National Consumer Disputes Redressal
Ashish Dholakia & Anr. vs Ats Infrastructure Ltd. on 21 November, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1493 OF 2017 1. ASHISH DHOLAKIA & ANR. RESIDING AT: D-97, PANCHSHEEL ENCLAVE, NEW DELHI-110017 2. SHALEEN KAURA D-97, PANCHSHEEL ENCLAVE NEW DELHI-110017 ...........Complainant(s) Versus 1. ATS INFRASTRUCTURE LTD. K-19, SECTOR-18, NOIDA UP-201301 ...........Opp.Party(s) BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER FOR THE COMPLAINANT : MR ABHIMANYU MAHAJAN, MR ROHAN CHAWLA MR MAYANK JOSHI, MS ANUBHA GOEL ADVOCATES FOR THE OPP. PARTY : NONE - EX PARTE ON 06.07.2023 Dated : 21 November 2023 ORDER This consumer complaint under section 21 Consumer Protection Act, 1986 (in short, 'the Act') alleges deficiency in service by the opposite party in delay in handing over the possession of the plot booked by the complainant in ATS Greens Derabassi, District Patiala, Punjab.
2. The complainants booked a 500 sq yds plot @ Rs.5600 per sq yds on cash down basis on 16.09.2005 and paid a sum of Rs.28 lakhs being the full sale consideration. An agreement was executed on 22.05.2006 which referred to the amount of Rs.28 lakh paid as the basic selling price and not the entire sale consideration and mentioned that the complainant would be liable for External Development Charges (EDC) payable to the State Government or any other authority. The delay compensation of 18% per annum compounded quarterly on payment of installments was also incorporated in the agreement. Having paid a substantial amount, the complainants had no option but to sign the agreement. On 16.04.2008 the complainants were asked to select the location of their plot as per the Master Plan prepare and were allotted plot no.462. Subsequently, it was stated that the progress had been delayed due to the orders of the Hon'ble High Court of Punjab and Haryana in a Public Interest Litigation (PIL). The order of the stay was vacated on 01.05.2008 which was not conveyed to the complainants. On 07.04.2009, the complainants were informed that in view of the approval of a 25 acre IT SEZ and a 5 Star Hotel tie up, there was likelihood of changes in the location of the plots. On 27.04.2009, the complainants were allotted plot no. 95 in Pocket III and it was informed that the opposite party had also applied for a Change in Land Use (CLU) on 17.07.2008. Despite repeated follow-up and lapse of time, the opposite party started construction of the residential towers without developing the plots. On 10.09.2012 the opposite party again informed that the plots had been changed and plot no. 237 in ATS Golf Meadows - I, was allotted to the complainant. On 27.11.2012 the opposite party demanded EDC charges to be paid @ Rs.1250 per sq yds i.e., Rs.6,25,000/- without indicating any details of the project or date of handing over or registration of plots despite the passage of seven years and despite the promise of handing over possession by May 2009. The complainants approached the opposite party vide letter dated 01.07.2013 and conveyed that no payment would be made towards EDC without any details/ assurances regarding the handing over of the plot. In response the opposite party provided a copy of the EDC notification and demand letter of the Regional Deputy Director, Local Government, Patiala, but did not provide further details.
3. The complainants submit that demand for EDC dated 30.11.2010 was five years and three months after receiving the full payment and after more than 18 months of the expiry of their promised date of possession as per the agreement dated 22.05.2006. In January 2017, the opposite party offered possession of the plot subject to clearance of outstanding dues, although the project was still in complete as the roads, electrification, landscaping, water supply and sewerage was yet to be completed. The complainants were further asked to pay EDC of Rs.6.25 lakh vide letter dated 03.02.2017. The opposite party did not respond to the letters dated 01.02.2017 and 20.02.2017 issued by the complainants contesting the levy of EDC without progress on the site.
