Chandigarh

DF-I

CC/703/2015

Lovely Kohli - Complainant(s)

Versus

Ansal Properties & Infrastructure Ltd. - Opp.Party(s)

Vineet Sehgal

30 Jan 2017

ORDER

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

============

(1)  Lovely Kohli w/o Sh. Naveen Chander Kohli;

(2)  Naveen Chander Kohli S/o Late Sh. Brij Mohan Kohli;

     Both R/o H.No. 227C, Street No.1, Tagore Nagar, Hoshiarpur, Punjab.

……….. Complainants.

VERSUS

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

(2)  The Branch Head, Ansal Lotus Melange Projects Pvt. Ltd., I

Sister concern of M/s Ansal Properties & Infrastructure Limited, Chandigarh Office, SCO No. 183-184, Sector 9, Chandigarh.

……….. Opposite Parties  

BEFORE:   SH.S.S. PANESAR              PRESIDENT

          MRS.SURJEET KAUR             MEMBER

          SH. SURESH KUMAR SARDANA     MEMBER

PER SURJEET KAUR, MEMBER

1.      Tersely, the facts and material, culminating in the commencement, relevant for the disposal of the instant Consumer Complaint and emanating from the record are that, the Complainants booked a Celebrity Suite in the project of the Opposite Parties at City Centre, Sector 115, Mohali, on 10.03.2013, after making payment of Rs.96,956/-. Pursuant thereto, the Opposite Party No.2 issued allotment letter/agreement for Apartment No.C437 having approx. area of 627 sq. ft. to the Complainants on 10.4.2013. The total consideration of the said Celebrity Suite allotted to the Complainants was fixed as Rs.18,62,190/-. Thereafter, the Complainants paid an amount of Rs.9,67,290/- upto 9.1.2014 vide different dates as per the payment Schedule. It has been alleged that as per Clause 11 of the allotment letter, the Opposite Parties were bound to offer possession of the Unit allotted to the Complainants by 10.12.2014 (within 18 months from the date of allotment letter), but even on several queries made by the Complainants to the representatives of the Opposite Parties, no satisfactory reply was given with regard to the status of construction and handing over of possession of the same. Left with no other alternative, the Complainants visited the site of the Project on 11.06.2015 and were shocked to see that even the basic construction of the apartments were not initiated. Eventually, the Complainants served a legal notice (Annexure C-6) dated 2.9.2015 upon the Opposite Parties to refund the amount of Rs.9,67,290/- along with interest, but to no success. When all the frantic efforts made by the Complainants, failed to fructify, as a measure of last resort, alleging that the aforesaid acts of the Opposite Parties tantamount to deficiency in service and unfair trade practice, the Complainants have filed the instant Complaint u/s 12 of the Consumer Protection Act, 1986, seeking various reliefs.

2.      Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.      Opposite Parties in their reply, while admitting the factual matrix of the case have pleaded that time was not the essence of the contract and that the period of 18 months for delivery of possession was given on estimate basis. Had time been the essence of the contract, then the phrase ‘proposed to be delivered’ would not have been used and instead a definite period would have been given for delivery of possession. Denying all other allegations Opposite Party No.1 has prayed for dismissal of the complaint. 

4.      Controverting the allegations contained in the written statement by Opposite Parties and reiterating the pleadings in the Complaint, the Complainants filed the replication.

5.      Parties were permitted to place their respective evidence on record in support of their contentions.

6.      We have heard the learned counsel for the Complainants and have also perused the record along with the written arguments filed by the parties.  

7.      It is an admitted fact of the case and is evident from Annexure C-4 the copies of the receipts produced on record by the Complainants that they paid Rs.9,67,290/- to the Opposite Parties for the purpose of buying a Celebrity Suite in their project.

8.      The sole grouse of the Complainants is that despite making the aforesaid payment of Rs.9,67,290/-, as per the payment schedule, the Opposite Parties did not offer the possession of the Suite to them by 10.12.2014 i.e. within a period of 18 months from the date of the allotment letter as per their own terms and conditions.

9.      Annexure C-5 are the various photographs appended with the Complaint showing the incomplete infrastructure of the construction site of the Opposite Parties. It has been alleged that till date the Opposite Parties have not clarified that when they will be able to give the possession and also even during the proceedings of the present case the Opposite Parties failed to make such kind of offer to hand over the possession of the Suite to the Complainants.    

