Chandigarh

StateCommission

CC/422/2017

Munish Gohri - Complainant(s)

Versus

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

Shiv Charan Bhola, Adv.

19 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	422 of 2017
Date of Institution	:	16.05.2017
Date of Decision	:	19.09.2017

 

Munish Gohri son of Gulshan Gohri, resident of H.No.555, Sector-8-B, Chandigarh.

……Complainant.

                                          V e r s u s

1. Ansal Lotus Melange Projects Private Limited, SCO No.183-184, Sector 9-C,  Madhya Marg, above British Library, Chandigarh, through its Managing Director
2. Monga Realtors Private Limited, SCO No.672, Sector-70, Mohali, through its Proprietor.

  Opposite Parties.

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

 

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

                    MR. DEV RAJ, MEMBER.

                    MRS.PADMA PANDEY,MEMBER

 

Argued by:  Mr. Shiv Charan Bhola,   Advocate for the complainant.

                    Mr. Rachit Kaushal,   Advocate for  Opposite Party  No.1.  

                    Mr. Munish Goel, Advocate for Opposite Party No.2.

 

PER  DEV RAJ, MEMBER

                The facts, in brief, are that Opposite Party No.1 in the  year 2008 came up with a project in the name and style of “City Centre,Mohali” in Sector-115, Mohali and widely publicized its offer of selling Units measuring 565.50 sq.ft . The complainant, in order to earn his livelihood, by way of self employment by opening a shop, had applied for a Unit i.e. Commercial Shop No.25-G (earlier Unit No.SH-28-G) by submitting application on 7.8.2009 alongwith a cheque dated 30.8.2009 in the sum of Rs.2,36,000/- . The total cost of the Unit was fixed as Rs.23,64,488/- and as mentioned in the terms and conditions, the possession of the Unit was to be delivered within 24 to 30 months. Copy of letter dated 2.2.2010 alongwith application, terms and conditions of allotment dated 7.9.2009 have been annexed with the complaint as Annexure C-1(colly). Opposite Party No.1 kept on asking due payment as per the status of construction from time to time and the complainant kept on depositing the same. Copies of various demand letters and receipts of payment deposited by the complainant have been annexed as Annexures C-2 (colly) and C-3(colly). It is further averred that the complainant kept on visiting the premises of Opposite Party No.1 to enquire about the status of construction and his last visit was in March,2016, when he was assured that construction would be completed very soon and the possession would be handed over to the respective buyers.  On 26.11.2014, Opposite Party No.1 issued a letter (Annexure C-4)  intimating the complainant that the number of the Unit has been changed and even the area has been increased from 556.35 sq.ft. to 565 sq.ft.   It is further averred that from February,2010 to July,2016, the complainant visited the office of Opposite Party No.1 at Chandigarh a number of times, but every time a new staff member welcomed him with new excuse and showed his ignorance about the completion of the project. It is further stated that Opposite Party No.2 is acting as an agent of Opposite Party No.1 and by making allurements, which are not being fulfilled by Opposite Party No.2,  and just for Rs.25,000/- which it receives in the shape of commission, it is playing vital role for implicating the consumers in the hands of Opposite Party No.1.

2.                 Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking refund of Rs.18,07,462/- with interest @18% p.a. with effect from 31.8.2009; Rs.25.00 lacs as compensation on account of deficiency in service; award penal interest to the tune of 24% on the deposits and also award suitable compensation on account of mental agony, harassment etc. besides costs of litigation.

3.           Opposite Party No.1, in its reply, took up certain preliminary objections inter-alia stating that as per clause-11 of the allotment letter dated 3.11.2009, the Company was not responsible for any inordinate delay, which would be out of control of the Company. It was further stated that partial completion certificate was issued by Municipal Council, Kharar on 14.10.2016 but delay had occurred in obtaining the completion certificate from the concerned authorities of the Government of Punjab , without which, possession could not be offered to the complainant. It was further stated that as per clause 23 of the allotment letter dated 3.11.2009, actual possession of the property was agreed to be handed over to the allottee after receipt of completion certificate from the competent authority. It was further stated that delay in handing over the possession of the Unit is purely due to delay on the part of the authorities in issuing completion certification. The complaint was stated to be hopelessly time barred as allotment letter was issued on 3.11.2009 and the possession was to be offered on 2.11.2012 and as such, the complaint was to be filed within two years up to 2.11.2014. 

