession of the unit was to be delivered within a maximum period of 36 months from the date of execution of the Agreement and not more than that. In the present case, the Agreement was executed between the parties on 13.06.2012 and as per the said Agreement, possession was to be delivered within a period of 36 months from the date of execution of the Agreement i.e. latest by 12.06.2015 and not more than that.

15.           The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund of the amount actually paid by them. It is admitted by the Opposite Parties regarding receipt of the aforesaid amount of Rs.43,17,680/-. It is also the admitted fact that after receipt of the huge amount from the complainants, the Opposite Parties failed to deliver possession of the unit, in question to the complainants within the stipulated time frame as mentioned in the Agreement or even the time when the complaint was filed. The complainants cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Parties, therefore, had no right, to retain the hard-earned money of the complainants, deposited towards price of the unit, in question. The complainants are thus, entitled to get refund of amount actually paid by them. In view of above facts of the case, the Opposite Parties are also under an obligation to compensate the complainants, for inflicting mental agony and causing physical harassment to them.

16.           It is to be further seen, as to whether, interest, on the actually deposited amount, can be granted, in favour of the  complainants. It is not in dispute that huge amount was deposited by the complainants, without getting anything, in lieu thereof. The said amount 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 of delay but if the delay is beyond three months then the interest shall be applicable @21% p.a. compounded quarterly, as per Clause 4.5 of the Agreement, for the period of delay in making payment of installments.  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  complainants are certainly entitled to get refund of the amount actually deposited by them alongwith interest @12% p.a. (simple), from the date of deposit, till realization. 

17.           As far as the plea taken by the Counsel for the Opposite Parties, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not their (Opposite Parties) case, that it was ready with possession of the unit, to be delivered to the complainants, by the stipulated date but it was they (complainants) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of the Opposite Parties or for any personal reason, and are seeking refund of the actually amount deposited. Had this been the case of the Opposite Parties, that they were willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainants themselves are rescinding the contract, as such, they are entitled to the actually amount deposited, after deduction of the earnest money, as per the Agreement. In this view of the matter, the plea taken by the Counsel for the Opposite Parties, in this regard, has no legs to stand and is accordingly rejected.

18.           No other point, was urged, by the Counsel for the parties.

19.           For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally are directed, as under:-

1. To refund the amount actually paid by the complainants from their own pocket/sources alongwith interest @12% p.a.  from the respective dates of deposits onwards within a period of two months from the date of receipt of certified copy of this order, failing which, it shall carry interest @15% p.a. till realization.
2. To refund the entire amount of loan to bank concerned from which loan amount was released in favour of the Builder under subvention scheme alongwith pending pre-EMI interest, if any.
3. To refund to the complainants, the installment of pre-EMI interest, if any, paid by them, as it was the liability of the Opposite Parties only, failing which, it shall carry interest @12% p.a. from the due date till realization.
4. To pay compensation to the complainants, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to them, failing which, it shall carry interest @12% p.a. from the date of filing this complaint till realization.
5. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants, failing which, it shall carry interest @12% p.a. from the date of filing this complaint till realization.

 

Complaint Case No.233 of 2018 titled as Neeru Bala Anand& Anr. Vs. M/s Ansal Properties & Infrastructure Ltd. & ors.

 

20.           It is the admitted fact that the complainants purchased an independent floor/unit in resale from original allottee on 23.04.2012 in the project of the Opposite Parties under the name and style of “Victoria Floors, Golf Link-II”, situated at Kharar – Landran Road, Sector 116, SAS Nagar, Mohali. Copy of the Sale Agreement is Annexure C-1. Subsequently, unit bearing No.0164-0-262GF measuring 1395 sq. ft. was allotted in favour of the complainants. It is also the admitted fact that the said unit was purchased under the subvention scheme. Thereafter, Buyer’s Agreement was executed between the original allottee and the Opposite Parties on 28.07.2011. The total consideration of the said unit was fixed at Rs.48,56,240/-, out of which, the complainants paid an amount of Rs.44,82,788/-. The complainants also took loan facility of Rs.36,80,000/- from Indiabulls Housing Finance Limited, for which, Tripartite Agreement was executed between the parties (Annexure C-6). As per Clause 5.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of execution of the Agreement i.e. latest by 27.07.2014 and not more than that. However, despite repeated requests/correspondence, the Opposite Parties failed to deliver possession  of the unit, in question, to the complainant within the stipulated time frame as mentioned in the Agreement or even the time when the complaint was filed, which amounted to deficiency in service and indulgence into unfair trade practice. Therefore, the complainants are certainly entitled for the deposited amount alongwith interest & compensation.

21.           For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally are directed, as under:-

1. To refund the amount actually paid by the complainants from their own pocket/sources alongwith interest @12% p.a.  from the respective dates of purchase of the unit onwards within a period of two months from the date of receipt of certified copy of this order, failing which, it shall carry interest @15% p.a. till realization.
2. To refund the entire amount of loan to bank concerned from which loan amount was released in favour of the Builder under subvention scheme alongwith pending pre-EMI interest, if any.
3. To refund to the complainants, the installment of pre-EMI interest, if any, paid by them, as it was the liability of the Opposite Parties only, failing which, it shall carry interest @12% p.a. from the due date till realization.
4. To pay compensation to the complainants, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to them, failing which, it shall carry interest @12% p.a. from the date of filing this complaint till realization.
5. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants, failing which, it shall carry interest @12% p.a. from the date of filing this complaint till realization.

