State Consumer Disputes Redressal Commission
Amit Nohria vs Ansal Lotus Melange Projects Pvt. Ltd. on 15 March, 2021
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.692 of 2019
Date of Institution : 20.09.2019
Date of Reserve : 15.02.2021
Date of Decision : 15.03.2021
1. Amit Nohria S/o Sh. Sushil Kumar, R/o House No.481,
Bagh Gali, Moga, District Moga.
2. Geetanjali W/o Sh. Amit Kumar through her general
power of attorney Sh. Amit Nohria S/o Sh. Sushil
Kumar, R/o House No.481, Bagh Gali, Moga, District
Moga.
.....Complainants
Versus
Ansal Lotus Melange Projects, Pvt. Ltd., through its
Managing Director, Regd. Office:-1-18-B, Asaf Ali Road,
New Delhi.
2nd Address:- Ansal Lotus Melange Projects, Pvt. Ltd.,
through its Managing Directors, Corporate Office, CB 12
A, City Centre, Sector 115, Kharad Landra Road, Mohali.
Email ID: [email protected].
.....Opposite Party
Consumer Complaint under Section
17 of the Consumer Protection Act,
1986.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Mrs. Kiran Sibal, Member Present:-
For the complainants : Sh. Varun Dhawan, Adv.
For the OP : None
(Struck off vide order
Dated 12.12.2019).
C.C. No.692 of 2019 2
KIRAN SIBAL, MEMBER:-
The complainant No.1 and complainant No.2 through her Power of Attorney-Geetanjali have filed this complaint under Section 17 of the Consumer Protection Act, 1986 (in short "the Act"), against the opposite parties (in short "OPs") seeking following directions to them:-
i) Either to deliver the possession of the allotted flat or provide some other ready to move flat as an alternative to the allotted flat or to refund the amount of Rs.13,43,027/- received by them along with interest.
ii) to refund the entire amount of loan to the Indiabulls Housing Finance Limited, from which the loan was released in favour of the Builder under the subvention scheme along with pending pre-EMI interest.
iii) To pay compensation of Rs.2 Lacs on account of mental agony, harassment etc. caused to the complainants.
iv) To pay Rs.50,000/- as costs of litigation.
2. Brief facts, as set out in the complaint, are that OP launched a project namely "Orchard County" in village Sante Majra, District Mohali and widely advertised about it. Being lured by their representations, the complainants applied and were allotted a flat/Unit No.703, 7th Floor, Tower-1, having total area of 1664 sq.ft. (approximately) in the said project for a sale price of Rs.50,75,200/-, for their family and personal use in the C.C. No.692 of 2019 3 project, vide application dated 16.07.2014. The total sale price of the flat was fixed at Rs.50,75,200/- and out of which the complainants paid earnest money around Rs.11,00,000/- to the OP-Company. Complainants also availed loan facility of Rs.39,00,000/- from Indiabulls Housing Finance Limited, vide which Tripartite Agreement was executed between the parties on 24.01.2015. It was further pleaded that the said unit was purchased under "subvention scheme" and as such the OP had undertaken to pay the pre EMI interest to the Bank till offer of possession but in the year 2018, the OP failed to pay the same and the same was paid by the complainants. Indiabulls Housing Finance Limited disbursed an amount of Rs.13,86,737/-to the Orchard Country under subvention scheme. Complainants had made a total payment of Rs.13,43,027/- to the OP, the details of which are as under:-
Date Amount (Rs)
24.07.2014 2,61,600/-
01.11.2014 7,84,800/-
30.05.2015 62,730/-
05.03.2018 17,172/-
05.04.2018 17,172/-
11.05.2018 18,017/-
05.06.2018 18,017/-
05.07.2018 18,356/-
06.08.2018 18,356/-
28.06.2019 1,26,807/-
Total 13,43,027/-
C.C. No.692 of 2019 4
