State Consumer Disputes Redressal Commission
Shruti Kainth vs Ansal Lotus Melange Projects Pvt. Ltd. on 19 March, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Misc. Application No.459 of 2018
In/and
Consumer Complaint No.880 of 2017
Date of institution : 09.10.2017
Date of decision : 19.03.2018
1.Dr. Shruti Kainth W/o Dr. Akant Kaushal;
2. Dr. Akant Kaushal S/o Dr. Jagdish Singh;
Both Residents of House No.190, First Floor, Sector 8, Panchkula.
....Complainants Versus
1. Ansal Lotus Melange Project Pvt. Ltd., S.C.O. No.183-84, Sector 9, Madhya Marg, Chandigarh, through its Authorized Signatory.
2. Ansal Lotus Melange Project Pvt. Ltd., 1/18-B, Asaf Ali Road, New Delhi-110002, through its Director, Pardeep Bansal.
3. Ansal Lotus Melange Projects Pvt. Ltd., 1/18-B, Asaf Ali Road, New Delhi-110002, through its Director, Yogesh Gauba.
4. Ansal Lotus Melange Project Pvt. Ltd., Asaf Ali Road, New Delhi-
110002, through its Director, Sunil Mattoo.
5. UCO Bank, S.C.O. No.22, Phase-I, SAS Nagar, Mohali, through its Branch Manager.
....Opposite Parties Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the complainants : Sh. Mukand Gupta, Advocate For OPs No.1 to 4 : None For OP No.5 : Sh. P.S. Sobti, Advocate.Consumer Complaint No.880 of 2017 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT : Misc. Application No.459 of 2018 This application has been filed by the complainants, with a prayer to place on record "No Due Certificate", Annexure C-13, issued by opposite party No.5-Bank in favour of the complainants. It was averred therein that the complainants had availed Home Loan from the Bank, in order to make payment towards price of the flat purchased by them from opposite parties No.1 to 4. During the pendency of the complaint, on 27.02.2018, the complainants have cleared the entire loan, by paying the outstanding loan amount of ₹11,83,549/- to opposite party No.5. As such, their loan account has been closed on 26.02.2018 and "No Due Certificate" has been accordingly issued in their favour.
Since the complainants have cleared the loan amount obtained by them from opposite party No.5-Bank, who has issued the "No Due Certificate" in their favour, therefore, the "No Due Certificate"
is necessary to be brought on record for just and effective decision of the complaint. Accordingly, the application is allowed and the "No Due Certificate", Annexure C-13, annexed with the application is ordered to be taken on record.
Main Case & Facts of the Complaint The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986, against the opposite parties, seeking following directions:Consumer Complaint No.880 of 2017 3
i) Opposite parties No.1 to 4 be directed to refund the amount of ₹21,30,491/-, deposited by the complainants with them, along with interest at the rate of 15% per annum from the dates of deposit till realization.
ii) Opposite parties No.1 to 4 be directed to pay pre-EMI interest to opposite party No.5-Bank, which has been withheld by them.
iii) To pay compensation of ₹10,00,000/-, on account of mental agony and harassment suffered by the complainant as well as on account of escalation of costs.
iv) Opposite party No.5 be directed not to take coercive steps against the complainants to recover the Home Loan till the complaint is allowed and opposite parties No.1 to 4 refund the amount to them.
v) To pay litigation expenses to the tune of ₹80,000/-.
ii) Any other relief, which may be deemed fit in the facts and circumstances of the case, be also granted.
