State Consumer Disputes Redressal Commission
Pankaj vs M/S Ansal Properties And ... on 17 February, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.310 of 2018
Date of Institution : 20.04.2018
Date of Reserve : 21.01.2020
Date of Decision : 17.02.2020
Pankaj son of Sh.Tilak Raj, resident of H.No.307, Ward No.4, Moh
Gopal Nagar, Gurdaspur, Punjab through General Power of Attorney
Smt. Lata wife of Sh.Pankaj resident of H.No.307, Ward No.4, Moh.
Gopal Nagar, Gurdaspur, Punjab.
....Complainant
Versus
1. Ansal Properties & Infrastructure Ltd.(APIL), Regd. Office :
#115, Ansal Bhawan, 16 K.G. Marg, New Delhi-110001 through
its M.D./ Director / Authorized Signatory.
2. Ansal Properties & Infrastructure Ltd.(APIL), Chandigarh Office
: SCO 183-184, Sector -9 C Chandigarh, through its M.D./
Director / Authorized Signatory.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr.Rajinder Kumar Goyal, Member
MRs.Kiran Sibal, Member Present:-
For the complainant : Sh.Arvind Sehdev, Advoate for Sh.Rakesh Bajaj, Advocate For the Opposite parties : Sh.Rajiv Bhatia, Advocate RAJINDER KUMAR GOYAL, MEMBER :
The complainant, Pankaj S/o Sh.Tilak Raj, has filed this through his General Power of Attorney, Smt. Lata, who is his wife, under section 17 of the Act, for issuance of the following directions to the opposite parties:
I. to refund the deposited amount of Rs.23,90,351/-. II. to pay interest at the rate of 15% from the respective date of deposit till the date of realization of payment; Consumer Complaint No. 310 of 2018 2 III. to pay Rs.5,00,000/- as compensation for mental agony and physical harassment; and IV. to pay Rs.50,000/- as litigation expenses; OR V. any other relief which this Commission may deem fit. Facts of the Complaint:
2. Brief facts, as set out in the complaint, are that the complainant has purchased a unit bearing No.B-84-SF, Golf Links-II, measuring 1435 sq.ft. at Victorial Floors, Sector-116, SAS Nagar, Mohali for a total sale consideration of Rs.43,05,000/- including PLC and EDC under Subvention Scheme from the opposite parties. The complainant against the total sale consideration paid a sum of Rs.23,90,351/- to the opposite parties as per demand raised. To make the timely payment, the complainant availed a housing loan from HDFC Ltd. and a tripartite agreement was executed between the parties. On 16.11.2015, a Buyer's Agreement was executed between the parties. As per clause 5.1 the possession of the floor was to be delivered to the complainant within 12 months with an extended period of 6 months from the date of execution of agreement i.e. within the period of 16.11.2016 to 15.05.2017. The complainant approached the opposite parties number of times with the request to hand over the actual physical legal possession but the opposite parties put off the matter on one pretext or the other. The complainant is also paying the interest on the loan amount availed from HDFC Ltd.. The complainant also sent various e-mails but no response was given by the opposite parties. Thereafter, on 26.02.2018, a legal notice was served upon the opposite parties. The opposite parties have violated Consumer Complaint No. 310 of 2018 3 the provisions of PAPRA as they have not got the necessary permissions and approvals. Also, the opposite parties have not obtained Completion Certificate which itself proves that the development work has not been completed. Feeling aggrieved, the instant complaint has been filed by the complainants, seeking refund of the entire amount paid, along with interest, compensation and litigation expenses.
