Chandigarh

StateCommission

CC/346/2018

Charanjit Singh Gora - Complainant(s)

Versus

Ansal Lotus Melange Projects Private Limited - Opp.Party(s)

Savinder Singh Gill, Adv.

25 Mar 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	346 of 2018
Date of Institution	:	11.09.2018
Date of Decision	:	25.03.2019

 

1. Charanjit Singh Gora S/o Sh.Nirmal Singh R/o 48-C, Model Town, Phagwara, Distt. Kapurthala-144401, currently residing in 63, Dequito St. I.C.V. Project Balayan (Batangas), Philippines-4213.
2. Sarbjit Kaur W/o Sh.Charanjit Singh Gora, R/o 48-C, Model Town, Phagwara, Distt. Kapurthala-144401, currently residing in 63, Dequito St.I.C.V. Project Balayan (Batangas), Philippines-4213.

……Complainants

 

V e r s u s

 

1. Ansal Lotus Melange Projects Pvt. Ltd., SCO 183-184, Sector 9-C, Chandigarh, through its Director Sh.Pradeep Bansal.

Also at: - Ansal Lotus Melange Projects Pvt. Ltd., A-1/18 B, Asaf Ali Road, New Delhi-110002, through its Director/Additional Director.

2. Pradeep Bansal, Director of Ansal Lotus Melange Projects Pvt. Ltd., SCO 183-184, Sector 9-C, Chandigarh.

              .... Opposite Parties

Argued by: Sh.Savinder Singh Gill, Advocate for the complainants.

                  Sh.Sandeep Kumar, Advocate for the opposite parties.

 

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

Complaint case No.	:	459 of 2018
Date of Institution	:	10.12.2018
Date of Decision	:	25.03.2019

 

1. Anupama Verma D/o Sh.Radhey Shyam Verma, R/o House No.817, Blossom Co-Operative Housing Society, Sector 48-A, Chandigarh-160047.
2. Amita Verma D/o Sh.Radhey Shyam Verma, R/o House No.817, Blossom Co-Operative Housing Society, Sector 48-A, Chandigarh-160047.

……Complainants

V e r s u s

1. Ansal Lotus Melange Projects Pvt. Ltd., SCO 183-184, Sector 9-C, Chandigarh, through its Directors Sh.Pradeep Bansal and Sh.Vishwa Prakash.

Also at: - Ansal Lotus Melange Projects Pvt. Ltd., A-1/18 B, Asaf Ali Road, New Delhi-110002, through its Director/Additional Director.

2. Sh.Pradeep Bansal, Director of Ansal Lotus Melange Projects Pvt. Ltd., SCO 183-184, Sector 9-C, Chandigarh.
3. Sh.Vishwa Prakash, Director of Ansal Lotus Melange Projects Pvt. Ltd., SCO 183-184, Sector 9-C, Chandigarh.

              .... Opposite Parties

Argued by: Sh.Savinder Singh Gill, Advocate for the complainants.

                  Sh.Sandeep Kumar, Advocate for the opposite parties.

 

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

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

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

                MRS. PADMA PANDEY, MEMBER

                MR. RAJESH K. ARYA, MEMBER.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                By this order, we propose to dispose of aforesaid two consumer complaints. 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. At the time of arguments, on 11.03.2019, it was agreed by Counsel for the contesting parties, that facts involved in the above complaints, by and large, are the same, and therefore, both the complaints can be disposed of, by passing a consolidated order.