Brief facts, as set out in the complaint, are that the complainants, who are doctors by profession at Chandigarh, belong to Himachal Pradesh. They were looking for a residential house at/nearby Chandigarh. Being allured by the advertisement issued by opposite parties No.1 to 4 regarding their mega housing project, under the name and style of "Orchid Country", situated at Santa Majra, District Mohali, the complainants applied for one residential house with them on 22.02.2013 and deposited booking amount of ₹2,72,792/-. The complainants were allotted Flat No.703, 7th Floor in Tower No.12, Consumer Complaint No.880 of 2017 4 measuring 1738 sq.ft. at the rate of ₹2,990/- in the said project. The total price of the flat, in question, was ₹51,96,620/-. On demand of opposite parties No.1 to 4, the complainants paid further amounts of ₹4,09,188/- and ₹4,09,187/- to them on 23.03.2013 and 15.05.2013, in order to enter into Flat Buyer's Agreement. After receiving the amount of ₹10,91,167/- i.e. 20% of the total price of the flat from the complainants, those opposite parties entered into Flat Buyer's Agreement with them on 25.09.2013, as per which the possession of the flat, complete in all respects, was to be delivered within 48 months from the date of execution thereof. It was further averred that opposite parties No.1 to 4 were having tie-up with opposite party No.5-Bank and on their asking, the complainants approached opposite party No.5, by moving application dated 09.03.2014, for raising Home Loan and opposite party No.5 sanctioned Home Loan of ₹41.00 Lac under Subvention Scheme, vide letter dated 11.07.2014, under which 25% of the basic sale price of the flat was to be paid by the complainants and 75% was to be paid by opposite party No.5-Bank. Tripartite Agreement dated 06.10.2014 was executed between the parties. The complainants had already paid 20% of the total sale price of the flat to opposite parties No.1 to 4 and remaining 5% was to be paid by them at the time of delivery of possession. Opposite party No.5 disbursed a sum of ₹10,39,324/- to opposite parties No.1 to 4 on 11.08.2014, out of the sanctioned loan amount. As per Subvention Scheme, it was the duty of opposite party No.5 to check the stage of construction, before disbursing the loan amount, but it failed in this regard. Opposite Consumer Complaint No.880 of 2017 5 parties No.1 to 4 received total amount of ₹21,30,491/- from the complainants towards the price of the flat, in question, but they failed to raise construction of the said flat. The possession was to be delivered by 25.09.2017, but till that time opposite parties No.1 to 4 failed to raise even the construction of 1st floor of Tower No.12, whereas the complainants were paying interest to the Bank at the rate of 10.2% per annum on the loan amount. As per the Subvention Scheme, opposite parties No.1 to 4 were liable to pay pre-EMI interest to opposite party No.5 till delivery of possession of the flat, in question, to the complainants. However, after paying some pre-EMI interest, opposite parties No.1 to 4 stopped paying the same later on; as a result of which the Bank started pressurizing the complainants to pay the pre- EMI interest to it, otherwise to declare their account as "NPA". Thus, the complainants paid a sum of ₹5,050/-, ₹4,200/- and ₹14,600/- on 29.04.2017, 29.06.2017 and 29.09.2017 to the Bank towards pre-EMI interest from their own pocket. Opposite parties No.1 to 4 have not obtained any Occupation or Completion Certificate, nor they have got approved the zoning plan and layout plan of the project from the competent authorities. They have also not obtained any permission from Punjab Pollution Control Board or Municipal Corporation, Kharar. The complainants visited the site on 26.09.2017, but were surprised to see that only foundation of Tower No.12 was laid there, without raising any kind of construction. The said act and conduct of the opposite parties amounted to deficiency in service, which caused mental agony and harassment to the complainants. Hence, the present complaint. Consumer Complaint No.880 of 2017 6 Defence of the Opposite Parties
2. Upon notice, opposite parties appeared before this Commission, through counsel. Opposite party No.5 filed its reply to the complaint. However, opposite parties No.1 to 4 failed to file any reply, despite availing sufficient number of opportunities and even costs, imposed upon them for taking adjournment in this regard, were not deposited. Accordingly, their defence was truck off, vide order dated 21.12.2017.
3. Opposite party No.5, in its reply, pleaded that on request of the complainants, it advanced a loan of ₹41,00,000/- under Subvention Scheme. Out of said amount, it disbursed a sum of ₹10,39,324/- i.e. ₹8,07,382/- to builder's account and a sum of ₹2,31,942/- was kept in a separate account to be appropriated towards interest for 24 months and thereafter, as per the said plan, the complainants were liable to pay interest, in case possession was not delivered to them till the subvention period. Denying other allegations of the complaint, it was prayed that the complaint be dismissed against opposite party No.5. Evidence of the Parties
4. To prove their claim, the complainants tendered affidavit of complainant No.2 as Ex.C-A, along with documents Ex.C-1 to Ex.C-12.
5. Opposite party No.5 tendered affidavit of Ms. Paramjit Kaur, Chief Manager, as Ex.OP-A. Contentions of the Parties
6. I have heard learned counsel for the complainants and opposite party No.5, as none appeared on behalf of opposite parties Consumer Complaint No.880 of 2017 7 No.1 to 4 at the time of arguments. I have also gone through the record carefully.
