Chandigarh

StateCommission

CC/89/2020

Shalza Singla - Complainant(s)

Versus

BCL Homes Limited - Opp.Party(s)

Satyaveer Singh & Vinod Kumar Verma Adv.

19 May 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	89 of 2020
Date of Institution	:	19.03.2020
Date of Decision	:	19.05.2022

 

1. Shalza Singla D/o Rajinder Parshad Singla, Resident of Village and Post Office Kakkar Majra, Tehsil Naraingarh, District Ambala.
2. Ramesh Kumar Gupta S/o Sh. Tarsem Lal Gupta Resident of Village and Post Office Kakkarmajra, Tehsil Naraingarh, District Ambala.

……Complainants

V e r s u s

1. M/s BCL Homes Limited, Company Regd. Office Apartment/Flat No.140, Village Dariya, Chandigarh, 160002 through its Directors.
2. Sh. Baldev Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.
3. Sh. Gopal Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.

…..Opposite parties

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

 

Complaint case No.	:	90 of 2020
Date of Institution	:	19.03.2020
Date of Decision	:	19.05.2022

 

1. Sh. Rajesh Kumar, Aged 47 years, Resident of Village and Post Office Kakkar Majra, Tehsil Naraingarh, District Ambala.
2. Sh. Umesh Chander S/o Sh. Sham Lal Gupta, Resident of House No.602, Sector-9, Panchkula.

……Complainants

V e r s u s

1. M/s BCL Homes Limited, Company Regd. Office Apartment/Flat No.140, Village Dariya, Chandigarh, 160002 through its Directors.
2. Sh. Baldev Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.
3. Sh. Gopal Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.

 

…..Opposite parties

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

 

Complaint case No.	:	91 of 2020
Date of Institution	:	19.03.2020
Date of Decision	:	19.05.2022

 

Dr. Namita Grover W/o Dr. Manpreet Singh, Resident of House No.1219, GMCH Campus, Sector 32, Chandigarh.

……Complainant

V e r s u s

1. M/s BCL Homes Limited, Company Regd. Office Apartment/Flat No.140, Village Dariya, Chandigarh, 160002 through its Directors.
2. Sh. Baldev Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.
3. Sh. Gopal Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.

…..Opposite parties

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

Complaint case No.	:	92 of 2020
Date of Institution	:	19.03.2020
Date of Decision	:	19.05.2022

 

Sh. Kamal Kant Gupta S/o Late Sh. Jai Krishan Dass, R/o House No.487, Sector-8, Panchkula.

……Complainant

V e r s u s

1. M/s BCL Homes Limited, Company Regd. Office Apartment/Flat No.140, Village Dariya, Chandigarh, 160002 through its Directors.
2. Sh. Baldev Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.
3. Sh. Gopal Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.

…..Opposite parties

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

Complaint case No.	:	93 of 2020
Date of Institution	:	19.03.2020
Date of Decision	:	19.05.2022

 

Smt. Sham Devi W/o Sh. Raj Kumar, Near VHBYN Office, Naraingarh, Ambala (Haryana).

……Complainant

V e r s u s

1. M/s BCL Homes Limited, Company Regd. Office Apartment/Flat No.140, Village Dariya, Chandigarh, 160002 through its Directors.
2. Sh. Baldev Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.
3. Sh. Gopal Bansal, Authorized Signatory/Director of M/s BCL Homes Limited, House No.253, Sector-7, Panchkula.

…..Opposite parties

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

 

Present (in all five cases):                

 

Sh. Satyaveer Singh, Advocate for the complainant(s).

Sh. Kuldeep, Advocate Proxy for Sh. Mohit Garg, Advocate for the opposite parties.

 

BEFORE:    MRS. PADMA PANDEY, PRESIDING MEMBER.

                   MR.RAJESH K. ARYA, MEMBER.

 

PER RAJESH K. ARYA, MEMBER

                   By this order, we propose to dispose of the aforesaid five consumer complaints. Since, the issues involved in the above complaints, except minor variations, here and there, of law and fact are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

2.           The aforesaid complaints have been filed by the respective complainants, as they are aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties-BCL Homes Limited (in short the developer) because there has been an inordinate delay in delivering possession of the respective residential shops booked by them, in their (opposite parties) project, for dearth of construction and development activities and the said delay is continuing. In their complaints, they have sought directions to the developer to deliver actual physical possession of their respective shops alongwith compensation for delay in delivery of possession; mental agony and physical harassment etc.  However, during the course of arguments, Counsel for the complainants has submitted that in these consumer complaints, the complainants are now no more interested in getting possession of the shops in question but they stick to their alternative prayer of claiming refund of the deposited amount alongwith interest besides claiming compensation and litigation expenses. Details with regard to the project in dispute; shops purchased; payments made by the complainants etc. of these complaints are given below:-

