
View 226 Cases Against Ansal Lotus
Gurmeet Kaur filed a consumer case on 12 Apr 2019 against Ansal Lotus Melange Projects Pvt LTd in the StateCommission Consumer Court. The case no is CC/3/2019 and the judgment uploaded on 29 Apr 2019.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.
1) Consumer Complaint No.03 of 2019
Date of institution : 03.01.2019
Reserved on : 03.04.2019
Date of decision : 12.04.2019
Gurmeet Kaur aged about 61 years W/o Dr. Rachhpal Singh Bharaj R/o House No.434 Bharaj Niwas, Ranjit Nagar near ITI Hoshiarpur, Punjab. ….Complainant
Versus
1. Ansal Lotus Melange Projects Pvt Ltd., Regd Office 1/18-B, Asaf Ali Road, New Delhi 110002 through its Director.
2nd Address
Ansal Lotus Melange Projects Pvt Ltd., Head Office B-2, Dhawandeep Building, 6, Janter Manter Road, New Delhi 110001.
2. Ansal Lotus Melange Projects Pvt Ltd., Branch Office/Regional Office,
.…Opposite Parties
2) Consumer Complaint No.04 of 2019
Date of institution : 03.01.2019
Reserved on : 03.04.2019
Date of decision : 12.04.2019
Manjit Singh aged 61 years son of Sh. Prem Singh R/o House No.2883 (Ground floor), Sector 38-C, Chandigarh.
….Complainant
Versus
1. Ansal Lotus Melange Projects Pvt Ltd., Regd Office 1/18-B, Asaf Ali Road, New Delhi 110002 through its Director.
2nd Address
Ansal Lotus Melange Projects Pvt Ltd., Head Office B-2, Dhawandeep Building, 6, Janter Manter Road, New Delhi 110001.
2. Ansal Lotus Melange Projects Pvt Ltd., Branch Office/Regional Office,
.…Opposite Parties
Consumer Complaints under Section 17 of the Consumer Protection Act, 1986.
For the complainant : Sh. Lalit Pathak, Advocate
For the opposite parties : Sh. Rajiv K.Bhatia, Advocate
This order will dispose of the above mentioned two Consumer Complaints filed by two complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, “the Act”), as the facts and the questions of law involved in both the complaints are similar and both complaints have been filed against the same opposite parties-Builder (in short “OPs”). For the sake of convenience, the facts are taken from Consumer Complaint No.03 of 2019.
2. The complainant has filed this complaint, under Section 17 of the Act, seeking following directions to the OPs:-
And
Facts of the Complaint:-
3. Brief facts, as set out in the complaint, are that OP No.1 is the company engaged in the business of developers and the same is being sued through its Director/Authorised person. OP No.2 is Branch Office/Regional Office which is working on behalf of OP No.1. The OPs floated a project under the name and style of “Orchard County Tulip and Carnation Tower” at Sector 115, SAS Nagar Mohali, under four categories for a basic rate of Rs.2990/- per sq. ft and brochure of the same was circulated. Complainant is working as an Administrator at Bharaj Life Care Hospital, Hoshiarpur and on 09.04.2013, he had booked a Flat No.202, Tower No.12 in the said project measuring 1775.27 sq. ft. for a total amount of Rs.42,36,309/- @ Rs.2386.29 per sq. ft. However, the total cost plus service tax were enhanced to Rs.44,59,549/- as per the payment schedule and total area is also mentioned as 1806 sq. ft. Complainant handed over a cheque dated 10.04.2013 at the time of booking of the said flat but the receipt of same was issued on 11.04.2013. OPs actually booked the above said flat at a rate of Rs.54,65,460/- along with
Defence of the Opposite Parties
