State Consumer Disputes Redressal Commission
Dr. Yukti Mukesh vs Ansal Lotus on 12 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 45 of 2013 Date of Institution 24.06.2013 Date of Decision 12.11.2013 1. Dr. Yuti Mukesh Mishra wife Dr. Satyen Sharma and D/o Dr. Mukesh Mishra, r/o H.No.120, New Officers Colony, Near YPS, Patiala 147001. 2. Dr. Mukesh Mishra, r/o H.No.120, New Officers Colony, Near YPS, Patiala 147001. .Complainants. VERSUS 1. Ansal Lotus Melange Projects Pvt. Ltd. Registered Office at 1/18B Asaf Ali Road, New Delhi 110002, through its Managing Director. 2. Ansal Lotus Melange Projects Pvt. Ltd. Registered Office at SCO No.183-184, Sector 9-C, Chandigarh through its General Manager. . Opposite Parties. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SHRI DEV RAJ, MEMBER
Argued by:Sh.Ravinder Pal Singh, Advocate for the complainants.
Sh. Gaurav Bhardwaj, Advocate the Opposite Parties.
PER DEV RAJ, MEMBER The brief facts of the case as alleged by the complainants are that they with an intention to settle down in the vicinity of city beautiful Chandigarh agreed to purchase flat bearing No. 901 in Tower No.8 comprising of 3+1 BHK measuring 1798 Sq. Ft. @ 2450/- per sq. ft. at a total price of Rs.44,05,100/- in the Orchard County, project of the Opposite Parties in Sector 115, Kharar-Landran Road, Mohali. It was stated that they applied for the said flat vide their application form on 16.11.2010 and deposited booking amount of Rs.6,67,650/- vide Annexure C-1, being 15% of the total price. It was further stated that the flat chosen by them, was east facing having a huge park in front of it, and it was also shown to them by way of colored brochure, Annexure C-2 that from the balcony of the said flat, scenic view of hills could be experienced as in front of the said Tower No.8, there was firstly a green area and nothing was there to hinder scenic view of the hills and this was the only reason to choose the flat at the top and the 9th floor of Tower No.8. It was further stated that the complainants were told that the project had been approved by the Govt. of Punjab, as a mega project, with all the attendant benefits. The complainants were also told that all necessary sanctions were already obtained from the Govt. Authorities. Thereafter, an allotment letter dated 18.01.2012, Annexure C-3 was signed between the parties, mentioning certain terms and conditions, which was in a printed format already settled by the Opposite Parties. The complainants had no option, at that time but to sign it, as they had already paid an amount of Rs.6,67,650/- as booking amount. The complainants, paid another sum of Rs.8,70,000/- vide receipt dated 18.02.2012, (Annexure C-5) as next installment of the said flat, and, another sum of Rs.27,55,000/- was paid vide cheque dated 05.03.2012, (Annexure C-4) after getting finance from HDFC Ltd. and, thus, they paid in total a sum of Rs.42,92,650/-. It was further stated that the Opposite Parties, failed to execute the project as per their assurance, and there were serious lapses, and breach of terms and conditions of the allotment letter. It was further stated that the site plan (Annexure C-2) shown to the complainants, at the time of booking, was changed completely, by reducing the green area in front of Tower Nos.7 and 8, at the site, and in its place the Opposite Parties now started raising two towers, namely, Tulip and Carnation earlier shown as towers 1 and 12. It was also stated that instead of 9 storeys, the Opposite Parties, were raising it upto 17 (G+16) storeys on the east side of the complainants flat, which will hinder the scenic view of the hills, and also block the direct sunlight and air to their flat, for which they had chosen to buy this flat. This change would negate any positive experience of living in the said apartment. It was further stated that the Opposite Parties while raising the two 17 storey towers, also increased the number of flats in the whole Society by adding 240 more flats which will again put more burden upon the remaining super area, swimming pool, club facilities etc. available for the earlier allottees. A colored copy of the new brochure showing Tulip and Carnation towers and the green area in its front was annexed with the complaint as Annexure C-5A. It was further stated that the complainants paid the price of the super area which means covered/carpet area of the flat + other remaining area including park, swimming pool, club house, common passage, elevators, lifts etc. Therefore, when the number of allottees are increased by adding 240 more flats to the society by raising the two towers upto the height of 17(G+16) storey whereas other towers are only upto 9 storey then the super area for which they and other allottees already paid for will now be shared by another 240 flat holders and in this way the