 

PROJECT NAME = CHINAR BUSINESS CENTER, A UNIT OF ‘BCL HOMES LIMITED’, VILLAGE KISHANPURA, NAC ZIRAKPUR, DISTT. MOHALI, PUNJAB
CC No.	89/2020	90/2020	91/2020	92/2020	93/2020
Date of Booking	30.08.2011	01.08.2011	01.08.2011	01.08.2011	05.09.2011
Area of unit (in Sq. ft.)	12 x 20 Sq.ft	12 x 20 Sq.ft	12 x 20 Sq.ft	12 x 20 Sq.ft	12 x 20 Sq.ft
Office/Shop No.	239 (2nd Floor)	237 (2nd Floor)	276 (2nd Floor)	268 (2nd Floor)	234 (2nd Floor)
Cost (Rs.)	2400000	2400000	2400000	2400000	2400000
Amount paid (Rs.)	280000	280000	280000	280000	280000
Period of offer/delivery of Possession as alleged in the complaint	within 2 years from the date of booking	within 2 years from the date of booking	within 2 years from the date of booking	within 2 years from the date of booking	within 2 years from the date of booking
Possession offered or not	Not offered	Not offered	Not offered	Not offered	Not offered
Delay in years	Above 10 years	Above 10 years	Above 10 years	Above 10 years	Above 10 years

 

3.           It has been averred that despite the fact that the amount of Rs.2,80,000/-, as mentioned in the chart above, stood paid to the developer, yet, neither construction of the shop has been started nor possession thereof has been delivered by the committed date or even thereafter. It has further been averred that till date, the opposite parties  even have failed to execute any Shop Buyer Agreement and have delayed the issue on one pretext or the other. Hence these complaints.  
4.           The claim of the complainants, in all these five complaints has been contested by the developer, on numerous similar grounds,  inter alia:-
   1. that all these complaints are barred by limitation;
   2. that the complainants did not fall within the definition of “consumer” as they are speculators;
   3. that possession of the units in question could not be delivered on account of force majeure circumstances i.e. there has been increase in the cost of construction to the extent of 30%.
   4. that the developer is entitled to extension of reasonable time for delivery of possession of the units to the complainants;
   5. that Canara Bank played a fraud with the developer by forging some documents and on the other hand, the said bank initiated proceeding against the developer under SARFASI Act.
   6. that the units have not been mortgaged by the developer with Canara Bank, whereas, on the other hand, only the project land stood mortgaged;
   7. that due to lethargic attitude of Canara Bank, financial aspect of the developer went under stress;
   8. that despite the fact that the complainants/other allottees were explained that since the claim of Canara Bank as mortgagee of the constructed units is not tenable, as such, their rights would not be effected, even then some allottees had approached Debt Recovery Tribunal-II, Chandigarh against the developer, whereas, on the other hand, they were having the option to get the issue redressed through arbitration.
5.           It is significant to mention here that though in the complaints filed, all the complainants have sought possession of their respective units, yet, it has been stated in the written replies filed by the developer, that since the complainants have sought refund of the amount paid, as such, this fact clearly proves that they are investors. Prayer has been made to dismiss these complaints against the developer.
6.           The parties led evidence in support of their cases.
7.           We have heard the Counsel for the parties and have gone through record of these cases, including the written arguments filed by the parties concerned, very carefully.
8.           First coming to the objection taken 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 developer to establish that the complainants, in these complaints have purchased the respective shops to indulge in purchase and sale of units as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since the opposite parties have failed to discharge their onus, hence we hold that the complainants are consumers as defined under the Act. In this view of the matter, objection taken by the developer in this regard stands rejected. 
