Chandigarh

StateCommission

CC/30/2020

Kanwar Surjit Singh - Complainant(s)

Versus

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

Jagdish Singh Mahal Adv.

04 Nov 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	30 of 2020
Date of Institution	:	27.01.2020
Date of Decision	:	04.11.2020

 

1. Kanwar Surjit Singh son of Late Sh.Milkhi Ram.
2. Binay Mohini Singh wife of Kanwar Surjit Singh.
3. Mrinali Singh daughter of Kanwar Surjit Singh.

All residents of House No.J-401, Jalvayu Towers, New Sunny Enclave, Sector 125, Kharar, Mohali.

…… Complainants

V e r s u s

1. M/s Ansal Lotus Melange Projects Private Limited, Registered Office at 1/18B, Asafali Road, New Delhi-110002, through its Authorized Signatory.
2. Ansal Lotus Melange Projects Private Limited, , Head Office at B-2, Dhawandeep Building, 6 Jantar-Mantar Road, New Delhi-110001, through its Authorized Signatory
3. Ansal Lotus Melange Projects Private Limited, Branch Office SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh, through its Authorized Signatory.

Email ID:- customercare@ansalapi.com

…..Opposite Parties

BEFORE:           JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                        MRS.PADMA PANDEY, MEMBER.

                        MR. RAJESH K. ARYA, MEMBER.

 

Present through Video Conferencing:-

                     Sh.Jagdish Singh Mahal, Advocate for the complainants.

                         Sh.Sandeep Kumar, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

         

                   The above captioned complaint has been filed by the complainants seeking refund of amount of Rs.24,16,851/-, paid by them towards purchase of apartment bearing no.605, Tower No.1, 6^th Floor, measuring 1664 square feet, in a project launched by  the opposite parties, under the name and style ‘Orchard County”, Sector 115, SAS Nagar, Mohali, Punjab (in short the unit), total sale price whereof was fixed at Rs.48,22,352/-. The opposite parties failed to deliver possession of the unit in question by 16.06.2018 i.e. within a period of 54 months (48 months plus (+) 6 months extended period) as per Clause 5.1 of the Agreement dated 17.12.2013 (Annexure C-2) for dearth of construction and development works at the project site.

                   It has been pleaded that instead of completing construction activities at the project site by the stipulated date, the opposite parties vide letter dated 09.01.2019 (Annexure C-5) informed the complainants that they are entering into joint venture with another builder named “Universal Infrastructure” and that construction of Towers No.1 and 12 is being started. It has been stated that already the period to deliver possession has lapsed in June 2018, yet, neither possession has been offered for want of construction and development activities and also necessary approvals etc. nor the amount paid has been refunded. Number of requests made in the matter, to the opposite parties, to redress the grievance of the complainants, did not yield any result.

                   By stating that the aforesaid act and conduct of the opposite parties  amount to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the complainants seeking directions to the opposite parties to refund the entire amount paid alongwith interest, compensation; litigation expenses etc. 

2.           Notice of this complaint was received by the opposite parties, as a result whereof Sh.Sandeep Kumar, Advocate put in appearance on 16.03.2020. The case was adjourned to 17.04.2020 for filing documents as sought for by this Commission vide order dated 04.02.2020 and also reply and evidence/affidavit by the opposite parties. However, thereafter, only written reply was filed by the opposite parties through email, which too was illegible. Since, evidence/affidavit alongwith documents aforesaid were not filed by the opposite parties, on the adjourned dates, as such, vide order dated 25.09.2020, the opposite parties were directed to file the same within two weeks therefrom, but they failed to do so. Vide order dated 25.09.2020, the opposite parties were also directed to file hard copy of the reply aforesaid, on or before the next date of hearing but that was also not done by them.

                   Be that as it may, in the written reply filed by the opposite parties, through email (though illegible and without evidence/affidavit), the claim of the complainants has been contested on numerous grounds, inter alia, that they have concealed material facts from this Commission; that they being speculators did not fall within the definition of ‘consumer’; that this Commission did not vest with territorial jurisdiction to entertain this complaint; that because  the period of 54 months, for delivering possession of the unit was tentative, as such, time was not to be considered as essence of the contract; and that the complaint filed is beyond limitation

3.           On merits, booking of the unit in question; payments made by the complainants as mentioned in the complaint; execution of buyer agreement; non delivery of possession of the unit in question by the promised date or even by the date when this complaint has been filed; issuance of letter dated 09.01.2019, Annexure C-5, has not been disputed. However, it has been stated that construction work at the project site is in full swing and possession of the unit will be delivered very soon. Prayer has been made to dismiss the complaint.
4.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. However, as stated above, the opposite parties failed to adduce evidence in support of their respective contentions made in the written reply,  sent through email, which too was illegible and hard copy thereof was also not supplied to this Commission, despite opportunity having been granted to them.
5.           We have heard the contesting parties and have gone through the evidence and record of the case, very carefully.
6.           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 this Commission is vested with territorial jurisdiction to entertain this complaint or not?
   3. Whether time was essence of the contract?
   4. Whether the complaint filed is within limitation?
   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?

