Punjab

StateCommission

CC/310/2017

Ankur Sharma - Complainant(s)

Versus

Ansal Lotus Melange Projects Pvt. Ltd. - Opp.Party(s)

Ravinder Pal Singh

19 Apr 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,     PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   Consumer Complaint No.310 of 2017

 

                                                          Date of Institution   : 03.05.2017        

                                                         Order Reserved on : 18.04.2018

                                                         Date of Decision     : 19.04.2018

 

Ankur Sharma s/o Sh. Kishori Lal Sharma R/o H.No. 6, Brijeshwari Vihar, Jogipur Road, Kangra, Himachal Pradesh.

 

Now Resident of Flat No. 4601, Darshan Nagar, Sector 68, Mohali, Punjab.                                                                                                                                                                                                                                                                                             ….Complainant

                                      Versus

 

1.      Ansal Lotus Melange Projects Pvt. Ltd., Regd. Office at A-1/18,       Asaf Ali Road, New Delhi 110002.

 

2.      Ansal Lotus Melange Projects Pvt. Ltd. SCO No.183-184,       Sector 9-C, Chandigarh 160009.

 

                                                                        ….Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :  Sh. R.P Singh, Advocate

          For opposite parties         :  None

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that he purchased unit/shop          measuring a super area of 53.14 sq. mtrs  (572.09 sq. ft) in City Centre project of OPs in Sector 115 Mohali for the purpose of earning his livelihood  by means of self-employment exclusively. He submitted his application form dated 29.10.2010 with an amount of Rs.1,96,343/- in cash, which was duly acknowledge by OPs, vide receipt dated 04.12.2010. It was held out to him that the project of OPs has been duly approved by the Government of Punjab. He was allotted Shop no. 27 FF in City Centre project of OPs, vide allotment letter/agreement dated 06.12.2010 for a total consideration of Rs.20,16,644/-. The complainant also paid another amount of next installment of Rs.3,20,800/-, vide SBI /ICIC Cheques no.(s) 556467 and 443696 for Rs.3,12,747/- and Rs.8,053/- respectively on 20.04.2011. The terms and conditions of the allotment letter were lopsided in favour of OPs, since complainant purchased the shop for running his salon business at Mohali. It was agreed upon between the parties that under Clause 11,  the possession of the  said shop  would be delivered to purchaser within three years from the date of booking/allotment. The booking date was 29.11.2010 and allotment letter was signed on 06.12.2010. Three years period expired for delivery of possession both from booking or from allotment letter, as the case may be. The complainant has made below noted payments of amounts to OPs :-

S.No.	Particulars	Amount
1.	Booking Amount (Cash)	1,96,343/-
2.	Installment vide SBI/ICICI cheques no.(s) 556467 and 443696 for Rs.3,12,747/- and Rs.8,053/- respectively both dated 20.04.2011.	3,20,800/-
3.	Installment vide HDFC Bank cheque no. 237231 dated 29.07.2011 under receipt dated 01.08.2011.	2,06,858/-
4.	Installment vide ICICI/HDFC Bank cheque no.(s) 978763 and 237238 dated 20.08.2012 under receipt dated 28.08.2012.	2,07,896/-
5.	Installment vide HDFC Bank cheque no. 237234 dated 07.09.2011 under receipt dated 26.09.2011.	2,01,801/-
6.	Installment vide PNB cheque no. 366650 dated 20.12.2012 under receipt dated 05.01.2013.	58,783/-
7.	Installment vide ICICI Bank cheque no. 978777 dated 10.12.2012 under receipt dated 12.12.2012	2,57,000/-
8.	Installment vide ICICI Bank cheque no. 978778 dated 15.03.2013 under receipt dated 16.03.2013	1,00,000/-
9.	Installment vide ICICI Bank cheque no. 978769 dated 12.09.2014 under receipt dated 19.09.2014.	2,09,725/-
	Total Amount paid by Complainant	Rs.17,59,206/-

 

The complainant has paid the amount of Rs.17,59,206/- with service tax to OPs out of sale consideration of Rs.20,16,644/-, which is about 87.27% of the total price of the  shop/unit. OPs have not developed the project and there was no sign of possession despite lapse of more than six years period. OPs failed to develop the project, as per the assurance given by it. Vide letter dated 16.10.2014, complainant requested OPs to allot him a shop/unit measuring 1155 sq. ft at Ground Floor in place of allotted shop/unit no. 27 FF at First Floor and he was to pay the difference of the amount in that regard. OPs without taking prior consent /approval of the complainant changed number of shop/unit from 27-FF to 24-FF of its own and also changed super area thereof by decreasing it from 572.09 sq. ft  to 565.50 sq. ft. This is sheer unfair trade practice on the part of OPs. The complainant requested OPs to complete the project, but to no effect. OPs assured the complainant that there would be ample parking space with gated complex and hotels at 2nd and 3rd floor of the project. There would be elevators to facilitate the public as well as the owners as assured. OPs effected major changes in the project and project has not gated complex after giving way to imperial heights residential apartments, which are behind this project built by another builder and parking area stood reduced thereby. OPs made no provision for escalators, as projected in the brochure. The complainant time and again visited the office of OPs at Chandigarh requesting them to refund the amount along with interest, but of no use. The complainant has sought below noted reliefs against OPs:-

