Chandigarh

StateCommission

A/69/2023

KAUSIK CHATTOPADHYAY - Complainant(s)

Versus

M/S ANSAL PROPERTIES & INFRASTRUCTURE LTD - Opp.Party(s)

SAVINDER SINGH GILL

25 Oct 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[ADDITIONAL BENCH]

============

Appeal No	:	A/69/2023
Date  of  Institution	:	20/04/2023
Date   of   Decision	:	25/10/2023

 

 

 

 

 

1.   Kausik Chattopadhyay son of Sh. Arun Sankar Chatopadhyay, Resident of Apartment No.303, MJ Block, IISER Mohali, Sector 81, S.A.S. Nagar, Mohali, Punjab – 140306.

 

2.   Arunika Mukhopadhaya wife of Sh. Kausik Chattopadhyay, Resident of Apartment No.303, MJ Block, IISER Mohali, Sector 81, S.A.S. Nagar, Mohali, Punjab – 140306.

…. Appellants

 

V E R S U S

 

1.   M/s Ansal Properties & Infrastructure Limited, 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.

…… Respondent

 

2.   HDFC Bank Limited, having its office at SCO No.153-155, Sector 8-C, Madhya Marg, Chandigarh.

 

…… Proforma Respondent

 

 

BEFORE:   MRS. PADMA PANDEY       PRESIDING MEMBER

          PREETINDER SINGH        MEMBER

 

 

PRESENT

:

Sh. Savinder Singh Gill, Advocate for the Appellants. Sh. Prateek Garg, Advocate for the Respondent No.1. Ms. Neetu Singh, Advocate for the Respondent No.2.

 

PER PREETINDER SINGH, MEMBER

 

 

This appeal is directed against the order dated 15.03.2023, rendered by the District Consumer Disputes Redressal Commission-II, U.T. Chandigarh (for brevity hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the Consumer Complaint bearing no.CC/132/2021, in the following terms:-

“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:-

i)   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.

ii)  to clear all the outstanding loan pending towards Opposite Party No.2 till the date of this order.

iii) 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.

iv)  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”.

 

2.      For the convenience, the parties are being referred to, in the instant Appeal, as position held in Consumer Complaint before the Ld. Lower Commission.

 

3.      Before the Ld. Lower Commission, it was the case of the Appellants/Complainants that they applied for an independent floor/unit for their family and personal use in the project being developed by the Opposite Party 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 admeasuring approx. 1435 sq. ft. was allotted to the complainants. 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 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 Opposite Party 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 Opposite Party 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, Opposite Party 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, Opposite Party 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 Opposite Party No.2 which was solely the responsibility of Opposite Party No.1 till the date of offer of possession. The complainants were paying the Pre-EMIs from their own pocket and the Opposite Party 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 Opposite Party No.2 and Opposite Party No.1 has stopped reimbursing the same to the complainants. Eventually, the complainants visited the site of the project in December, 2020 but the Opposite Parties expressed their inability to handover the possession of the said apartment. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission.

 

4.      Upon notice, the Opposite Party No.1 resisted the consumer complaint pleading that as per Clause 5.1 of the agreement which gave a tentative period of 12 months with an extended period of 6 months for 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 was asserted that the apartment booked was under the subvention scheme and the bank contributed towards the sale consideration and till date Opposite Party No.1 continued to pay pre-EMI interest to the said bank on the said advanced amount and as such the Complainants are not entitled to claim interest on the loan amount advanced by the Bank against which the interest has been already been paid. Further, there was 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 was submitted that possession is ready and construction has already been completed.  On these lines, the cause was sought to be defended and a prayer for dismissal of the Complaint was made.

 

5.      Opposite Party No.2 filed its reply submitting that the grievance of the complainants, if any, was qua Opposite Party No.1 who failed to adhere the terms & 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, Opposite Party No.2 has the first charge/ right to seek apportionment of its dues.  The remaining allegations have been denied, being false. Pleading that there was no deficiency in service on its part, OP No.2 prayed for dismissal of the complaint.

 

6.      On appraisal of the pleadings and the evidence adduced on record, Ld. Lower Commission allowed the consumer Complaint of the Complainants/ Appellants, as noticed in the opening para of this order.     

 

7.      Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellants/Complainants seeking modification and enhancement of the reliefs as granted by the Ld. Lower Commission.

 

8.      We have heard the Learned Counsel for the Parties at length and have also gone through the evidence and record of the case with their able assistance, with utmost care and circumspection.

 

9.      After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeal is liable to be partly allowed for the reasons to be recorded hereinafter.

 

10.      Learned Counsel for the Appellants contended that the rate of interest granted by the Ld. Lower Commission is on a lower side as the case involves charging of interest by the financial and vociferously argued that rate of interest awarded deserves to be modified to 12% p.a. instead of 9% p.a. as awarded by the Ld. Lower Commission. However, keeping in view the principle of law laid down by the Hon’ble Supreme Court, we are not inclined to toe in line with the arguments advanced by the Learned Counsel for the Appellants. In Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019, decided on 7.4.2022, the Hon’ble Supreme Court has held as under:

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by the purchaser deserves to be partly allowed. The interests shall be payable from the dates of such deposits.