Opposite Parties have maximized their profit at the cost of comfort and easement of the complainants, and other initial allottees. It was further stated that the Opposite Parties launched the project in the year 2007, and started constructing the flats, whereas the complainants booked their flat in the year 2010 which was nowhere near completion and only a few towers are complete but, that too without any basic amenities as swimming pool, club house/gym, skating rink, play area for children were not completed and the site was still a construction site and, it is not fit or safe for families and children to reside in. It was further stated that the demand of the Opposite Parties, with regard to holding charges, was illegal and unwarranted and needs to be curtailed. It was further stated that the demand of the Opposite Parties, for car parking (Rs.1,00,000/-) in contravention of the law laid down by the Honble Apex Court in its judgment in Nahalchand Lallu Chand Pvt. Ltd. Vs. Pancholi Cooperative Housing (AIR 2010 SC 3607) was unjustified. It was further stated that the Opposite Parties were also demanding unjustified charges for internal Development. Since the Opposite Parties were charging for the super area of the flat @ 2450 per sq. ft., and when they have taken about 90% of the price of the flat, they are now raising unnecessary demands under the threat of cancellation of their flat. It was further stated that the complainants booked their flat under the No Pre EMI Scheme (Subvention scheme) and they were to pay only the booking amount at the time of and thereafter, they were liable to pay the EMI for the Housing Loan only after the actual physical possession had been taken by them. It was further stated that the complainants were unilaterally told that their subvention scheme was now no longer available. It was further stated that the complainants had been paying PRE-EMI since March 2012, for the loan taken on the said flat and with the illegal intention and for making unjust advantage Opposite Parties prepared offer of possession letter and never delivered it to them. It was further stated that the complainants were also later on burdened with holding charges on the false pretext of their (complainants) failure to take the possession of flat. It was further stated that on 15.05.2013 when the complainants went to the site to see the progress of construction of swimming pool/ club house and other under construction towers, in the project, they clicked some photographs of the site, Annexure C-7 (Collectively).
2. It was further stated that the possession offered was not fit for habitation and it was also not safe to live at a place which was under construction as any untoward accident could occur and also when all the amenities which were part and parcel of the flat and for which the complainants have paid, were not provided, how could the Opposite Parties offer possession of the flat. It was further stated that they were also shocked to see that on the roof of Tower No.7, the Opposite Parties permitted one cellular company to install its cellular tower which was in sheer violation of the law laid down by the Honble Supreme Court. It was further stated that till today no Developer-Buyer agreement was signed between the Opposite Parties and the complainants and it was only the Allotment Letter which was signed between them whereas as per Section 6 of the Punjab Apartments and property Regulation Act, 1995, the builder was not entitled to receive an amount more than 25% unless the agreement was signed. It was further stated that the Opposite Parties raised a demand of Rs.94,753/- as holding charges, on the plea, that since the complainants failed to take possession of the flat whereas the fact was that the Opposite Parties never sent any offer of possession letter to the complainants and rather there was no question of possession arising when the flat was not complete for possession as construction was going on. It was further stated that the Opposite Parties failed to get the conveyance deed of any of the flat, in the township executed and registered, therefore, due to this reason also they wanted to get their money back alongwith interest @ 18%. It was further stated that the aforesaid acts of omission and commission amounted to deficiency in service and unfair trade practice on the part of the Opposite Parties. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed seeking the relief that the Opposite Parties be directed to refund a sum of Rs.42,92,650/-, alongwith interest @ 18% p.a.; return all PRE EMI and EMI paid to the HDFC till date amounting to Rs. 3,61,605/- till May, 2013 and further till the decision of the present complaint; Rs.5,00,000/- as compensation on account of mental agony, harassment; Rs.5 lacs as financial loss besides Rs.25000/- as costs of litigation.
