State Consumer Disputes Redressal Commission
Meenakshi Kapil vs M/S Ansal Landmark Township Pvt. Ltd. on 12 January, 2024
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. : 46 of 2023
Date of Institution : 06.06.2023
Date of Decision : 12.01.2024
Meenakshi Kapil W/o Sanjeev Kapil Resident of House No. 5756/B, Sector 38
West, Chandigarh
...Complainant
Versus
1. M/s Ansal Landmark Township Pvt. Ltd., Regd Office: 115, Ansal Bhawan,
16.K.G Marg, New Delhi-110001 through its Chairman/ Director/
Managing Director/ Manager/ Authorised representative.
2. Sushil Ansal, Wholetime Director of M/s Ansal Properties and
Infrastructure Limited., R/o 26, Ferozeshah Road, Barakhamba Road, New
Delhi, G.P.O Central Delhi, Delhi-110001.
3. Pranav Ansal Director of M/s Ansal Properties and Infrastructure Limited.,
R/o 26, Ferozeshah Road, Barakhamba Road, New Delhi, GPO Central
Delhi, Delhi-110001
Email:[email protected]
.....Opposite Parties
Present:- Sh.Sandeep Bhardwaj, Advocate for the complainant.
Sh.Abhinav Bazwaria, Advocate for the opposite party no.1.
Sh.Prateek Garg, Advocate for opposite parties no.2 and 3.
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
MR. RAJESH K. ARYA, MEMBER
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT Brief facts of consumer complaint:-
It is the case of the complainant that she purchased plot bearing no.4A/A/0110. Type A, measuring 240 square yards, in resale, in the project of the opposite parties named "Sushant City", Vedvya Puri, Meerut, U.P., from one Sh.Amit Gupta, who had purchased the said plot in February 2006. Sh.Amit Gupta had been allotted allotment letter dated 28.02.2006, Annexure C-1. Total price of the said plot was fixed at Rs.10,58,700/-, out of which, Sh.Amit Gupta had already paid an amount of Rs.10,01,600/- to the opposite parties. Plot buyers' agreement was executed between the opposite parties and 2 Amit Gupta on 12.07.2006 (Annexure C-2). On making payment of administration charge of Rs.24,000/- by the complainant, the opposite parties confirmed transfer of the said plot in her favour, vide letter dated 16.06.2011, Annexure C-6. It has been averred that despite the fact that almost the entire sale consideration stood received by the opposite parties, except meager balance amount of Rs.15,224/- towards sale price of the said plot, which was due at the time of delivery of possession, yet, possession of the plot in question has not been delivered till date. It has been stated by the complainant that visits to the project site revealed that there is no development going on. However, when the complainant approached the opposite parties with a request to apprise her regarding the date of delivery of possession of the said plot, no satisfactory reply was given by them. Hence this complaint has been filed by the complainant seeking following relief:-
(i) To declare the terms and conditions of the contract being unfair and against the interest of the complainant.
(ii) To handover the possession of the plot bearing no. 4A/A/0110 MEAURING 240sq.yds in Sushant City at Meerut as mentioned in agreement immediately with all amenities along with completion and occupation certificate issued by competent authority.
(iii) To pay interest on the paid amount i.e. @18% on the deposited amount from the date of deposit till handing over the possession in accordance with clause (i) of the prayer as above.
(iv) To pay compensation in the sum of Rs. 5 lacs on account of mental agony, physical harassment, deficiency in service, unfair trade practice and financial loss caused to the complainant.
(v) To pay cost of litigation to the tune of Rs.1 lac to the complainant.
(vi) To pay compensation in accordance with clause 39(k) of the Consumer Protection Act, 2019
(vii) Or Any other directions/relief which this Hon'ble Commission may deem fit in the facts and circumstances of the case may also kindly be granted in the interest of justice.