7. Learned counsel for the complainants vehemently contended that the complainants were allotted Flat by opposite parties No.1 to 4 bearing No.703, 7th Floor in Tower No.12, measuring 1738 sq.ft. at the rate of ₹2,990/- in the said project. The total price of the flat, in question, was ₹51,96,620/-. The complainants paid a sum of ₹10,91,167/- to them towards the price of the flat from their own pocket. They also got sanctioned home loan of ₹41,00,000/- from opposite party No.5-Bank, who disbursed a sum of ₹10,39,324/- to opposite parties No.1 to 4 under Subvention Scheme, out of the total loan amount. Flat Buyer Agreement, Ex.C-5, was executed between opposite parties No.1 to 4 and complainants on 25.09.2013 and the possession of the flat was to be delivered within 48 months from the execution thereof, but they failed to raise any kind of construction at the site, so as to deliver possession of the flat to the complainants within the stipulated period. Under the Subvention Scheme, opposite parties No.1 to 4 were liable to pay pre-EMI interest to opposite party No.5, in case of delay in delivery of possession till actual delivery of possession of the flat to the complainants. However, after paying some of the pre-EMI interest, they stopped paying the same to the Bank, which necessitated the complainants to pay the same under compelling circumstances. It was further contended that the complainants have now cleared entire loan amount by paying the same to the Bank. Due to non-delivery of possession of the flat, in Consumer Complaint No.880 of 2017 8 question, within the stipulated period by opposite parties No.1 to 4, the complainants suffered mental agony, harassment and financial hardship. The complainants are entitled to refund of the deposited amount, along with interest and compensation. It was then contended that the complaint is liable to be allowed and all the reliefs, as claimed therein, are liable to awarded in favour of the complainants.
8. Learned counsel for opposite party No.5 vehemently contended that during the pendency of the complaint, on 27.02.2018, the complainants have cleared the entire loan, by paying the outstanding loan amount of ₹11,83,549/- to opposite party No.5. As such, their loan account has been closed on 26.02.2018 and "No Due Certificate", Annexure C-13, has been accordingly issued in their favour. Thus, there is no grievance of the complainants left against it and the complaint is liable to be dismissed against opposite party No.5. Contentions of the Parties
9. I have given our thoughtful consideration to the respective contentions raised by learned counsel for the parties.
10. Firstly, I advert to the issue of home loan taken by the complainants from opposite party No.5-Bank. The complainants were sanctioned loan of ₹41,00,000/- by opposite party No.5-Bank, vide letter dated 11.07.2014, Ex.C-6. The same was repayable by the complainants in 264 equated monthly instalments of ₹39,028/-, with interest at the rate of 10.2% per annum. The relationship between the complainants and opposite party No.5 with regard to repayment of loan amount has come to end, in view of the "No Due Certificate" dated Consumer Complaint No.880 of 2017 9 27.02.2018, Annexure C-13, issued by opposite party No.5 in favour of the complainants. As per this certificate, the complainants have adjusted the full amount of loan account and their account has been closed on 26.02.2018 and there is no due standing in the account of the complainants. In view of this "No Due Certificate", issued by opposite party No.5, no dispute is left between the Bank and the complainants. Hence, the complaint against opposite party No.5-Bank is liable to be dismissed.
11. Now, I advert to other merits of the case between the complainants and opposite parties No.1 to 4. Admittedly, the flat, in question, was allotted to the complainants and 'Flat Buyer Agreement', Ex.C-5, was executed between them and opposite parties No.1 to 4 on 25.09.2013. The total sale consideration of the flat was ₹51,96,620/-. The complainants deposited ₹2,72,792/- with opposite parties No.1 to 4, vide receipt dated 25.02.2013, Ex.C-2; ₹4,09,188/-, vide receipt dated 23.03.2013, Ex.C-3; and ₹4,09,187/-, vide receipt dated 15.05.2013, Ex.C-4. The complainants obtained loan of ₹41 lac from opposite party No.5-Bank, as per letter dated 11.07.2014, Ex.C-6; who, out of the said loan amount, disbursed a sum of ₹10,39,324/- to opposite parties No.1 to 4, as evidenced by affidavit of Ms. Paramjit Kaur, Chief Manager of opposite party No.5-Bank, Ex.OPA. Thus, a total sum of ₹21,30,491/- was paid by the complainants to opposite parties No.1 to 4 towards the price of the flat, in question. As per letter dated 11.07.2014, Ex.C-6, the subvention period was of 24 months therefrom. As per letter dated 20.06.2017, Ex.C-8, opposite parties Consumer Complaint No.880 of 2017 10 No.1 to 4 informed the complainants that as their loan was approved under special payment scheme i.e. Subvention Payment Plan with the Bank, therefore the Company/developer shall bear the Pre-EMI interest till offer of possession of the flat, in question, to the complainants.
12. As per Clause 5.1 of the agreement, Ex.C-5, subject to all the buyers/allottees of the flats in the said residential project making timely payment, the Company shall endeavour to complete the development in the said project and the said flat, as far as possible within 48 months, with an extended period of 6 months from the date of execution of the agreement or from the date of commencement of construction of particular tower/block, subject to sanction of building plan, whichever is later. The agreement was executed on 25.09.2013 and, as such, the Company was to complete the development in the project/flat by 25.03.2016. There is no reply or evidence on behalf of opposite parties No.1 to 4 on the record, as they failed to file reply despite availing sufficient number of opportunities and, thus, their defence was struck off, as mentioned above.
