Chandigarh

StateCommission

CC/17/2020

Jatinder Singh - Complainant(s)

Versus

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

Satyaveer Singh & Vinod Kumar Verma Adv.

29 Dec 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. Jatinder Singh S/o Sh. Baljit Singh aged about __ years resident of House No.229, Harinder Nagar, Patiala (Punjab).
2. Khushleen Kaur W/o Sh. Jatinder Singh Resident of House No.229, Harinder Nagar, Patiala (Punjab).

                                                                …… Complainants

Versus

1. M/s Ansal Lotus Melange Projects Private Limited, SCO No. 183-184, Sector 9C, Madhya Marg, Above British Library, Chandigarh through its Director Sh. Vishwa Prakash.

2^nd Address: Village Sante Majra & Chippar Chiri situated on Kharar Landra Road, District S.A.S. Nagar, Mohali (Punjab).

3^rd Address: City Center CB-12-A, Sector-115, Kharar Landra Road, S.A.S. Nagar, Mohali.

2. Sh. Vishwa Prakash, Authorised Signatory/Director of M/s Ansal Lotus Melange Projects Private Limited, SCO No. 183-184, Sector 9C, Madhya Marg, Above British Library, Chandigarh.
3. Sh. Rajender Kumar Gautam, Authorised Signatory/ Director of M/s Ansal Lotus Melange Projects Private Limited, SCO No. 183-184, Sector 9C, Madhya Marg, Above British Library, Chandigarh.
4. Sh. Umesh Rajaak, Authorised Signatory/Director of M/s Ansal Lotus Melange Projects Private Limited, SCO No. 183-184, Sector 9C, Madhya Marg, Above British Library, Chandigarh.

....Opposite Parties

Complaint u/s 17 of Consumer Protection Act, 1986

Argued through Video Conferencing:-    

Counsel for the complainants           :Sh. Satyaveer Singh, Advocate.

Counsel for opposite party No.1       :Sh. Mukesh Pandit, Advocate.

Opposite parties No.2 to 4 exparte vide order dated 07.10.2020.

Jittu Singh S/o Sh. Sukhdeo Singh R/o 102 Akanksha Apartment, Lalitpur Colony Lashker, Gwalior (MP).

                                                                …… Complainant.

Versus

1. M/s Ansal Lotus Melange Projects Pvt. Ltd., SCO No. 183-184, Sector-9C, Madhya Marg, Above British Library, Chandigarh through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.
2. M/s Ansal Lotus Melange Projects Pvt. Ltd., Registered Office at 1/18B, Asaf Ali Road, New Delhi – 110002 through its Authorized Signatory Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.
3. Vishwa Parkash, Director, 4648/21, Room No.302, Third Floor, Shadumal Building, Daryaganj, New Delhi – 110002.
4. Rajender Kumar Gautam, Additional Director, 4648/21, Room No.302, Third Floor, Shadumal Building, Daryaganj, New Delhi – 110002.

....Opposite Parties

Complaint u/s 17 of Consumer Protection Act, 1986

Argued through Video Conferencing:-    

Counsel for the complainant             :Sh. Narender Yadav, Advocate.

Counsel for opposite parties No.1&2:Sh. Mukesh Pandit, Advocate.

Opposite parties No.3 & 4 exparte vide order dated 25.09.2020.

BEFORE:  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                  MRS. PADMA PANDEY, MEMBER.

                   MR. RAJESH K. ARYA, MEMBER.

PER  RAJESH  K.  ARYA, MEMBER

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

2.             However, to dictate order, we are taking up complaint case No.17 of 2020 titled ‘Jatinder Singh & Anr. Vs. M/s Ansal Lotus Melange Projects Private Limited’.

3.             It may be stated here that in consumer complaint No.17 of 2019, Counsel for the complainants at the time of arguments, did not press for possession and rather confined the relief to the alternative prayer for refund of the amount  alongwith interest, compensation and litigation expenses. However, in the connected consumer complaint No.99 of 2020, refund has been sought by the complainant.

