State Consumer Disputes Redressal Commission
Dr. Dinesh Kumar Chauhan vs M/S Ansal Properties And ... on 22 November, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.390 of 2017
Date of institution : 22.05.2017
Reserved On : 07.11.2017
Date of decision : 22.11.2017
1. Dr. Dinesh Kumar Chauhan S/o Sh. Banku Ram, R/o H.No.61,
Phase-II, Housing Board Colony, Bilaspur (Himachal Pradesh).
2. Ms. Meenakshi W/o Sh. Dinesh Kumar Chauhan, R/o H.No.61,
Phase-II, Housing Board Colony, Bilaspur (Himachal Pradesh).
....Complainants
Versus
1. The Managing Director, M/s Ansal Properties and Infrastructure
Limited, 115, Ansal Bhawan, 16 K G Marg, New Delhi.
2. M/s Ansal Properties and Infrastructure Limited, 115, Ansal
Bhawan, 16 K G Marg, New Delhi.
2nd Addres:
M/s Ansal Properties and Infrastructure Limited, SCO No.183-
184, Madhya Marg, Sector 9-C, Chandigarh-160 009.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present:-
For the complainants : Sh. Chanan Singh, Advocate For the opposite parties: Ex parte.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Facts of the Complaint The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986, seeking issuance of following directions to the opposite parties:- Consumer Complaint No.390 of 2017 2
i) to deliver possession of the flat, in question, complete in all respects;
ii) to pay damages at the rate of ₹20,000/- per month by way of compensation w.e.f. January, 2015 i.e. due date of delivery of possession till actual delivery of possession of the flat, in question;
iii) to pay Pre-EMI interest on the loan amount under "No Pre-EMI Interest Scheme", as per letter Ex.C-2;
iv) to pay compensation of ₹2,00,000/- on account of mental agony and harassment suffered by the complainants as well as causing the down grading of the complainants in "CIBIL Score" for non-
payment of Pre-EMI to the Banker of the complainants; and
v) to pay ₹50,000/-, as litigation expenses.
2. Brief facts, as set out in the complaint, are that the complainants are husband and wife and they approached opposite party No.2 for purchase of a plot in Sector 116, situated in the Revenue Estates of Villages Chippar Chiri Khurd and Chippar Chiri Kalan, whereat the opposite parties were developing a Group Housing Colony known as "Victoria Floors, Golf Links II". The opposite parties informed them that they have obtained the requisite sanctions and licences from the Chief Town Planner, Punjab and also got approved their project from the Department of Housing and Urban Development for setting up a mega housing project. The opposite parties made various advertisements and publicity about their project and accordingly, the complainants submitted application dated 18.06.2011 Consumer Complaint No.390 of 2017 3 for the purchase of a residential flat and they were allotted an independent floor Unit No.255, having built up area of 1395 sq.ft. (approx.) at the rate of ₹1,397.49 per sq.ft. The price of the said flat was ₹46,00,000/- + PLC (₹1,00,000/-) + EDC (₹1,56,240/-). Initially, the complainants paid 15% of the basic price of the unit and Floor Buyer Agreement was executed on 05.08.2011. Thereafter, the complainant got sanctioned loan of ₹36,80,000/- at the rate of 11% interest from 'Housing Development Finance Corporation' (HDFC) for making payment of monthly instalments towards the price of the flat, as per terms of the payment schedule. The opposite parties had acknowledged the receipt of 15% of BSP as booking amount, vide letter dated 28.10.2011 and agreed in Para No.2 of that letter that under the mutually agreed "No Pre-EMI Interest" scheme", the pre-EMI interest for the said unit shall be borne by the Company, subject to the fact that upto 80% of BSP has been approved as loan. In case of any delay in the offer of possession beyond 30 months, the pre-EMI interest for the unit under the above mentioned scheme would be borne by the Company till the offer of possession or the same may be adjusted against the pending 5% dues to be paid by them at the time of possession. The possession of the flat was to be delivered within 30 months from the date of agreement, with extended period of six months, i.e. upto 05.08.2014. However, they failed to deliver the possession thereof within the stipulated period and as agreed above, the said pre-EMI interest has also not been paid by the opposite parties on the loan amount. The complainants several times Consumer Complaint No.390 of 2017 4 approached the opposite parties for delivering the possession of the flat, in question, but to no effect. Hence, the complaint.
3. The opposite parties did not appear before this Commission, despite their service and were proceeded against ex parte, vide order dated 11.07.2017.
Evidence of the Complainants
4. To prove their claim, the complainants tendered affidavit of complainant No.1 as Ex.C-A, along with documents Ex.C-1 to Ex.C-5. Contentions of the Complainants
5. We have heard learned counsel for the complainants, as the opposite parties were proceeded against ex parte. We have also gone through the record carefully as well as written arguments submitted on behalf of the complainants.