4. The complainants have stated that the opposite party is guilty of gross deficiency in service in not handing over the possession of the plot booked by them for 11 ½ years and unfair trade practice in making false projection with regard to its project in which statutory approvals were obtained after several years as per the information obtained under RTI by the complainants. The complainant has stated that the cause of action arose on 16.09.2005 and is continuing till date since the possession has not been handed over. The agreement has one-sided, onerous conditions such as interest @ 18% compounded quarterly for delay in payment and that the complaint is within the pecuniary jurisdiction of this Commission. The complainants are before this Commission with the following prayer:
Direct the opposite party to complete the project in all respects to the satisfaction of the complainants, and handover possession of the complainant's plot and execute registry thereof within a time bound manner as determined by this Hon'ble Commission;
Direct the opposite party to pay compensation of Rs.1.84 crores being interest @ 18% per annum compounded quarterly on the sum of Rs.28 lakh from 16.09.2005 till date of filing of the present complaint;
Direct the opposite party to pay further compensation in the form of interest @ 18% per annum compounded quarterly on the sum of Rs.2.12 crores (Rs.1.84 crores plus Rs.28 lakhs) from the date of filing of the present complaint till the date on which the project is fully developed, possession handed over and registry done in respect of the plot booked by the complainants;
Direct the opposite party to pay Rs.25 lakhs as compensation to the complainants for the mental harassment and agony suffered by them on account of the gross deficiency of service on the part of the opposite party;
Quash the letters dated 03.02.2017 by which the opposite party has demanded EDC payment from the complainants, declare that the complainants are not liable to pay any amounts to the opposite, whether on account of EDC or otherwise, except charges for effecting registry of the plot once the project is fully developed and consequently restrain the OP from demanding the same from the complainants or acting in pursuance of their letters already sent demanding the same;
Award cost of the present proceedings; and Pass such other order (s) as may be deemed fit by this Hon'ble Commission.
5. The complaint was resisted by way of reply of the opposite party dated 08.08.2017 denying the allegations and raising preliminary objections to that; (i) complainants are not 'consumers' under section 2 (d) of the Act as they have purchased a unit for commercial purpose and not for their self use; (ii) the complainants alleged violation of contractual obligation and therefore, this complaint does not fall within the jurisdiction of this Commission but has to be dealt with by a Civil Court since the terms of the agreement are binding on both the parties as held in Bharti Knitting Co. Vs DH World Wide Courier - (1996) 4 SCC 704; (iii) the dispute arising out of Agreement for Sale of the plot does not constitute 'service' within the meaning of section 2 (o) of the Act as held in Bangalore Development Authority vs Syndicate Bank (2007) 6 SCC 711; (iv) the claim of compensation needs to be suitably amended within the legitimate/ reasonable limits as held by this Commission in Sujata Nath vs Popular Nursing Home and Ors. III (2011) CPJ 239 (NC); and in Rajni Gupta vs M/s DLF Universal Limited 2015 SCC Online NCDRC 428; (v) this Commission has no pecuniary jurisdiction since the complainants paid a sum of Rs.28 lakh for the plot and the pecuniary jurisdiction is Rs.1.00 crore.
6. On merits, it is argued that the complainants booked the plot at the pre-launch sale when the project was in a very initial stage. It is denied that the project was booked for residential purpose for any relative residing in rented premises. It is stated that the rate of Rs.5600/- per sq yd was the basic booking amount with other charges such as EDC, EEC and other charges being statutory charges to be paid in addition as per clause 3 and 4 of the agreement. It is denied that Rs 28 lakh was paid towards the entire amount payable except for registry charges as alleged. Complainants could have requested for cancellation and sought refund which they did not do being investors looking for monetary gains. It is stated that Change of Land Use (CLU) was under process and that necessary approvals were being obtained. It is denied that any compensation is to be paid by the opposite party since the complainants have defaulted in payment of the statutory dues. It is also contended that EDC charges cannot be on pro rata basis but are required to be paid on the basis of the entire project and the demand raised for EDC by the concerned department was valid and justified. The opposite party denies having being deficient in service or guilty of unfair trade practice by making false assurances and having diverted the money received from the complainants to some other projects. It is also denied that the project is in complete or that the opposite party is not in a position to give possession of the plot. It is, therefore, contended that the relief prayed for is justifiable since compensation has been offered subject to payment of dues and that the complaint be dismissed.
7. I have heard the learned counsel for the complainant. None appeared on behalf of the opposite party on the day when the matter was fixed for final hearing, hence, he was placed ex parte. I have heard the arguments of the complainants and have carefully considered the material on record including the written arguments filed by the opposite party.
8. Learned counsel for the complainant argued that the opposite party failed to provide the possession of the plot booked by the complainants even after 13 ½ years after having collected Rs.28 lakh on cash down basis @ Rs.5600/- per sq yds. The opposite part has been deficient in service and guilty of unfair trade practice since the agreement was delayed and executed on 22.05.2006 and which describes that the payment received is the basic selling price on which other charges were applicable. Despite promise of possession by May 2009, i.e., 36 months from the agreement the plot has not been handed over and that the project did not have the requisite clearance till 2011. There were repeated changes in the plot allotted on the basis of the Provisional Master Plan, followed by demand for EDC in November 2011. It is contended that the opposite party sold the plot of 350 sq yds size for Rs.7.00 lakh @ Rs.2000/- per sq yds inclusive of all Government charges, while charging Rs.5600/- per sq yd in the case of the complainant. According to the complainants, the opposite party has failed to explain the deficiency in service and has not supported its allegation that the complainants are not a 'consumer' with any proof. Regarding jurisdiction of this Commission in a Civil matter involving a contractual dispute, it is contended that this Commission in a catena of decisions has granted relief to home buyers on account of deficiency in service under the Act. It is also contended that the sale of unit/ plot falls within the jurisdiction of 'service' under the Act and that the pecuniary jurisdiction of the Commission is met since the compensation of 18% per annum compounded quarterly is at par with the delay penalty levied by the opposite party. Additional documents filed by the opposite party are contended to be inadmissible since it did not file any document along with its reply but only filed its affidavit by way of evidence which the complainant did not oppose.