Written version of the opposite party no.1:-
2. The claim of the complainants has been contested by opposite party no.1 by way of filing written version wherein number of objections were taken as under:-
(i). that this Commission is not vested with territorial jurisdiction to entertain this complaint, especially, when the complainant has not placed on record any document to prove that she is residing at Chandigarh and at the same time, neither the opposite parties 3 have their office at Chandigarh nor any cause of action accrued to the complainant at Chandigarh;
(ii). that because the original owner from whom the complainant has purchased the plot in question has not been impleaded as necessary party, therefore, this complaint is bad for nonjoinder of necessary party;
(iii). that the complainant is not a consumer and on the other hand is investor and has purchased the plot in question for earning profits;
(iv). that because buyers' agreement in respect of the plot in question stood executed in the year 2006, as such, this complaint having been filed in the year 2023 is barred by limitation;
(v). that since it was a fresh and independent contract in which the complainant entered in the year 2011, as such, she cannot claim any right(s) prior to the year 2011.
3. On merits, while admitting the factual matrix of the case regarding purchase of the plot in question by the complainant, in resale, as mentioned in the compliant, it has been stated that the opposite party no.1 purchased "Bulk Residential Plot" on a leasehold basis of land measuring 270.242 acres (Dependent upon i.e., subject to availability of the land as well as subject to the variation) in the public auction through a scheme floated in the month of January 2005 for the development of an integrated residential region on "As is where is basis" in Vedvyaspuri, Meerut" by Meerut Development Authority (hereinafter referred as MDA), State Government of U.P constituted under section 4 of the Urban Planning & Development Act, 1973, by making consideration of Rs. 1,82,56,26,903.60ps @ of Rs. 1501 per Sq.mt. Opposite party no.1 got the leasehold property converted to freehold property after making payment of applicable charges. Out of the total land of 270.242 acres, the transfer deed of land 220.242 acres has been executed in favor of opposite party No.1, whereas the transfer deed of the remaining land of 50.733 acres has not been executed so far by MDA. Although the complete payments which include internal as well as external development charges were made to MDA but the Government/MDA vide communication dated 06.06.2019 later on by surprise illegally imposed 10% infrastructure sub-charges of Rs.16,41,54,594/-, which was not part and parcel of the conditions of public auction. Opposite party no. 1 in a bonafide manner also entered into a one- time settlement (OTS) with the Government of U.P and made a payment of Rs.19,40,05,153/-. The government did not execute the registry/Transfer 4 Deed of 50.733 acres of land in the name of opposite party no.1 so far. Since the Government has not executed the registry therefore it is unavoidable hardship for opposite party no.1 to execute the sale deed in favor of the complainant. Despite above, the Government/MDA initiated recovery proceedings against opposite party no.1, whereby the previous demand of Rs.16,41,54,594/- was again repatriated as per the previous communication/notice dated 06.06.2019 by considering a government order dated 15.01.1998. In this manner opposite party no.1 started facing a lot of problems from the allottees to whom the allotment has already been made including Mr. Amit Gupta who was the original allottee of the plot in question. The illegal imposition of 10% infrastructure charges had been challenged in Writ Case No. 22623 of 2020, Writ Case No. 22333 2020, and Writ Case No. 22331, Writ Case No. 22328, before the Hon'ble Allahabad High Court. Opposite party no.1 also challenged the action of the government by filing a Writ No. 6012 of 2021 and it was connected with Writ No. 22328 of 2020. The validity of the demand notice dated 05.08.2019 for 10% infrastructure charges was although upheld by the Hon'ble High Court but in the SLP preferred by M/s Panchsheel Buildtech Pvt. Ltd. before the Apex Court in SLP (C) No. 3932 of 2021, the Apex court on 12.03.2021 passed an order of status quo, meaning thereby the validity challenge has been stayed and therefore the government cannot execute the registry in favor of opposite party no.1. Thus, the project was delayed due to hurdles created by the government. Remaining averments of the complaint have been denied being wrong.
Written version of opposite parties no.2 and 3:-
4. Opposite parties no.2 and 3 in their joint reply stated that opposite party no. 3-Pranav Ansal has never been a Director of opposite party no.1 as such he has wrongly been impleaded in the present complaint. No privity of contract exists between the complainant and opposite party no.3.
