Chandigarh

StateCommission

CC/20/2020

Sanjay Wadhwa - Complainant(s)

Versus

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

Rachit Kaushal Adv.

29 Dec 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	20 of 2020
Date of Institution	:	15.01.2020
Date of Decision	:	29.12.2020

Sanjay Wadhwa S/o Vijay Kumar Wadhwa, R/o H.No.499, Second Floor, Block C, Near Sushant Archade, Sushant Lok Phase-I, Gurgaon, Haryana – 122001.
Priyanka Wadhwa W/o Sanjay Wadhwa R/o H.No.499, Second Floor, Block C, Near Sushant Archade, Sushant Lok Phase-I, Gurgaon, Haryana – 122001.

…… Complainants

Versus

Ansal Lotus Melange Projects Pvt. Ltd., SCO 12-A,Ansal City Centre, Kharar-Landra Road, Sector 115, S.A.S. Nagar, Mohali through its Director/Authorised Signatory.

HEAD OFFICE:- A-1/18B, Asif Ali Road, New Delhi – 110002 through its Managing Director/Director.

....Opposite Party.

Complaint u/s 17 of Consumer Protection Act, 1986

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

MRS. PADMA PANDEY, MEMBER.

MR. RAJESH K. ARYA, MEMBER.

Argued through Video Conferencing:-

Counsel for the complainants :Sh. Rachit Kaushal, Advocate.

Counsel for the opposite party :Sh. Mukesh Pandit, Advocate.

PER RAJESH K. ARYA, MEMBER

In this complaint, the complainants have sought possession of the commercial space showroom GF-4, measuring 1155.42 sq. ft. (107.38 sq. mtrs) allotted by the opposite party vide allotment letter dated 03.07.2014, Annexure C-2, in its project i.e. City Centre, situated at Kharar Landran Road, Sector 115, Mohali Punjab and also compensation by way of interest @18% p.a. for the delay period in offering/delivering possession of the said commercial space on the deposited amount from the respective dates of deposit till actual physical possession is given to the complainants complete in all respects as promised in the allotment letter dated 03.07.2014. The total sale consideration of the said showroom was Rs.26,66,260/- against which, the complainants had paid an amount of Rs.24,78,063/- as stated in para 4 of the complaint. As per Clause 13 of the allotment letter, possession of the said unit was proposed to be delivered by the opposite party within 30 (thirty) months from the date of booking/allotment. It has been stated that the opposite party failed to offer/deliver actual physical possession of the unit, in question, within the stipulated period and also till the date of filing the complaint.

2. By stating that the aforesaid act and conduct of the opposite party amounts to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the complainants.

3. The opposite party filed its written statement in the shape of an affidavit wherein, they have stated that the complainants did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as they booked the unit, in question, for commercial purpose and not for earning livelihood by means of self-employment. However, on merits, it was denied that the opposite party was bound to handover possession within 36 months from the date of booking/allotment. It was stated that the complainants have misread Clause 13 of the agreement and same cannot be construed in isolation and should be read as a whole. It was further stated that the offer of possession was sent to the complainants through registered post on 30.10.2018 vide offer of possession letter dated 30.10.2018 (Annexure OP-1). It was further stated that Partial Completion Certificate (Annexure OP-2) had also been issued to the opposite party by Nagar Council, Kharar on 14.10.2016. It was further stated that more than two years have elapsed till date and the opposite party has not cancelled and deducted 20% of the sale price. It was further stated that the opposite party is still ready to get registered the sale deed in favour of the complainants. It was further stated that the complainants cannot claim interest after the date of offer of possession, rather as per clause 5 of the agreement, the opposite party shall charge holding charges from the complainants because since last one year, the complainants have not come forward to take possession of the unit and get registered the sale deed. It was further stated that neither there was any deficiency, in rendering service, on the part of the opposite party, nor it indulged into unfair trade practice.

