Chandigarh

DF-I

CC/727/2022

RAJIV BANSAL - Complainant(s)

Versus

PRANAV ANSAL DIRECTOR ANSAL API - Opp.Party(s)

BARINDER SINGH

02 Dec 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/727/2022
Date of Institution	:	16/8/2022
Date of Decision	:	2/12/2024

 

1.       Rajiv Bansal S/o Lt. Sh. Devinder Kumar Bansal R/o 25 GF Ansal   Palm Grove, Kharar- Landran Road Sector-115 Mohali -140301

2.       Amina Bansal W/O Sh. Rajiv Bansal R/o 25 GF Ansal Palm Grove,           Kharar- Landran Road Sector - 115 Mohali -140301

..Complainant

Versus

1.       Pranav Ansal, Director Ansal API, Regd. Office 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001 Business Head Ansal Api B- 261, Golf Links Sector 116, Mohali SAS Nagar, Punjab.

2.       Business Head Ansal API B-261, Gold Links-II, Sector-116, Mohali          S.A.S. Nagar, Punjab.

3.       General Manager, Ansal API B-261, Golf Links-II, Sector-116, Mohali      SAS Nagar, Punjab.

4. Authorized Representative HDFC Bank Ltd. Service 8-C, Chandigarh.

 

..Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Manmohan Saroop, Advocate for complainant
	:	Sh. J.P. Jangu, Advocate proxy for Sh. Prateek Garg, Adv. for OP No.1 (defence of OP No.1 struck off vide order dated 17.4.2023)
	:	Defence of OPs No.2&3 struck off vide order dated 17.4.2023
	:	Sh. Vaibhav Singh Tara, Advocate for OP No.4

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that the OPs No. 1 to 3 (hereinafter referred to be as OP builder )  launched a project in the name and style of  “Golf Links-II”  at Victoria Floors, Sector 116, Kharar Landran Road, Mohali Punjab, widely publicized the offer of selling (dwelling House Apartment, floors and plots) in the “Golf Links-II project at Mohali. The complainant  was provided with information memorandum/prospectus  for the said project  indicating the terms and conditions for allotment  of dwelling units in the project. Accordingly the complainant vide application Annexure C-1 had booked a flat in  the mega housing project of OP builder  by name and style of “Victoria Floors, Golf Links-2” , Sector 116, Kharar Landran Road,  Mohali (hereinafter referred to be as subject project)  The complainant has made initially payment of Rs.4,12,425/-  on 21.8.2011  regarding which receipt was generated on 25.8.2011. The complainant executed an agreement Annexure C-3 with the OP builder  and accordingly  received  allotment letter  of unit No.272FF in the subject project with super area of 1435 sq. feet and the total  consideration of the subject flat was Rs.41,60,720/-. The OP builder has also raised demand of Rs.1,87,639/-  and the same was paid vide cheque No.265543. However the OP had later on changed the allocation of unit from 272FF to 84 FF in the subject project (hereinafter referred to be as subject flat) without any confirmation or prior approval  from the Complainant. As per clause 5.1 of the Flat Buyers' Agreement the possession of flat was promised to be handed over by the OP builder within 30 months from the date of execution of the Flat Buyer's Agreement, with an extended period of six months. In this manner the OP builder was supposed to offer possession of the subject flat within 36 months from the date of execution of the agreement. The builder OP had never inclined to construct the sold properties and started making bogus demand of money and the complainant kept on making payment to the OP builder  believing the same to be true. In order to pay the sale consideration, as the subject unit was under the Subvention scheme the complainant raised one loan, as OP builder  project was approved with HDFC Ltd. and OP No.4 sanctioned home loan to the tune of
      Rs.31,20,000/- out of which 50% of the loan amount was disbursed i.e. Rs.15,60,000/-. in favour of OP builder. The copy of Interest certificate/disbursal letter from the F.I. is annexed herewith as Annexure C4. Thereafter the OP builder had sent demand letters on different dates  to the complainants  and the complainants had made payments accordingly and as such the complainants had made a total payment of Rs.24,32,843/-  towards the sale consideration of the subject flat. It is further alleged that as per tripartite agreement the OP builder was supposed to pay pre-Emi interest on the disbursed amount to the financer but the OP builder started making default in the said payment as a result of which the OP financer  started taking payment from the complainants and on one occasion the complainant No.1 was compelled to pay an amount of Rs.20,000/- to the financer to avoid any confrontation in office. The pre-EMI  interest was supposed to be paid by the OP builder on the disbursed amount till the possession of the subject flat was offered to the complainant but the OP builder made default in the said payment. In this manner, the complainant left with a doubt that the OPs had induced the complainants’ hard earned money, by making false and incorrect representation/promises to deliver the possession within 3 years. Thereafter the complainants made many requests  to the OPs either to offer possession of the subject flat or refund the amount paid but with no result. Accordingly, the complainants were compelled to send legal notice Annexure C-7 and C-8  but despite of that nothing was done by the OP builder.  In this manner, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OP builder. OPs No. 1 to 3 were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. Defence of OPs No.1 to 3 was struck off vide order dated 17.4.2023 as they failed to file the their written version within the stipulated period.
   3. OP No.4 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability and cause of action and stated that the grievance of the Complainants are against the developer-promoter and nothing substantial has been stated or claimed against answering OP HDFC Limited. The Complainants are borrower of HDFC Ltd. and their inter-se obligations are governed by a separate loan agreement. The consequences of the default in repayment of the loan are governed by the terms and conditions of the loan agreement, which are not in dispute. Further, the default in complying with the terms and conditions of the loan agreement entitles HDFC Ltd. to recover its dues in accordance with law.  On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
   4. Despite grant of numerous opportunities, no rejoinder was filed by the complainant to rebut the stand of the OP.
2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments on record.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the OP builder had initially allotted flat No.272FF in the subject project and later on changed the same to 84FF and had agreed to sell the subject flat for a total sale consideration of Rs.41,60,720/- and out of which the complainant has already paid an amount of Rs.24,32,8423/- which also included loan amount of Rs.15,60,000/- disbursed by the OP No.4 the financer  to the OP builder and Rs.20,000/- to the OP financer as interest on default of OP builder to pay the same to the financer meaning thereby paid a total amount of Rs.24,52,843/- and till date the OP builder has failed to deliver the possession of the subject flat to the complainant, the case is reduced to a narrow compass as it is to be determined if the OP builder is unjustified in not offering the subject flat to the complainant till date despite receiving hefty amount from the complainants, and the complainants are entitled for the relief as prayed as is the case of the complainants or if the complaint is not maintainable against OP No.4 and the same is liable to be dismissed against OP No.4 as is the defence of OP No.4.
   2. In the back drop of the foregoing admitted and disputed facts on record, it is clear that the entire case of the parties is revolving around the documentary evidence led by the contesting parties and in order to determine the real controversy between the parties the same are required to be scanned carefully.
   3.  Annexure C-1 is the application form, clearly indicates that the complainants had paid an amount of Rs.4,12,425/- at the time of booking of the subject flat to the OP builder and Annexure C-2 is the receipt of the same. Annexure C-3  is the Floor Buyer’s Agreement which clearly indicates that as per clause 5.1  and 5.2  the OP builder has agreed to develop the residential colony and dwelling unit within 30 months with an extended period of 6 months from the date of execution of the agreement or date of sanction of building plan whichever falls later and subject to force majeure. The relevant portion of the same is reproduced as under:-