Opposite Party No. 2 Sushil Ansal was once the Director of opposite party no.1 and he also ceased to be the Director of opposite party no.1 w.e.f. 28/08/2009, as he resigned and Form no. 32 in this regard is also attached as Annexure R2/A. Hence opposite party no.2 after his resignation is also not a necessary party and has been wrongly being impleaded in the present complaint. The complainant has a cause of action to file the present complaint only against opposite party no.1-M/s Ansal Landmark Township Pvt. Ltd. who owned the project in question at Meerut and with whom contract/agreement/transfer letter dated 16/06/2011 has been entered. M/s Ansal Landmark Township Pvt. Ltd. and M/s Ansal Properties and 5 Infrastructure Pvt. Ltd, are different legal entities separately incorporated under the Company Act. Therefore, impleading opposite parties no.2 and 3 as Directors of M/s Ansal Properties and Infrastructure Pvt. Ltd. is illegal, uncalled, and not warranted under the law. Prayer has been made to dismiss the complaint against opposite parties no.2 and 3.
Rejoinder filed by the complainant:-
5. In the rejoinder filed, the complainant reiterated the averments contained in her complaint and controverted those contained in the written replies of the opposite parties.
6. The contesting parties led evidence in support of their case and also filed written arguments/submissions.
7. We have heard the contesting parties and have gone through the record of the case, including the written arguments/submissions filed by parties concerned, very carefully.
Observations/findings of this Commission:-
Unfair terms and conditions contained in the agreement:-
8. Before proceeding further, it is significant to mention here this complaint has been filed by the complainant under Section 49 read with Section 47 of the Consumer Protection Act, 2019 (in short the CPA, 2019) on the ground that the opposite parties are deficient in providing service and adopted unfair trade practice by thrusting one-sided clauses in the contract/agreement, which constitutes "unfair contract" and also they have miserably failed to deliver possession of the plot in question to the complainant despite receiving almost the entire sale consideration.
It may be stated here that the provisions of Section 47 of Consumer Protection Act, 2019 (under which this complaint has been filed) speak about the jurisdiction of this Commission. It is necessary to reproduce relevant provisions of Section 47 of CPA 2019 as under:-
".........47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain--
(i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;6
(ii) complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees; appeals against the orders of any District Commission within the State...
(iii) xxxxxx........."
A bare perusal of Section 47 (1) (a) (ii) provides that the State Commission shall also have the jurisdiction to entertain and decide the complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees, (pecuniary jurisdiction of State Commission has now been decreased to rupees two crores vide Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 dated 30.12.2021. Definition of "unfair contract" has been provided under Clause 2 (46) of CPA 2019 as under:-
(46) "unfair contract" means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:--
(i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or
(ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or
(iii) refusing to accept early repayment of debts on payment of applicable penalty; or
(iv) entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or
(v) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or
(vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage...."
9. In the present case, it has been specifically brought to the notice of this Commission by the complainant that following condition nos.9 to 11 contained in the plot buyers' agreement dated 12.07.2006, Annexure C-2 being unreasonable, one-sided and heavily loaded in favour of the company are liable to be declared unfair and void:-
"..9. The sale deed shall be executed and got registered in favour of the Buyer within a reasonable time after the plot has been finally demarcated at the site and after receipt from him of full sale consideration and other charges and compliance of all other terms 7 and conditions of this Agreement. The cost of stamp duty, registration charges, freehold charges and other incidental charges will be borne by the Buyer in addition to full sale price of the plot, as and when demanded by the Promoter. The sale deed shall contain terms and conditions contained herein and such additional terms and conditions as are considered proper by the Promoter. The Buyer shall not object to any such terms. In case the Government demands any stamp duty/registration charges and freehold charges on this Agreement, the same shall be borne by the Buyer.
10. The Buyer shall be bound to start construction of the house with due sanction of the Competent Authority within a period of 3 years from the date of intimation to take possession is sent by the Promoter failing which the Promoter will be entitled to resume the plot without any compensation and to allot the same to somebody else and the sale price of the plot received by the Promoter shall be refunded to the Buyer without any interest. In the alternative it shall be in the sole discretion of the Promoter to extend the period for commencement of construction, but in that event the Buyer shall be liable to pay charges for the plot area to the Promoter for the extended period as decided by the Promoter.
11. The Buyer of the plot unconditionally agrees and undertakes to pay necessary charges, from the date when possession is offered to him, as determined by the Promoter or the maintenance agency towards water and for maintaining various value added services until the services are handed over to a local body. The Buyer shall deposit with the Promoter a sum as decided by the Promoter by way of interest free security to ensure timely payment of maintenance and water charges by him. The amount will be payable by the Buyer and will be paid at the time when possession is offered or sale deed is executed, whichever is earlier, however, the maintenance charges shall become payable from the date of offer of possession..."