3. In their reply-cum-affidavit, the Opposite Parties took up the preliminary objections that the complainants concealed the material facts, from this Commission; that the complainants are not consumers, as defined under the provisions of the Consumer Protection Act, 1986, since investment in the property was purely for commercial purposes and speculative investments; the complaint has been filed by two individuals, however, no application under Section 12(1)(c) of the Act has been filed; that this Commission lacks territorial jurisdiction to entertain and adjudicate the present complaint; that as per the terms of the Loan Agreement, only courts at Delhi have jurisdiction, that the entire payment was to be made at Delhi, and no cause of action, ever accrued to the complainants at Chandigarh. On merits, it was admitted that the complainant made initial deposit of Rs.6,67,650/- towards 15% of the total price of Rs.44,05,100/- through cheque which was dishonored upon presentation and the booking was cancelled vide receipt No.18-901 and intimation thereof was sent to the complainants. Consequently, the complainants issued a fresh cheque for the said amount dated 04.12.2010, Annexure R-3 which was honored upon its presentation. It was further stated that on account of lack of further payment by the complainants, the Down Payment Plan of the complainants was changed to Construction Linked Plan vide their intimation dated 05.08.2011, (Annexure R-4). Since the said letter was received back undelivered, an e-mail was sent to the complainants on 25.08.2011, (Annexure R-5) requiring them to make an immediate payment of Rs.32,92,175/-. It was further stated that the Opposite Parties had applied for issuance of partial completion certificate from the competent authority in respect of Tower Nos.3/4/7/8 Orchard County (Annexure R-6). Thereafter, the Opposite Parties issued allotment letter to the complainant with terms and conditions, execution of which was a full fledged Buyers Agreement, and, which was not resisted by the complainants. The Opposite Parties vide their letter dated 18.02.2012 raised the demand of Rs.28,99,955/-, Annexure R-7. The complainants deposited Rs.8.70 lacs on 18.02.2012 as also another sum of Rs.27,55,000/- on 15.03.2012 by raising loan and as such the complainants deposited in total a sum of Rs.42,85,765/- vide receipts (Annexure R-8(Colly.). It was further stated that the Opposite Parties offered the possession to the complainant vide letter dated 24.03.2012, Annexure R-9 (colly.). Since the same was received back un-served and as such the same was sent to them through e-mail dated 09.04.2012, Annexure R-10. It was further stated that thereafter, the Opposite Parties vide letter dated 07.02.2013, Annexure R-11 sought clearance of all pending dues immediately from the complainants, but to no effect. It was further stated that, as the complainants, failed to take possession for a long time, after issuance of offer of possession and, as such, they were issued a Cancellation Notice dated 04.04.2013 (Annexure R-13) requiring them to make payment of Rs.14,88,135/- within 30 days failing which the allotment would be cancelled as per the terms and conditions thereof. It was further stated that instead of making payment thereof, the complainants replied to the same through Counsel vide letter dated 03.05.2013 (Annexure R-14). It was further stated that Clause 11 of the terms and conditions nowhere stipulated any standard definition for a reasonable period, however, in the case in hand, letter of allotment is dated 18.1.2012 and the offer of possession is dated 24.03.2012 and hence for all intents and purposes, the Opposite Parties exhausted a period of less than 15 months in complying with the term No.11. The MB Sheets of the tower are attached as Annexure R-18. It was denied that the Tower No.9 was removed. Copy of the photographs of the project exhibiting its actual stage of development is appended as Annexure R-19 (Colly.). It was denied that the alleged tower is a mobile tower at all, rather the same was a communication tower setup by TTSL (Tata Tele Services limited) under the WILL (Wireless in Local Loop) Technology with installation of DLC & DSLAM equipment, which was very different from the GSM Technology, to ensure that the residents had access to landline and broadband internet services as and when they so desired. It was denied that the Opposite parties were not willing to get any Conveyance Deed executed, in the entire project. It was further stated that, neither there was any deficiency, in rendering service or unfair trade practice, on the part of the Opposite Parties. The remaining averments, being wrong, were denied. In the end, prayer for dismissal of the complaint has been made.
4. The complainant filed replication, wherein they reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version.
5. The parties led evidence in support of their case.
6. We have heard the Counsel for the parties, and have gone through the evidence, record of the case, and the written submissions of the parties, carefully.
