Chandigarh

StateCommission

CC/422/2016

Mr. Hardeep Singh - Complainant(s)

Versus

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

Inderpal Singh Bhinder, Adv.

08 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	422 of 2016
Date of Institution	:	03.08.2016
Date of Decision	:	08.02.2017

 

Mr. Hardeep Singh son of Ravinder Pal Singh resident of House No.3451, Sector 45-D, Chandigarh (through his General Power of Attorney holder Mr.Satpreet Singh son of Ravinder Pal Singh resident of House No.3451, Sector 45-D, Chandigarh).

……Complainant

V e r s u s

Ansal Properties & Infrastructure Ltd., SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh, through its Managing Director.

2^nd Address :-

Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan 16, Kasturba Gandhi Marg, New Delhi through its Managing Director.  

                                                    .... Opposite Party

Argued by:      

 

Sh.  Inderpal Singh Bhinder, Advocate for the complainant.

Ms. Kashika Kaur, Advocate for the Opposite Party.

(Opposite Party already exparte vide order dated 19.01.2017).

 

Complaint case No.	:	496 of 2016
Date of Institution	:	22.08.2016
Date of Decision	:	08.02.2017

 

1. Som Dutt Verma S/o Lt. Des Raj,

 

2. Deepak Verma S/o Sh. Som Dutt Verma,

 

Both residents of Ward No.6, Main Bazar, Balachaur, District SBS Nagar, Punjab – 144521.

 

2^nd Address of complainant No.2 – H.No.249, Phase 2 (Sector 54), Mohali, SAS Nagar, Punjab – 160055.

 

……Complainants

V e r s u s

1. The Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi, 110001, through its Managing Director or through their authorized signatories namely Amit Raina and Darshan Bitta being signatory to the agreement ;

 

2. Ansal Properties & Infrastructure Limited, through its Managing Director/Proprietor/Manager/Owner,

       SCO No.183-184, Sector 9-C, Madhya Marg, Above British Library, Chandfigarh – 160009.   

                                                     

                                             .... Opposite Parties                

BEFORE:         JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                        MR. DEV RAJ, MEMBER.

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:      

 

Sh.  Subhashish Kukreti, Advocate for the complainants.

Ms. Kashika Kaur, Advocate for the Opposite Parties.

(Opposite Parties already exparte vide order dated 19.01.2017).

 

PER PADMA PANDEY, MEMBER

 

              By this order, we propose to dispose of, following cases:-

1.	CC/422/2016	Hardeep Singh	Vs.	Ansal Properties & Infrastructure Ltd.
2.	CC/496/2016	Som Dutt Verma & Anr.	Vs.	The Ansal Properties & Infrastructure Ltd.

2.           Arguments were heard in common, in the above cases, as the issues involved therein, except minor variations, here and there, of law and facts, are the same.

3.           At the time of arguments, on 20.01.2017, it was agreed between Counsel for the parties, that facts involved in both the complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing a consolidated order.

4.           Under above circumstances, to dictate order, facts are being taken from Consumer complaint bearing No. 422 of 2016, titled as “Hardeep Singh Vs. Ansal Properties & Infrastructure Ltd.”

5.           The facts, in brief, are that the complainant came to know about the booking of residential dwelling units in “Victoria Floors” at Ansal Golf Links-II, Sector 116, SAS Nagar (Mohali) and after trusting on broker as well as Opposite Party, the complainant filed an application dated 15.09.2011 for booking of a residential unit in the project of the Opposite Party. The Opposite Party issued an allotment letter in the name of the complainant on 25.11.2011. Thereafter, the Agreement was executed between the parties on 04.12.2011 in respect of unit No. 240 GF (approx. 1395 sq. ft. area) in the Group Housing Project under the name and style of “Victoria Floors” at Ansal Golf Links-II, Sector 116, SAS Nagar, Mohali for a total consideration of Rs.47,56,240/- including EDC. The Opposite Party promised to complete its project and handover possession of the unit within 30 months with an extended period of 6 months from the date of execution of the Agreement. Copies of the allotment letter and Agreement are Annexures C-2 & C-3. The complainant deposited the total amount of Rs.37,12,409/- (Annexures C-4 & C-5) and after receipt of the aforesaid amount, the unit was lying incomplete and moreover, there was no construction & development is going on for more than a year. It was further stated that since August, 2015, the complainant alongwith his brother, approached the office of the Opposite Party umpteen times but it delayed the matter on one pretext or the other. It was further stated that the complainant did not know the exact status of construction till April, 2016 but when he reached the site, he was shocked to see that the construction work was incomplete and had stopped since June, 2015. The complainant sent a number of emails to the Opposite Party but it totally ignored the complainant’s queries (Annexure C-6). Ultimately, the complainant sent a legal notice dated 08.07.2016 (Annexure C-8) to the Opposite Party but to no avail. It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the ‘Act’ only), was filed.