4. Upon notice, opposite parties appeared and filed reply by way of affidavit of Sh. Kuldeep Singh Bhatti, authorised signatory to the complaint, raising preliminary objections that the complaint is an abuse of the process of law and is liable to be dismissed. Complainant is guilty of concealment of facts from this Commission and had wilfully misrepresented facts thus warranting dismissal of the complaint. Complainant is not “consumer” under the definition of the Act, since the said investment in the property of the OPs by the complainant is purely for commercial purposes and speculative investments. The allegations levelled in the said complaint to the effect that the possession of the demised premises/allotted unit had not been handed over to the complainant within the same period stipulated in the allotment letter thus exhibiting deficiency in service on the part of the OPs is liable to be negated in view of the express mandate of Clause 5.1 of the Buyer Agreement dated 23.04.2013, as per which the possession of the allotted unit was proposed to be delivered in 48 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. A bare reading of the aforementioned clause would thus reveal that time was not the essence of the contract and that the period of 48 months with an extended period of six months for delivery of possession was given on estimate basis. Had time been the essence of the contract then the phrase “as far as possible” would not have been used and instead a definite period would have been given for delivery of possession. The complaint filed by the complainant is time barred and same is beyond limitation. Complainant never sought refund of the amount paid by her whereas admittedly the cause of action for seeking refund arose on 23.04.2016. As per clause 5.3 of the buyer agreement, the OPs are committed to compensate the complainant for the delayed period. On merits, it was denied that the complainant paid Rs.56,68,382/-. It was further denied that complainant paid Rs.10,00,000/- in cash. There was no deficiency in service on the part of OPs and all other allegations of the complainant were denied a prayer for dismissal of the complaint has been made.
Evidence of the Parties
5. To prove her complaint, the complainant filed, along with the complaint, her affidavit and documents Ex.C-1 to Ex.C-7.
6. OPs have filed reply only by way of affidavit of Sh. Kuldeep Singh Bhatti, Authorised Signatory of OPs No.1 & 2 and no other document has been filed.
Contentions of the Parties
7. We have heard learned counsel for the parties and have carefully gone through the record of the case.
8. Learned counsel for the complainant vehemently argued that the OPs have failed to handover the possession of the flat till date despite the fact that the complainant has paid a substantial amount to the OPs against the sale consideration. She had paid the booking amount as well as Rs.10,00,000/- in cash but the receipt for Rs.10,00,000/- received by the OPs has not been issued by them. The possession of the flat was to be given in 48 months + extended period of six months from the agreement dated 23.04.2013 but till date neither the possession has been given nor the amount has been refunded to the complainant. Alleging deficiency in service and unfair trade practice on the part of OPs, learned counsel for the complainant prayed for allowing the complaint.
9. On the other hand, learned counsel for the OPs argued that time is not the essence of the contract and that the period of 48 months with an extended period of six months for the delivery of possession was given on estimate basis. However, as per clause 5.5 of the Buyer’s Agreement, the OPs are willing to pay compensation @ Rs.5/- per sq. ft. of the super area of the said flat per month for the period of delay. The payment of Rs.10,00,000/- received by the OPs as alleged by the complainant is categorically denied. Denying any deficiency in service and unfair trade practice on the part of the OPs, learned counsel for the OPs prayed for dismissal of the complaint.
Consideration of Contentions
10. We have considered the respective contentions raised by the learned counsel for the parties and have gone through the record of the case.