Defence of the Opposite Parties
3. Opposite parties appeared and filed their written statement taking preliminary objections that the complainant has not approached this Commission with clean hands. The complainant does not fall within the definition of consumer as he invested in the property purely for commercial purposes and speculative investments. Clause 5.1 of the Floor Buyer's Agreement dated 16.11.2015 which simpliciter gave a tentative period of 12 months with an extended period of 6 months for delivering possession of the Allotted Unit from the date of allotment, which as stipulated therein, would run from the date all requisite sanctions/approvals/ permissions / clearances from the Government / Local Authorities. The complaint is time barred and the same is beyond limitation. The complainant sought refund of the amount paid by him, whereas the cause of action for seeking refund was arisen on 16.11.2016. The complainant booked the flat under Subvention Scheme and the Bank contributed the huge amount as loan and till date the opposite party continued to pay Pre-EMI interest to the Bank on the advanced amount and still committed to bear the same till offer of possession. The complainant Consumer Complaint No. 310 of 2018 4 is not entitled to claim interest on the loan amount advanced by the Bank. As per clause 5.4, the opposite parties are committed to compensate the complainants for the delayed period in possession. On merits, it is submitted that the complainant paid only Rs.6,70,000/- from his own resources and rest amount is financed by the Bank. Rest all the averments as averred by the complainant in his complaint were denied and prayed for dismissal of the complaint. Evidence of the Parties
4. To prove his claim, the complainant has tender into evidence the affidavit of Lata, GPA holder dated 24.05.2019 as Ex.CA along with documents, copy of GPA dated 17.08.2017 as Ex.C-1, copy of Agreement dated 16.11.2015 as Ex.C-2, copy of Tripartite Agreement dated 16.11.2015 as Ex.C-3, copy of e-mail dated 18.07.2017 as Ex.C-4, copy of e-mail dated 01.03.2017 as Ex.C-5, copy of certificate dated 29.01.2018 as Ex.C-6, copy of customer ledger statement, runn dated 30.01.2018 as Ex.C-7, copy of legal notice dated 26.02.2018 as Ex.C-8, copy of postal receipts dated 28.02.2018 as Ex.C-9.
5. On the other hand, the opposite parties tendered the affidavit of Sh.Rakesh Kumar, Authorized Signatory as Ex.OP-A. Contentions of the Parties
6. We have heard learned counsel for the parties and have gone through the record carefully.
7. Learned proxy counsel for the complainant vehemently contended that the complainant purchased an apartment bearing Unit No.B-84SF, in the project of the opposite parties at Golf Links-II, Sector 116, SAS Nagar, Mohali, measuring tentative area of 1435 sq. Consumer Complaint No. 310 of 2018 5 ft. area. Further contended that opposite parties assured them that they have all the necessary approvals from the concerned departments and work of the project is in full swing. Thereafter, a buyer's agreement was executed on 16.11.2015 in favour of the complainants. The basic sale price of the unit was fixed as Rs.43,05,000/- excluding Service Tax, IFMS Security / Stamp Duty and other charges. Against that the complainants have paid a total sum of Rs.23,90,351/- as per Ex.C-7. As per clause 5.1, the physical possession was to be delivered within 12 months i.e. upto 16.11.2016 with an extended period of six months from the date of execution of the agreement or the date of sanction of the building plan. The complainants had opted for Subvention Plan plan and to make the payments timely, the complainant availed a housing loan from HDFC Ltd. As per plan, the pre-EMI was to be paid by the opposite parties, however, the opposite parties failed to show any document that for how much time the opposite parties paid the pre-EMI to HDFC Ltd. The complainant time and again requested the opposite parties to deliver the physical possession of the unit, but they failed to do so. Despite repeated written requests and visits to their office, no satisfactory reply was received. Thereafter, the complainant requested the opposite parties to refund the amount deposited with them along with interest but to no effect. Thus, there is clear-cut deficiency in service and unfair trade practice on their part. Therefore, the complainant is entitled to all the reliefs, as prayed for in the complaint.
Consumer Complaint No. 310 of 2018 6
8. Per contra, learned counsel for opposite parties vehemently contended that complainant does not fall under the definition of 'consumer', as defined under Section 2(1)(d)(ii) of the Act. They had purchased the unit, in question, for resale purpose. The complainant has no cause of action as he is not consumer. As per clause 5.1 of the Floor Buyer Agreement, the opposite parties gave a tentative period of 12 months with an extended period of 6 months for delivering the possession of the allotted unit from the date of allotment, subject to force majeure circumstances. Complaint filed by the complainant is time barred and is beyond limitation as the complainant never sought refund of the amount paid by them. Complaint is liable to be returned for non-joinder of the necessary party-HDFC Ltd. Complainants chose subvention scheme and the opposite parties were continuously paying pre-EMI interest to the Bank and has already paid a huge amount to HDFC. The complainant is not entitled to claim interest on the loan amount. Learned counsel for the opposite parties further contended complainant was well aware about the progress of the project. The project is complete and only statutory clearances are being awaited from the concerned authorities. Opposite parties are committed to compensate the complainants for the delayed period of possession as per Clause 5.4. There is no deficiency in service on the part of the opposite parties. So the complainants cannot allege any deficiency on the part of opposite parties. The complaint is liable to be dismissed with costs.