i)        OPs be directed to pay the amount of Rs. 17,59,206/-,which   has been deposited by complainants along with interest @ 18% p.a.

ii)       OPs be directed to pay Rs.5 lac as compensation for mental harassment and deficiency in service and Rs. 5 lac for unfair trade practice.

iii)      OPs be directed to pay Rs.55,000/- as cost of litigation.

2.                Upon notice, OPs appeared and filed written reply and contested the  complaint of the complainant. Preliminary objections were propounded by OPs that project is purely commercial and complainant invested in speculative purposes in it and is not consumer of OPs. Letter dated 26.11.2014 clearly stated that there was a change in numbering of the shops in Clock C of City Centre without change in location thereof. The complainant himself breached the terms and conditions of the allotment letter dated 06.12.2010 willfully and defaulted in payment of the demanded installments. OPs pleaded that possession has not been delivered to complainant within stipulated period and it is liable to be negated in view of Clause 11 of allotment letter giving tentative period of three years for delivery of possession of allotted unit from date of booking/allotment. Possession of the  allotted unit was proposed to be delivered in three years time from the date of allotment, when all the necessary approvals and sanctions were obtained by OPs from the authorities. Time was not the essence of the contract and three years period for delivery of possession was given on estimate basis. There is arbitration clause in the allotment letter and as such, consumer complaint in the presence of the same is not maintainable. OPs contested the complaint of the complainant in merits. This fact was admitted by OPs that complainant purchased unit/shop in the City Centre, whereof allotment letter dated 06.12.2010 was issued to him. The total sale price of the shop was Rs.21,88,243/-.  Rest of the averments of the complainant were denied by OPs and they prayed for dismissal of the complaint.

3.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-2 to Ex.C-10 and closed the evidence.

4.                No evidence was led by OPs, nor anybody appeared for OPs in this case despite granting sufficient opportunities and eventually evidence of OPs was closed on 03.04.2018 by order. No evidence has come forth on the record from the side of the  OPs

5.                We have heard learned counsel for the complainant and have also examined the record of the  case, as none appeared for OPs for the last so many dates in this case.

6.                The evidence on the record has been referred to by us for proper adjudication of the controversy in this case. The complainant Ankur Sharma tendered in evidence his affidavit Ex.C-A on the record. He stated his case on oath as per averments, contained in the complaint. He stated that he booked shop with OPs under City Centre at Section 115 Mohali and paid an amount of Rs.1,96,343/- in cash to OPs, vide receipt Ex.C-1. This witness has further stated that shop bearing no. 27 FF in the City Centre project was allotted to him by OPs, vide allotment letter dated 06.12.2010 for total sale price of Rs.20,16,644/- . He further stated that he has paid another amounts to OPs from time to time, vide receipts Ex.C-2 and Ex.C-3 on the record. It has appeared in his testimony that as per Clause 11 of the allotment letter, the possession of the shop was to be delivered by the OPs to purchaser within three months from the date of booking of allotment. The date of booking was 29.11.2010 and date of allotment of the shop was 06.12.2010 and three years period taken from either of the too already stood expired, but possession of the allotted shop has not been delivered to him. He further stated that he has paid total amount of Rs.17,59,206/- as given in the table in his affidavit to OPs in the shape of installments to the extent of 87.27% of the total sale consideration. He proved  payment receipts Ex.C-4 (colly). This witness further stated that six years period has been over, but there is no sign of development of project for delivery of possession of the allotted shop to him by OPs. The development work is still incomplete by OPs in the project and he relied upon photograph Ex.C-10 in this regard to substantiate it. He testified in his affidavit that OPs at their own changed number of shop from 27 FF to 24 FF by decreasing super area thereof, which is deficient in service on the part of OPs. He further stated that he has been carrying on his work in his leased shop and eviction proceedings have been commenced against him, vide Ex.C-8 and C-9. He further stated that OPs failed to provide any elevator as promised in the project and also reduced parking area arbitrarily and changed gated complex without any consent. He has alleged deficiency in service on the part of OPs for not delivering the possession to him within scheduled time. He seeks refund of the deposited amount due to deficient act of OPs in this case in his statement.