9.           There is no dispute with regard to purchase of respective shops by the complainants in the project of the developer, as per the details mentioned in the chart above. It is also an admitted fact that despite the fact that in all these complaints, an amount of Rs.2,80,000/- each, referred to above, stood received by the developer, yet, neither the possession of the respective shops has been offered and delivered till date nor the amount has been refunded to the complainants. It is also an admitted fact that no   Agreement was executed by the opposite parties with the complainants and further the Registration Letter, Exhibit P-2, was issued very belatedly on 05.03.2014 i.e. after a period of three years. In Para no.12 of the reply under the heading Preliminary Objections (adopted as it is on merits), it has been vaguely stated by the developer that the work at the site is going on and there is every likely hood that the opposite parties would be in position to offer the possession by the end of October 2020, which was not so done by the developer and the said period has also already expired. However, except this bald assertion, no other cogent and convincing evidence has been placed on record, to prove that the construction and development works at the project site is at the advance stage and that basic amenities such as roads, electricity, sewerage etc. are near completion. Burden to prove that the project has been completed and the area/site, in question, is fully developed or is about to complete, is on the developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014.        Thus, it can easily be said that the developer was not serious in completing the project wherein the shops in question were sold to the complainants and is now taking bald excuses for causing delay, just with a view to defeat the claim of the complainants. Under these circumstances, it is held that the developer by neither completing the construction and development work even by the date when these complaints were filed; nor delivering possession of the respective shops to the complainants, and furthermore, causing a huge delay in  offering possession which is still continuing; indulged into unfair trade practice and is also negligent and deficient in providing service to the complainants.
10.           At the same time, it is also held that plea taken by the developer to the effect that delay took place in offering possession because Canara Bank played a fraud with it by forging some documents, which resulted into initiation of action against it (developer) under SARFASI Act; and that some allottees had approached DRT-II, Chandigarh against it and as such, it amounts to force majeure circumstances; it may be stated here that the said plea has no legs to stand, for the reasons to be recorded hereinafter. It may be stated here that it has not been clarified by the developer, as to what relation, the complainants had with the Canara Bank, once they  have paid the substantial amounts, referred to above, directly to the developer, from their own pockets, may be from their own sources or by raising housing loans from some other bank. The allottees including the complainants cannot be made to suffer, if the developer has allegedly defaulted in making payment of some dues against the loan raised by it from Canara Bank. Furthermore, deficiency in providing service and adoption of unfair trade practice is writ large, as the developer in the present case has mortgaged the project land, on which the shops in question are also located, without taking any consent from the complainants and other allottees. Not even a single document has been placed on record by the developer to prove before this Commission that the fact with regard to mortgaging the project land had been brought to the notice of the complainants at the time of selling them the respective shops. Furthermore, if some allottees have allegedly approached DRT-II, Chandigarh, for recovery of their amount, then the complainants who are seeking possession of their respective shops have no concern with it. It is an admitted fact that the entire project site and the construction raised thereon is mortgaged with Canara Bank and dispute has been raised by the financial institutions in various courts including Debt Recovery Tribunal. In our considered opinion, the default of payments by the developer to Canara Bank cannot, viewed from any angle, be construed as 'Force Majeure' circumstances. Our this view is supported by the observations made by the Hon’ble National Commission in respect of the same very project in BCL Homes Ltd. & 2 Ors. Vs. Sudesh Mudgil & Anr. , First Appeal No. 182 of 2017, decided on  30 April, 2019. Relevant part of the said order is reproduced  hereunder:-