4.             On merits, booking of the Unit, in question, and the factum of making payments  by the complainant, was admitted. It was also admitted that as per Clause 11 of the allotment letter, 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 further stated that not only as above, it was agreed to between the parties, that the said three years were to be counted from the date of booking/allotment, once all necessary approvals and sanctions were obtained from Competent Authorities, whichever was later.  It was further stated that the Company never committed to hand over possession within 24 to 30 months. Change of number of the Unit and increase in the super area was admitted. It was also admitted that Opposite Party No.2 is its agent, however, there was no false allurement on its part.  It was further stated that there was no fraud, misrepresentation, cheating or any criminal intent on the part of the Opposite Parties.  The remaining averments were denied, being wrong and a prayer was made for dismissal of the complaint. 

5.               Opposite Party No.2, in its reply, stated that its role was limited to the extent of marketing of the project and it never represented itself other than a mere authorized marketer of Opposite Party No.1. It was further stated that execution of agreement, acceptance of payment, construction of project, providing possession and all other related activities in relation to the booking made by the complainant are within the domain of Opposite Party No.1 and Opposite Party No.2 has no role or control on the said subject in any manner, as it has no authority or permission to receive any amount directly from any customer on behalf of Opposite Party No.1. It was further stated that neither there was any privity of contract between the complainant and Opposite Party No.2 nor any obligation was left to be performed on its part. The remaining averments were denied being wrong and a prayer was made for dismissal of the complaint.

6.               The complainant filed separate rejoinders to the replies filed by Opposite Party No.1 and Opposite Party No.2, reiterating the averments made in the complaint and controverting those made in the replies.

7.            The complainant, in support of his case, submitted  his own affidavit, by way of evidence, alongwith which, a number of documents were attached.

8.                 Opposite Party No.1, did not file any affidavit/evidence in support of its reply.  However,   Opposite Party No.2 submitted the affidavit of Sh. Suchet Monga,  its Director by way of evidence, alongwith which, documents (Annexure sR-2/1 to R-2/4) were attached.

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

10.               The first objection raised by Opposite Party No.1 is that the complaint deserves to be dismissed with cost on account of material concealment on the part of the complainant. It may be stated here that nothing is explained as to how and in what manner, there is concealment.

 

The plea taken is, therefore, without any substance and the same stands rejected. 

11.               The next objection raised by Opposite Party No.1 is that the complaint was time barred. In Para 4 of its reply, in the preliminary objections, it has been stated  that the allotment was entered into on 03.11.2009 and possession was to be offered by 02.11.2012 and, as such, the period of limitation for filing the complaint was two years i.e. up to 02.11.2014. No doubt, the instant complaint was filed on 16.05.2017. It is matter of record that possession, which as admitted by Opposite Party No.1 itself, was due on 02.11.2012, has still not been offered/delivered. In view of the fact that possession has still not been offered, the complainant has a continuing cause of action. The complaint filed on 16.05.2017 is, thus, well within the period of limitation. The objection raised, being devoid of merit, must fail and the same stands rejected.

12.               Another objection raised by Opposite Party No.1 was that it was not to be held responsible for any inordinate delay beyond its control. It has been stated that delay occurred in obtaining the completion certificate from the concerned authorities of the government and partial completion certificate was issued by Municipal Council, Kharar on 14.10.2016. It may be stated here that completion certificate issued on 14.10.2016 has not been placed on record. In order to substantiate its averment that delay in issuing partial completion certificate was on the part of concerned authority, nothing is mentioned as to when completion certificate was applied for and after how much delay, the same was issued. In the absence of cogent evidence to this effect vis-à-vis period taken by the authorities in issuing the partial completion certificate, the plea taken does not sustain and the same stands rejected.

13.               The fact remains that despite receipt of partial completion certificate on 14.10.2016, possession was not offered and nothing is mentioned as to when possession is likely to be offered.  No details about any other force majeure conditions, which were beyond the control of Opposite Party No.1, on account of which, project was delayed, have been mentioned/explained alongwith supporting evidence.