“POSSESSION OF FLOOR

5.1 Subject to Clause 5.2 and further subject to all the buyers of the Dwelling Units in the said scheme, Golf Links II, making timely payment, the Company shall endeavor to complete the development of residential colony and the Dwelling Unit as far as possible within 30 (Thirty) months with an extended period of 6 (six) months from the date of execution of this Agreement or the date of sanction of the building plan whichever falls later.

5.2 The Parties agree and acknowledge that where the completion of development of the residential colony and of the Dwelling Unit and/or the handing over of the possession of the Dwelling Unit is delayed by any reasons beyond the control of the Company, including without limitation Force Majeure, then no claim whatsoever by way of any damages/compensation shall lie against the Company, and the Buyer hereby agrees and undertakes to waive all the rights and claims in this regard. Further, where there occurs any delay in possession being handed over to the Buyer on account of any of the reasons specified under this Clause 5.2, the Company shall be entitled to a reasonable extension of time for handing over possession of the said Dwelling Unit to the Buyer….”

 Annexure C-6  is the statement of account, which indicates that the complainant made payment of Rs.20,000/- to the financer towards interest. Annexure OP-4/1  is the copy of loan agreement sanctioned by OP No.4  in favour of the complainant which clearly indicates that loan was sanctioned in favour of the complainant by the OP No.4 financer  to be payable by the complainant. Annexure OP-4/2  is the copy of tripartite agreement which indicates that it was the sole liability of the complainants to repay the loan amount as the same was raised against the subject flat.

