Chandigarh

DF-II

CC/525/2019

Ajay Kumar - Complainant(s)

Versus

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

Vinod Chaudhri Adv. & Geeta Chaudhri Adv.

14 Dec 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	525/2019
Date of Institution	:	10.06.2019
Date of Decision	:	14.12.2020

 

                                       

                       

 

1.     Ajay Kumar s/o Sh.J.S.Palyal, Advocate, Punjab & Haryana High Court & Supreme Court, r/o H.No.847, Sector 38-A, Chandigarh

 

2.     Amarjit Singh s/o Sh.Harcharan Singh r/o H.No.847, Sector 38-A, Chandigarh

                                ...  Complainants

Versus

M/s Ansal Lotus Melange Pvt. Ltd., SCO 183-184, Sector 9-C, Chandigarh through its Chairman/Managing Director.

 

…. Opposite Party.

 

BEFORE:
		SHRI RAJAN DEWAN,	PRESIDENT
		SMT.PRITI MALHOTRA,	MEMBER
		SHRI B.M.SHARMA	MEMBER
Argued by:-
	Sh.Vinod Chaudhri, Adv. for the complainant
	Sh.Sandeep Kumar, Adv. for the OP.

 

      

 

PER RAJAN DEWAN, PRESIDENT

1.         Briefly stated, the facts of case as alleged by the complainants are that complainant No.1 who is an Practicing Advocate nourished a dream to own a flat in the tricity and came across an advertisement inserted by Ansal API for celebrity suits for a fully furnished Studio Apartment, costing Rs.18.81 lacs, The complainant No.1 booked the unit No.432 by paying a sum of Rs.95,500/- through cheque dated 30.04.2013 (Annexure C-2 (Colly.).  The OP issued an allotment letter dated 31.05.2013 for a total consideration of Rs.18,52,785/- (Annexure C-3).  On 02.09.2014, the complainant No.1 received a communication from the OP that the amount of Rs.95,500/- had not been received by the builder.  It has further been averred that it was the duty of the OP to have found out the reason of non-receipt of the amount as the cheque of Rs.95,500/- was deposited with the OP.  Finally, he served a legal notice dated 02.01.2015 (Annexure C-4) upon the Manager, Axis Bank who accepted the mistake that due to internal fault in the banking, the amount of Rs.95,500/- could not be credited in favour of the OP and subsequently, the Bank agreed to give penalty of Rs.25000/- and the same was credited in favour of the OP but the OP for the reasons best known to it instead of giving the complainant No.1 credit of the amount, adjusted the same towards late payment.    It has further been averred that till 21.02.2015, the complainant had paid Rs.8,04,190/- as per the detail given in Annexure C-5.  However, the OP had inordinately delayed the construction and since huge sum was locked up without dividend being received by complainant No.1, he issued legal notices dated 19.12.2015 & 25.11.2016 for refund of the amount as the same was urgently required.  As a consequence, the OP entered into an MOU dated 19.01.2016 (Annexure C-7) whereby they assured to give assured rent @ Rs.5/- per sq. feet on the total area of 627 sq. feet which comes to Rs.3135/- per month.  It has further been averred that having left in a pitiable financial strait, the complainant No.1 was left penniless and was in need of urgent financial support and complainant No.2 came to help with a condition that he would require some security to give friendly loan to him.  The complainant no.1 had nothing up his sleeves but only an allotment letter and empty promise from the OP which was never fulfilled.  The complainant No.1 in order to get friendly loan had to transfer the allotment letter in favour of the complainant No.2 to raise loan of Rs.4 lacs and for that Rs.1,13,000/- were to be spent for effecting necessary transfer.  It has further been averred that till date neither there is any progress with regard to the construction nor the OP has given any agreed rent as per MOU nor possession of the flat. Alleging that the aforesaid acts of omission and commission on the part of the OP amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint.   
2.           The OP filed the written statement by way of affidavit and took preliminary objections inter alia that the complaint is hopelessly time barred; that the complainants are not consumers under the definition of the Consumer Protection Act, 1986 as the complainants have not booked the plot for their bona fide personal use but the same is for investment/commercial purposes; that there is no deficiency in service on its part; that the complainant did not hire any service from the opposite party; that this Commission did not have jurisdiction to entertain this complaint and the matter needs to be relegated to civil court; that the complainant did not purchase any goods and rather it was an immovable property, and it did not come under the purview of this Commission to adjudicate any dispute arising out of it. On merits, the facts with regard to the booking of the unit by the complainant, issuance of the allotment letter dated 31.05.2013 for a total sale consideration of Rs.18,52,785/- are admitted by the OP. It has further been stated that as per the desire of the complainants to get the unit on the top floor, the unit was allotted to them and the same was re-allotted as per their desire subsequently from unit No.C-430 to C-327. It has further been stated that the complainant No.1 has already transferred the said property in the name of complainant No.2 and therefore, the complaint is not maintainable qua complainant No.1 in any case as he has not owner of the property as on date.  It has further been pleaded that the complaint is not maintainable qua the complainant no.2 as there is no valid agreement and there is no contract between the complainant No.2.  It has further been pleaded that the complainants are misreading and misconstruing Clause 11 of the allotment agreement.  It has further been pleaded that the delay in handling over the possession is beyond the control of the OP and the OP is committed to compensate the complainant for the delayed period. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made.
3.         We have heard the Counsel for the parties and have gone through the documents on record.
4.         The first question, which falls for consideration, is, as to whether, the complainants are consumers qua the Opposite Parties as defined under the provisions of the Consumer Protection Act, 1986 or not. The answer to this question is in the affirmative.  No doubt, the unit, in question, was allotted to the complainant No.1-Ajay Kumar.  However, it is an admitted fact that the said unit has already been transferred in the name of the complainant No.2 and as such, the complainant No.2 stepped into the shoes of the original allottee. The complainants, thus, availed of the services of the Opposite Parties for purchasing a unit for consideration. As such, they fall, within the definition of consumer.  Hence, the submission of the Counsel for the Opposite Parties is rejected.
5.           The next preliminary objection of the OP is that complainants are not consumer under the definition of the Act since the said investment in the property of the OP by the complainants is purely for commercial purposes and speculative investment. It may be stated here that the mere objection of OP that the investment made by the complainants in the project of the OP is for commercial purposes and speculative investment, does not carry any weight and the same is liable to be rejected there is nothing, on the record, that the complainants are property dealers, and deal in the sale and purchase of property. No evidence was also produced, by the OP, to prove that the complainants owned a number of other properties, in the tricity, and, as such, the unit, in question, was purchased by them for speculative gains and is a commercial transaction. The complainants, thus, fall within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the OP, in its written statement, therefore, being devoid of merit, is rejected.  
6.           There is no dispute with regard to the fact that possession of the apartment has not been delivered to the complainant No.2 till the date when this complaint has been filed or during pendency thereof. Even in the written reply filed, no firm commitment to hand over possession of the apartment has been made by the opposite party.  It has merely been stated that the delay in handing over the possession is beyond the control of the OP and OP is committed to compensate the allottee(s) for the delayed period.     At the time of arguments, Counsel for the opposite party failed to apprise this Commission, as to by which date, construction will be completed and possession of the apartment, can be handed over to the complainants.  Not even a single reason has been given for not offering possession of the apartment in question to the complainant. He only stated that the Company is ready to pay compensation for the period of delay, on the deposited amount, till offer of the apartment is made to the complainant.  Under these circumstances, an adverse inference is drawn against the OP that the project in question had been launched in contravention of the Punjab Apartment and Property Regulation Act, 1995 i.e. it has 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 the opposite party, wherein, in para Nos.4 &  5 of the preliminary objections, 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. This act of the opposite party amounts to deficiency in providing service and adoption of unfair trade practice.
7.           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 party 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 party, 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 it failed to do so.