 

7.           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 unit in question to indulge in ‘purchase and sale of units/flats’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainants are consumers as defined under the Act. Objection taken in this regard is rejected.
8.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that perusal of application form dated 02.09.2013, Annexure C-1, clearly shows that the same was signed by the complainants at Chandigarh. Even the Agreement dated 17.12.2013, Annexure C-2, in respect of the unit in question, containing detailed terms and conditions, has also been executed at Chandigarh. In Clause 9.14 of the said agreement, one of the addresses of the company is mentioned as “SCO 183-184, Sector 9C, Chandigarh-160019”, meaning thereby that the opposite parties were actually and voluntarily residing and carrying on their business, from their office at Chandigarh and personally work for gain hereat. Even as per Clause 11.2 of the agreement, the parties have agreed to get their disputes resolved by the Chandigarh Courts/Forums.. As such, objection taken in this regard is rejected. 
9.           There is no dispute with regard to the fact that  the complainants booked the unit in question, in the aforesaid project for which they had  already paid an amount of Rs.24,16,851/- against total sale consideration of Rs.48,22,352/-. It is also an admitted fact that the opposite parties failed to deliver possession of the unit in question by the promised date i.e. 16.06.2018 (within a period of 54 months as per Clause 5.1 of the Agreement dated 17.12.2013), for dearth of construction and development works. Even in the joint written reply filed, no firm commitment to hand over possession of the unit in the near future has been made by the opposite parties. It has only been casually stated that work is in full swing and that possession of the unit will be delivered soon.

                   At the time of arguments also, Counsel for the opposite parties failed to apprise this Commission, as to by which date, construction will be completed and possession of the unit, can be handed over to the complainants. Not even a single reason has been given for delay in offering possession of the unit in question to the complainants. It may be stated here that during pendency of this complaint, this Commission vide order dated 04.02.2020, directed the opposite parties, 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 units/plots therein to the general public including the complainants 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 joint written reply filed by the opposite parties (though illegible and without evidence), wherein, in para nos.4 of the preliminary objections and para no.5 of the reply on merits, it has been candidly stated that period of possession was to run from the date when all approvals/sanctions/permissions in respect of the project in question were received, which clearly means that the same had not been obtained before launching the project in question.

                   Furthermore, when we go through the contents (reproduced hereunder) of letter dated 09.01.2019, Annexure C-5, having been sent by the opposite parties to the complainants, we are satisfied to hold that deficiency in providing service and adoption of unfair trade practice is writ large on the part of the opposite parties:-

 “….As you are already aware that the undersigned company is in process to develop an approved  Group Housing Project known as "Orchard County"  on Kharar-Landran Road, Sector-115, Tehsil Kharar District S.A.S Nagar Mohali. The undersigned has been already completed 10 Towers out of 12 Towers in the said Group Housing Project.

Now, construction work of Two Towers, i.e. Tower No.1 and Tower No.12 is being started and for that the Undersigned Company is going to enter in a Joint Venture with a company known as "Universal Infrastructure" for construction/ development works of Tower 1 and 12, in accordance with terms and conditions of Flat Buyer Agreement executed between us. Universal Infrastructure is well known company and successfully completed a project known as Taj Towers at Mohali. …….”

 

 Perusal of afore-extracted contents of letter dated 09.01.2019 clearly proved that despite the fact that possession of the unit in question in a developed project was to be delivered by 16.06.2018, yet, by 09.01.2019, construction of Tower No.1 wherein the unit of the complainants was to be built and development activities at the project site has not even been started what to speak of delay in offering possession thereof.  The contents of letter dated 09.01.2019 are sufficient to hold 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 contract 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.

10.           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, they were legally bound to deliver possession of the unit in question, by the committed date i.e. 16.06.2018 (within a period of 54 months as per Clause 5.1 of the Agreement dated 17.12.2013).  Other than this Clause referred to above, there is no Clause, which speaks about the period/date for delivery of possession of the unit to the complainants. Thus, the opposite parties cannot wriggle out of the commitments made vide the Clause aforesaid, with regard to time period for delivery of possession of the unit. It is therefore held that time was unequivocally made the essence of contract. In view of above, plea of the opposite parties to the effect that time was not essence of the contract or that no definite period was given to offer possession of the unit, being devoid of merit stands rejected.
11.           The complainants had booked the unit 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.24,16,851/- against total sale consideration of Rs.48,22,352/- stood paid to the opposite parties. Still, the opposite parties are not sure, as to by which date, possession of the unit 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.

                   It is well settled law that non-delivery of possession of plots/units in a developed project by the promised 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. 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 offering possession of the unit, in question, and the same is still continuing one, as the opposite parties are not sure as to by which date/year possession of the unit 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. 

12.           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 units/plots, by the stipulated date, 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 granted interest @ 12% p.a. from the dates of amount deposited till repayment. 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, also awarded interest @12% p.a.  

                Not only as above, even under Section 12 of the PAPR Act, 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 complainants, that will meet the ends of justice.

13.           Since, it is an admitted fact that possession of unit in question has not been offered to the complainants by the committed date; by the date this complaint has been filed or even thereafter; nor the Company is in position to do so in the near future, as explained above, as such, there is a continuing cause of action in their favour to file this complaint in view 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 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.
14.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-

1. . To refund the amount of Rs.24,16,851/- to the complainants, 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.24,16,851/-  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. To pay compensation for mental agony and harassment caused to the complainants and also litigation expenses, in lumpsum, to the tune of Rs.50,000/-, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.  

15.           However, it is made clear that if the complainants, have availed loan facility from any financial institution/bank, for making payment towards price of the unit in dispute, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.
16.           Certified copies of this order be sent to the parties, free of charge.
17.           The file be consigned to Record Room, after completion.

 

Pronounced.

04.11.2020

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

        [PADMA PANDEY]

MEMBER

       

 

Sd/-

[RAJESH K. ARYA]

MEMBER

 Rg