As such, till date a total sum of Rs.27,29,764/- had been paid by the complainants and the bank of the OP. As per clause 5.1 of the agreement, the possession was to be delivered after 48 months from the date of signing of the agreement, with an extended period of six months. As per clause 5.5 of the agreement, it had been mentioned that in the event Company fails to deliver the possession of the said flat within a stipulated period, the Company shall pay compensation to the buyer, at the rate of Rs.5/- per sq. ft of the super area of the said flat per month for the period of delay. Agreement was signed and executed on 06.09.2014 and no possession had been given to the complainants till date. The construction for Tower No.1 had been stalled at the 4th Floor and the flat allotted to the complainant is on the 7th floor. Since the work was not progressing after the 4th floor, it seems that it would take another four years for Tower No.1 to be constructed upto 7th floor and the complainants were unable to wait for another four years. However, the opposite party failed to carry out any development at the project site, so as to deliver possession of the flat to the complainants within the stipulated period despite their repeated visits and requests. The complainants sent legal notice dated 12.04.2019 at both the offices of the OP, but even after more than four and half years of signing the agreement, the OP was not giving any satisfactory reply. Complainants C.C. No.692 of 2019 5 alleged deficiency in service and unfair trade practice on the part of OP and prayed for acceptance of the complaint. Defence of OP
3. Upon notice, the opposite party appeared through counsel, but failed to file reply to the complaint, within the statutory period. Despite availing sufficient opportunity, OP did not appear, therefore, the defence of opposite party was struck off vide order dated 12.12.2019.
Evidence of the complainants
4. To prove their claim, the complainant No.1 filed his affidavit alongwith documents i.e. Agreement dated 06.09.2014 as Ex.C-1, Copy of Letter dated 24.01.2015 as Ex.C-2, copy of receipt dated 16.07.2014 as Ex.C-3, Bank statement dated 01.07.2014 to 31.12.2015 as Ex.C-4, Bank statement dated 01.02.2018 to 30.11.2018 as Ex.C-5, Bank statement dated 01.07.2018 to 10.11.2018 as Ex.C-6, Bank statement dated 01.01.2019 to 04.05.2019 as Ex.C-7, Bank statement dated 04.05.2019 to 05.07.2019 as Ex.C-8, copy of legal notice dated 12.04.2019.
Contentions of the complainant
5. As none appeared on behalf of the OP, we have heard learned counsel for the complainants have also carefully perused the record of the case.
C.C. No.692 of 2019 6
6. Learned counsel for the complainants vehemently argued that complainants applied for the allotment of flat in the project being developed by the OP under the name and style of "Orchard County", situated in Village Sante Majra, District Mohali. Learned counsel for the complainants further argued that Agreement was executed between the parties on 06.09.2014 (Ex.C-1). Complainants also availed loan facility of Rs.39,00,000/- from Indiabulls Housing Finance Limited, vide which Tripartite Agreement was executed between the parties on 24.01.2015 (Ex.C-2). Against the total sale consideration i.e. Rs.50,75,200/- the complainants and Bank have paid Rs.27,29,764/- to the OP as per Ex.C-2 to Ex.C-8. As per Clause 5.1 of the agreement, the possession was to be delivered after 48 months from the date of signing of the agreement, with an extended period of six months. Also, clause 5.5 of the agreement, if the company fails to deliver the possession of the said flat within a stipulated period, the company shall pay compensation to the buyer at the rate of Rs.5/- per sq. ft. of the super area of the said flat per month for the period of delay. The complainants asked the OP to give the possession of the said flat, but the OP showed their inability to hand over the same. However, till date the OP has not done anything at the site of the flat of the complainants and no facilities have been provided which were promised in the agreement. Despite receiving the substantial amount, the C.C. No.692 of 2019 7 opposite party has failed to deliver the possession of the flat, which amounts to deficiency in service and unfair trade practice. Averring on similar lines as stated in the complaint, the learned counsel for the complainants, prayed for allowing the complaint Consideration of Contentions
7. We have given thoughtful consideration to the contentions raised by the learned counsel for the complainants and have gone through the written arguments as well.
