Chandigarh

StateCommission

CC/141/2019

Girish Kumar Agrawal - Complainant(s)

Versus

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

Narender Yadav & Vineet Yadav Adv.

31 Oct 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	141 of 2019
Date of Institution	:	13.06.2019
Date of Decision	:	31.10.2019

 

Girish Kumar Agrawal S/o Sh.Ram Niwas Agrawal, R/o 82  Manor Dr.Apt #201, Hagerstown, Maryland 21740, USA through SPA Ram Niwas Agarwal (Father) R/o H.No.36, Type-2, Rihad Nagar, Distt. Sonebhadra, UP-231223, India.

……Complainant

                                          V e r s u s

1. M/s Ansal Lotus Melange Projects Pvt. Ltd. S.C.O. 183-184, Sector 9-C, Madhya Marg, Above British Library, Chandigarh through its Authorized Signatory Dinesh Kumar
2. M/s Ansal Lotus Melange Projects Pvt. Ltd., Registered Office at  1/18B, Asaf Ali Road, New Delhi-110002, through its Authorized Signatory Raghu Nath Sharma.
3. Housing Development Finance Corporation Limited, S.C.O. 153-155, Sector 8, Madhya Marg, Chandigarh through its Branch Manager.

….. Opposite Parties

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR.RAJESH K. ARYA, MEMBER.

 

Argued by:  Sh.Vineet Yadav, Advocate for the complainant

                    Sh.Sandeep Kumar, Advocate for opposite parties no.1 and 2

                    Ms.Neetu Singh, Advocate for opposite party no.3

 

PADMA PANDEY, MEMBER         

                   The complainant has filed this complaint, seeking refund of amount of Rs.22,76,005/- paid by him, to opposite parties no.1 and 2, towards purchase of residential flat bearing no.604, Tower No.12, 6^th Floor, measuring super area 1765 square feet, against total sale consideration of Rs.54,77,375/-, in their project named “Orchard County”, Kharar-Landran Road, Mohali, Punjab, on the ground that despite receiving the said amount, possession thereof was not delivered by 15.11.2018 i.e. 54 months (48 months plus 6 months), as provided under Clause 5.1 of the agreement dated 16.05.2014. It is further the case of the complainant that for making payment towards price of the said unit, he has availed housing loan from opposite party no.3, under subvention scheme, but every time he had to remind opposite parties no.1 and 2 by way of writing emails/letters to make the Pre-EMI interest to it (opposite party no.3). Even by the date of filing this complaint, opposite parties no.1 and 2 did not complete the construction and development work. It has been stated that opposite parties no.1 and 2 are utilizing the amount paid by the complainant, without providing him anything. By stating that the aforesaid act of opposite parties no.1 and 2 amounts to deficiency in service and adoption of unfair trade practice, the instant complaint has been filed by the complainant, seeking refund of amount paid alongwith interest, compensation etc.

2.           His claim has been contested by opposite parties no.1 and 2, on numerous grounds, inter alia, that the employees of the Company have been wrongly impleaded in the complaint and that they have resigned from their duties; that the complainant did not fall within the definition of consumer, as he being NRI has not purchased the unit in question for his personal use; that since no definite period was given in the agreement for possession, as such time was not the essence of contract and possession was to be offered once all permissions and sanctions are obtained from the competent authorities; that the complaint filed is time barred; and that the complainant was defaulter in making payment towards the unit in question.
3.           On merits, sale of unit to the complainant; payments made by him; execution of flat buyers agreement and tripartite agreement under subvention scheme was not disputed. However, it has been stated that construction of the tower in which the unit in question is located is going on and possession thereof will be delivered soon. Prayer has been made to dismiss the complaint.
4.           Opposite party no.3 in its written reply stated that out of the sanctioned loan amount of Rs.39.90 lacs, an amount of Rs.10,64,295/- stood released in respect of the unit in question, under subvention scheme. It was averred that the loan account of the complainant remained irregular and as on 12.07.2019, an amount of Rs.11,04,925/- is pending to be paid by him. 
5.           The parties have been afforded adequate opportunities to adduce evidence in support of their respective contentions, by way of affidavit and they also produced numerous documents.
6.           We have heard the contesting parties and have carefully gone through record of the case.
7.           The first question under our consideration is as to whether the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) of the Act?  It may be stated here that there is nothing, on record to show that the complainant is a property dealer and is indulged in sale and purchase of property, on regular basis. Thus, in the absence of any cogent evidence, in support of the objection raised by opposite parties no.1 and 2, mere bald assertion to that effect, 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, decided by the Hon’ble National Commission, 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. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case.

