Haryana

Ambala

CC/97/2021

Tania Gujral - Complainant(s)

Versus

M/s ATS Ral Estate Builders Pvt ltd - Opp.Party(s)

Ankush

31 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint case no.         : 97 of 2021.

                                                          Date of Institution           : 19.02.2021.

                                                          Date of decision    : 31.08.2022.

 

1. Tania Gujral W/o Mohit Gupta and
2. Mohit Gupta S/o Chander Parkash Gupta

Through Special Power of attorney Holder Rohit Gupta S/o Chander Parkash Gupta all R/o House no.133, Defence Colony Phase No.-2 Sector-B Near Shiv Dham Ambala Cantt

                                                                             ……. Complainants.

                                                Versus

1. M/s ATS Real Estate Builders Pvt. Ltd. Through its authorized Signatory # 711/92 Deepali Nehru Place, New Delhi.
2. M/s ATS Real Estate Builders Pvt. Ltd. Through its authorized Signatory

ATS Tower Plot No.-16 Sector-135 Noida-201305

3. Braham Parkash Singh Authorised Officer, ATS Tower Plot No.-16, Sector-135, Noida-201305

                                                                              ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.  

                            

Present:       Shri Ankush Gupta, Advocate, counsel for the complainants.

                     Shri S.S. Bedi, Advocate, counsel for the OPs.

 

Order:        Smt. Neena Sandhu, President

1.                Complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund Rs.24,60,150/- (Rupees Twenty four Lakhs Sixty Thousand One Hundred Fifty only) along with other misc. charges as paid by the complainants.
2.  To compensate the complainants for the mental agony and physical harassment suffered by them.
3. To pay interest @ 24 % per annum on the amount paid by the complainants.
4. To pay Rs.1,00,000/- (Rupees One Lacs Only) towards the cost of litigation.

Grant any other relief which this Hon’ble Commission may deem fit.

 