 

Complaint Case No.321 of 2018 titled as Munish Kumar Nauhria & Anr. Vs. M/s Ansal Properties & Infrastructure Ltd. & ors.

 

22.         The complainants booked unit No.240 FF in Victoria Floors, Golf Links-II, Sector 116, Mohali and intimation in this regard was sent to them vide letter dated 16.12.2011 (Annexure C-2). Thereafter, on the same date i.e. 16.12.2011 Floor Buyer’s Agreement was executed between the parties. As per the Agreement, the total sale consideration of the unit was mentioned as Rs.39,00,000/-. As per Clause 5.1 of the Agreement, possession of the unit was to be delivered within a period of 36 months from the date of execution of the Agreement i.e. latest by 15.12.2014 and not more than that. It is the admitted fact that under the subvention scheme, the complainants took loan for the sum of Rs.31,20,000/- from Housing Development Finance Corporation Limited (HDFC) i.e. Opposite Party No.3, vide which, Home Loan Agreement dated 15.05.2012 was executed between the complainants and HDFC (Annexure C-4). The complainants made the payment of Rs.8,51,657/- vide receipts (Annexure C-5 colly.). Similarly, the HDFC has disbursed the amount of Rs.29,25,000/- to Opposite Party No.1. Copy of the disbursement detail is Annexure C-6. When the possession of the unit was not delivered to the complainants, complainant No.1 visited the site and surprised to see that no construction activities were going on and the project was in an abandoned condition. Photographs of the said site is annexed as Annexure C-7. Therefore, the complainants met the officials of the Builder regarding construction etc. but they failed to give any definite timeline as to when construction should be resumed. Therefore, the complainants sent a notice through their Counsel dated 16.07.2018 (Annexure C-8) for refund of the amount alongwith interest & compensation but to no avail.

23.           In its written reply, Opposite Parties No.1 & 2 have taken almost similar objections, as taken in the main consumer complaint bearing No.232 of 2018, so there is no need to reiterate it again.

24.           In its reply, Opposite Party No.3 stated that the replying Opposite Party financed the loan amount, for which, Tripartite Agreement was executed (Annexure OP-3/1). It was stated that in case of cancellation of the unit or in the contingency of termination of the Agreement, HDFC Limited has the first charge/right to seek apportionment of its dues. It was further stated that the complainants got sanctioned a housing loan from the replying Opposite Party for an amount of Rs.31,20,000/-, out of which, the replying Opposite Party has disbursed an amount of Rs.29,25,000/- vide Loan Agreement dated 15.05.2012 (Annexure OP-3/3). It was further stated that no relief has been sought by the complainants against the replying Opposite Party, as such, the complaint qua Opposite Party No.3 should be dismissed.

25.           In view of aforesaid facts, we are of the view that Opposite Parties No.1 & 2 are at fault because despite receipt of the huge amount from the complainants, they failed to deliver possession of the unit, in question, within the stipulated time frame as mentioned in the Agreement or even the time when the complaint was filed and never refunded the deposited amount alongwith interest & compensation, as sought by them vide notice dated 16.07.2018 (Annexure C-8), therefore, the complainants are certainly entitled for the deposited amount alongwith interest & compensation.

26.           For the reasons recorded above, the complaint is partly accepted qua Opposite Parties No.1 & 2, with costs. Opposite Parties No.1 & 2 are jointly and severally are directed, as under:-

1. To refund the amount actually paid by the complainants from their own pocket/sources alongwith interest @12% p.a.  from the respective dates of deposits onwards within a period of two months from the date of receipt of certified copy of this order, failing which, it shall carry interest @15% p.a. till realization.
2. To refund the entire amount of loan to bank concerned from which loan amount was released in favour of the Builder under subvention scheme alongwith pending pre-EMI interest, if any.
3. To refund to the complainants, the installment of pre-EMI interest, if any, paid by them, as it was the liability of the Opposite Parties only, failing which, it shall carry interest @12% p.a. from the due date till realization.
4. To pay compensation to the complainants, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to them, failing which, it shall carry interest @12% p.a. from the date of filing this complaint till realization.
5. To pay cost of litigation, to the tune of Rs.33,000/- to the  complainants, failing which, it shall carry interest @12% p.a. from the date of filing this complaint till realization.

27.           The complaint qua Opposite Party No.3 stands dismissed.

28.           However, it is made clear that, if the  complainant(s), in the aforesaid cases, have 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 the complainant(s).

29.           Certified Copies of this order be sent to the parties, free of charge.

30.           The file be consigned to Record Room, after completion.

Pronounced.

December  11^th, 2018.                                          

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

 

(PADMA PANDEY)

        MEMBER

 

 

(RAJESH K. ARYA)

MEMBER

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