                   As far as plea taken to the effect that since the complainant is residing abroad and has no intention to shift to India, therefore, the unit, in question, was purchased for future gains, as such, he would not fall within the definition of consumer, it may be stated here that the said plea stands rejected, in view of ratio of judgment passed by the Hon’ble National Commission in Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Consumer Complaint No. 118 of 2012, decided on 04.01.2016, wherein, it was held that  it cannot be made a ‘rule of thumb’ that every NRI cannot own a property in India.  NRIs do come to India, every now and then.  Most of the NRIs have to return to their native land. Each NRI wants a house in India.  He is an independent  person  and  can  purchase any  house in India,  in his own name. .” 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 opposite parties no.1 and 2, therefore, being devoid of merit, is rejected.  

8.           It is a proven fact that the complainant had paid an amount of Rs.22,76,005/-, to opposite parties no.1 and 2 towards purchase of residential unit in question, in the project, referred to above, possession whereof was to be delivered by 15.11.2018 i.e. 54 months (48 months plus 6 months), as provided under Clause 5.1 of the agreement dated 16.05.2014. However, admittedly, possession of the unit in question was neither delivered by the stipulated date nor by the date when this complaint was filed nor by the date when arguments were heard in this complaint. On the other hand, it has been candidly admitted by opposite parties no.1 and 2 in para no.14 of the reply on merits that construction of the tower in which the unit in question is located is still going on. However, in a very casual manner, it has further been stated in the said paragraph that possession of the unit will be delivered very soon. There is nothing on record to show that opposite parties no.1 and 2 suffered any force majeure circumstances, on account of which, construction could not be completed by the stipulated date or thereafter.  In the absence of any force majeure circumstances having been actually faced opposite parties no.1 and 2, it was their bound to deliver possession of the unit, by the promised date. As such, time was, unequivocally made the essence of contract. Opposite parties no.1 and 2 cannot evade their liability, merely by saying that since the words “shall endeavor” was mentioned in the agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. The act of non-mentioning of exact date in the allotment letter/Agreement is violation of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties, Condition no. 3(2) (g) of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which says that the project proponent is duty bound to specify, in writing, the date by which possession of the unit is to be handed over and it shall hand over such possession accordingly. Relevant contents of condition no.3(2) (g) of PAPRA are reproduced below:-

“(g) specify, in writing, the date by which possession of the plot or apartment is to be handed over and he shall hand over such possession accordingly”;

In the present case, still no specific date or period has been given by opposite parties no.1 and 2 for delivery of possession of the unit to the complainant. The unit in question was booked as far as back in 2014 and now it is October 2019 and photographs of the project site reveal that the project is still nowhere near completion.      

                   Now, at this stage, the question under our consideration is as to whether if the Developer fails to deliver possession of the allotted unit within the stipulated time, the allottee is under obligation to accept the same, if made after belated stage or he/she can seek refund of the amount paid. It may be stated here that it is well settled law that non-delivery of possession of plots/units in a developed project by the stipulated date, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was 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. This view 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 in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), wherein it was held that the allottee cannot be made to wait for possession for an indefinite period.  

                   In the present case also, the complainant cannot be made to wait for an indefinite period, under the whims and fancies of opposite parties no.1 and 2, and as such, we are of the considered opinion that he is well within his right to terminate the agreement and seek refund of the entire amount paid, by way of filing this complaint. It is therefore held  that the complainant is entitled to refund of the amount deposited alongwith interest @12% p.a., from the respective dates of deposits till realization. This view of granting interest @12% p.a. is supported from the principle of law laid down by 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, wherein, it was 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. Furthermore, under similar circumstances, the Hon`ble Supreme Court of India in H.P. Housing Board Vs. Janak Gupta, (2009) INSC 627 also granted interest @12% p.a. on the amount to be refunded by the builder.