11. Admittedly, the Buyer’s Agreement was executed between the parties on 23.04.2013 Ex.C-3 in respect of the said flat for a total sale consideration of Rs.42,36,309/- @ Rs.2386.29 per sq. ft. excluding EDC, IDC along with applicable interest etc. in the residential project floated by the OPs-Company. It is mentioned in Clause 4.2 of the said agreement that the buyer had paid a sum of Rs.5,25,972/- on account of part of sale consideration, EDC, IDC, taxes, etc in respect of the said flat. It has been pleaded in the complaint and the learned counsel drew our attention towards Ex.C-4 wherein the cost of the flat was enhanced later to Rs.56,68,382/-. The complainant has pleaded that she has paid Rs.10,00,000/- in cash to the OPs but no receipt was issued by them. A perusal of all the receipts placed on record by both the parties does not show any evidence that the amount of Rs.10,00,000/- was paid in cash. There is also a dispute regarding the amount deposited by the complainant towards the total sale consideration which in itself is also controversial. The complainant has alleged that the OPs had enhanced the total consideration of the unit to Rs.56,68,382/- and has relied upon Ex.C-4 to support her contention. A perusal of the said document shows that it is not signed by anybody and the writing is on a plain piece of paper without any letterhead of the company, as such, it does not have any evidentiary value in the eyes of law. Even otherwise, since the relief sought is for refund of the amount deposited by the complainant, hence, the relevancy of the total amount of sale consideration need not be addressed at this point. In the absence of any cogent evidence, the pleas taken by the complainant on the issue of enhanced sale consideration and non-issuance of receipt of Rs.10,00,000/- by the OPs do not find merit with us. However, in an e-mail dated 01.06.2015 Ex.C-6 written by the OPs to the complainant it has been stated that as per the statement of account, they had received an amount of Rs.18,00,431/- as on that date. As per clause 5.1 relates to the timeline for handing over the possession of the said flat and is reproduced as under:-
“Subject to Clause 5.2 and further subject to all the buyers/allottees of the Flats in the said Residential Project, making timely payment, the Company shall endeavour to complete the development said Residential Project and the said Flat as far as possible within 48 (Forty eight) months, with an extended period of 6 (six) months, from the date of execution of this Agreement or from the date of commencement of construction of the particular Tower/Block in which the said Unit is situated subject to sanction of the building plan whichever is later”.
As per this clause the stipulated date for handing over the possession of the flat was 23.10.2017 i.e. after a period of 48 months with extended period of six months from the date of execution of the agreement i.e. 23.04.2013 but the same has not been offered to the complainant till date. The version of the OPs is that the OPs-Company shall endeavour to handover the same subject to force majeure circumstances. There is nothing on record to prove that the delay in construction of the project and the handing over of the flat was due to any of the force majeure circumstances mentioned under clause 5.2 of the agreement. OPs have also stated in its written statement that the unit was proposed to be delivered and time was not the essence of the contract and that the period of 48 months with an extended period of six months for delivery of possession was given on estimated basis. We are not inclined to accept this plea of the OPs as the OPs have travelled much beyond the stipulated date and there is sufficient delay in handing over the possession.
12. Furthermore, not committing specific date of delivery of possession of the unit(s) in the Floor 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 plots/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 endeavour to deliver possession by a particular date will also not meet the requirement of law and the promoter 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 opposite parties in this regard also stands rejected. It is to be further seen, as to whether, interest on the amount refunded, can be granted in favour of the complainant. It is not in dispute that huge amount was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by opposite parties for their own benefit. As such the complainant is liable to be compensated on account of his funds having been utilised by the OPs for a substantial period of time.
13. Now addressing the contention raised by the OPs that the complainant does not fall under the definition of ‘consumer’, as defined in the Act, on the ground that they purchased the unit, in question, for commercial purpose in order to earn profits/ speculation. In this regard, it is relevant to mention that opposite parties failed to prove that the complainant indulged in sale purchase of units for investment purpose. Hon’ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainant as consumer, observing that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainant or any one of them had booked the subject unit in the development project undertaken by the appellant with the intention to sell the flat on subsequent date for profit. In the case in hand also, there is no evidence led by the opposite parties to prove that the complainant indulged in investment purposes to earn profits and that she has purchased the unit, in question, for commercial purpose and speculative purposes. Therefore, the said objection of opposite parties is also rejected.
14. The opposite parties took another objection that the complaint is time barred. Admittedly the complainant made the payment of substantial amount towards the price of the flat in question to the opposite parties and the possession of the same has not been delivered to her till date nor the amount so deposited by her has been refunded despite repeated requests. It is now well settled that in such cases, there is a continuous cause of action till the possession is delivered or the amount is refunded along with interest, compensation and costs etc. Hon’ble National Commission in “Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr.” 2016(2) CLT 457 has held that unless or until the complainant get possession of the flats, she has got continuous cause of action. In para 8 of the said judgment it has been observed by the Hon’ble National Commission as under:-
“8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in “Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association” Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012.”