6. Learned counsel for the complainants, in addition to the written arguments, vehemently contended that they have already paid major portion of the sale consideration of the flat, in question, to the opposite parties, but there was no progress at the site of the project. As per Clause 5.1 of the agreement, Ex.C-1, the possession was to be delivered within 30 months from the date of agreement or within extended period of six months thereafter. However, the opposite parties failed to deliver possession of the flat within the stipulated period and as per Clause 5.4 of the agreement, the complainants are entitled to compensation at the rate of ₹10/- per sq.ft. of the super area of the dwelling unit per month for the period of default on the part of the opposite parties. The opposite parties committed deficiency in service Consumer Complaint No.390 of 2017 5 and all the directions, as prayed for in the complaint, are liable to be issued to the opposite parties.
Consideration of Contentions
7. We have given our thoughtful consideration to the contentions raised by the learned counsel for the complainants.
8. It is an undisputed fact that the flat, in question, was allotted to the complainants and agreement, Ex.C-1, was executed between the parties on 05.08.2011. The price of the flat, in question, was ₹46,00,000/-. Perusal of receipts/cheque/Account Statements, annexed with the agreement Ex.C-1 show that a sum of ₹44,96,038/- was deposited by the complainants towards the flat, in question. As per Clause 5.1 of the agreement, the possession of the flat was to be delivered within 30 months, with extended period of six months, from the date of agreement i.e. upto 05.08.2014, subject to force majeure circumstances. However, the opposite parties failed to deliver the same within the stipulated without any sufficient cause. The opposite parties were proceeded against ex parte and there is no evidence on record on behalf of the opposite parties to show any force majeure circumstances, which prevented them to deliver the possession of the flat, within the stipulated period.
9. The whole purpose of pleadings is to give fair notice 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 Consumer Complaint No.390 of 2017 6 averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. In the present case, the opposite parties have not appeared, despite service and were proceeded against ex parte. As such, the evidence adduced by the complainants remains unrebutted.
10. Even there is no evidence on record to show that the opposite parties are having requisite approvals and sanctions for raising the project, in question. It stands proved that the opposite parties failed to hand over the possession of the flat, in question, to the complainants within the stipulated period, without any sufficient reason. The amount paid by the complainants is a deposit held by the opposite party, in trust of complainants and it should be used for the purpose of building the plots/flats, as mentioned in Section 9 of the Punjab Apartment and Property Regulation Act, 1995. 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 such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainants, are also required to be taken into Consumer Complaint No.390 of 2017 7 consideration for awarding compensation. In these circumstances, the complainants are entitled to the possession of the flat, in question, along with compensation for delay in delivery of possession, as per Clause 5.4 of the agreement, Ex.C-1.
11. The complainants have produced on record letter dated 28.10.2011, Ex.C-2, issued by the opposite parties to them, the second Para of which reads as under:
"We would also like to state that under the mutually agreed "No Pre-EMI Interest Scheme", the pre-EMI interest for the said unit shall be borne by the Company, subject to the fact that upto 80% of BSP has been approved as a loan amount. In case of any delay in the offer of possession beyond 30 months, the Pre-EMI interest for the unit under the above mentioned scheme shall be borne by the Company till the offer of possession or the same may be adjusted against the pending 5% dues to be paid by you at the time of Possession."
Perusal of Part Disbursement Advice, Ex.C-4, a sum of ₹36,80,000/- was sanctioned as loan by the HDFC in favour of the complainants for making payment of the sale price of the flat, in question. The basic sale price of the flat was ₹46,00,000/- and above said sanctioned loan amount comes to 80% thereof. No offer of possession of the flat has since been made by the opposite parties to the complainants. Thus, the complainants are entitled to the benefits accruing under the "No Pre-EMI Interest Scheme" of the opposite parties and, thus, after the initial period of 30 months for delivery of possession i.e. after 05.02.2014, the Pre-EMI interest for the unit, in question, is to be borne Consumer Complaint No.390 of 2017 8 by the opposite parties/Company till the offer of possession or the same is liable to be adjusted against the pending 5% dues to be paid by the complainants at the time of Possession.
12. In view of our above discussion, the complaint is allowed and the following directions are issued to the opposite parties:
i) to deliver possession of the flat, in question, complete in all respects, to the complainants subject to payment of remaining amount towards the price thereof, if any due;
It is made clear that the remaining payable amount towards the flat, in question, if any, shall be adjusted towards the liability of the opposite parties, by giving the benefits of "No Pre-EMI Interest Scheme" to the complainants and after making calculations, the pending amount, if any, towards either of the parties shall be paid to/by either of the parties.
ii) to pay compensation at the rate of ₹10/- per sq.ft. per month of the super area of the flat, in question, with effect from 05.08.2014 till delivery of possession thereof;
iii) to pay ₹11,000/-, as litigation expenses.
13. The opposite parties shall comply with the order within 30 days of the receipt of certified copy of the order.
14. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER November 22, 2017.
(Gurmeet S)