7. Issuance of allotment letter dated 18.1.2012 with reference to application dated 16.11.2010 of the complainants, signing of the terms and conditions by the complainants and an authorized signatory of Ansal Lotus Melange Projects Pvt. Ltd. regarding allotment of Apartment No.901 with built up area of 1798 Sq. Feet for consideration (including PLC) of Rs.44,05,100/- are admitted facts by the parties. Initially, the complainants paid Rs.6,67,650/-. Thereafter Rs.8,70,000/- were paid on 18.2.2012 and Rs.27,55,000/- were paid (by securing loan from HDFC Ltd.) on 15.3.2012. Thus, a total sum of Rs.42,92,650/- was paid by the complainants. The Opposite Parties, in their written statement admitted that the complainants had applied for east facing flat.
8. The objection of the Opposite Parties that investment, in the property was purely for commercial purposes and speculative investments and, therefore, the complainants were not the consumers, is not supported by any cogent and convincing evidence and, therefore, the same is not sustainable.
9. The complainants booked the flat for their residence. The complainants, thus, fall within the definition of consumers. The argument that the complaint has been filed by two complainants without any application under Section 12(1)(c) of the Act, being a sheer technicality, does not merit consideration. The Consumer Protection Act, 1986 is a beneficial legislation. The proceedings before the Consumer Forums are summary in nature. The Commission is not required to resort to hyper-technicalities to deny the substantial justice. Mere irregularity committed by the complainants, in not filing an application for filing the complaint jointly, cannot lead to the dismissal of complaint. The objection taken by the Opposite Parties, in this regard, being devoid of merit stands rejected.
10. The next question, which arises for consideration, is, as to whether, this Commission has territorial jurisdiction to entertain and adjudicate the present complaint. The contention of the Opposite Parties that only Courts at Delhi have territorial jurisdiction and no cause of action arose to the complainants at Chandigarh, is devoid of merit. The Tripartite Agreement (Annexure C-10) amongst the complainants, Opposite Parties and the Bank was executed on 18.2.2012 at Chandigarh. Not only this, payment of Rs.27,55,000/- was made to Ansal Lotus Melange Projects Pvt. Ltd. vide A/c Payee Cheque No.878883 dated 5.3.2012 in their A/c No.302010200000897 in AXIS BANK Ltd. (UTI Bank) Chandigarh (Annexure C-4). Since part of cause of action arose at Chandigarh, this Commission has got territorial jurisdiction to entertain and decide the present complaint.
11. The next question, which arises for consideration, is, as to whether the possession offered by the Opposite Parties vide letter dated 24.3.2012 (Annexure (R-9) was legal physical possession or the same was a paper possession. The letter offering possession was issued on 24.3.2012. The complainants have asserted that they did not receive the letter offering possession and have also contended that the possession offered was a paper possession and the place was not in a livable condition. In fact, besides letter dated 24.3.2012 offering possession (Annexure R-9), with almost same contents, the possession was again offered vide letter dated 9.4.2012. The Opposite Parties have submitted that the possession letter was sent through email also. In this view of the matter, it cannot be admitted that the possession letter was not sent because subsequently, the same was sent through email. It has been categorically asserted by the complainants that when they went to the site to see progress on 15.5.2013, construction of swimming pool/club house and other towers was not complete, the possession offered was not fit for habitation and it was also not safe to live when construction was still going on. The legal physical possession of the flat, in question, could be delivered, after completion of all the infrastructural work including provision of common facilities and after obtaining the completion & occupation certificates from the competent Authorities. The Opposite Parties were not in possession of the completion certificate as is evident from Annexure R-6 dated 28.11.2011. Vide Annexure R-6, Municipal Council, Kharar had taken up the matter with the Chief Town Planner, Punjab Government for grant of partial completion certificate in respect of Towers No.3, 4, 7 and 8 of the Project. There is no document, on record, to prove that by the time the possession was offered to the complainants in March 2012, the completion and occupation certificates had been obtained by the Opposite Parties. No tangible documentary evidence was produced by the Opposite Parties that even till date, the completion and occupation certificates were issued to them by the competent Authorities. Thus, the possession offered to the complainants vide letter dated 24.3.2012 (Annexure C-9) without completion and occupation certificates having been issued in favour of the Opposite Parties, by the competent Authorities, could not be said to be legal possession. One could really imagine the plight of the persons, who had deposited their hard earned money, for the purchase of a flat, but later on came to know that the development at the site, in question, was incomplete. The Opposite Parties have also failed to produce any cogent and convincing evidence to controvert the contention of the complainants that many common facilities were incomplete and construction activity being on, the place was not livable. As such, the possession offered by the Opposite Parties vide letter dated 24.03.2012 (Annexure R-3) was merely a paper possession and not legal physical possession.
