Chandigarh

DF-II

CC/109/2016

Betty Thomos - Complainant(s)

Versus

Ansal Properties & Infrastructure Ltd., Regsitered Office, 115, Ansal Bhawan, 22 K.G. Marg, New Delh - Opp.Party(s)

Sh. Vineet Sehgal Adv.

30 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	109 of 2016
Date  of  Institution	:	12.02.2016
Date   of   Decision	:	30.01.2017

 

 

 

 

1]  Betty Thomas w/o Sh.Thomas Joseph,

2]  Thomas Joseph s/o Late Sh.V.M.Joseph,

Both r/o Flat No.215, United Co.Op Housing Society, Sector 68, Mohali, Punjab. 

             …..Complainants

Versus

 

1]  Ansal Properties & Infrastructure Ltd., Registered Office, 115, Ansal Bhawan, 22, K.G.Marg, New Delhi-01, through its Managing Director.

2]  The Branch Head, Ansal Lotus Melange Project Pvt. Ltd., sister concern of M/s Ansal Properties & Infrastructure Ltd., Chandigarh Office, SCO No.183-184, Sector 9, Chandigarh.

….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

         MRS.PRITI MALHOTRA             MEMBER

 

Argued by :-

Sh.Vineet Sehgal, Counsel for the complainant.

None for OPs.

 

 

PER PRITI MALHOTRA, MEMBER

 

 

          As per the case, the complainants applied for an apartment in the project of the OPs namely “Celebrity Suits”, City Centre, Sector 115, Mohali, vide application dated 10.3.2013 and paid Rs.1.00 lakh (Ann.C-1 & C-2).  Thereafter, the OPs allotted Apartment No.C438 having approx. area of 627 sq. ft. to the complainants on 10.4.2013 and issued allotment letter (Ann.C-3), according to which the total cost of the said apartment was fixed as Rs.18,62,190/-.  It is averred that as per Clause 11 of the allotment letter (Ann.C-3),  the OPs were to hand over the possession of the apartment within a period of 18 months from the date of allotment letter.  It is also averred that the complainants in different installments, had totally paid an amount of Rs.09,65,597/- (Ann.C-4 colly) to the Opposite Parties.  It is submitted tht the complainants had visited the site but found that the OPs have not been able to adhere to the construction schedule.  Further that the time was the essence of the contract as the complainants wanted to personally use the booked flat enabling them to reside there after retirement.  It is pleaded that as nearly more than 14 months had elapsed from agreed date of handing over of the possession of apartment allotted to the complainant, hence they are no more interested in taking over the possession, as the basic purpose for which it has been purchased has been vitiated and the complainants have been forced to arrange an alternative residential accommodation for them after retirement of complainant NO.2.  Then the complainants sent legal notice to the OPs for refund of the amount of Rs.9,65,597/-, but to no avail. Alleging the said act of OPs as deficiency in service, this compliant has been filed.

 

2]       Opposite Parties in the reply while admitting the factual matrix of the case, stated that the language used in Clause 11 of the Allotment letter highlights the fact that the possession of the allotted unit was proposed to be delivered in 18 months’ time from the date of allotment after all necessary approvals and sanctions had been obtained from the Govt./Local Authorities/Sanctioning Authority.  It is asserted that the time was not the essence of the contract and that the period of 18 months for delivery of possession was given on estimate basis and therefore it has been mentioned as ‘proposed to be delivered’ and a definite period has not been given for delivery of possession. It is pleaded that the complainants are not ‘consumers’ under section 2(d) (ii) of the Consumer Protection Act as the investment in the property of OPs by the complainants is purely for commercial purpose and speculative investment and not for any personal use. Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

3]       The Complainants have also filed replication thereby reiterating the averments as made in complaint and controverting that of the Opposite Parties made in the reply.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld. Counsel for the parties and have also perused the record as well as written arguments.  

 

6]       Before coming to the merits of the complaint, it will be appropriate to look into the preliminary objections of the Opposite Parties. The Opposite Parties in preliminary objections have stated that the complainants are not ‘Consumers’ as defined under section 2 (1) (d)  (ii) of Consumer Protection Act. We have gone through the documentary evidence led by the parties. The Opposite Parties have failed to show the indulgence of the complainants in the business activity of buying and selling properties in order to gain any benefit. Therefore, this objection of Opposite Parties is not sustainable and the same is rejected accordingly. 

 

7]       Now coming to the question, as to whether, the complainants are entitled to refund of deposited amount with interest or not. The answer to this question is in the affirmative. Undisputedly, the OPs have received a total sum of Rs.9,65,597/- from the complainants towards the apartment in question allotted to the complainants. It is also not denied by the Opposite Parties that the project has not been completed or the apartment is not ready for delivering its possession to the complainants. 

 

8]       As per the arguments submitted as well as per the reply of the OPs, one thing is clear that the Opposite Parties have not been granted all necessary permissions/approvals from the departments concerned, necessary for the establishment of the project at the time of taking the booking amount from the complainants. 

 

9]       According to law, the Opposite Parties could not start booking of the residential plots, and obtain money from the innocent consumers, before actually the license and all the permissions and sanctions had been granted to them, by the Competent Authority. In case Kamal Sood Vs. DLF Universal Ltd., reported as  III(2007) CPJ-7 (NC), it  was held by the Hon’ble National Commission, that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, and schematic building plan. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the flats/building.

 

10]      The ratio of law, laid down, in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. If the bookings are made and the booking amount is collected, before obtaining the necessary sanctions, permissions, licenses and without getting the necessary approvals, the same amount to indulgence into unfair trade practice, on the part of the builder.

 

11]      In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The Opposite Parties are jointly & severally directed as under ;-

1. To refund the amount of Rs.9,65,597/- to the complainants along with interest @12% p.a. from the date of respective deposit(s) till actual payment.
2. To pay a sum of Rs.25,000/- as compensation to the complainants on account of mental tension, agony, harassment.
3. To pay Rs.10,000/- as litigation expenses.

         This order shall be complied with by the Opposite Parties jointly & severally within one month from the date of receipt of its certified copy, failing which, they shall be liable to refund the amount of Rs.9,65,597/- to the complainants along with interest @18% p.a. from the date of respective deposit(s) till actual payment and compensation amount of Rs.25,000/- alongwith interest @ 18% p.a. from the date of filing of the present complaint, till its realization, besides costs of litigation.

        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

30^th January, 2017                                               

                                                                                                Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

                                                                                                                      

                                                                                      Sd/-

                                                                             (PRITI MALHOTRA)

                                                                                      MEMBER

 

 

Sd/-

(RAVINDER SINGH)

MEMBER