10. We have also gone through the said terms and conditions of the agreement and are of the considered opinion that the same are one sided, harsh, oppressive and unconscionable to the complainant, as discussed hereinafter. First coming to condition no.9, it has been mentioned by the company that the sale deed shall contain terms and conditions/additional conditions terms and conditions as are considered proper by the Promoter. The Buyer shall not object to any such terms. In our considered opinion, the Builder/Promoter cannot thrust any one-sided or additional terms and conditions in the sale deed and on the other hand, should keep in mind the provisions of the The Transfer of Property Act, 1882 (TP Act) which mandates the seller of a property to make certain disclosure, representations and execute certain acts for the purpose of selling immovable property; and 8 especially, Section 55 of the TP Act, which deals with the 'Rights and liabilities of buyer and seller' and certain obligations that the seller is bound to undertake. As such, no additional terms and conditions at the whims and fancies of the company can be incorporated in the contents of sale deed by opposite parties no.1 and 2. To this extent, clause no.9 is declared unfair and void and opposite parties no.1 and 2 shall execute sale deed in respect of the plot in question keeping in mind the provisions of the TP Act and also the relevant Rules and Regulations of the concerned State, applicable at the relevant time.
11. Now coming to condition no.10 which says that in case the buyer fails to start construction of the house with due sanction of the Competent Authority within a period of 3 years from the date of intimation to take possession, the company will be entitled to resume the plot without any compensation and to allot the same to somebody else and the sale price of the plot received by the Promoter shall be refunded to the Buyer without any interest or in the alternative it shall be in the sole discretion of the Promoter to extend the period for commencement of construction on payment of some charges. It may be stated here that this condition also appears to be unfair and unreasonable because the company has failed to place on record any Rules/Regulations etc. which entitles it to resume the plot or that it is entitled to receive non-construction charges, once it has ceased to be owner of the plot, after receiving entire sale consideration from the buyer; delivery of possession thereof; and execution of sale deed. To this extent, this clause no.10 is declared unfair and void. However, the company shall charge only non-construction charges from the complainant, as applicable under relevant Rules and Regulations framed by the State Government only.
12. Now coming to condition no.11 which says that the buyer of the plot unconditionally agrees and undertakes to pay necessary charges/ maintenance charges, from the date when possession is offered to him. It may be stated here that this condition also appears to be unfair, one sided, harsh, oppressive and unconscionable and is liable to be held void. It is therefore held that the complainant is liable to make payment of necessary charges/maintenance charges, if applicable/contained in the agreement only in case a legal and valid offer of possession supported with completion certificate obtained from the competent Authorities (but not a conditional offer) is offered and the actual physical possession of the said plot is delivered to her i.e. the said charges are payable by the complainant only after taking over actual physical possession of the plot in question. It is also made clear that in case of failure on the part of the complainant in taking over legal and 9 valid possession of the plot in question within the period prescribed in the said offer of possession, shall not absolve her from payment of the said charges.
Territorial Jurisdiction:-
13. Now coming to the objection taken by opposite party no.1 with regard to territorial jurisdiction. Counsel for opposite party no.1 has vehemently contended that neither opposite party no.1 is having any office at Chandigarh nor any part of cause of action accrued to the complainant at Chandigarh. He further contended that even the rent agreement, reliance whereupon has been placed by the complainant, has been executed solely on 28.02.2022, with regard to rent starting from 01.03.2023 and the present complaint has been filed on 06.06.2023. He further submitted that even no date has been mentioned on the rent agreement, Annexure C-10.
It may be stated here that Section 47 (4) of Consumer Protection Act, 2019 which is pari materia to Section 20 of the Code of Civil Procedure (CPC) provides as under:-
".....47. (4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain...."
Bare perusal of the above said provisions of sub-section (d) of Section 47 (4) of the CPA 2019 abundantly make it very clear that a complaint may be filed at a place, where the complainant resides or personally works for gain.