“….14.     It is an admitted fact that the entire project site and the construction raised thereon is mortgaged with Canara Bank and a dispute has been raised by the financial institutions in various courts including Debt Recovery Tribunal. The default of payments by the Developer to Canara Bank cannot, viewed from any angle, be construed as 'Force Majeure' conditions….”

In this view of the matter, plea taken by the developer in this regard has no significant value in the eyes of law and is accordingly rejected.

11.           Furthermore, the developer also cannot wriggle out of its liability, by saying that delay took place on account of the reason that some allottees defaulted in making remaining payment towards their respective units, especially, when the developer itself has taken a plea that delay took place because of the dispute between it and Canara Bank, which resulted into initiation of proceedings under SARFASI Act. Thus, under these circumstances, if some of the allottees including the complainants, after making payment of amounts, referred to above, did not make remaining payment when they came to know that there was no development and construction activities at the project site and that Canara Bank has initiated proceedings against the developer under SARFASI Act, they were right in doing so. Our this view is supported by the principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date or within a reasonable period where no agreement is executed, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. As such, plea taken by the developer in this regard stands rejected.
12.           Now we will deal with the objection taken to the effect that the complaints filed are beyond limitation, it may be stated here that since it is an admitted fact that possession of the respective shops in question has not been delivered till date, for dearth of development  and construction activities, as explained above, as such, objection taken with regard to limitation is not sustainable in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer. As such, objection taken by the developer in this regard is rejected.
13. Be that as it may, the fact that there has been an inordinate delay in offering possession of the shops in question to the complainants, which is still continuing, is not in dispute. It is well settled law that non-delivery of possession of shops in a developed project by the promised date or within a reasonable period from the date of booking, where there is no agreement, is a material violation on the part of a builder and in those circumstances, the purchaser is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in M/s Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that the complainants are not bound to accept the possession of the shops, even if the same is offered at belated stage. We cannot make the complainants to wait for an indefinite period on the whims and fancies of the opposite parties. Thus, under these circumstances, if we order refund of the amount paid alongwith interest from the respective dates of deposits, that will meet the ends of justice.
14.            Now, we will deal with the question, as to what rate of interest should be awarded to the complainants, while ordering refund of amount paid, against the shop in question. It may be stated here that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. The party concerned in refund cases is suffering a loss inasmuch as he/she had deposited the money in the hope of getting a shop but he/she is deprived of same; he/she is deprived of the benefit of escalation of the price of that unit/plot; and also he/she would have to take out more money from his/her pocket for beating the escalation in price, for buying a new unit/plot and as such, compensation to be granted by way of interest on the deposited amount in such cases would necessarily have to be higher. Our this view is supported by the principle of law laid down by the Hon’ble Supreme Court in  Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held that in a case where money is being simply returned, the purchaser is suffering a loss in as much as he had deposited the money in the hope of getting a flat/plot/unit and therefore, he has been deprived of the benefit of escalation of the price and the compensation in such cases, therefore, would necessarily have to be higher. In the instant case also, the hopes of the complainants to have their own shops, wherein they could run their business to earn their livelihood have been dashed to the ground. Furthermore, a similar question, as to what rate of interest should be granted while ordering refund of the deposited amount, in case, the builder fails to deliver actual physical possession, by the stipulated date or within reasonable period, fell for determination before the Hon’ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004. In the said case, the Hon’ble Supreme Court held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. The Hon’ble National Commission also, in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019;  and recently in Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021, awarded interest @12% p.a. to the complainants, on the amounts to be refunded to them from the respective dates of deposits. As such, it is held that the complainants are entitled to get interest @12% p.a. on the amounts to be refunded to them.
15.           For the reasons recorded above, all these complaints are partly accepted with costs, in the following manner:-

In CC No.89 of 2020, the opposite parties, jointly and severally, are directed as under:- 

1. Refund the amount of Rs.2,80,000/- alongwith compensation by way of interest @12% p.a. (simple), without deducting any TDS, to the complainants, from the respective date of deposit i.e. 30.08.2011 onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,00,000/- to the complainants, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @12% p.a. from the date of passing of this order, till realization.

In CC No.90 of 2020, the opposite parties, jointly and severally, are directed as under:- 

1. Refund the amount of Rs.2,80,000/- alongwith compensation by way of interest @12% p.a. (simple), without deducting any TDS, to the complainants, from the respective date of deposit i.e. 01.08.2011 onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,00,000/- to the complainants, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @12% p.a. from the date of passing of this order, till realization.

In CC No.91 of 2019, the opposite parties, jointly and severally, are directed as under:- 

1. Refund the amount of Rs.2,80,000/- alongwith compensation by way of interest @12% p.a. (simple), without deducting any TDS, to the complainant, from the respective date of deposit   i.e. 01.08.2011 onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,00,000/- to the complainant, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @12% p.a. from the date of passing of this order, till realization.

In CC No.92 of 2020, the opposite parties, jointly and severally, are directed as under:- 

1. Refund the amount of Rs.2,80,000/- alongwith compensation by way of interest @12% p.a. (simple), without deducting any TDS, to the complainant, from the respective date of deposit   i.e. 01.08.2011 onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,00,000/- to the complainant, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @12% p.a. from the date of passing of this order, till realization.

In CC No.93 of 2020, the opposite parties, jointly and severally, are directed as under:- 

1. Refund the amount of Rs.2,80,000/- alongwith compensation by way of interest @12% p.a. (simple), without deducting any TDS, to the complainant, from the respective date of deposit   i.e. 05.09.2011 onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.1,00,000/- to the complainant, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @12% p.a. from the date of passing of this order, till realization.

16.           However, it is made clear that, in case, the complainant(s) has raised housing loan from any Bank(s)/financial institution(s), for making payment towards price of shop in question, it shall have the first charge of the said amount due towards the same, if any.
17.           Certified copies of this order be sent to the parties free of charge and one copy thereof be placed in the connected case files.
18.           The files be consigned to Record Room, after completion.

Pronounced.

19.05.2022.

 

 

(PADMA PANDEY)

          PRESIDING MEMBER

 

 

 

(RAJESH K. ARYA)

 MEMBER

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