6.           The Opposite Party, in its written version, has taken objection that the complainant did not fall within the definition of “consumer” under the Consumer Protection Act, 1986, since the said investment in the property of the Opposite Party is purely for commercial/speculative purposes instead of personal use. It was stated that Clause 5.1 of the Floor Buyer Agreement dated 04.11.2011, which gave a tentative period of 30 months with an extended period of 6 months for delivering possession of the allotted unit. As per the said Clause, the said unit was “proposed” to be delivered in 30 months with an extended period of six months from the date of execution of the Agreement and a bare perusal of the said clause clearly reveals that time was not the essence of the contract and the period of 30 months with an extended period of six months for delivery of possession was given on an estimated basis. It was further stated that the Opposite Party had never promised to deliver the project exactly within the said period. It was admitted only to the extent of payment received from the complainants. It was further stated that the Opposite Party is unable to give possession to the complainant due to the stalled approvals on the part of the Government. 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.

7.           Sh. Satpreet Singh, Special Power of Attorney holder of the complainant filed his affidavit to the written statement of the Opposite Party, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Party. 

8.           Since none appeared on behalf of the Opposite Party on 22.12.2016 & 19.01.2017, so, the Opposite Party was proceeded against exparte vide order dated 19.01.2017.

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

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

11.          The objection taken by the Opposite Party, to the effect that the complainant did not fall within the definition of “Consumer”, as per the Consumer Protection Act, 1986 because the said property was bought by the complainant merely for speculation and not for any personal use, also deserves rejection. The complainant in para No.11 of the complaint clearly stated that he intended to purchase the residential dwelling unit for his residence and gave his hard earned money to the Opposite Party. It may be stated here that there is nothing, on the record, that the complainant is the property dealer, and deals in the sale and purchase of property, on regular basis, and as such, the unit, in question, was purchased by him, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by  the  Opposite Party that the  complainant being investor/speculator, did not fall within the definition of a consumer, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only this, recently in a case titled as  Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder, while holding as under:-

“In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.”

 

 

               

                The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

12.          Another objection raised by Counsel for the Opposite Party that since it was mentioned in the Agreement that the Company “endeavour” to deliver possession of the unit within a period of 30 months with an extended period of 6 months from the date of execution of the Agreement and, as such, time was not the essence of contract, is also devoid of merit. It may be stated here that it was clearly mentioned in Clause 5.1 of the Agreement, which was signed between the parties on 04.12.2011, that the Company endeavours to complete the development of residential colony and the dwelling unit as far as possible within 30 months with an extended period of 6 months from the date of execution of the Agreement or the date of sanction of the building plan, whichever falls later. The Opposite Party took a plea that due to the stalled approvals on the part of Government, the Opposite Party was unable to give possession to the complainant. It is pertinent to note that in the present case, the Opposite Party failed to prove that due to force majeure circumstances, the possession was delayed, which was beyond the control of the Opposite Party. In the absence of any force majeure circumstances having been faced by the Opposite Party or any other valid and legal reason beyond its control, the stand taken by it, in this regard, for condonation of delay in delivery of possession of the unit, to the complainant, cannot be taken into consideration. Thus, under these circumstances, since as per Clause 5.1 of the Agreement, the Opposite Party was bound to deliver possession of the unit, within a maximum period of 36 months from the date of execution of the Agreement, as such, time was,  unequivocally made the essence of contract.

                Even otherwise, the Opposite Party cannot evade its liability, merely by saying that since the word tentative/ proposed was mentioned in the Agreement, for delivery of possession of the unit and, as such, 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 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. V/S 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, the plea of the Opposite Party in this regard also stands rejected.

13.           The next question, that falls for consideration, is, as to within which period, the delivery of possession of the unit, was to be given to the complainant. As per Clause 5.1 of the Agreement, it is clear that possession of the unit was to be delivered within a maximum period of 36 months from the date of execution of the Agreement and not more than that. In the present case, the Agreement was signed between the parties on 04.12.2011 and the said period of 36 months has expired on 03.12.2014 but the Opposite Party failed to offer/deliver possession of the unit, complete in all respects, within the stipulated period, as mentioned in the Agreement or by the time when the complaint was filed.  Moreover, the Opposite Party already admitted receipt of the amount of Rs.37,12,409/-, towards the said unit. By making a misleading statement, that possession of the unit, was to be delivered within a period of 36 months, from the date of execution of the Agreement, the Opposite Party failed to abide by the commitments and, as such, it was not only deficient, in rendering service, but also indulged into unfair trade practice.