                   At the same time, opposite parties no.1 and 2 are also liable to compensate the complainant for causing him mental agony, physical harassment and financial loss and also deficiency in providing service, negligence and adoption of unfair trade practice.

9.           Now coming to the objection raised by the opposite parties no.1 and 2, to the effect that this complaint is time barred, it may be stated here that since it is an admitted case that possession of the unit in question has not been offered by the stipulated date or even by the date when arguments were heard in this complaint,  as such, there is a continuing cause of action in favour of the complainant in view of principle of law 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 is not offered, there is a continuing cause of action, in favour of the allottee/buyer. Objection raised in this regard, as such, is rejected.

                   Even otherwise, on the one hand the Company is saying that the  complaint is barred by time, whereas, in the same breath, it is saying that since time was not the essence of contract, as such, it is entitled for extension of time. In the same breath, both objections taken which are contrary to each other, are not sustainable in the eyes of law and are accordingly rejected.  

10.           So far as the plea raised by  opposite parties no.1 and 2 that the complainant is defaulter in making payment of remaining amount, to our mind when their intent was fraudulent since the very inception, as they were not serious in completing the project and also that there was absolutely no development there, even by the date when this complaint was filed or thereafter, the complainant was well within his right to stop making the remaining payment, if any demanded by opposite parties no.1 and 2 (though no such demand letter or reminder has been placed on record)  in view of principle of law laid down by the 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 unit by the stipulated date, it cannot expect the allottee(s) to go on paying instalments to it. Similar view was also taken by the 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.
11.           As far as objection regarding impleading of Sh.Dinesh Kumar and Raghu Nath Sharma, in the complaint as Authorized Signatories of the Company is concerned, it may be stated here that it is not the case of the Company that these two Signatories were not its Officers/Officials. If they have allegedly resigned from the Company, their resignations letters could have been produced on record but it has not been so done. Even otherwise, it is settled law that the Officers/Officers concerned, who were responsible for day to day affairs of the Company, at the relevant time when the dispute took place, shall remain liable for the same, even after their resignation also. As such, plea taken in this regard, stands rejected.
12.           No other point was urged by the contesting parties.
13.           For the reasons recorded above, this complaint is partly accepted, with costs. Opposite parties No.1 and 2, jointly and severally, are directed as under:-

1. To refund the entire amount, actually paid by the complainant from his own sources/pocket, at the time of booking and thereafter also, towards part price of unit, alongwith interest @12% p.a., from the respective dates  of  deposits onwards.
2. To repay the entire loan amount to opposite party no.3, released by it, in favour of opposite parties no.1 and 2, in respect of the unit, in question, alongwith pre-EMI installments, if any due, till date. It is also made clear that till the time, the entire loan amount is not repaid to opposite party no.3, opposite parties no.1 and 2 shall be bound to pay the equal monthly installments/Pre-EMI interest to opposite party no.3, till realization.
3. To pay compensation, in the sum of Rs.75,000/- for causing mental agony and physical harassment, to the complainant, as also escalation in prices.
4. To pay cost of litigation, to the tune of Rs.22,000/- to the complainant.
5. The payment of awarded amounts mentioned at sr.nos.(i), (iii) and (iv) shall be made by opposite parties no.1 and 2 to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @14% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (iii) and (iv), from the date of passing of this order, till realization, besides compliance of other directions given above.

14.           Complaint against opposite party no.3 is dismissed with no order as to costs. However, opposite parties no.1 and 2 shall be bound to comply with the directions given above, regarding repayment of loan amount and pre-EMI interest.
15.           Certified Copies of this order be sent to the parties, free of charge.
16.           The file be consigned to Record Room, after completion.

Pronounced.

31.10.2019

Sd/-

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

Sd/-

 

 (PADMA PANDEY)

        MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

 MEMBER

 

 

Rg.