Since neither possession has been delivered nor the amount deposited by the complainant has been refunded till date, as such, in view of the ratio of the law laid down in the above noted authority, it is a continuous cause of action and the complaint filed by the complainant is within limitation.
15. All the above facts and circumstances clearly prove that the opposite parties have not complied with the various provisions of the PAPRA. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission. So, they violated Section 5 of PAPRA.
16. As per Section 3 (General Liabilities of Promoter) of the PAPRA, they were required to make full and true disclosure of the nature of their title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days’ notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, the opposite parties failed to comply with Section 3 of the PAPRA.
17. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, they also violated Section 9 of the PAPRA.
18. As per Rule 17 of the “Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided as under:-
17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment.”
19. The opposite parties had been collecting huge amounts from the buyers for the development of the project. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are also to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of plot within a reasonable period also amounts to deficiency in service on their part.
20. The C.P. Act came into being in the year 1986. It is one of the benevolent pieces of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainant has made payment of substantial amount to the opposite parties, with the hope to get the possession of the plot within a reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and development thereof within a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite parties, she would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot within a reasonable period. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties, i.e. builders, knew from the very beginning that they had not complied with various provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period and, thus, by misrepresentation induced the complainant to book the plot, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon’ble Supreme Court and the Hon’ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities.
21. Since no possession has been offered and the amount deposited by the complainant has also not been refunded till date therefore, the complainant has suffered harassment on account of deficiency in service by the OPs for which she is liable to be compensated.
22. The complainant in para No.5 of the complaint has pleaded that she paid a total sum of Rs.18,76,351/- to the OPs along with another sum of Rs.10 lakh in cash. The OPs in para No.5 of their reply denied that the complainant has paid a total sum of Rs.18,76,351/- or Rs.10 lakh in cash. However, as per Agreement Ex.C-3 and receipts/cheques Ex.C-5(colly) a total sum of Rs.14,36,792/- has been deposited by the complainant with the OPs on different dates. Perusal of e-mail Ex.C-6 clearly shows that an amount of Rs.18,00,431/- was received by the OPs from the complainant. As such, the refund of the amount of Rs.18,00,431/- along with interest is to be awarded in this case.
23. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:-
(i) to refund Rs. 18,00,431/- along with interest at the rate of 12% per annum from the date of deposit various deposits till realization, as per Rule 17 of PAPRA; and
ii) to pay Rs.30,000/-, as lumpsum compensation, for the mental agony and harassment suffered by the complainant towards litigation expenses.