4. The learned counsel for the complainants submitted that  despite receiving huge amount  from the complainant OP builder has not delivered the possession of the subject flat till date and even the OP builder has not obtained necessary approval from the competent authority before receiving amount from the complainant the said act of OP builder amounts to deficiency in service and unfair trade practice on their part.  
5. There is force in the contention of the counsel for the complainant as the OP builder (OPs No. 1 to 3) have failed to clarify this Commission by leading any evidence or making any defence as to why they had received huge amount from the complainant knowing fully well that necessary clearances have not been given by the competent authority, which was otherwise obligatory on the part of the OPs to obtain all the approvals/ clearances before booking the subject flat.  If the OPs chose to accept the booking without obtaining the approvals/clearances or amended clearances, they are only themselves to blame for the same as the purchaser of the subject floor/flat/plot has nothing to do with the grant of statutory approvals/clearances/amended clearances and for the said act of the OPs, complainant cannot be penalized by postponing the possession.  In this regard, reference can be made to the order passed by the Hon’ble National Commission in the case of M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No.4620 of 2013, decided on 17.12.2015 and the operative part of the same reads as under :- 

                             “…..As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents.  In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA.  If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout.  The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot…..”

 

6. It has thus been proved on record that money had been collected from the prospective buyers including the complainant, without obtaining statutory approvals/ clearances. Collecting money from the prospective buyers and selling the plots/units in the project, without obtaining the required licence/approvals/ clearances/amended clearance is an unfair trade practice on the part of the project proponent. It was so said by the Hon’ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31.5.2018 and the relevant portion of the order reads as under:-

“…………….This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.

It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency…………”

7. The complainants have also relied upon the judgment of Hon’ble National Commission in the case of Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018 in which it was held that non delivery of possession of plots/units in a developed project by the promised date is a material violation on the part of the builder and in those cases, allottees are well within their rights to seek refund of the amount paid. The above 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 also in Fortune Infrastructure Vs. Trevor D’ Lima & Ors. (2018) 5 SCC 442.
8. Recently, the Hon’ble National Commission in Sanjiv Kumar Jain & Anr. Vs. Lodha Crown Buildmart Private Limited, II (2023) CPJ 271 (NC) has held that inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund on this ground alone and if unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined.  The relevant headnote of the order is reproduced below for ready reference :-

“(iii) Consumer Protection Act, 1986 — Sections 2(1)(g), 14(1)(d), 21(a)(i) — Housing — Booking of duplex flat — Non-delivery of possession — Deficiency in service — Inordinate delay in offer of possession, amounts to ‘deficiency in service’ and home buyer can ask for refund, on this ground alone — If unreasonable delay in offer of possession is proved then it is sufficient to grant relief of refund and other grounds are not liable to be examined — As there was unreasonable delay in offer of possession, complainants are entitled for refund of full amount under Clause 11.3 of agreement — Home buyer cannot be made to wait for possession of flat for indefinite period — Opposite party is directed to refund entire amount deposited by complainants with interest @ 9% per annum from date of respective deposit till date of payment.”

9. As far as the question as to how the cause of action has arisen to the complainant is concerned,  it has come on record that the OPs  have failed to deliver the lawful possession of the subject plot after obtaining necessary approvals/completion certificate from the competent authority. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., 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 continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
10. In view of above, it is safe to hold the aforesaid act of  OPs No.1 to 3 the builder amounts to deficiency in service and unfair trade practice on their part, especially when the entire case set up by the complainants in the consumer complaint as well as the evidence available on record is unrebutted by the OPs No. 1 to 3. Hence, the instant consumer complaint deserves to be allowed.
11. So far as quantum of relief is concerned, it is proved on record that the complainants have paid an amount of Rs.24,32,843/- to the OPs No. 1 to 3 towards the sale consideration  of the subject flat and also paid Rs.20,000/- to financer on account of interest which was to be paid by the OPs  No. 1 to 3. Thus, the OPs No.1 to 3 are liable to refund Rs.24,52,843/-  to the complainants alongwith interest.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs No. 1 to 3 are directed as under:-
   1. to pay ₹24,52,843/-to the complainants alongwith interest @ 9% per annum (simple) from the respective dates of deposit till onwards
   2. to pay ₹1,00,000/- to the complainants as compensation for causing mental agony and harassment;
   3. to pay ₹10,000/- to the complainants as costs of litigation.
5. This order be complied with by the OPs No. 1 to 3 jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
6. However, it is made clear that the financier (OP-4) shall have first charge over the aforesaid awarded amount, to the extent the same is due to be paid by the complainants towards the discharge of loan liability, if any.
7. Complaint qua OP No.4 stands dismissed.
8. Pending miscellaneous application(s), if any, also stands disposed off.
9. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 2/12/2024			[Pawanjit Singh] President
mp
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member