It is significant to mention here that in the present case, alongwith the rejoinder filed, the complainant has placed on record certificate dated 01.05.2023, Annexure C-9 having been issued by the authorized signatory of Omaxe New Chandigarh Developers Private Limited, wherein, it has been clearly mentioned that Mr.Sanjeev Kapil (husband of the complainant) is working as Sr.Vice President, since February 2018 and has been provided family accommodation at House No.5765/B, Sector 38-West, Chandigarh since 01.03.2023. Secondly, the complainant has also placed on 10 record the rent deed, Annexure C-10 (notarized on 28.02.2023) in respect of the said house i.e. House No.5765/B, Sector 38-West, Chandigarh, having been executed between the landlord-Mrs. Sunita Arora and also Omaxe New Chandigarh Developers Pvt. Limited, Registered Office at LSC-10, Kalkaji New Delhi, through its Authorized Representative Mr.Rajender Kumar Gupta valid from 01.03.2023 to 31.01.2024. It is mentioned in this rent agreement that Rs.29,000/- per month will be the rent of the said premises and that Rs.29,000/- has been paid to the landlord by way of cheque no.489998 dated 28.02.2023 in favour of Sunita Arora as Interest Free Security Deposit. It is important to mention here that during arguments, it has been clarified by the counsel for the complainant that inadvertently, instead of writing the word "applicable from 1st day of March 2023", the words "is made at Chandigarh on 1st day of March 2023" were written in the rent agreement, which was considered by this Commission. Thus, it is proved by the complainant that she is residing alongwith her family members at House No.5765/B, Sector 38- West, Chandigarh.
However, no contrary evidence has been placed on record by opposite party no.1 to prove their objection to the effect that the complainant is not residing at Chandigarh. Thus, since the complainant has proved her case that she is residing alongwith her family members at Chandigarh, as such, this Commission at Chandigarh has territorial jurisdiction to entertain this complaint. Objection taken by opposite party no.1 in this regard stands rejected.
Complainant being reallottee is a consumer:-
14. Now we will deal with the objection taken by counsel for opposite party no.1 that because the complainant has purchased the said plot in resale, therefore she is not a consumer and that she is an investor, it may be stated here that there is no dispute that the complainant had purchased the plot, in resale, from the original owner, in the manner stated above. It is not in dispute that the sale transaction was endorsed by the opposite parties no.1 and 2 in favour of the complainant, vide letter dated 16.06.2011, Annexure C-
6, on receipt of administration charges of Rs.24,000/-. It is well settled law that once the property is transferred/endorsed in the name of the buyer from the original owner, he/she (buyer) is vested with all the rights and interests, accrued in favour of his/her predecessor(s), as he/she stepped into her/his shoes. The said objection also did not merit acceptance, in view of principle of law laid down by the Hon'ble Supreme Court of India in M/s Laureate Buildwell Pvt. Ltd. Vs Charanjeet Singh, 2021 225 AIC 195, wherein it has 11 been held that the rights of the subsequent buyer are equal to that of the original allottee. In Vatika Limited Vs Mr. Rajneesh Aggarwal, Revision Petition No. 525 of 2013, decided on 22.07.2014 by the Hon'ble National Commission, wherein the complainant was the fourth subsequent allottee was held to be a consumer. Relevant part of the said order is reproduced hereunder:-
"So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provider to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company. For the reasons stated above, we do not find any merit in the revision petition and the same is dismissed accordingly but with no order as to costs."
In this view of the matter, objection taken by opposite party no.1 that since the complainant has purchased the said plot in resale, therefore she is not a consumer being devoid of merit stands rejected.
Complainant is not an investor:-
15. As far as objection taken by the counsel for opposite party no.1 that the complainant is an investor and as such she is not a consumer, it may be stated here that since objection is not supported by any documentary evidence, as such the onus shifts to opposite party no.1 to establish that the complainant has purchased the plot in question to indulge in 'purchase and sale of units/plots' as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31, but since opposite party no.1 failed to discharge its onus, hence we hold that the complainant is a consumer as defined under the Act, 2019. In this view of the matter, objection taken in this regard stands rejected.
Opposite parties no.2 and 3 necessary parties to this complaint or not:-
16. Learned counsel for opposite parties no.2 and 3 has vehemently contended that since opposite party no. 3-Sh.Pranav Ansal has never been a Director of opposite party no.1; no privity of contract exists between the complainant and opposite party no.3, as such, he has been wrongly impleaded in the present complaint. At the same time, he further contended that opposite 12 Party No. 2-Sh.Sushil Ansal was once Director of opposite party no.1 and he also ceased to be the Director of opposite party no.1 w.e.f. 28/08/2009, as he resigned on the said date, as is evident from Form no. 32, Annexure R2/A. First coming to opposite party no.2-Sh.Sushil Ansal, it may be stated here that we have perused Form no. 32 very carefully and found that Sh.Sushil Ansal son of Sh.Charanji Lal joined opposite party no.1-Company as Additional Director on 10.11.2005. It is also found mentioned in another Form 32 under the Companies Act, 1956 that Sh.Sushil Ansal son of Sh.Charanji Lal ceased to be the Director of opposite party no.1-company w.e.f. 28.08.2009, meaning thereby that Sh.Sushil Ansal son of Sh.Charanji Lal was looking after the affairs of the opposite party no.1-company in the capacity of Director from 10.11.2005 till 28.08.2009. In the present case, admittedly the allotment of the plot in question was made vide letter dated 28.02.2006, Annexure C-1; plot buyers' agreement, Annexure C-2 was executed on 12.07.2006 and the amount of Rs.10,01,600/- was also received by the allottee-Amit Gupta, in whose shoes the complainant has stepped into, meaning thereby that these key transactions took place during the period 10.11.2005 till 28.08.2009 i.e. the period when Sh.Sushil Ansal son of Sh.Charanji Lal was looking after the affairs of the opposite party no.1-
company. Under these circumstances, Sh.Sushil Ansal son of Sh.Charanji Lal/opposite party no.2 cannot wriggle out of the situation by saying that since he resigned on 28.08.2009, as such, he is not a necessary party to this complaint. It is therefore held that opposite party no.2 is very much a necessary part to this complaint.
However, as far as opposite party no. 3-Sh.Pranav Ansal is concerned, in our considered opinion, since the complainant has failed to place on record any document to prove that opposite party no. 3-Sh.Pranav Ansal remained Director of the company during the period the said transactions took place or any cause of action accrued to the complainant or the original allottee with opposite party no. 3-Sh.Pranav Ansal qua the plot in question, as such, this complaint is not maintainable against him. It is therefore held that since no case is made out against opposite party no. 3- Sh.Pranav Ansal as such, this complaint is dismissed against him.
Compliant not bad for non-joinder of earlier/original allottee:-
17. Now coming to the objection taken by opposite party no.1 qua non-joinder of earlier allottee-Amit Gupta as necessary party, it may be stated here that once the complainant had purchased the plot in question from Sh.
Amit Gupta and the said purchase stood confirmed by the opposite parties 13 no.1 and 2 vide letter dated 16.06.2011, Annexure C-6, on receipt of administration charges of Rs.24,000/- as such, all his (Amit Gupta) rights stood extinguished in respect of the said plot. Under these circumstances, there was no need of impleading earlier allottee-Amit Gupta as necessary party to this complaint. In this view of the matter, objection taken in this regard stands rejected.
Delivery of possession:-
18. It is not in dispute that despite the fact that almost the entire sale consideration stood received by opposite parties no.1 and 2, yet, possession of the plot in question has not been offered and delivered to the complainant till the date when arguments were heard in this case and reserved for orders.
However, to wriggle out of the situation of not delivering possession of the plot in question and to prove their contention that the project was delayed due to hurdles created by the government, counsel for opposite party no.1 has strongly relied upon following contentions:-
(i). Out of the total land of 270.242 acres, the transfer deed of land 220.242 acres has been executed in favor of opposite party No.1 and whereas the transfer deed of the remaining land of 50.733 acres has not been executed so far by MDA.
(ii). Although the complete payments which include internal as well as external development charges were made to MDA but the Government/MDA vide communication dated 06.06.2019 later on by surprise illegally imposed 10% infrastructure sub- charges of Rs.16,41,54,594.00/-, which was not part and parcel of the conditions of public auction. However, despite making payment of Rs.19,40,05,153.00/- on the ground of one-time settlement (OTS) with the Government of U.P. it did not execute the registry/Transfer Deed of 50.733 acres of land in the name of the opposite parties, as a result of which sale deed could not be executed in favor of the complainant.
(iii). The Government/MDA initiated recovery proceedings against opposite party no.1, whereby the previous demand of Rs.16,41,54,594.00/- was again repatriated as per the previous communication/notice dated 06.06.2019 by considering a government order dated 15.01.1998, which had been challenged in Writ Case No. 22623 of 2020, Writ Case No. 22333 2020, and Writ Case No. 22331, Writ Case No. 22328, before the Hon'ble Allahabad High Court and also the actions of the government by 14 filing a Writ Case No. 6012 of 2021 and it was connected with Writ Case No. 22328 of 2020. The validity of the demand notice dated 05.08.2019 for 10% infrastructure charges was although upheld by the Hon'ble High Court in Writ Case No. 22623 of 2020 but in the SLP preferred by M/s Panchsheel Buildtech Pvt. Ltd. before the Apex Court in SLP (C) No. 3932 of 2021, the Apex court on 12.03.2021 passed an order of status quo, meaning thereby the validity challenge has been stayed and therefore the government cannot execute the registry in favor of the opposite party no.1.
19. First coming to the contention raised by counsel for opposite party no.1 that out of the total land of 270.242 acres, the transfer deed of land 220.242 acres has been executed in favor of opposite party No.1 and whereas the transfer deed of the remaining land of 50.733 acres has not been executed so far by MDA and that despite making payment of Rs.19,40,05,153.00/- on the ground of one-time settlement (OTS) with the Government of U.P. it did not execute the registry/Transfer Deed of 50.733 acres of land, as a result of which litigation arose and delay occurred, it may be stated here that this contention raised does not merit acceptance, in view of the candid admission made by opposite parties no.1 and 2 in allotment letter dated 28.02.2006, Annexure C-1, wherein it has been clearly intimated by them to the allottee that the entire contiguous land has been allotted by MDA, which is in the effective ownership and possession of the company. Relevant part of the said letter is reproduced hereunder:-
".......It is for your kind information that development work at the site has commenced in full swing. The entire contiguous land has been allotted by MDA, which is in our effective ownership and possession.."
Thus, once the plot in question was sold to the allottee after giving assurance and promise that the entire contiguous land has been allotted by MDA, which is in the effective ownership and possession of the company and on the basis of this assurance only the allottee had enter into the sale transaction, as such, now opposite parties no.1 and 2 cannot wriggle out of the same and evade their liability.
20. As far as contention raised by opposite party no.1 to the effect that delay also took place because the demand of Rs.16,41,54,594.00/- made by the Government stood challenged in Writ Case No. 22623 of 2020, Writ Case No. 22333 2020, and Writ Case No. 22331, Writ Case No. 22328, before 15 the Hon'ble Allahabad High Court, which was upheld but in the SLP preferred by M/s Panchsheel Buildtech Pvt. Ltd. before the Apex Court in SLP (C) No. 3932 of 2021, the Apex court on 12.03.2021 passed an order of status quo therefore the government could not execute the registry in favor of the opposite party no.1. It may be stated here that the plot in question was sold by opposite parties no.1 and 2 in the year 2006 while giving assurance that the entire contiguous land has been allotted by MDA, which is in the effective ownership and possession of the company. As such, thereafter, if any subsequent litigation arose after a period of about 14 years of the sale of the said plot and that too for nonpayment of some statutory amount by opposite parties no.1 and 2 to the Government concerned, the complainant cannot be made scapegoat and that too when almost the entire sale consideration stood received in respect of the plot in question by opposite parties no.1 and 2. Thus, any interse dispute between the company and the Government concerned and that too for nonpayment of some statutory amount, has no relation whatsoever, with the relief for which the complainant is entitled for delay in delivery of possession of the plot in question. Therefore, contention raised by opposite party no.1 in this regard stands rejected.
Limitation:-
21. Now coming to the objection taken by opposite party no.1 that since agreement in respect of the plot in question stood executed on 12.07.2006, therefore this complaint having been filed in the year 2023 is barred by limitation, it may be stated here that since admittedly possession of the plot in question has not been delivered to the complainant even till the date, when arguments were heard in this complaint and the case was reserved for orders, therefore, there is continuing cause of action in favour of the complaint to file this complaint, 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 till the time possession is not offered and delivered by the builder/developer, there is a continuing cause of action in favour of the allottee/buyer. As such, objection taken in this regard also stands rejected.
Compensation payable by the opposite parties:-
22. Now the question arises, as to what compensation should be granted to the complainant in this case? It may be stated here that Consumer Protection Act has been made to safeguard the consumer rights. In the 16 present case, failure of opposite parties no.1 and 2 to offer and deliver possession of the plot in question, for such an inordinate delay which is still continuing, amounts to deficiency in service. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon'ble Supreme Court of India has upheld the order of the Hon'ble National Commission awarding interest @9% p.a. for the period of delay in delivery of actual physical possession. Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon'ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-
2330 of 2019, decided on 26 February, 2019, by making reference to the earlier order passed by it in Himanshu Arora's case (supra). Furthermore, in Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon'ble National Commission has awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered.
In the present case, there is no specific period mentioned in the agreement regarding delivery of possession of the plot in question, which infact is an unfair trade practice on the part of opposite parties no.1 and 2. The Hon'ble Supreme Court of India in M/s Laureate Buildwell Pvt. Ltd. case (supra), has been held that the rights of the subsequent buyer are equal to that of the original allottee and that a reasonable time is expected by the reallottee for delivery of possession of the unit/plot purchased by him/her in resale. Relevant part of the said order is reproduced hereunder:-
".......31. In view of these considerations, this court is of the opinion that the per se bar to the relief of interest on refund, enunciated by the decision in Raje Ram (supra) which was applied in Wg. Commander Arifur Rehman (supra) cannot be considered good law. The nature and extent of relief, to which a subsequent purchaser can be entitled to, would be fact dependent. However, it cannot be said that a subsequent purchaser who steps into the shoes of an original allottee of a housing project in which the builder has not honoured its commitment to deliver the flat within a stipulated time, cannot expect any - even reasonable time, for the performance of the builder's obligation. Such a conclusion would be arbitrary, given 17 that there may be a large number- possibly thousands of flat buyers, waiting for their promised flats or residences; they surely would be entitled to all reliefs under the Act. In such case, a purchaser who no doubt enters the picture later surely belongs to the same class. Further, the purchaser agrees to buy the flat with a reasonable expectation that delivery of possession would be in accordance within the bounds of the delayed timeline that he has knowledge of, at the time of purchase of the flat. ......"
Under these circumstances, if we grant interest @9% p.a. to the complainant on the entire amount deposited by her in respect of the plot in question, within a reasonable period of 1 year from the date (16.06.2011, Annexure C-6) of transfer of plot in her favour i.e. from 15.06.2012, onwards till possession of the plot in question is actually delivered to her, that will meet the ends of justice.
23. For the reasons recorded above, this complaint is partly accepted with costs against opposite parties no.1 and 2 and they are jointly and severally directed as under:-
(i). To hand over possession of the plot in question, complete in all respects, after obtaining completion certificate from the competent Authorities, within a period of three months (03 months) from the date of receipt of a certified copy of this order.
(ii). To pay to the complainant compensation by way of interest @9% p.a. from 15.06.2012 (reasonable period of 1 year from the date of transfer of plot) till 31.12.2023 on the entire received sale consideration in respect of the plot in question, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 15.06.2012 to 31.12.2023 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant. However, opposite parties no.1 and 2 are at liberty to deduct the remaining sale consideration if any/taxes if applicable (to be received from the complainant), without levying/charging any delayed interest/holding charges.
(iii). To pay to the complainant, compensation by way of interest @9% p.a. on the entire received sale consideration, w.e.f. 01.01.2024, onwards (per month), by the 10th of the following month till compliance of directions given in sub-para no.(i) above.
(iv). To pay to the complainant, compensation to the tune of Rs.75,000/- for causing her mental agony & harassment, deficiency in providing service and adoption of unfair trade 18 practice; and also cost of litigation to the tune of Rs.35,000/- to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
24. Complaint against opposite party no.3 is dismissed with no order as to cost.
25. Resultantly, miscellaneous application bearing no.681 of 2023 filed by opposite party no.1 stands dismissed, having been rendered infructuous.
26. Certified copies of this order be sent to the parties, free of charge, forthwith.
27. The file be consigned to Record Room, after completion.
Pronounced 12.01.2024 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(RAJESH K. ARYA) MEMBER Rg.
19