2.             Brief facts of this case are that the OPs had acquired right, title and interest in Group Housing Colony known as "ATS MARIGOLD" at Sector 89-A Gurgaon. In the year 2019, the officials of the OPs approached the complainants at Ambala for the sale of flat in the said project. On the assurances of the OPs that they have all necessary permissions in respect of project in question and that mandatory documents as required for obtaining housing loan from any bank will be provided to them, the complainants agreed to purchase flat No. 2163, tower No.2, 16th floor type-B from the OPs and paid an amount of Rs.4,00,000/- and Rs.8,45,000/- at the time of booking on 25.4.2019 and Rs.12,15,150/- on 16.06.2019 and TDS amount on 16.06.2019 to the OPs against total sale consideration of Rs.1,18,25,000/-. Agreement to sell was duly executed between the parties and same was registered before the Sub registrar vide deed No.1094 dated 28.05.2019, Annexure C-10. Thereafter, the  complainants applied for housing loan from their bank i.e., State bank of India.  Resultantly, an amount of Rs.75 lacs towards housing loan in respect of the unit in question had been sanctioned by the SBI, Gurgaon, vide sanction letter dated 04.11.2019, Annexure C-15, yet, the complainants were asked to execute some documents, so that the SBI is able to disburse the said housing loan. Resultantly, the SBI, Gurgaon, vide email dated 11.12.2019, Annexure C-16, requested the complainants to provide them approved licence of construction; and affidavit cum undertaking from the OPs regarding submission of conveyance deed to bank directly as and when executed.  The complainants requested the OPs number of times to provide them the said documents, as the principal sanction given by the State Bank of India was valid up-to 06.02.2020, failing which it was liable to be rejected but the OPs failed to provide the said documents to the complainants.  Left with no alternative, the complainants served legal notice with Ref No. AA/350 dated 03.01.2020 to the OPs followed by reminder dated 20.01.2020, in the matter but to no avail. Even the amount paid by the complainants was also not refunded by the OPs. Hence, the present complaint.
3.           Upon notice, OPs appeared and filed written version and raised preliminary objections with regard to maintainability, not come with clean hands and suppressed the material facts, cause of action and jurisdiction locus standi etc. On merits, while admitting factual matrix of the case, with regard to booking of the flat in question and payment of part amount, as mentioned in the complaint by the complainants, it has been stated that the project of the OPs has been financed by the HDFC Bank. The OPs were ready to assist the complainant for obtaining housing loan from HDFC Bank but he was adamant to take it from State Bank of India. The project of the OPs is RERA registered and it has also got licence from the Haryana Govt. Town and Country Planning, Annexure OP1/3. Rest of the averments of the complainants were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Complainant No.1 tendered affidavit of complainant No.2 as Annexure CA alongwith documents as Annexure C-1 to C-16 and closed the evidence of the complainants. On the other hand, learned counsel for the OPs tendered affidavit of Sh. Simranjeet Singh, Authorized Signatory of the OPs company- M/s ATS Real Estate Builders Pvt. Ltd. as Annexure OP-A, alongwith documents Annexure OP-1/1 to OP-1/3 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the parties and carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the OPs.
6.           The learned counsel for the complainants submitted that by not supplying the documents to the complainants, which were mandatory to be provided to the SBI for disbursement of the loan amount already sanctioned, in respect of the unit in question, as a result whereof, they could not avail the said loan, the OPs have committed deficiency in service and also indulged into unfair trade practice.
7.           On the contrary, the learned counsel for the OPs submitted that the OPs were ready to get the housing loan released in favour of the complainants from HDFC Bank but they were adamant to get the loan disbursed from SBI only. He further submitted that this Commission does not have territorial jurisdiction to decide this complaint and that the complainants are investors and that is why, they want their amount back.
8.           First dealing with objection taken by the OPs that the complainants are investors and do not fall within the definition of ‘consumer’, it may be stated here there is not even a single documentary evidence placed on record by the OPs to substantiate their objection. The onus is upon the OPs to prove that the complainants have purchased the flat in question in the capacity of investors. Unless it is proved so, we cannot hold that the complainants are investors. Our this view gets fortified from the ration of law laid down by the Hon’ble National Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, wherein it has been held that:- no evidence has been led by the opposite parties to prove that the complainants purchased the flats for a speculative purpose or for making profit by selling them at a later date.  Hence we hold that the complainants are consumers and objection taken by the OPs is rejected. 
9.           Regarding objection of territorial jurisdiction taken by the OPs, it may be stated here since the complainants are residents of Ambala, which falls within the territory of this Commission, as such, this Commission has territorial jurisdiction to entertain and decide this complaint, as envisaged under section 34 (2) (d) of Consumer Protection Act, 2019. As far as plea taken by the OPs that the parties have agreed to exclude the jurisdiction of all other courts, except the courts at Noida, it may be stated here that it is settled law that to emphasize the clause relating to jurisdiction of courts in the agreement between the parties, cannot by itself over-ride the statutory right of the complainants, conferred by the provisions of the Consumer Protection Act and failure to adopt the same, will defeat the purpose and object of the Act. Our this view is supported by the observations made by the Hon’ble National Commission in the case of Neha Singhal Vs. Unitech Limited and Abhishek Singhal vs. Unitech Limited, II (2011) CPJ 88 (NC), relevant part whereof is reproduced hereunder:-
   1. " 3. ….In a similar case (FA No. 425 of 2010 Munish Sahgal vs DLF Home Developers Limited), the State Commission had taken the same view. The above-mentioned appeal was allowed by this Commission, vide order dated 9th February 2011, based on the decision dated 11th April 2002 of a 3 Member Bench of this Commission in FA No. 142 of 2001 (Smt Shanti vs M/s. Ansal Housing and Construction Ltd.) The only point of some relevance in this case is that the housing property in question is located in NOIDA, Gautam Buddha Nagar, Uttar Pradesh. However, that fact alone cannot suffice to oust the territorial jurisdiction of the (Delhi) State Commission to adjudicate upon the complaint, in view of the specific provisions of section 11 (2) (b) of the Consumer Protection Act, 1986 (the Act). To emphasise, the clause relating to jurisdiction of courts in the agreement between the parties cannot by itself over-ride the statutory right of the appellant/ complainant conferred by the above-mentioned provision of the Act that would defeat the purpose and object of the Act. This view is also in accord with the provisions of section 28 of the Indian Contract Act, 1872 (as amended with effect from 8th January 1997).

 

In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)=VII (2011) SLT 371,  the principle  of law laid down was  that the restriction of jurisdiction to a particular Court need not be given any importance in the facts and circumstances of the case.  Thus plea taken by the OPs in this regard is rejected.

10.           The next question that falls for consideration is, as to whether, the complainants are entitled to get their amount back from the OPs or not? It may be stated here that a bare perusal of record reveals that in the first instance, out of the total sale consideration of Rs.1,18,25,000/-, the complainants had paid an amount of Rs.24,60,150/- from their own pocket and the remaining amount was to be paid by them, after obtaining housing loan from State Bank of India, Guragon, (SBI). It is also coming out from the record that though an amount of Rs.75 lacs towards housing loan in respect of the unit in question had been sanctioned by the SBI, Gurgaon, vide sanction letter dated 04.11.2019, Annexure C-15, yet, the complainants were asked to execute some documents, so that the SBI is able to disburse the said housing loan. Resultantly, the SBI, Gurgaon, vide email dated 11.12.2019, Annexure C-16, requested the complainants to provide them approved licence of construction; and affidavit cum undertaking from the OPs regarding submission of conveyance deed to bank directly as and when executed. However, it is coming out from the  record that when the said documents were not supplied by the OPs, the complainants sent legal notice dated 03.01.2020, Annexure C-6 followed by another notice dated 20.01.2020, Annexure C-2 to the OPs, whereby they in the first instance sought the said documents and when the same were not provided, they ultimately sought refund of the amount paid, on the ground that since the documents referred to above, had not been supplied, therefore, they are not able to get disbursed the loan amount from SBI, in respect of the unit in question. However, there is nothing on record to prove that either the documents referred to above were supplied to the complainants by the OPs or the legal notices sent were even replied by the OPs. Even in the written reply filed by the OPs, they have failed to convince this Commission as to why those documents were not supplied to the complainants, especially, when the loan in question stood sanctioned by the SBI. On the other hand, it has been stated by the OPs in the written reply that they were ready to assist the complainants for getting loan from the HDFC Bank. In our considered opinion, if the complainants were interested in getting housing loan from the Nationalized Bank instead of a Private Bank, the OPs cannot force them for the same. It is the definite case of the complainants that because of non supply of the documents referred to above, the SBI did not disburse the loan amount, as a result whereof, the complainants could not make remaining payment in respect of the flat in question to the OPs and were thus deprived of the same.  From the peculiar facts and circumstances of this case, we do not hesitate to hold that by not providing the mandatory documents to the complainants, the OPs have violated the condition no.xii) a) of the  Registration Certificate dated 17.07.2017, Annexure OP-1/2 issued by Haryana Real Estate Regulatory Authority, which says that the promoter/OPs are responsible to make available to the allottees/complainants the documents such as sanctioned plans, layout alongwith specifications, approved by the competent authorities and also stage wise schedule of completion of the project. At the same time, it is also held that the OPs cannot wriggle out of the situation by stating that the complainants should have availed housing loan from the HDFC instead of SBI. Thus, by not providing the documents to the complainants, which were required by SBI, the OPs are deficient in providing service, negligent and adopted unfair trade practice. Because the complainants were unable to get disbursed the loan amount on account of act and conduct of the OPs, as such, they are entitled to get the amount of Rs.24,60,150/- paid by them to the OPs, in respect of the flat in question, alongwith interest.
11.           It is also made clear that it is a simple case of deficiency in providing service on the part of the OPs, as they failed to provide the documents, to the complainants, which were necessary for disbursement of loan amount by the SBI, which they were legally bound to provide and a such this Commission is competent to entertain and decide this complaint and there is no need to refer the matter to the civil court. 
12.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-
    1. To refund/pay the amount of Rs.24,60,150/- to the complainants, alongwith interest @4% p.a. from the respective dates of deposits onwards, till realisation.
    2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainants.
    3. To pay Rs.3,000/- as litigation expenses.

 

The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which, the awarded amount mentioned in para No.12 (a) and (b) shall carry interest @ 6% per annum for the period of default. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 31.08.2022.

 

 

 

          (Ruby Sharma)                                            (Neena Sandhu)

             Member                                                    President