8. At the outset, it is relevant to mention that the present complaint is squarely covered by the earlier verdicts given by this Commission in following cases.
i) Consumer Complaint No.3 of 2019 (Gurmeet Kaur vs. Ansal Lotus Melange & Anr.) decided on 12.04.2019;
ii) Consumer Complaint No.4 of 2019 (Manjit Singh vs. Ansal Lotus Melange & Anr.) decided on 12.04.2019;
iii) Consumer Complaint No.166 of 2019 (Rishpal Wadalia vs. Ansal Lotus Melange & Ors.) decided on 17.07.2019;
iv) Consumer Complaint No.35 of 2019 (Shriya Sharma & Anr. vs. Ansal Lotus Melange & Anr.) decided on 26.08.2019;
v) Consumer Complaint No.490 of 2019 (Sunil Alawadhi vs. Ansal Lotus Melange & Ors.) decided on 16.12.2019;
vi) Consumer Complaint No.499 of 2019 (Kush Wadhawan vs. Ansal Lotus Melange & Anr.) decided on 16.12.2019;
C.C. No.692 of 2019 8So we intent to dispose of this matter in view of the decisions given in the above noted cases.
9. Admittedly, the complainants applied for the allotment of flat in the project being developed by the OP under the name and style of "Orchard County", situated in Village Sante Majra, District Mohali. The total cost of the flat was fixed as Rs.50,75,000/-. Against the total sale consideration i.e. Rs.50,75,000/-, complainants have paid Rs.27,29,764/- from his own pocket and the bank loan of Indiabulls Housing Finance Limited which is on record as Ex.C-2 to Ex.C-8. Flat Buyer's Agreement was executed between the parties on 06.09.2014 (Ex.C-1). As per Clauses 5.1 and 5.5 of the said agreement, the possession of the flat was to be delivered on or before 06.03.2019 and if the developer failed to give the possession beyond the stipulated date, the developer would be bound to pay Rs.5/- per Sq. Ft. per month till the possession is handed over. We have perused the said Agreement and the relevant portion of the Agreement which is clause 5.1 and 5.5 is reproduced as under:-
5.1. Subject to Clause 5.2 and further subject to all the buyers/allottees of the Flats in the said Residential Project, making timely payment, the Company shall endeavour to complete the development said Residential Project and the said Flat as far as possible within 48 (Forty eight) months, with an extended period of 6 (six) months, from the date of execution of this Agreement or from the date of commencement of construction of the particular Tower/Block in which the said Unit is C.C. No.692 of 2019 9 situated subject to sanction of the building plan whichever is later.
5.5. .......... The buyer undertakes to pay the aforesaid charges in the event he/she/they/it fail(s) to take possession of the Flat within 30 days from the date of offer by the company. Where Buyer omits, fails, refuses and/or neglects to take possession of the Flat from the Company for any reasons whatsoever, the Flat shall be held by the Company at the risk and cost of the Buyer. Further, subject to the Buyer's remitting the payment as stipulated herein and adhering to the terms and condition of this agreement, in the event the Company fails to deliver the possession of the said Flat within a period as stipulated in the clause 5.1 supra subject to force majeure conditions as defined hereinabove the Company shall pay, to the Buyer, compensation at the rate of Rs.5/- per sq. ft. of the super area of the said Flat per month for the period of delay".
However, till date the OP has not done anything at the site of the flat of the complainants and no facilities have been provided which were promised in the agreement. It was further pleaded that complainants also served legal notice dated 12.04.2019. The OP has not even replied to legal notice issued by the complainants. When the opposite party failed to complete the project within the stipulated period, the complainant was justified in withholding payment of future installments. Moreover, the OP has no requisite approvals, approved layout plans from the competent authorities. Despite receiving the substantial amount, the opposite party has failed to deliver the possession of the flat, which amounts to deficiency in service and unfair trade practice.
10. The whole purpose of pleadings is to give fair notice C.C. No.692 of 2019 10 to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. In the present case, opposite party has not filed their written statement despite granting several opportunities and consequently the defence of opposite party was struck off vide order dated 12.12.2019. As such, the evidence adduced by the complainants remains unrebutted.