4.             In both the complaints, refund of amounts paid have been sought by the complainants as they are aggrieved of deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties, because there has been an inordinate delay with regard to delivery of possession of the respective flats booked by them, in their (opposite parties) project, for dearth of construction and development activities. It has been stated that the opposite parties failed to offer/deliver actual physical possession of the flats, in question, within the stipulated period as envisaged in the Flat Buyers Agreement, which has still not been offered by the opposite parties till date. Details with regard to the project in dispute; flats booked; payments made by the complainants; etc. of these complaints are given below:-

5.             By stating that the aforesaid act and conduct of the opposite parties, in both the complaints, amount to deficiency in providing service and adoption of unfair trade practice, these complaints have been filed by the complainants. 

6.             In Consumer Complaint No.17 of 2020, Opposite Party No.1 in its written version in the shape of affidavit have stated that the complainants did not fall within the definition of “Consumer”, as defined in the Consumer Protection Act, 1986, as the said investment made by the complainants is purely for commercial and speculation/investment purposes. It was further stated that as per Clause 5.1 of the Agreement, possession of the unit was “proposed” to be delivered within a period of 48 months plus an extended period of six months from the date of execution of the Agreement or the date of sanction of the building plan/allotment, after all the necessary approvals and sanctions had been obtained from the Government/Local Authorities/Sanctioning Authority, as such, time was not the essence of the contract, and the aforesaid period of 48 months + grace period of 6 months mentioned in the said Clause is on estimate basis. It was further stated that the complaint is time barred, as the same is beyond limitation. It was further stated that the flat was booked under subvention scheme and HDFC Ltd. has contributed huge amount as loan and till date, the opposite party continued to pay Pre EMI interest to HDFC Ltd. on the advanced amount and still committed to bear the same till offer of possession. It was further stated that the complainants are not entitled to claim interest on the loan amount advanced by the bank. It was further stated that complainants did not implead the bank as a necessary party in the present complaint and as such, it is bad for non-joinder of the necessary party. It was further stated that the construction of the units, in question, is going on in full swing and the possession would be offered very soon to the complainants. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Parties, nor they indulged into unfair trade practice.

7.             It may be stated here that identical pleas and objections have been raised by opposite parties No.1 & 2, in their reply, filed in consumer complaint No.99 of 2020. However, in this case, an objection as regards the territorial jurisdiction of this Commission has also been raised. On merits, it has been pleaded by opposite parties No.1 & 2 that the Company is likely to deliver the unit, in question, to the complainant within a short span of time.

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

9.             We have heard the Counsel for the parties and have carefully gone through the evidence; record of the case and the written arguments.

10.           From the pleadings of parties and other material available on the record, following points have emerged for consideration in this case: -

1. Whether the complainants fall under the definition of consumer?
2. Whether the complaint filed is within limitation?
3. Whether time was essence of the contract?
4. Whether this Commission has territorial jurisdiction to entertain complaint No.99 of 2020 or not?
5. Whether there was any deficiency in rendering service on the part of the opposite parties?
6. Whether the complainants are entitled to get refund of the amount deposited and if yes, at what rate of interest?

11.           First coming to the objection raised 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 opposite parties to establish that the complainants have purchased the apartment, in question, to indulge in ‘purchase and sale of apartments/flats’ as was held by the Hon’ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since the opposite parties  failed to discharge their onus, hence we hold that the complainants are consumer as defined under Section 2(1)(d) of the Act.

12.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainants, is within limitation or not.  It may be stated here that since it has been frankly admitted by the Opposite Parties, in their written statement that the construction of the units, in question, is going on in full swing and the possession would be offered very soon to the complainants, which means that offer of possession of the unit, in question, could not be made till date and on the other hand, amount deposited was also not refunded to the complainants alongwith interest and, as such, there is continuing cause of action, in their favour, 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). Under these circumstances, it is held that the complaint is not at all barred by time. The submission of Counsel for   the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

13.              As far as objection taken by the opposite parties to the effect that  time was not the essence of contract, it may be stated here that, in the absence of any force majeure circumstances, having been faced by the opposite parties, it was legally bound to deliver possession of the flat purchased by the complainants by the committed date. The complainants had booked the flat, in question, in the year 2013.  More than 2½ years have lapsed but still possession of the flat, in question, has not been offered to the complainants. Thus, by making the complainants in such a disadvantageous position, now the opposite parties cannot be heard to say that time is not the essence of contract. In view of above, plea taken by the opposite parties to the effect that time was not essence of the contract, being devoid of merit stands rejected.