2.         To dictate order, facts are being taken from consumer complaint bearing no. 346 of 2018 titled as Charanjit Singh Gora and another Vs. Ansal Lotus Melange Projects Pvt. Ltd. and another. The complainants have filed this complaint, seeking refund of amount of Rs.30,95,378/- received by the opposite parties, as per demands raised by them, from time to time, for the period between 23.05.2011 to 08.04.2015, towards purchase of a shop bearing no.SR-7-SF, measuring 1618 square feet (in short the unit), in their project named ‘City Centre’, Mohali Business and Shopping Centre, Kharar-Landran Road, Mohali, Punjab. Total cost of the said unit was fixed at Rs.40,00,000/-. Unit was purchased under construction linked payment plan. It is definite case of the complainants that the said unit was purchased by them for earning their livelihood, by way of self-employment. As per Clause 11 of the Allotment Letter/agreement dated 01.06.2011, the opposite parties committed to hand over possession of the constructed unit, within a period of three years, from the date of booking/allotment once all necessary approvals and sanctions have been obtained from the Sanctioning Authority i.e. on or before 31.05.2014. Despite making payment of substantial amount, delivery of possession of the unit was not offered to the complainants, by the committed date or even thereafter. Hence this complaint has been filed by the complainants, seeking refund of the amount paid, alongwith interest, compensation etc.
3.         Upon notice, reply was filed by the opposite parties, wherein, it was pleaded that the complainants being investors, have purchased the unit, in dispute, for selling the same, to earn profits and not for personal use. They are NRIs and have no intention to shift to India, as such, they would not fall within the definition of consumer, as defined under the Act.
4.         On merits, purchase of the unit, in question, by the complainants; and receipt of amount paid by them, towards price thereof is not disputed. It is also not disputed that as per Clause 11 of the allotment letter/agreement, possession of the unit was to be delivered within a period of three years, from the date of booking/allotment, subject to force majeure circumstances. It was pleaded that the period of three years for delivery of possession of the unit was only tentative, as such, time was not the essence of contract. It was averred that since the complainants have concealed material facts from this Commission, as such, the complaint is liable to be dismissed. Building plans in respect of the project, in question, were got sanctioned at the time of booking of the said unit. After completing construction work, completion certificate was obtained from the Competent Authority, and possession of the unit, in question was offered to the complainants, vide letter dated 14.11.2018. It was pleaded that the complainants were defaulters in making payment towards price of the unit. Since the dispute is with regard to a commercial shop i.e. immovable property, as such, case of the complainants is not covered, under the Act. It was averred that the complaint filed is barred by limitation. Remaining averments were denied, being wrong. It is prayed that the complaint having no substance, be dismissed.
5.         In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those, contained in written version of the opposite parties.
6.         The parties led evidence in support of their cases.
7.         We have heard Counsel for the parties, and have also gone through the evidence and record of the cases, very carefully.
8.         It has vehemently been contended by Counsel for the opposite parties that the complainants would not fall within the definition of consumer, as defined under the Act, as they being NRIs had made investment by way of purchasing the said unit, to gain profit in future, after selling the same in open market.

                We do not agree with the contention raised. In the complaint supported by affidavit of the complainants, it has been clearly stated by them that purpose of purchase of the said unit was to run the same by means of self-employment, for earning their livelihood. It has further been clarified by the complainants, by way of filing rejoinder that they are working in Philippines but are not well settled there. They wanted to shift to Mohali, and start earning their livelihood by way of self-employment. Furthermore, the mere fact that the complainants are NRIs, would not mean that they will not fall within the definition of consumer. No law debar NRIs, with roots in India, to purchase a property in India, for their personal use, to earn their livelihood by way of self-employment. Explanation given by the complainants that the unit in question had been purchased by them, for the purpose aforesaid, is perfectly justified and leaves no scope of doubt. At the same time, there is nothing on record to show that the complainants are property dealers, and have indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. It is settled law that a purchaser of property falls under the definition of a consumer, if any dispute arose out of the same, unless it is proved that the said property has been purchased by him or her, for commercial purpose i.e. reselling the same, for earning profits therefrom. In Laxmi Engineering Works Vs. P.S.G. Industrial Institute,  1995 AIR 1428, 1995 SCC (3) 583, the Hon’ble Supreme Court of India has specifically stated that if the commercial use is by the purchaser himself/herself, for the purpose of earning livelihood, by means of self-employment, such a purchaser of goods is a consumer. It was further said that to know that whether the goods have been purchased for commercial purpose, it is to be decided in the facts of each case. It is not value of the goods that matters, but the purpose, to which the goods bought, are put to. The principle of law laid down in Laxmi Engineering Works` case (supra)  is fully applicable to the facts of the present case. Objection raised by the opposite parties, in this regard, therefore being devoid of merit is rejected.

                Earlier also, a similar question fell for determination, before this Commission, in a case titled as Mr.Rajinder Singh Pahwa and anr. Vs. Ansal Lotus Melange Projects Pvt. Ltd. and anr., complaint case no. 470 of 2016, decided on 16.02.2017. This Commission allowed the said complaint, while giving similar findings, as has been given in the preceding part of this order. The said order has attained finality, as no appeal has been filed by the opposite parties therein, which fact is evident from Official website of the National Commission. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future.