12. As regards the submission of the Opposite Parties, made by them, in their short written submissions, filed on 29.10.2013, that the complaint was premature, definitely a cause of action accrued, to the complainants, for filing the present complaint on 24.3.2012, when the Opposite Parties offered possession of the flat, in question, without obtaining the completion certificate, as discussed in the preceding paras. Therefore, this submission of the Opposite Parties, being devoid of merit stands rejected.
13. The next question, which arises for consideration, is, as to whether, the complainants were right in seeking refund on account of variation, addition, alteration, deletion and modification in the project. No doubt, as per Clause 9 of the allotment letter (Annexure C-3), the Opposite Parties could affect variation, addition, alteration, deletion and modification in the project at their own discretion. Apparently, this would not mean that the Opposite Parties could indulge in deviations detrimental to the interests of the complainants. In fact, in Clause 10, it is also mentioned, That the Company shall, under normal conditions, complete the construction of Orchard County as per the said plans and specifications seen and accepted by the Apartment Allottee (with additional floors for Apartments if permissible) with such additions, deletions, alterations, modifications in the layout, building plans. Again in Clause 10, it is provided If for any reason the company is not in a position to allot the property applied for, the company, at its sole discretion, shall consider for any alternative property or refund the amount deposited with simple interest @10% per annum.
14. In the instant case, the complainants have pleaded that 240 flats have been added. As admitted by the Opposite Parties, they have added 144 flats to two towers. There is force in the argument of the Counsel for the complainants, that increase in the number of flats, would burden the use of common facilities. Though the Opposite Parties have pleaded that common facilities are being augmented, but their plea is without any cogent documentary evidence. The Opposite Parties have also not come up with any satisfactory explanation, to controvert the contention of the complainants, that raising of two towers namely Tulip and Carnation, on the eastern side of the flat allotted to the complainants, hindered the scenic view of the hills and also blocked the direct sunlight.
15. In these circumstances, the Opposite Parties were deficient, firstly in not offering the legal physical possession complete in all respects, secondly, in not obtaining the completion and occupation certificates and, thirdly, in not providing the common facilities, which they were bound to provide, complete in all respects at the time of offering possession to the complainants. In these circumstances, the complainants are entitled to the refund of amount, which they deposited with the Opposite Parties.
16. The complainants also suffered immense physical harassment and mental agony, on account of non offering of legal physical possession of the flat or non refund of the amount deposited by them. They are entitled to compensation, on account of mental agony and physical harassment suffered by them at the hands of the Opposite Parties.
17. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
i. The Opposite Parties are, jointly and severally, directed to refund the amount of Rs.42,92,650/-, to the complainants, alongwith interest @10% per annum, from the respective dates of deposits, within two months, from the date of receipt of a certified copy of this order.
ii. The Opposite parties are further, jointly and severally, directed to pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainants, within two months from the date of receipt of a certified copy of this order.
iii. Housing Development Finance Corporation Limited (HDFC) shall have the first charge on the amount to be refunded, to the complainants by the Opposite Parties, to the extent, the amount is due to it, against the complainants as it (HDFC) advanced loan in their (complainants) favour for part payment of the price of flat, in question, under the Tripartite Agreement dated 18.02.2012 (Annexure C-10).
iv. The Opposite Parties are further, jointly and severally, directed to pay cost of litigation, to the tune of Rs.10,000/-, to the complainants.
v. In case the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite parties shall be liable to pay the amount mentioned in Clause (i) with interest @12% P.A., instead of 10% P.A., from the respective dates of deposits till realization and interest @12% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs, to the tune of Rs.10,000/-.
18. Certified Copies of this order be sent to the parties, free of charge.
19. The file be consigned to Record Room, after completion.
Pronounced.
12th November, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (Consumer Complaint No.45 of 2013) Argued by:Sh.Ravinder Pal Singh, Adv. for the complainants.
Sh.Gaurav Bhardwaj, Adv. for the OPs.
Dated the 12th day of November, 2013 ORDER Vide our detailed order of the even date, recorded separately, this complaint, filed by the complainant, has been partly accepted with costs.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad