State Consumer Disputes Redressal Commission
Mandeep Singh vs M/S Ansal Properties And ... on 15 September, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 415 of 2016
Date of Institution : 30.12.2016
Date of Decision : 15.09.2017
1. Mandeep Singh S/o Late S. Jasjit Singh
2. Amanjit Panghlia W/o S. Mandeep Singh,
Both R/o House No. 48, Phase VI, Mohali, Punjab
....Complainants
Versus
1. M/s Ansal Properties & Infrastructure Ltd., 115, Ansal
Bhawan, 16, Kasturba Gandhi Marg, New Delhi 110001
2. M/s Ansal Properties & Infrastructure Ltd., SCO 183-184,
Sector 9-C, Chandigarh through Authorized Signatories (i) Mr.
Vishwa Prakash and (ii) Mr. Dinesh
3. Housing Properties & Infrastructure Limited, SCO 142, FF,
Above National Skin Hospital, Sector 5, Mansa Devi Complex,
Panchkula.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Consumer Complaint No. 415 of 2016 2
Present:-
For the complainants : Ms. Balwinder Kaur, Advocate
For opposite parties No.1&2: Ex.-parte.
For opposite party No. 3: Ms. Anjali Moudgil, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainants have filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that the complainants, who are husband and wife, agreed to purchase 2 BHK Top Floor Flat (SF), area approximately 808.8 square feet in Sector 116, Victoria Floors, Golf Links II, Mohali for a sum of Rs. 31,44,817/-. As desired by the Ops, they paid a sum of Rs. 4,65,300/- as advance money i.e. a sum of Rs. 1,57,000/- through cheque No. 037051 dated 10.1.2013 of HDFC Bank and a sum of Rs. 3,08,300/- through cheque No. 037056 dated 19.3.2013 of HDFC Bank. It has been further averred that Ops intimated the complainant that 2 BHK project was cancelled. However, they offered the flat of 3 BHK for total consideration of Rs. 43,76,750/-. They further promised that a sum of Rs. 4,65,300/- already paid shall be adjusted towards the price of the plot. On acceptance of this offer, complainants were asked to pay further a sum of Rs. 2,30,000/-, which they paid vide cheque No. 02, HDFC Bank dated 24.12.2014 and receipt No. 372531 was issued by the Op. The approximate area of this flat was 1435 sq. ft. @ Rs. 3050/- per sq. ft., plot/flat No. 232 FF Victoria Floors Golf Links II, Sector Consumer Complaint No. 415 of 2016 3 116, Mohali. After a gap of about 4 months, agreement dated 29.4.2015 was executed between the Ops and the complainants. Thereafter, the complainants applied for loan and they were granted loan facility of Rs. 35,01,400/-. The tripartite agreement was executed between the parties on 13.5.2015. Thereafter, the disbursal of loan started. On 13.5.2015, complainants made payment of Rs. 8,76,203/- from loan account No. 615260274, drawn on 22.5.2015 from HDFC and receipt No. 383196 dated 22.5.2015 was issued by Op. On receiving notice dated 5.6.2015, 2nd installment of Rs. 9,15,797/- was paid from the loan account on 17.7.2015 for which receipt No. 390141 was issued. In this way, a sum of Rs. 24,87,300/- was paid by the complainants to the Ops. Then Op issued notice No. 201863 dated 16.9.2015 demanding a sum of Rs. 10,33,239.50p. The complainants issued email dated 21.9.2015 stating that Ops were not entitled to receive this payment as the construction was delayed and had not reached the stage of internal plaster, fixtures of doors and windows etc.. Accordingly, the Ops were asked to complete the pending working and then to raise the demand. The complainants visited Ops office at Chandigarh and inquired about completion of the construction work but with no result. They issued another email dated 14.3.2016 clearly intimating that the construction work has not yet proceeded according to an agreement, Ops were liable to pay penalty @ Rs. 5/- per sq. ft. per month from October, 2015 onwards, the delivery of possession could be extended upto December, 2015. Ops had committed breach of contract in material particulars, therefore, they Consumer Complaint No. 415 of 2016 4 are deficient in services. Accordingly, this complaint has been filed before this Commission seeking direction to Ops to pay a sum of Rs. 24,87,300/- alongwith interest @ 18% p.a., penalty of Rs. 1,07,625/-, compensation for mental agony and harassment of Rs. 2,00,000/- and litigation expenses of Rs. 50,000/-.
2. None has appeared on behalf of Op Nos. 1 & 2, therefore, vide order dated 24.4.2017, they were proceeded ex- parte. However, Ms. Anjali Moudgil, Advocate had appeared on behalf of Op No. 3. Op No. 3 in its written reply took the preliminary objections that the grievance of the complainants are directed against Op Nos. 1 & 2. Against Op No. 3, the rights of the parties are governed by the loan agreement. In case of cancellation of the unit or in the contingency of the termination of the plot buyer's agreement, HDFC has the first charges/right to apportionment of its dues. On merits, other averments of the complaint were not replied as it does not relate to Op No. 3 except the loan agreement between the complainant, Op Nos. 1 & 2 and Op No. 3.