9.         It is not in dispute that the complainants have paid an amount of Rs.30,95,378/- to the opposite parties, for the period between 23.05.2011 to 08.04.2015, towards the unit, in question, in the said project, total cost whereof was fixed at Rs.40,00,000/-. It is also not disputed that as per Clause 11 of the Allotment Letter/Agreement, the opposite parties had committed to hand over possession of the constructed unit, within a period of three years, from the date of booking/allotment once all necessary approvals and sanctions have been obtained from the Sanctioning Authority. In the present case, it has been admitted by the opposite parties that they had got necessary approvals i.e. building plans etc. at the time of booking of the said unit. In this view of the matter, if period of three years is counted from the date of allotment i.e. from 01.06.2011, possession of the unit, in question was to be delivered on or before 31.05.2014. However, it is an admitted fact that possession of the unit, in question, was not offered by the said date (31.05.2014), whereas, on the other hand, it was offered vide letter dated 14.11.2018  i.e. after a huge delay of more than 4 years of the stipulated date and that too during pendency of this complaint.

                As such, at this stage, the question which falls for consideration, is, as to whether, the complainants are bound to take possession of the unit, which has been offered after a delay of more than 4 years or not. 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 or within a reasonable period of two to three years from the date of booking in the cases where agreement is not executed, 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 said 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.”

 

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.

 

Furthermore, 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 Hon’ble 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”.

 

The above view taken by the National Commission, has been reiterated by it, in the case titled as Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The complainants are thus held entitled to refund of the amount paid and not bound to accept possession offered after an inordinate delay.

10.         Objection raised by Counsel for the opposite parties that since only tentative period for delivery of possession of the unit was mentioned in the Allotment Letter, as such, time was not the essence of contract, is also devoid of merit. In the first instance, it is submitted that in the instant case, the opposite parties did not raise any force majeure circumstances, if any, encountered by them, as a result whereof, construction could not be completed, within the stipulated period. 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 condoning the delay in delivery of possession of the unit, to the complainants, cannot be taken into consideration. Under these circumstances, the opposite parties were bound to deliver possession of the unit, within a maximum period of three years, from the date of booking/allotment thereof, as such, time was, unequivocally made the essence of contract.

                The opposite parties also cannot evade their liability, merely by saying that since the words proposed to be delivered/tentative/likely etc. were mentioned in the Allotment Letter, for delivery of possession of the unit, 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/Allotment Letter, 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. Vs. 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, plea of the opposite parties in this regard also stands rejected.

11.         It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainants and if yes, from which date. It is not in dispute that an amount of Rs.30,95,378/- was received by the opposite parties, in the abovesaid manner. 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. as per Clause 5 of the Allotment Letter, 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. The complainants, are, thus held entitled to interest from the respective dates of deposits till refund of the entire amount is actually made.  
12.         Since in the present case, it is an admitted fact that by the date when complaint was filed, possession of the unit, in question, had not been offered to the complainants and it was offered only during pendency thereof, as such, there was a continuing cause of action in their 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),  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, is rejected.

                Furthermore, since the Company is still utilizing the amount paid by the complainants, and has not refunded the same, as such, in that event also, there is a continuing cause of action in their favour, in view of law laid down by the National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016 and Saroj Kharbanda Versus Bigjo's Estates Limited, First Appeal No. 986 of 2016, decided on 01 Feb 2018, in which it was held that the builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount.

                Furthermore, in the instant case, delay if any, in offering possession of the unit was on the part of the opposite parties and they cannot take benefit out of that for saying that the consumer complaint is barred by limitation. In National Insurance Co. Ltd. vs. Hindustan Safety Glass Works Ltd. and allied cases, in Civil Appeal No. 3883/2007, decided on 07.04.2017, the Hon’ble Supreme Court of India held that the provisions concerning the limitation issue in the Act, 1986 could not be strictly construed to the disadvantage of a consumer in cases, where the supplier of goods or services itself was instrumental in causing delay.