9. Written submission was filed by the opposite party on 03.05.2019 have been considered as its final submissions. These are the same as its reply filed on 08.08.2017.
10. The preliminary objections of the opposite party have been considered. The opposite party has stated that the complainants are not a 'consumer' under the Act. In terms of this Commission's order in Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. in CC 137 of 2010 dated 12.02.2015, as no evidence is brought on record that the plot was purchased for the purpose of sale, i.e., a 'commercial purpose', this contention does not sustain. As regards the jurisdiction of this Commission, in view of the matter being stated to be a 'civil' matter, the the Hon'ble Supreme Court in Emaar MGF Land Ltd. Vs. Aftab Singh, (2019) 12 SCC 751 has held that the remedy under the Consumer Protection Act, 1986 is not restrained by the existence of an arbitration clause and that the remedy under the Act is in addition to other provisions under the law. This view was reiterated in M/s Imperia Structures Ltd. Vs. Anil Patni & Anr., (2020) 10 SCC 783 decided on 02.11.2010 when the Hon'ble Supreme Court held that "remedies under the Consumer Protection Act were in addition to the remedies available under special statutes (and) the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force". Hence, this argument cannot be sustained. The contention of the opposite party regarding pecuniary jurisdiction of this Commission also does not sustain as this issue has been settled by this Commission to be the aggregate of all claims and the sale consideration of the goods or services in Ambrish Kumar Shukla and 21 Ors vs Ferrous Infrastructure Pvt. Ltd., I 2017 CPJ 1 (NC) and Renu Singh vs Experion Developers Pvt. Ltd., CC no.1703 of 2018.
11. It is manifest that as per the agreement filed it has clearly been indicated that the plot would be handed over with necessary infrastructure in place by May 2009. However, there was a delay of 13 ½ years in the offer of possession. No cogent reasons for the delay have been brought out by the opposite party. The reasons advanced, of change in plans for an SEZ and an IT Park, change in the land use etc., cannot entitle it to the inordinate delay. It is evident that the opposite party did not promote the sale with a clear and well planned project but was exploring options even after demanding and collecting a down payment based on an assurance of delivery. Such an approach was an unfair trade practice and the inordinate delay of 13 ½ years amounts to deficiency in service.
12. The Hon'ble Supreme Court, in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, Civil Appeal No. 3182 of 2019 decided on 25.03.2019, laid down that:
"It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession".
The Hon'ble Supreme Court in Bangalore Development Authority vs. Syndicate Bank, (2007) 6 SCC 711 held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable interest thereon from the date of payment till the date of refund and reiterated this view in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, CA No. 12238 of 2018 decided on 02.04.2019 and Kolkata West International City Pvt. Ltd. (supra) decided on 25.03.2019 regarding the right of the consumer to seek refund in view of the inordinate delay on the part of the opposite party. In Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, C.A. No. 6044 of 2019 decided on 07.04.2022 the Hon'ble Supreme Court has held the compensation by way of interest has to be both compensatory as well as restitutionary and held that interest @ 9% would be fair and just. The Hon'ble Supreme Court has held in the case of Wg Cdr Arifur Rehman and Aleya Sultana Vs DLF Southern Homes Ltd. & Ors., Civil Appeals Nos. 6239 of 2019 and 6303 of 2019 dated 24.08.2020, (2020) 16 SCC 512 has also held that compensation for delayed possession of a flat @ 6% per annum would be equitable and just.
13. In view of the foregoing discussion, the complaint is allowed with the following directions:
Opposite party is directed to hand over the possession of the plot complete in all respect within two months;
Complainant is directed to take the possession of the plot on paying the statutory dues towards EDC/EEC;
Opposite party thereafter shall execute the sale/ conveyance deed as per rules;
The opposite party shall pay compensation for delay in possession @ 6% per annum on Rs.28 lakhs deposited from the date of deposit till the date of handing over of possession within 2 months failing which the applicable rate of interest will be 9% per annum; and Litigation cost of Rs.50,000/- be paid to the complainant.
All pending IAs are also stand disposed of with this order.
...................................... SUBHASH CHANDRA PRESIDING MEMBER