14.          The next question, that falls for consideration, is, as to whether, the complainant is entitled to refund of the amount of Rs.37,12,409/-, as claimed by him. The Opposite Party admitted in para No.8 of its written statement only to the extent of the payment received from the complainant and after receipt of the aforesaid huge amount, the Opposite Party failed to deliver  possession of the unit, in question. The complainant cannot be made to wait for an indefinite period, for delivery of actual physical possession of the unit. The Opposite Party, therefore, had no right, to retain the hard-earned money of the complainant, deposited towards price of the unit, in question. The complainant is thus, entitled to get refund of amount deposited by him. In view of above facts of the case, the Opposite Party is also under an obligation to compensate the complainant, for inflicting mental agony and causing physical harassment to him.

15.          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 an amount of Rs.37,12,409/-, was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by the  Opposite Party, for its own benefit. There is no dispute that for making delayed payments, the  Opposite Party was charging heavy rate of interest @18% p.a. for first three months of delay but if the delay is beyond three months then the interest shall be applicable @21% p.a. compounded quarterly, as per Clause 4.5 of the Agreement, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the said right. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the  complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.37,12,409/- alongwith interest @12% p.a. (simple), from the date of deposit, till realization. 

16.          As far as the plea taken by the Counsel for the Opposite Party, at the time of arguments, regarding forfeiture of earnest money is concerned, it may be stated here that the same stands rejected, because it is not its (Opposite Party) case, that it was ready with possession of the unit, to be delivered to the complainant, by the stipulated date but it was he (complainant) who wanted to rescind the contract, on account of some unavoidable circumstances/ financial constraints, due to deficiency in the services of the Opposite Party or for any personal reason, and is seeking refund of the amount deposited. Had this been the case of the Opposite Party, that he was willing to offer possession complete in all respects by the stipulated time, only in those circumstances, it would have been held that since the complainant himself is rescinding the contract, as such, he is entitled to the amount deposited, after deduction of the earnest money, as per the Agreement. In this view of the matter, the plea taken by the Counsel for the Opposite Party, in this regard, has no legs to stand and is accordingly rejected.

17.          No other point, was urged, by the Counsel for the parties.

18.          For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-

1. To refund the amount Rs.37,12,409/-, to  the  complainant, alongwith interest @12% p.a.  from the respective dates of deposits onwards.
2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainant.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainant.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a., instead of @12% p.a., from the respective dates of deposits onwards, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

 

Complaint Case No.496 of 2016 titled ‘Som Dutt Verma Vs. Ansal Properties & Infrastructure Ltd.’

 

19.          In the present complaint, the complainants purchased unit No.235 from the dealer/agent, in the project of the Opposite Parties and after receipt of the payment in September, 2012, the Opposite Parties transferred the said unit in the name of the complainants. The Agreement was executed between the parties on 24.05.2013 (Exhibit C-1) and according to Clause 5.1 of the Agreement, possession of the unit was to be delivered within a maximum period of 36 months  from the date of execution of the Agreement i.e. latest by 23.05.2016 but despite receipt of the huge amount of Rs.39,11,006/- in respect of the unit, in question, the Opposite Parties failed to offer/deliver possession of the unit within the stipulated period or by the time when the complaint was filed.

20.          The Opposite Party admitted regarding purchase of plot ; execution of the Agreement and receipt of the amount deposited by the complainants. The other objections taken by the Opposite Parties in their written statement are similar, as mentioned in connected case No.422 of 2016 and, therefore, we feel that there is no need to reiterate it again.

21.          Since, sufficient interest is being granted on the deposited amount besides compensation and litigation expenses to the complainants, the complainants are not entitled to any other relief, as claimed by them, in the prayer clause.

22.          For the reasons recorded above, the complaint is partly accepted, with costs. The  Opposite Parties are jointly and severally directed as under:-

1. To refund the amount Rs.39,11,006/-, to  the  complainants, alongwith interest @12% p.a.  from the date of transfer of the unit onwards.
2. To pay compensation, in the sum of Rs.1 lac, for causing mental agony and physical harassment, to the complainants.
3. To pay cost of litigation, to the tune of Rs.50,000/- to the  complainants.
4. The payment of awarded amounts mentioned at sr.nos.(i) to (iii), shall be made, within a period of 02 (two) months from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) shall carry penal interest @15% p.a., instead of @12% p.a., from the respective dates of transfer onwards, and interest @12% p.a., on the amounts mentioned at sr.nos.(ii) and (iii), from the date of filing of this complaint, till realization.

23.          However, it is made clear that, if the  complainant(s), in the aforesaid cases, have availed loan facility from any banking or financial institution, for making payment of installments towards the said unit, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant(s).

24.          Certified copy of this order be placed in Consumer Complaint No.496 of 2016.

25.          Certified Copies of this order be sent to the parties, free of charge.

26.          The file be consigned to Record Room, after completion.

Pronounced.

February 8, 2017.                                          Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 [DEV RAJ]

MEMBER

 

Sd/-

 (PADMA PANDEY)

        MEMBER

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