Consumer Complaint No. 310 of 2018 7Consideration of the Contentions
9. We have given our thoughtful consideration to the respective contentions raised by learned counsel for the parties.
10. First of all, we would like to decide the objection raised by opposite parties that the complainant does not fall under the definition of 'consumer', as defined in the Act, as the complainant purchased the unit, in question, for commercial purposes in order to earn profits. In this regard, it is relevant to mention that there is no evidence from the side of opposite parties to prove that the complainant is indulging in sale/purchase of property for commercial purpose and simple assertion in this regard in the reply of these opposite parties is not sufficient to prove this fact. Hon'ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA STATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already discussed above, there is no evidence led by opposite parties to prove that the complainant indulged in Consumer Complaint No. 310 of 2018 8 sale/purchase of properties or that they purchased the unit, in question, for further sale or for earning profits. Accordingly, the above said objection/ contention of opposite parties is rejected and the complainant is held to be 'consumer', under the Act.
11. Secondly, the opposite parties raised objection that the complaint is barred by limitation as the cause of action for seeking refund arisen on 16.11.2016. In this regard, it is mentioned that the complainant entered into an agreement with the opposite parties on 16.11.2015 vide Ex.C-2, wherein the possession was to be delivered to the complainant within a period of 12 months with an extended period of six months. In this way, the possession was to be delivered to the complainant on or before 16.05.2017. On the other hand, the complainant filed the complaint on 20.04.2018, which is within limitation period of two years as per Section 24-A of the Act.
12. During the course of arguments, learned counsel for the opposite parties was asked as to when the construction will be completed, to which he could not give any time or date for handing over the possession. In the written reply also, no commitment was made, as to by which time and date, possession of the unit will be delivered, after construction. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, is on the builder/opposite parties. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, it is very strange that not even a single document has been placed on record, Consumer Complaint No. 310 of 2018 9 by the opposite parties, in respect of the unit, in question, to prove that the construction is complete and it is actually ready for offer and delivery of possession. In case, all the development activities had been undertaken and construction of the flats is complete at the project site, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development and construction activities, had been undertaken and completed at the site or not, but it failed to do so. At the same time, the opposite parties were also required to produce on record, a copy of the occupation and Partial/Final Completion Certificates (if obtained), having been issued by the Competent Authorities, which could be said to be best evidence, to prove its case, but it miserably failed to do that also.
13. Admittedly, the complainants purchased the unit, in question, from the opposite parties and an agreement was executed between the parties on 16.11.2015 (Ex.C-2). To pay the timely payments, complainants availed housing loan from HDFC Ltd. and a Tripartite Agreement was entered into between the parties vide (Ex.C-3). As per Buyer's Agreement the basic sale price of the unit was Rs.43,05,000/- at the rate of 3000 per sq.ft.. Against the total sale consideration, the complainants paid a sum of Rs.23,90,351/- which has been confirmed by the opposite parties vide Ex.C-7 as Customer Consumer Complaint No. 310 of 2018 10 Ledger. The complainant chose Subvention Payment Plan as per the agreement.
14. As per Clause 5.1 of the said agreement, the possession of the unit was to be delivered within 12 months with an extended period of six months from the date of execution of this Agreement or the date of sanction of the building plan whichever falls later. In reply to the complaint the opposite parties stated that the 12 months time with an extended period of six months was tentative till all requisite sanctions / approvals/ permissions/ clearances from the Government / Local Authorities/ Sanctioning Authority were received, subject to force majeure circumstances. In this regard Clause B and C of the agreement is reproduced hereunder:-
B. The Company has obtained licenses (hereinafter License) from the Chief Town Planner, Punjab, Chandigarh (in short "CTP"), for the period of said development on the said Land and in terms of the said License and has also obtained approval from the Punjab Government, Department of Housing and Urban Development for setting up of Mega Housing Project on the said land in accordance with the applicable laws, rules, notifications standing orders/ instructions etc. for the time being in force (in short the "Applicable Laws"). C. The Company is thus lawfully entitled to develop an integrated residential colony on the said Land. The detailed layout plan of the Residential Colony (Lay Out Plan) has also been accepted and approved by the CTP and pursuant thereto the Company is developing an integrated residential colony in the name of GoIf Links-II (hereinafter referred to as said scheme) Consumer Complaint No. 310 of 2018 11
15. From the perusal of the above, the opposite parties themselves admitted that they have all the requisite approvals and permissions but no document in support of that has been placed on record in their evidence. Therefore, it cannot be accepted that the opposite parties had requisite permissions and approvals at the time of allotment of unit. The Buyer's Agreement was executed on 16.11.2015, accordingly, the possession was to be delivered with further extended period by 16.05.2017. When complainant lost their hope to get the possession of the unit, they demanded refund of their deposited amount along with interest vide e-mails dated 18.07.2017 and 29.07.2017, but to no effect. Till the filing of the complaint neither the opposite parties delivered the possession of the unit, in question, within the stipulated period, nor refunded the amount deposited by the complainant along with interest, which amounts to deficiency in service on the part of the opposite parties.