3. The parties were allowed to lead their respective evidence.
4. In support of his allegations, the complainant had tendered into evidence their affidavits Exs. C-A and C-B and documents Exs. C-1 to C-23. On the other hand, Op No. 3 had tendered into evidence affidavit of Nandan Singh Rawat, Manager as Ex. Op-3/A and documents Exs. Op-3/1 to 4.
5. We have heard the learned counsel for the complainants Mrs. Balwinder Kaur, Advocate and learned counsel Consumer Complaint No. 415 of 2016 5 for Op No. 3 Ms. Anjali Moudgil, Advocate as well as written arguments filed by counsel for the complainants.
6. As per averments in the complaint, originally 2 BHK flat was booked by the complainants with Op Nos. 1 & 2 having approximate area of 808.8 square feet in Sector 116, Victoria Floors, Golf Links II, Mohali for a total sum of Rs. 31,44,817/- and has paid a sum of Rs. 4,65,300/-. The payment of cheque of Rs. 1,57,000/- is Ex. C-3 and its receipt is Ex. C-3/A. Payment of Rs. 3,08,300/- and its receipt Ex. C-4/A. It has been further averred in the complaint that Op Nos. 1 & 2 had abandoned the project of 2 BHK and complainants were given option of their 3 BHK flat with total area of 1435 sq. feet @ Rs. 3050/- per sq. feet with total price of Rs. 43,76,750/- and that the payment already made will be adjusted. Ops demanded additional amount of Rs. 2,30,000/-, which was paid by the complainants vide receipt Ex. C-5. The complainants further paid a sum of Rs. 8,76,203/- from their loan account No. 615260274 on 22.5.2015 vide receipt Ex. C-6. Similarly another payment of Rs. 9,15,797/- was paid from the above referred loan account on 17.7.2015 vide receipt Ex. C-7. When the Ops demanded the next installment of Rs. 10,33,239.50p then the complainants raised the objection that stage of the construction has not reached to that level, therefore, this amount is not payable. The loan agreement is Ex. C-1 and payment schedule has been given as under:-
Payment Plan S. No. Description Percentage Installment Amount 1 At the time of Booking 5% of Basic 218838 Consumer Complaint No. 415 of 2016 6 2 With in 45 days time of 10% of Basic 437675 Booking 3 On Start of Construction, 20% of Basic 875350 within 90 days from the date of booking whichever is later 4 On completion of DPF/GF 20% of Basic 875350 Roof slab/Super Structure, within 135 days from the date of booking, whichever is later 5 On completion of Door 20% of Basic 875350 Window Frames Fixing/Internal Plastering, within 180 days from the date of booking, whichever is later 6 On completion of Flooring of 20% of Basic 875350 all the areas & External Plastering/Internal Finishing, within 225 days time of Booking whichever is later 7 At the time of possession 5% of Basic 218838 Total 100% 4376750 The 3rd installment was due on completion of Door Window Frames, Fixing/Internal Plastering but in the notice dated 16.9.2015 Ex. C-23 , there is a simple demand of Rs. 10,33,239.50p but the stage of the construction has not been mentioned in the said notice. The complainants issued email dated 21.9.2015 (Ex. C-8) and 14.3.2016 (Ex. C-9). It was further mentioned in Ex. C-9 that since there is no progress at the site, therefore, Ops should refund the amount alongwith penalty. After that on 22.10.2016, legal notice was issued but no response from the Op Nos. 1 & 2.
According to Clause No. 5.1, it has been mentioned that Company shall endeavor to complete the development of residential colony and dwelling unit within six months, which with an extended period of two months from the date of execution of the agreement. This agreement was executed on 29.4.2015, therefore, the eight months are complete with 29.12.2015 but the construction was not completed by that time and according to Clause 5.4, in case the Consumer Complaint No. 415 of 2016 7 possession is not delivered within time then Ops will pay the penalty @ Rs. 5/- per sq. ft. But in this case, construction was not raised as per agreement and a loan was taken from Op No. 3 and the complainants are paying EMIs alongwith interest to HDFC Bank, which was originally 9.5% and current rate is 9.65%. In the event of refund of the amount, then penalty as per the agreement will not be reasonable and Ops should pay the interest what the complainants are paying to HDFC.
7. Op No. 3 is a financer, they have financed the loan to the complainants to be paid to Op Nos. 1 & 2 and as per the statement of account Ex. Op-3/4 as on 31.7.2017, the total outstanding amount is Rs. 17,35,596/-. In the absence of any rebuttal from Op Nos. 1 & 2 because they did not choose to appear and contest the complaint, there is nothing on the record not to believe the version given by the complainants and the documents placed on the record, accordingly, we accept the complaint and direct Op Nos. 1 & 2 as under:-
(a) to refund a sum of Rs. 24,87,300/- alongwith interest @ 9.5% per annum from various dates of deposit till final payment. In case the payment is not made within three months from the date of order then Op Nos. 1 & 2 will pay interest @ 12% p.a. from various dates of deposit till payment.
(b) Whatever amount is received by the complainants from Op Nos. 1 & 2, Op No. 3 will have the first charge on it and Consumer Complaint No. 415 of 2016 8 amount payable to Op No. 3 will be paid first and then balance will be payable to the complainants.
(c) Rs. 50,000/- as compensation on account of mental agony and harassment; and
(d) Rs. 21,000/- as litigation expenses.
8. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
9. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER September 15, 2017.
as