              Furthermore, there is nothing on record to show that the opposite party suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of apartment was not delivered to the complainant No.2. If the opposite party has indulged into unfair trade practice and was also deficient in providing service by not offering possession of the apartments to similar located allottees, who have also filed complaints against it and number of litigations are pending against it, resulting into alleged financial losses, then it cannot expect to claim any immunity out of the same from this Commission.

8.           As stated above, the complainant No.1 booked the apartment as far as back in the year 2013 and now it is 2020, and still he is empty handed despite the fact that substantial amount of Rs.8,04,190/- (as per detail furnished in Annexure C-5)  against total sale consideration of Rs.18,52,785/- stood paid to the opposite party. But the possession of the unit has not been offered. Still, the opposite party is not sure, as to by which date, the possession of the apartment can be delivered to the complainant No.2. The complainant No.2 cannot be made to wait for an indefinite period on the bald assurances given by the opposite party that it is ready to pay compensation for the period of delay in delivering possession of the apartment.
9.           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 party is not sure as to by which date/year possession of the apartment could be delivered to the complainant No.2, as such, we are of the considered opinion that if we order refund of the amount paid by the complainants along with interest, that will meet the ends of justice. 
10.          Since, it is an admitted fact that possession of the apartment has not been offered to the complainant No.2 by the date this complaint has been filed or even thereafter, nor the Company is in position to do so, as explained above, as such, there is a continuing cause of action in favour of the complainants 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.  In the instant case, delay if any, in offering possession of the apartment(s) was on the part of the opposite party and it cannot take benefit out of that by saying that the consumer complaint is barred by limitation. In National Insurance Co. Ltd. vs. Hindustan Safety Glass Works Ltd. and allied cases, in Civil Appeal No. 3883/2007, decided on 07.04.2017, the Hon’ble Supreme Court of India held that the provisions concerning the limitation issue in the Act, 1986 could not be strictly construed to the disadvantage of a consumer in cases, where the supplier of goods or services itself was instrumental in causing delay.
11.         In view of the above discussion, the present complaint deserves to be allowed qua complainant No.2 and the same is accordingly allowed. The OP is directed as under:-

1. To refund Rs.8,04,190/- to the complainant No.2 along with interest @ 9% p.a. from the date of respective deposits till its actual payment.
2. To pay a sum of Rs.50,000/- as compensation to the complainant No.2 on account of mental agony and physical harassment.
3. To pay Rs.11,000/- as litigation expenses to complainant No.2.

                This order shall be complied with by the OP within one month from the date of receipt of its certified copy, failing which, they shall also be liable to pay the amount as mentioned at Sr.No.(a) and (b) along with interest @12% p.a. from the date of this order till its actual payment besides litigation expenses.

12.         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

 

Announced 14/12/2020	Sd/-
	(RAJAN DEWAN) PRESIDENT
	Sd/-
	(PRITI MALHOTRA) MEMBER
	Sd/-
	(B.M.SHARMA) MEMBER