10.      The stand taken by the Opposite Parties is that the complainants is not ‘Consumers’ as defined under the Consumer Protection Act, 1986.  As per Opposite Parties, the complainants had invested in the property for commercial purposes and speculative investments and not for their personal use and therefore, they are not covered under the definition of consumers.  We have gone through the documentary evidence led by the parties in this regard. The Opposite Parties have failed to show the indulgence of the complainants in the business activity of buying and selling properties. Furthermore, the Complainants have specifically pleaded in the Complaint that they wanted to personally use the flat booked with the Opposite Parties, thereby enabling their children to get better education at Chandigarh. Therefore, the plea of the Opposite Parties is not sustainable and the same is rejected accordingly. Here we are fortified by the judgment passed by the Hon’ble National Commission, titled as Kavit Ahuja Vs. Shipra Estate Limited and Jai Krishna Estate Developers Private Limited, Consumer Complaint No.137 of 2010, decided on 12.02.2015. Similar plea was raised, in that case. The National Commission while interpreting the provisions of Section 2 (1) (d) of the Act, held as under:-

“Going by the Dictionary meaning of the expression ‘Commerce’ as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged.  In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services.  It would ordinarily include activities such as manufacturing, trading or rendering services.  In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses.  If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose.  A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment.  He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc.  Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house (s) is higher than the price paid or agreed to be paid by him.  That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).

Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity”   

          In the instant case since the Opposite Parties have failed to produce on record any evidence that the complainants have purchased the apartment in question for earning profit. Hence the afore-extracted judgment is squarely applicable to the facts of the instant case. Thus, plea taken by the Opposite Parties that the apartment was purchased for commercial purpose is rejected.

11.      As per Clause 11 of the allotment letter (Annexure C-3), it has been specifically assured to the Complainants that the possession of the unit allotted to them would be handed over to them within a period of 18 months from the date of allotment letter. The said Clause is reproduced below: -

“11.  That the possession of the Unit is proposed to be delivered by the Company to the allottee in 18 (Eighteen) months time from the date of allotment, subject however, to force majeure circumstances and reasons beyond the control of the Company. If the completion of the said Complex is delayed by reason of non-availability of steel and/or cement or other building materials, or water supply or electric power slow down, strike or due to civil commotion or by reason of war or enemy action or earthquake or any act of God or if non delivery is as a result of any act, notice, order, rule or notification of the Govt. and any other public or Competent Authority or for any reason beyond the control of the Company, then in any of the aforesaid event, the Company shall be entitled to a reasonable extension of time for delivery of possession of the Unit.”

12.      The Opposite Parties have contended that time was not the essence of the contract and that the period of 18 months for delivery of possession was given on estimate basis subject to the force majeure circumstances. In our opinion, the Opposite Parties have failed to prove on record any force majeure circumstances, which prevented them to deliver the possession of the unit within stipulated period. The opposite parties also cannot evade their liability, merely by saying that time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the Buyer’s Agreement, is itself 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 unit(s) to the allottees/purchasers thereof. It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. Versus Sahajan and 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, the stand taken by the Opposite Parties stands rejected.

13.      The next contention of the complainants is that the Opposite Parties have indulged in unfair trade practice by booking the Suite without getting the necessary sanctions/ permissions/ approvals from the competent authorities. We find force in this contention of the complainant because the Opposite Parties have failed to place on record any document to show that they have obtained the sanctions/ permissions/ approvals from the competent authorities prior to the booking of the Suite. Otherwise also, according to law, they could not start booking of the Suite, and obtain money from the innocent consumers, before actually the licence 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 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. 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 amounts to indulgence into unfair trade practice, on the part of the builder. Moreover, the complainant cannot be forced to wait for the delivery of the possession for an unlimited period and as such he was right in seeking refund of the deposited amounts.

14.      In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in rendering proper service to the complainant and also indulged into unfair trade practice. Hence, the present complaint of the Complainant is allowed. The Opposite Parties are, jointly and severally, directed as under:-

[a]    To refund an amount of Rs.9,67,290/- to the complainants;

[b]    To pay a sum of Rs.50,000/- as compensation to the complainants on account of mental tension, agony, harassment. 

[c]    To pay an amount of Rs.10,000/- as litigation expenses.

15.      The order shall be complied with by Opposite Parties within 30 days from the date of receipt of its certified copy, failing which, they shall be liable to pay interest @12% per annum, on the amount as mentioned in sub-para (a) & (b) above, from the date of filing this complaint, till realization, besides paying litigation expenses mentioned in sub-para (c) above.

16.      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/-

(S.S. PANESAR)

PRESIDENT

Sd/-

 (SURJEET KAUR)

MEMBER

Sd/-

(SURESH KUMAR SARDANA)

MEMBER

“Dutt”