At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the Consumer for enhancement of interest.”

          Further, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in M/S MANOHAR INFRASTRUCTURE AND CONSTRUCTIONS PVT. LTD. & ANR. Vs. ANKIT JAIN, First Appeal No.185 of 2020 decided on 17.05.2022, reduced the interest rate awarded by this Commission on the deposited amount(s) from 12% to 9% and the penal interest from 15% to 12%. Following the case of Ankit Jain (supra), similar view was taken by Hon’ble National Commission in MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PVT. LTD. Vs. KAPIL DUA, First Appeal No.1516 of 2018 decided on 19.12.2022. Not only this, in a recent case M/S. MANOHAR INFRASTRUCTURE & ORS. VS. JORAWER SINGH MANN, First Appeal No.1800 of 2017 decided on 20.03.2023, the Hon’ble National Commission while reducing the rate of interest from 13% to 9%, ordered refund of the amount alongwith interest @9% p.a. from the respective dates of deposit till the date of payment. Thus, in this backdrop, the rate of interest awarded by the Ld. Lower Commission is based on the correct appreciation of law and the material available on record.  

11.      It is the case of the Appellants/ Complainants that they have taken loan from the Respondent No.2/Opposite Party No.2 for the purpose of purchasing the apartment in question and the Ld. Lower Commission has directed the Respondent No.1/ Opposite Party No.1 to clear the outstanding due towards the Respondent No.2 till the date of order; whereas, it should haven till date of actual payment. We find sufficient merit in this contention of the Appellants as the interest on loan keeps on going till the actual re-payment of loan, therefore, the Ld. Lower Commission has erred in ordering Respondent No.1 to clear the outstanding dues towards the Respondent No.2 till the date of order as the same would cause serious prejudice to the Appellants/ Complainants. In this view of the matter, the orders passed by the Ld. Lower Commission, in the impugned order, needs modification. 

 

12.      It is also the categorical case of the Appellants/ Complainants that they had purchased the apartment under the subvention scheme and as per the said scheme, the Respondent No.1 undertook to bear pre-EMI interest, till the offer of possession, but the Respondent No.1 failed to honour the said commitment, due to which they were coerced to pay the same from their own pocket. Learned Counsel for the Appellants argued that the Ld. Lower Commission failed to appreciate the fact that the Appellants have paid pre-EMIs amounting to Rs.24,317/- p.m. from August 2020 which was to be paid by Respondent No.1, till the handing over of possession. We find sufficient merit in this limb of argument raised by the Learned Counsel for the Appellants. The Ld. Lower Commission has erred in ordering to refund the pre-EMIs paid till the date of order; whereas, it ought to have been ordered to be refunded till the date of realization since the liability of pre-EMI is still continuing and will not end till the realization of all the amounts from the Respondent No.1. In this view of the matter, the orders passed by the Ld. Lower Commission, in the impugned order, needs modification. 

 

13.      Lastly, the Learned Counsel for the Appellants argued that while allowing the Consumer Complaint, the Ld. Lower Commission has not adequately compensated the Complainant and has awarded a meagre compensation of Rs.15,000/-. We find force in this argument raised by the Learned Counsel  for the Appellants for the sole reason that it is well settled that the word ‘Compensation’ is of very vide connotation and once the Court is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate him/her for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. On the question of determination of compensation for the loss or injury suffered by a consumer on account of deficiency in service, the following observations by a three Judge Bench of the Hon’ble Supreme Court in Charan Singh v. Healing Touch Hospital & Ors.,  (2000) 7 SCC 668 are also apposite:-

“While quantifying damages, Consumer Forums are required to make an attempt to serve the ends of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.”

          In Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243 also, the Hon’ble Supreme Court held that the jurisdiction of the consumer forum extends to the award of compensation to alleviate the harassment and agony to a consumer. In Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court, while explaining the ambit of the jurisdiction of the adjudicatory fora under the Consumer Protection Act observed that “…The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done”. Under these circumstances, the complainants are entitled to get, special, exemplary and aggravated damages. In this view of the matter, the orders passed by the Ld. Lower Commission, in the impugned order, granting meagre compensation needs modification. 

14.      No other point was urged, by the Ld. Counsel for the Appellant/Opposite Party No.3.

 

15.      For the reasons recorded above, this appeal stands partly allowed. The order impugned is modified and the Respondent No.1/Opposite Party No.1 is directed as under:-

i)    to 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.

ii)   to clear all the outstanding loan pending towards Opposite Party No.2 till the date of actual payment.

iii)  to refund the Pre-EMI instalments already paid to the Bank by the complainants during the pendency of the present complaint i.e. from August, 2020 till the date of actual payment.

iv)  pay Rs.50,000/- as compensation to the complainants on account of mental tension and harassment as well as litigation expenses.

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

16.      The pending application(s), if any, stand disposed off in terms of the aforesaid order.

 

17.      Certified copies of this order be sent to the parties free of charge.

 

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

Pronounced

25^th Oct., 2023                                

Sd/-

                                  (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”