14.           The next question, which falls for consideration is whether this Commission has territorial jurisdiction to entertain and try complaint No.99 of 2020 or not? In this regard, it may be stated here that in this case, the Flat Buyer Agreement between the parties was issued on 30.05.2014 at Chandigarh and as such, part of cause of action arose to the complainant within the territorial limits of Chandigarh. In view of above, the objection raised opposite parties to this effect being devoid of merit stands rejected.

15.           Now coming to the merits of the case, it may be stated here that at the time of arguments, Counsel for opposite party No.1 failed to apprise this Commission, as to by which date, construction will be completed and possession of the flat, in question, can be handed over to the complainants. Not even a single reason has been given for not offering possession of the flat, in question, to the complainants. It may be stated here that during pendency of this complaint, this Commission vide order dated 23.01.2020, directed the opposite parties through their Counsel, to produce on record the following documents, duly authenticated, to apprise us, as to whether, the Company was competent to launch the project and sell apartments/units therein to the general public including the complainant or not:-

1. “Registration Certificate of the project with the competent authority.
2. Copy of requisite Licence issued by the Competent Authority under Punjab Apartment and Property Regulation Act 1995.
3. Change of Land Use (CLU) pertaining to the project in question.
4. Letter of Intent (LOI).
5. Copy of approved site plan of the project.
6. Completion Certificate of the project.
7. Latest photographs of the site/unit in dispute.
8. Current list of Managing Director/Director(s) of the Company.
9. Detail of Bank Accounts of the Company.
10. List of properties both moveable and immoveable of the company and its Managing Director/Director(s) which can be attached in execution of the decree. ”

However,  it is significant to mention here that even thereafter also during pendency of this complaint, despite the fact that number of opportunities were given to the opposite parties to place on record the aforesaid documents, yet, they failed to furnish the same for the reasons best known to them. Under these circumstances, we are of the considered view that by not placing on record the aforesaid documents, the opposite parties have attracted an adverse inference against them that the project, in question, had been launched in contravention of the Punjab Apartment and Property Regulation Act, 1995 i.e. they have failed to obtain necessary approvals/sanctions for launching the said project and selling the units therein to the prospective buyers. Our view is further fortified from the written reply filed by opposite party No.1, wherein, in para no.4 (preliminary objections) and 6 (reply on merits) it has been candidly stated that the period of 48 months plus  extended period of  six months was given on estimate basis  and the phrase “as far as possible” would not have been used and instead a definite period would have been given for delivery of possession. This act of the opposite parties amounts to deficiency in providing service and adoption of unfair trade practice.

16.           It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/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. It is very strange that in the present case, not even an iota of evidence has been placed on record by the opposite parties to prove as to at what stage, construction and development work has reached at the project site and that as to whether approvals/sanctions have been obtained by it from the competent Authorities to launch the said project. In case, the development/construction activities are being undertaken and are about to complete at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken and about to complete at the site or not, but they failed to do so.

17.           Furthermore, there is nothing on record to show that the opposite parties suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of the flat, in question, was not delivered to the complainants. If the opposite parties have indulged into unfair trade practice and was also deficient in providing service by not offering possession of the flat to similar located allottees, who have also filed complaints against them and number of litigations are pending against them, resulting into alleged financial losses, then it cannot expect to claim any immunity out of the same from this Commission.

18.           From the peculiar circumstances of this case, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants are thereby involved in a disadvantageous contract with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainants to enter into the contracts by way of signing agreement, referred to above, and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.

19.           As already stated above, the opposite parties also cannot evade their liability, merely by saying that since the words ‘as far as possible’ was mentioned in the Agreement, for delivery of possession of the flat, as such, time is not to be considered as essence of the contract. It may be stated here that non -mentioning of exact date of delivery of possession of the apartments/unit(s) in the Buyer’s Agreement/Allotment Letter, 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 apartments/unit(s) to the allottees/purchasers thereof. It was so said by the Hon’ble National Commission, in Rajeev Nohwar & Anr. Vs. 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, plea of the opposite party in this regard also stands rejected.