14.               Now coming to the merits of the case, admittedly, the shop, in question, was allotted to the complainant vide allotment letter dated 03.11.2009 against total sale consideration of Rs.23,64,488/-.  It is evident on record that the complainant, during the period 30.08.2009 to 30.11.2012, paid an amount of Rs.18,07,462/-, which fact has also not been disputed. Clause 11 of the terms and conditions for allotment (at page 18 of the file) reads thus:-

“The Company shall endeavor to give the possession of the unit to the Intending allottee(s) within 24 to 30 months subject to force majeure circumstances and on receipt of all payments as per installment plan from the date of booking and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him/her. The Company on completion of the construction shall issue final call notice to the intending allottee(s), who shall within 30 days thereof, remit all dues and take possession of the unit. In the event of his/her failure to take possession for any reason whatsoever, he/she shall be deemed to have taken possession of the allotted unit and shall bear all maintenance charges and other levies on account of the allotted unit.”

15.               It is also on record that on 26.11.2014, Opposite Party No.1 issued letter intimating the complainant that the number of the unit was changed and super area was increased from 556.35 sq. ft. to 565.50 sq. ft. Copy of letter dated 26.11.2014 is Annexure C-4. As per evidence on record, the possession of the unit, in question, which was due to be delivered by 02.11.2012, has still not been delivered. There is, thus, inordinate delay in offering possession of the unit in question. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, in the light of law settled by Hon’ble National Commission in such cases, held that the complainant is entitled to refund of the amount deposited with the Opposite Party. Relevant Paras of the aforesaid judgment read thus:-

“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. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

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

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. 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:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant 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 alongwith reasonable compensation, in the form of interest.”

Therefore, the complainant is held entitled to refund of the amount alongwith interest from the dates of respective deposits.

16.               It is to be further seen, as to whether, interest, on the amount refunded, can be granted, in favour of the complainant. Admittedly, possession of the unit, in question, which was to be delivered within the stipulated period i.e. by 02.11.2012, has not been delivered till date. It is not in dispute that an amount of Rs.18,07,462/- was paid by the complainant to Opposite Party No.1, without getting anything, in lieu thereof. The said amount has been used by Opposite Party No.1, for its own benefit. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, alongwith interest @12% p.a. (simple) from the respective dates of deposits till realization.

17.               The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him. Clearly possession of the unit, in question, has not been offered to the complainant till date, on account of which, he (complainant) suffered mental agony and physical harassment. The compensation in the sum of Rs.25 Lacs, claimed by the complainant, is highly exaggerated. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.1 Lac, if granted, would be adequate to serve the ends of justice.

18.               As regards role of Opposite Party No.2, the complainant, in Para 7 of the complaint, has stated that Opposite Party No.2, acting as an agent of Opposite Party No.1, by making allurement, fetched the consumer to Opposite Party No.1 just for making commission, which in the instant case was Rs.25,000/-. On the other hand, in its reply, Opposite Party No.2  has stated that it is only an authorised booking agent and does not have any authority or permission to receive any amount directly from the customer on behalf of Opposite Party No.1 and neither there was any privity of contract between the complainant and Opposite Party No.2 nor any obligation was left to be performed on its part. In our opinion, since there is no specific averment by the complainant against Opposite Party No.2, except receipt of commission amount for sale consideration paid to Opposite Party No.1, no liability for refund of the deposited amount can be fastened upon Opposite Party No.2. Therefore, complaint against Opposite Party No.2 is liable to be dismissed.  

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

20.                For the reasons, recorded above, the complaint is partly accepted with costs against Opposite Party No.1 only. Opposite Party No.1 is held liable and directed as under:-

(i)       To refund the amount of Rs.18,07,462/- to   the   complainant, alongwith interest @12% p.a. (simple), from the respective dates of deposits till realisation, within a period of 45 days, from the date of receipt of a certified copy of this order.

(ii)      To pay an amount of Rs.1,00,000/- (Rupees One Lac only), as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.33,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.

(iii)     In case, the payment of amounts, mentioned in Clauses (i) & (ii) above, is not made, within the stipulated period, then Opposite Party No.1, shall be liable to pay the amount mentioned in Clause (i) above, with interest @15% p.a. (simple), from the date of filing the complaint, till realization and amounts mentioned in Clause (ii) above, with interest @12% p.a. (simple) from the date of filing the complaint till realization.

21.               However, it is made clear that, if the  complainant has availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge on the amount payable, to the extent, the same is due to be paid by the complainant.

22.               The complaint against Opposite Party No.2 stands dismissed with no order as to costs.

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

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

Pronounced.

19.09.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

          MEMBER

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