13.         Another objection was raised by the opposite parties, that since the dispute is related to construction of a unit i.e. immovable property, as such, it is not maintainable before the Consumer Fora, under the Act. In other words, it was tried to say that only the Civil Court has power to adjudicate the same, and this Commission did not have the jurisdiction to adjudicate the present complaint.  It may be stated here that the complainants hired the services of the opposite parties, for purchasing the unit, in question, on making payment of sale consideration, referred to above. The opposite parties, were to deliver possession of the unit, in question, in a time bound manner, referred to above, with complete basic amenities. By not completing the development and construction within the stipulated period, the opposite parties, violated the terms and conditions of the Allotment Letter/Agreement, which act amounts to deficiency in rendering service, negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC) it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of consumer, as stated above. In this view of the matter, objection raised by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
14.         At the same time, in the absence of any demand letter followed by reminders for making the remaining payments, mere bald assertion of the opposite parties that the complainants were defaulters in making payment towards price of the said unit, cannot be taken into consideration. The opposite parties themselves were deficient in providing service, in not developing the project and offering possession of the unit, by the stipulated date or even thereafter till the date of filing this complaint. In that case, they cannot expect the complainants to keep on making payments. The Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, has held that if the builder is at fault in not delivering possession of the unit by the stipulated date, it cannot expect the allottee(s) to go on paying instalments to it. Similar view was also taken by the National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Under these circumstances, in no way, the complainants can be termed as defaulters. Objection taken in this regard, stands rejected.  
15.         In connected consumer complaint bearing No.459 of 2018, it was vehemently contended by the opposite parties that since the complainants have entered into settlement with the Company, vide Settlement Agreement dated 14.05.2018 Annexure C-4, wherein they had agreed that they shall not initiate any proceedings against the Company in any Court, Tribunal etc., as such, this complaint is not maintainable and liable to be dismissed. It may be stated here that we have gone through the contents of the said Settlement Agreement and found that the same was a conditional one i.e. vide para nos.1 and 2 thereof, the opposite parties agreed to pay compensation by way of interest @9.5% (simple) on the deposited amount, from the stipulated date mentioned in the Buyers’ Agreement till the date of offer of possession. However, thereafter, despite the fact that possession was offered to the complainants vide letter dated 30.10.2018 Annexure C-5 (though after huge delay),  the opposite parties failed to pay compensation by way of interest @9.5% p.a., on the deposited amount for delayed period. Thereafter, the complainants waited for about more than a month and when still nothing happened in the matter, they filed this consumer complaint seeking refund of the amount paid alongwith interest etc. Not only as above, even during pendency of this complaint, the opposite parties failed to answer, as to why, they did not pay the said compensation, which was committed vide Settlement Agreement aforesaid. No commitment was made, as to by which date, amount accumulated towards compensation in view of Settlement Agreement will be paid. Under above circumstances, once the terms and conditions of the Settlement Agreement were breached by the opposite parties only, now they cannot take any benefit out of it. Had the opposite parties paid compensation to the complainants for the period of delay at the time of offering possession of the unit, as committed vide  Settlement Agreement, and, had, thereafter, the complainants filed this complaint seeking refund of the amount paid, the matter would have been different. In those circumstances, it would have been said that since the opposite parties have honored their commitment made vide Settlement Agreement, the complainants are barred from filing consumer complaint, seeking refund of the amount paid towards price of the said unit and on the other hand are bound to take possession thereof. However, it is not so, the case of the opposite parties.

                In this case, the opposite parties had committed to offer possession of the unit, in question, by 14.03.2014 i.e. within a period of three years from the date of allotment i.e. from 15.03.2011, but it was offered only on 30.10.2018 i.e. after a huge delay of more than 4 years. As such, it is held that since there has been an inordinate delay in offering possession of the unit, in question, the complainants, in this case are also held entitled to refund of the amount paid, alongwith interest, compensation and litigation expenses.  

16.         No other point was urged by Counsel for the parties, in both the complaints.
17.         For the reasons recorded above, both the complaints are partly accepted, with costs, as under:-

 

In Consumer Complaint No.346 of 2018, the opposite parties, jointly and severally are directed:-

 

1. To refund the amount of Rs.30,95,378/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs. One Lakh, for causing mental agony and physical harassment, to the complainants, as also deficiency in providing service and adoption of unfair trade practice.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the complainants.

 

In Consumer Complaint No.459 of 2018, the opposite parties, jointly and severally are directed:-

 

1. To refund the amount of Rs.18,18,044/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.50,000/-, for causing mental agony and physical harassment, to the complainants, as also deficiency in providing service and adoption of unfair trade practice.
3. To pay cost of litigation, to the tune of Rs.22,000/- to the complainants.

 

18.         The payment of awarded amounts mentioned at sr.nos.(i) to (iii), in both the complaints, shall be made, within a period of 02 (two) months, from the date of receipt of a certified copy of this order, respectively, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @ 15% p.a., from the date of default, and interest @ 12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing respective complaints, till realization.
19.         However, it is made clear that, if the complainants, in any of the complaints above, have availed loan facility from any banking or financial institution, for making payment of installments towards their respective units, it will have the first charge of the amount payable, to the extent, the same is due to be paid by them (complainants).
20.         Certified Copies of this order be sent to the parties, free of charge and one copy be placed in the file of connected complaint case.
21.         The files be consigned to Record Room, after completion.

Pronounced.

25.03.2019

Sd/-

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

Rg.