20.             As stated above, the complainants had booked the flat as far as back in the year 2013 and now it is 2020, and still they are empty handed despite the fact that substantial amount of Rs.21,32,645/-  against total sale consideration of Rs.51,71,803/- stood paid to the opposite parties. On the other hand, possession of the flat, in question, has not been offered to them till date. Still, the opposite parties are not sure, as to by which date, possession of the flat, in question, can be delivered to the complainants. The complainants cannot be made to wait for an indefinite period on the bald assurances given by the opposite parties that they are ready to pay compensation for the period of delay in delivering possession of the flat in question.

21.           It is well settled law that non-delivery of possession of apartments/units in a developed project by the promised date or within a reasonable period, 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. Our view is 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 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, which is still continuing one, as the opposite parties are not sure as to by which date/year possession of the flat, in question, could be delivered to the complainants, as such, we are of the considered opinion that if we order refund of the amount paid by the complainants alongwith interest, that will meet the ends of justice. 

22.           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. It may be stated here that 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 possession of residential apartments/units/plots, by the stipulated date or within a 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. Recently also, under similar circumstances, the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019 while ordering refund of the amount paid, awarded interest @12% p.a. 

23.           Not only as above, even under Section 12 of the Punjab Apartment and Property Regulation Act, 1995 read with Rule 17 of the Rules thereunder, it has been specifically mentioned that if the amount is to be refunded, it is to be refunded alongwith interest @12% p.a. It is, therefore, held that if interest @12% p.a. is awarded on the amount to be refunded to the complainant i.e. on Rs.21,32,645/-, that will meet the ends of justice.

24.           For the reasons recorded above, both the complaints bearing Nos.17 of 2020 and 99 of 2020 are partly accepted, with costs and the opposite parties, in both the complaints, are jointly and severally held liable and directed as under:-

Consumer Complaint No.17 of 2020 titled ‘Jatinder Singh & Anr. Vs. M/s Ansal Lotus Melange Projects Private Limited & Ors.’

1. To refund the entire amount, actually paid by the complainants, from their own sources/pocket, at the time of booking and thereafter also, towards part price of the unit in question, alongwith interest @12% p.a., from the respective  dates of deposits onwards.
2. To refund the amount to the complainants, if any, paid by him to the HDFC Ltd., towards equated monthly installments/Pre-EMI, on the loan amount, as it was the liability of the opposite parties, under subvention scheme, as admitted by them in their written statement also. 
3. To repay the entire loan amount to the HDFC Ltd., released by it in favour of the opposite parties, 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 the HDFC Ltd., the opposite parties shall be bound to pay the equated monthly installments/Pre-EMIs to the HDFC Ltd., alongwith up-to-date interest on the loan account, till realization.
4. To pay lump-sum compensation of Rs.50,000/- to the complainants for causing mental agony and physical harassment and also litigation expenses.
5. The payment of amounts mentioned at sr.nos.(i), (ii) (if any) and (iv) shall be made by the opposite parties to the complainants 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.nos.(i) and (ii) (if any), thereafter shall carry interest @15% p.a., from the date of  default and interest @12% p.a., on the amount mentioned at sr.no. (iv) from the date of passing of this order, till realization, besides compliance of other directions given.

Consumer Complaint No.99 of 2020 titled ‘Jittu Singh Vs. M/s Ansal Lotus Melange Projects Private Limited & Ors.’

1. To refund the amount of Rs.23,15,518/- to the complainant, alongwith interest @12% p.a. from the respective dates of deposit 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 of Rs.23,15,518/- shall carry 3% penal interest i.e. total 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.
2. To pay lump-sum compensation of Rs.50,000/- to the complainant for causing mental agony and physical harassment and also litigation expenses, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @12% p.a. from the date of passing of this order, till realization.

25.           However, it is made clear that if the complainant(s) has availed loan facility from any Bank/Financial Institution, for making payment towards price of the said apartment, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainant.          

26.           Copy of this order be placed in the file of connected consumer complaint No.99 of 2020.

27.           Certified copies of this order be sent to the parties, free of charge.

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

Pronounced.

29.12.2020

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

          [PADMA PANDEY]

MEMBER

[RAJESH K. ARYA]

MEMBER

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