Consumer Complaint No.04 of 2019
24. Similarly, in Consumer Complaint No.04 of 2019 (Manjit Singh Vs. Ansal Lotus Melange & Anr.), the complainant, who is working in Indian Overseas Bank, had booked Flat No.201, Tower No.12 in the said project measuring 1806 sq. ft for a total amount of Rs.43,09,639.74/- @ Rs.2386.29 per sq. ft. on 09.04.2013. However, the total cost plus service tax were enhanced to Rs.44,59,549/- as per the payment schedule and total area is also mentioned as 1806 sq. ft. Copy of allotment letter dated 22.05.2019, along with copy of payment plan as Ex.C-2 and their calculation sheet as Ex.C-2/1. Complainant obtained loan from Indian Overseas Bank for Rs.25 lakh and Tripartite Agreement Ex.C-3 dated 26.08.2013 was duly executed between the complainant and OPs and Indian Overseas Bank. OPs actually booked the above said flat at a rate of Rs.54,65,460/- along with PLC and Sale tax i.e. Rs.2,02,922/- the total amount of Rs.56,68,382/- was to be paid since the OPs requested for an adjustment towards the total payment schedule than Rs.10,00,000/- was paid in cash but no receipt was issued, however the said fact could be verified after calling all record during the said period. Complainant had arranged the funds after raising loan from the bank thus the buyer agreement is lying with the bank. Copy of tripartite agreement dated 26.08.2013 along with copy of statement of account of Bank dated 26.08.2013 as Ex.C-3 & Ex.C-4. As per the terms and conditions of the agreement as conveyed by the OPs the possession of the said flat was to be handed over within 48 months excluding six months grace period. OPs had assured that if the possession would not be hand over after expiry of grace period then he shall be paid rent @ Rs.5/- per sq. yds. Complainant had already paid a total sum of Rs.18,88,820/- to the OPs i.e. Rs.5,57,443/- from his own funds and Rs.13,31,277/- through bank as loan amount as per the schedule of payment. Complainant is still paying bank instalment which are scheduled to end in another 4-5 years. Complainant was paying the amount as per the schedule but when he visited the site to see the construction progress, he was surprise to notice that the Tower No.12 was still at its plinth level even till date. Complainant visited the office of OP No.2 and requested to complete their project but the official of OP No.2 kept on giving false assurances regarding completion of project. OPs No.1 & 2 failed to handover the possession of flat to the complainant and every time put off the matter on one pretext to the other. But after waiting for a sufficient time, when the OPs did not take any initiative, then the complainant requested for refund of whole amount to him to which the OP No.2 showed its inability to return the amount. OPs neither completed the project nor refunded the amount to the complainant till date. As per the terms and conditions of agreement, complainant was also entitled for the penalty of Rs.5/- per sq. ft but the OPs failed to even pay that amount. Complainant sent various emails but the OPs failed to reply on the same. Complainant also sent a legal notice dated 25.11.2018 requesting the refund of the entire amount of Rs.18,88,820/- and Rs.10 lacs along with damages and compensation. Thus, the complainant alleging deficiency in service and unfair trade practice on the part of the OPs filed present complaint seeking following directions to them:-
And
(viii) Any other relief, which this Commission may deem fit.
25. The opposite parties filed reply on the similar lines of their reply, as given in Consumer Complaint No.03 of 2019.
26. To prove his claim, the complainant filed, along with the complaint, affidavit and documents Ex.C-1 to Ex.C-6.
27. OPs have filed reply only by way of affidavit of Sh. Kuldeep Singh Bhatti, Authorized Signatory of OPs No.1 & 2 and no other document has been filed.
28. Perusal of receipts Ex.C-5(colly) shows that a sum of Rs.18,88,820/- was deposited by the complainant with the OPs on different dates, towards the price of the flat. However, the complainant has prayed for refund of Rs.18,76,351/- to the OPs and has also prayed for refund of Rs.10,00,000/- paid in cash along with interest @ 18% per annum. However, the OPs have denied the receipt of this amount and there is no cogent evidence to substantiate the claim of the complainant. As such, the refund of the amount of Rs.18,88,820/- is to be given along with interest. We find that the complainant is poorly drafted and the amount claimed in prayer clause as well as the amount deposited as per above receipts is varying.
29. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:-
(i) to refund Rs.18,88,820/- along with interest at the rate of 12% per annum from the date of deposit various deposits till realization, as per Rule 17 of PAPRA;
It is made clear that firstly the outstanding loan advanced by Indian Overseas Bank in favour of the complainant for making payment of price of the flat shall be refunded to Indian Overseas Bank and thereafter remaining amount if any shall be refunded to the complainant.
ii) to pay Rs.35,000/-, as lumpsum compensation, for the mental agony and harassment suffered by the complainant towards litigation expenses.
30. The compliance of the orders passed in all the complaints shall be made by the opposite party(s) within a period of 30 days of the receipt of certified copy of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL)
PRESIDENT
(MRS. KIRAN SIBAL)
MEMBER
April 12, 2019.
SK/-
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