16. Keeping in view of the above circumstances, we hold that the opposite parties have failed to comply with the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). As per Section 3 (General Liabilities of Promoter) of the PAPRA, the opposite parties were required to make full and true disclosure of the nature of his 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. They were 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 Consumer Complaint No. 310 of 2018 12 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.
17. As per Section 5 (Development of land into Colony) of PAPRA, the opposite parties were liable to obtain permission from the competent authority for developing the project, but they failed to produce on record any such permission. So, they also violated Section 5 of PAPRA.
18. 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, but no evidence has been led on the record by the opposite parties to prove that any account has been maintained by them in this respect. As such, the opposite party also violated Section 9 of the PAPRA.
19. Further, as per Section 12 of the PAPRA, if the builder fails to deliver possession of the plot/apartment/space/unit by the specified date, then the builder is liable to refund the amount deposited by the buyer with interest.
20. In the present case, since the opposite parties themselves committed violation of various provisions of PAPRA, so the plea of the opposite parties that the agreement provides for simple interest in case of their failure to deliver possession of the flat, in question, within the stipulated period, is not tenable.
Consumer Complaint No. 310 of 2018 13
21. 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:-
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."
22. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. The opposite parties are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the agreement. The opposite parties have failed to comply with the aforementioned provisions of PAPRA, while launching and promising to develop their project. Thus, the delay in not delivering the possession of unit, in question, within the agreed period amounts to deficiency in service on the part of the opposite parties, for which the complainants are to be suitably compensated.
23. The Consumer Protection 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 complainant has made payment of substantial amount to the opposite Consumer Complaint No. 310 of 2018 14 parties, with the hope to get the possession of the flat in a reasonable period. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of flat and delivery of possession in a stipulated period. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. There is escalation in the price of construction also. The builder is under obligation to deliver the possession of the plot/unit/flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builders knew from the very beginning that they had not complied with the provisions of the PAPRA and Rules and would not be able to deliver the possession within the stipulated period, thus by misrepresentation induced the complainants to book the flat, due to which the complainant has 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 amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of building the plots, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainant 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 complainant has to wage a long drawn and tedious legal Consumer Complaint No. 310 of 2018 15 battle. As such, the complainant was at loss of opportunities. In these circumstances, the complainant is entitled to the refund of the amount deposited by them, along with interest and compensation.
24. It stands proved that opposite parties failed to hand over the possession of the unit, in question, to the complainant within the stipulated period, without any sufficient reason. The builder is bound to compensate for the loss and injury suffered by the complainant 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 complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. Therefore, the complainant is entitled to the refund of the amount deposited by them, along with interest and compensation.
25. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite parties:
i) to refund the amount of Rs.23,90,351/- along with interest at the rate of 12% per annum from the respective various dates of payment till realization, as per Rule 17 of PAPRA less pre-EMI amount, if any, already paid by the opposite parties to HDFC Ltd.
It is made clear that firstly the outstanding amount qua the loan advanced by HDFC Limited shall be refunded by the opposite parties to HDFC Limited, as per terms and conditions of Tripartite Agreement, Consumer Complaint No. 310 of 2018 16 Ex.C-3, and thereafter, the remaining amount, if any, shall be refunded to the complainant; and
(ii) to pay Rs.35,000/-, as compensation for the mental agony and harassment as well as litigation expenses.
26. The compliance of the order shall be made within 45 days of the receipt of the certified copy of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER February 17,2020 parmod