4. The Parties led evidence, in support of their case.

5. We have heard the Counsel for the parties and have carefully gone through the evidence; record of the case.

6. Before dwelling on to the issues involved in this complaint, it is important to mention here that on 28.05.2020, Counsel for the opposite party submitted that possession of the commercial space showroom GF-4, allotted to the complainants, is ready and the complainants can take possession of the same anytime. On the other hand, Counsel for the complainants submitted that the possession letter dated 30.10.2018 (Annexure OP-1) was sent by the opposite party on the wrong address and the complainants never stayed at House No.2217, First Floor, Sector 15-C, Chandigarh, rather, they are staying at the same address as shown in the allotment letter dated 03.07.2014 (Annexure C-2). He further submitted that still the complainants are willing to take possession of the allotted commercial space forthwith and without any further delay. Accordingly, this Commission directed the opposite party to deliver physical possession of the commercial space No.Showroom GF-4 within a period of one month.

7. Thereafter, on the next date of hearing i.e. 07.07.2020, Counsel for the opposite party informed having sent an email dated 06.07.2020 wherein it was stated that possession of the allotted commercial space has been handed over to the complainants, who accepted the same. Alongwith the said email, copy of handing over of possession letter dated 25.06.2020 was also placed on record. Thus, the issue qua possession of the unit, in question, has been settled.

8. First coming to the objection raised to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such, the onus shifts to the opposite party to establish that the complainants have purchased the unit, in question, to indulge in ‘purchase and sale of apartments/flats’ as was held by the Hon’ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since the opposite parties failed to discharge its onus, hence we hold that the complainants are consumer as defined under Section 2(1)(d) of the Act.

9. Now coming to the merits of the case, as stated above, possession of the unit, in question, has been delivered by the opposite party to the complainants on 25.06.2020. Admittedly, as per Clause 13 of the allotment letter dated 03.07.2014, Annexure C-2, possession of the said unit, in question, was proposed to be delivered by the opposite party within 30 (thirty) months from the date of booking/allotment, which period expired on 02.01.2017. Neither in the entire written statement nor during the course of arguments, has the opposite party explained the reasons, for not offering the possession within the aforesaid stipulated period i.e. by 02.01.2017, the committed date of delivery of possession. Furthermore, there is nothing on record to show that the opposite pary suffered any force majeure circumstances, on account of which, the possession of the unit, in question, was not delivered to the complainants within the stipulated period or up-to 25.06.2020. We accept the submission of the complainants that the letter dated 30.10.2018 (Annexure OP-1) vide which, possession of the unit, in question, was offered never reached the complainants as they never stayed at House No.2217, First Floor, Sector 15-C, Chandigarh, rather, they are residing at the address i.e. H.No.499, Second Floor, Block C, Near Sushant Archade, Sushant Lok Phase-I, Gurgaon, Haryana, which was the same address as was mentioned in the Allotment Letter dated 03.07.2014, Annexure C-2, at the time of its execution. Thus, the plea of the opposite party that the complainant is entitled for interest only up-to the date of offer of possession i.e. 30.10.2018 and further they can charge holding charges, is bereft of any merit and is out rightly rejected.

10. From the peculiar circumstances of this case, it has been proved that the opposite party made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in a disadvantageous contract with the opposite party and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainants to enter into the contracts by way of signing allotment letter/agreement, referred to above, and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite party.

11. The opposite party also cannot evade its liability, merely by saying that since the words ‘proposed’ was mentioned in clause 13 of the allotment letter, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. It may be stated here that non-mentioning of exact date of delivery of possession of the apartments/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 apartments/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 party in this regard also stands rejected.

12. Now the question which arises for consideration, is, as to for which period, the complainants are entitled for compensation for delay in delivering possession of the unit in question. We have observed that in such cases, the Hon’ble Supreme Court of India and the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, are granting interest ranging between 8.5% to 9.5% p.a. on the deposited amount, for the period of delay in offering possession. As such, we are of the considered opinion that interest @9% p.a., if granted, on the deposited amount for the delayed period i.e. from 03.01.2017 to 25.06.2020, would meet the ends of justice.

13. No other point was urged by the contesting parties.

14. For the reasons recorded above, this complaint is partly accepted with costs. The opposite party is held liable and directed as under: -