13. 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 averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never Consumer Complaint No.880 of 2017 11 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. When there is no pleading, the party is precluded from adducing evidence. In the present case, the opposite parties failed to file reply despite availing sufficient number of opportunities and, thus, their defence was struck off. As such, the evidence adduced by the complainants remains unrebutted.
14. As such, as per letter, Ex.C-8, opposite parties No.1 to 4 were liable to bear pre-EMI interest payable to opposite party No.5- Bank till offer of possession of the flat, in question, to the complainants. As per letter dated 11.07.2014, loan of ₹41,00,000/- was sanctioned by the Bank, out of which only ₹10,39,324/- was disbursed to opposite parties No.1 to 4. Generally, subvention scheme operates, on payment of specific upfront amount at one time, whereas in this case only part payment of loan amount has been disbursed by the Bank to opposite parties No.1 to 4. So, in our view, the pre-EMI interest is allowable on the above part payment of loan released by the Bank. No offer of possession has been made by opposite parties No.1 to 4 to the complainants till today. However, as already mentioned above, the complainants have cleared the entire loan account with the Bank, as per 'No Due Certificate' dated 27.02.2018 Annexure, C-13. Possession has still not been delivered to the complainants and, as such, the complainants are entitled to receive the pre-EMI interest accrued on amount by the Bank from opposite parties No.1 to 4, on the above Consumer Complaint No.880 of 2017 12 mentioned released/disbursed loan amount by the Bank, from the date of sanction of loan i.e. from 11.07.2014 till refund of the entire amount paid by the complainants. The amount paid by opposite parties No.1 to 4 towards pre-EMI interest, if any, would be adjusted against their liability towards the complainants.
15. As already discussed above, this is a case of unrebutted evidence produced by the complainants. There is also no reply or evidence on record from the side of opposite parties No.1 to 4, as to when the construction of the particular tower had started, nor there is any evidence to prove that they obtained necessary approvals/permissions/ sanctions for setting up the said project from the competent authorities. Opposite parties No.1 to 4 failed to deliver possession of the flat, in question, to the complainant within the stipulated period.
16. All the above facts and circumstances clearly prove that opposite parties No.1 to 4 have not complied with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"). As per Section 3 (General Liabilities of Promoter) of the PAPRA, these opposite parties were required to make full and true disclosure of the nature of his title to the land, on which such colony 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 Consumer Complaint No.880 of 2017 13 executed in a colony as approved by the prescribed authority in the case of a colony. However, these opposite parties failed to comply with Section 3 of the PAPRA.
17. As per Section 5 (Development of land into Colony) of PAPRA, these opposite parties were liable to obtain permission from the competent authority for developing the colony, but they failed to produce on record any such permission obtained from the competent authority. 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 opposite parties No.1 to 4 to prove that any account has been maintained by them in this respect. As such, these opposite parties also violated Section 9 of the PAPRA.
19. 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:-
17. 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."
20. It stands proved that opposite parties No.1 to 4 failed to hand over the possession of the flat, in question, to the complainants Consumer Complaint No.880 of 2017 14 within the stipulated period, without any sufficient reason. The complainants cannot be made to wait for indefinite period for delivery of possession. Opposite parties No.1 to 4 had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainants-buyers 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, it is to be bound by the reciprocal promises of performing their part of the agreement. Thus, the delay in not delivering the possession of flat 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.
21. 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 complainants have made payment of substantial amount to the opposite 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 complainants. Had the complainants not invested their money with the Consumer Complaint No.880 of 2017 15 opposite parties, they would have invested the same elsewhere. 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. 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 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 these circumstances, the complainants are entitled to the refund of the amount deposited by them, along with interest and compensation.
22. In view of my above discussion, the complaint is allowed against opposite parties No.1 to 4 and the same is dismissed against opposite party No.5-Bank. Following directions are issued to opposite parties No.1 to 4:
i) to refund ₹21,30,491/- deposited by the complainants, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA;
ii) to pay pre-EMI interest on the above mentioned disbursed amount by the Bank, to the complainants from the date of sanction of loan i.e. from 11.07.2014 till refund of the entire amount to the complainants. It is made clear that the amount Consumer Complaint No.880 of 2017 16 paid by opposite parties No.1 to 4 towards pre-EMI interest, if any, would be adjusted against their liability towards the complainants
ii) to pay ₹33,000/-, as compensation for the mental agony and harassment suffered by the complainant as well as litigation expenses.
23. Compliance of the order shall be made within 30 days of the receipt of certified copy of the order.
24. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT March 19, 2018.
(Gurmeet S)