7.                OPs were to lead rebuttal evidence to refute this evidence of the complainant. We find that after the evidence of complainant was closed, the case remained pending for evidence of OPs. No evidence of OPs was led by them nor anybody appeared for OPs in this case despite granting sufficient opportunities and eventually evidence of OPs stood closed on 03.04.2108 by order. No evidence has come forth on the record from the side of OPs.

8.                From careful appraisal of above referred evidence on the record of the  complainant, which has gone unrebutted by OPs., it is proved fact that complainant purchased the shop for earning his livelihood by means of self-employment exclusively. Undoubtedly, project is commercial but case of the complainants falls within the exception of Section 2(i)(d) of Consumer Protection Act 1986, as such complainant is held to be consumer. The complainant has paid substantial amount out of the sale consideration amount to OPs to the extent of 87.5%, but OPs have not delivered the possession to complainant nor developed the project in time bound manner. The allotment letter governs the relationship between the parties in this case. Reference to clause 11 of allotment letter Ex.C-2 has proved that OPs proposed to deliver the  possession of the  unit to allottee within three years from the date of booking of allotment by develping the project, once all necessary approvals and sanctions have been obtained from Sanctioning Authority. Three years time for delivery of possession and for development of the project is quite reasonable time. We cannot expect OPs to take more than three years period for development of the project. No force majeure circumstances have been pleaded or proved on the record by OPs. Consequently, we have come to this conclusion that the period prescribed for delivery of possession being three years from the date of booking or allotment, whatever the case may, has already expired. Many years have past down the line since then, but OPs have not completed the project nor delivered the possession of the allotted unit to the complainant. No completion certificate or occupancy certificate has come forth on the record regarding completion of this project as required by Section 14 of PAPRA Act 1995. Even evidence of complainant has gone unrebutted on the record to the effect that OPs have changed many facilities in the project to the detriment of the consumers like elevator, reduced parking and so on. OPs also changed shop number of the complainant without his express approval, as testified on oath by the complainant. The complainant has been carrying on his work in leased premises and he stated that eviction proceedings have been initiated against him before Rent Controller by the landlord. Photograph Ex.C-5 has shown that project is still not complete and it is under construction. The hard-earned money of the complainant cannot be expected to be utilized by OPs for an indefinite period. OPs have not complied with the requirement of PAPRA Act 1995 in this case for non-delivering the possession of the project within time. There is no question of launching the project by OPs and in receiving the money from the complainant before obtaining the statutory sanctions for its development. Non delivering the possession within scheduled time despite receipt of substantial amount of sale consideration from consumers has been held to be deficiency in service and unfair trade practice by National Commission in "EMAAR MGF Land Limited and another Vs. Dyal Singh, Gurdev Singh Badial" 2015(IV)CPJ-294(NC) that the builders are enjoying the possession of the apartment as well as substantial amount of sale consideration paid by the consumers by not delivering the legal physical possession of apartment within prescribed period and hence are guilty of indulging in unfair trade practice. Such type of unscrupulous act on the part of builders should be dealt with heavy hands. The National Commission has also held in "EMAAR MGF Land Limited & another Vs. Dilshad Gill" III(2015)CPJ-329 (NC) as under:

          "Consumer Protection Act, 1986- Section 2(1)(g), 2(1)(r),         21(a)(ii)- Housing - Allotment of flat- Non-delivery of   possession- Deficiency in service- Unfair trade practice- State    commission partly allowed complaint- Hence appeal- Appellant        did not offer possession within period prescribed under        agreement- Appellants themselves have violated material         conditions with regard to handing over of possession- Now it      does not lie in their mouth to demand further payment from           respondent - Appellants have been enjoying substantial          amount of money received by them in year 2006, till 2013-        Deficiency proved.

On the basis of law laid down in the above authorities, we hold that OPs are deficient in service and also indulging in unfair trade practice thereby entitling the complainant to seek refund of entire deposited amount with interest from OPs.

9.                As a result of our discussion, we accept the complaint of the complainant on account of deficiency in service and unfair trade practice of OPs, in not delivering the possession within scheduled time by developing the project to the complainant, despite receipt of substantial amount of sale consideration. Below noted directions are given to OPs:-

i)        OPs are directed to refund Rs.17,59,206/- to complainant with         interest @ 12% per annum from the date of their respective    deposits till actual payment under Section 12 and Rule 17 of   PAPRA Act 1995.

ii)       OPs are also directed to pay Rs.50,000/- as compensation for         mental harassment and Rs.20,000/- as costs of litigation to        complainant.

          Compliance of the order be made within 45 days from receipt of certified copies of this. order

10.              Arguments in this complaint were heard on 18.04.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

11.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

April 19,  2018                                                               

(ravi)