11. Keeping in view the above circumstances, we hold that the opposite party has failed to comply with the provisions of the PAPRA. As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite party was required to make full and true disclosure of the nature of its title to the land, on which such project is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. It was also required to give inspection on seven days' notice or demand of the layout of the colony and plan of development works to be executed in a project, as approved by the prescribed authority in the case of a project. However, the opposite party failed to comply with Section 3 of the PAPRA. C.C. No.692 of 2019 11
12. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats/Space, but no evidence has been led on the record by the opposite party to prove that any such account has been maintained by it in this respect. As such, it also violated Section 9 of the PAPRA.
13. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment/shop by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
14. As per Rule 17 of the "Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of the PAPRA, it has been provided as under:-
17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub-section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
15. The opposite party had been collecting huge amounts from the buyers for the development of the project. The opposite party is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is also to be bound by the reciprocal promises of C.C. No.692 of 2019 12 performing its part of the agreement. The opposite party has failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop its project. Thus, the delay in not delivering the possession of flat/apartment, in question, within the agreed period amounts to deficiency in service on the part of the opposite party, for which the complainants are to be suitably compensated.
16. The Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. The complainants have made payment of substantial amount to the opposite party, with the hope to get the possession of the flat/apartment in a reasonable period. The circumstances clearly show that the opposite party made false statement of facts about the goods and services i.e. allotment of flat/apartment and delivery of possession thereof in a stipulated period. The act and conduct of the opposite party is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with opposite party, they would have invested the same elsewhere. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat/shop within a reasonable period. The complainants cannot be made to wait C.C. No.692 of 2019 13 indefinitely to get possession of the flat/apartment booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that it had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainants to book the flat/apartment, due to which the complainants have suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The builder is bound to compensate for the loss and injury suffered by the complainants for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainants have to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities. In these circumstances, the complainants are entitled to the refund of the amount deposited by them, along with interest and suitable compensation.
17. Perusal of receipts Ex.C-3 to Ex.C-8 show that a sum of Rs.13,43,027/- was deposited by the complainants with the OP on different dates, towards the price of the said unit. However, as mentioned above, the OP failed to deliver the C.C. No.692 of 2019 14 possession of the unit, in question, to the complainants within the stipulated period, without any sufficient cause and, thus, the complainants are entitled to the refund of the amount deposited by them, along with interest and compensation.
18. Accordingly, the complaint is allowed and following directions are issued to the opposite party:
i) to deliver actual, physical and legal possession of the flat/Unit No.703, 7th Floor, Tower-1, measuring 1664 sq. ft. (approx.) in Orchard County", village Sante Majra, District- Mohali within a period of two months.
OR If the said flat is not available with the OP, then in the alternate another flat suitable to the complainants be delivered within the prescribed period as stated above.
ii) to pay/adjust the pre-EMI amount given by the complainants to Indiabulls Housing Finance Limited.
iii) to pay compensation for delay in delivery of possession at the rate of Rs.5/- per sq.ft. of the super area of the flat per month from the stipulated date of possession i.e. 06.03.2019 till actual delivery of possession as C.C. No.692 of 2019 15 per relief (i) above, as per clause 5.1 and 5.5 of the agreement.
iv) to pay Rs.30,000/- as compensation for the mental and physical harassment as well as litigation expenses.
19. In case the opposite parties fail to comply the directions, as ordered above, then in the alternative, they shall:
i) Refund the entire deposited amount along with interest at the rate of 12% per annum from the respective dates of deposit till realization as per Rule 17 of PAPRA; and It is made clear that firstly the outstanding qua the loan advanced by Indiabulls Housing Finance Limited shall be refunded by the OP to the Indiabulls Housing Finance Limited and thereafter the remaining amount, if any, shall be refunded to the complainants.
ii) to pay Rs.30,000/-, as compensation on account of harassment and mental agony suffered by the complainants as well as cost of litigation.
The compliance of this order shall be made by the OP within a period of 60 days of the receipt of certified copy of the order. C.C. No.692 of 2019 16
20. The complaint could not be decided within the statutory period due to heavy pendency of work and less staff.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER March 15, 2021.
SK