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Dilbag Singh Sabharwal v/s Ansal Properties & Infra-Structure Limited & Others

    Complaint No. 83 of 2018
    Decided On, 10 January 2020
    At, Haryana State Consumer Disputes Redressal Commission Panchkula
    By, THE HONOURABLE MR. JUSTICE T.P.S. MANN
    By, PRESIDENT & THE HONOURABLE MR. RAM SINGH CHAUDHARY JUDICIAL
    By, MEMBER
    For the Complainant: Mukesh Pandit, Advocate. For the Opposite Parties: Sunny Tyagi proxy Counsel, Ajay Ghangas, Abhimanyu Singh, Advocates.


Judgment Text

Ram Singh, Judicial Member.

1. The brief facts given rise for the disposal of the present complaint are that he (complainant) approached the opposite party in the year 2012 for purchase of flat in the Project of opposite party (O.P.) Nos.1 and 2 namely “Green Escape Apartments” situated at Village(s) Akbarpur Barota, Distt. Sonipat. The O.P. Nos. 1 and 2 informed him that flats were available with them in resale. Initially, an apartment was allotted to Naveen Satija and buyer’s agreement was executed between the parties on 18.1.2012. The flat purchased by the complainant was transferred in his name on 4.8.2012. The basic sale price of the apartment was Rs. 25,02,400. The flat was purchased under construction linked payment plan. In total, the complainant had paid Rs. 26,41,544 to O.P. Nos. 1 and 2. As per the terms and conditions of the buyer agreement, the O.P. Nos. 1 and 2 were bound to deliver the possession of the unit within 42 + 6 (grace period) = 48 months from the date of buyer’s agreement. The complainant has availed housing loan from the O.P. No. 3. He has deposited all the installments along with interest with the bank in time. The O.P. Nos. 1 and 2 failed to deliver the possession of the unit within stipulated period. He requested the O.P. Nos. 1 and 2 to refund the deposited amount along with interest, but, O.P. Nos. 1 and 2 failed to refund the deposited amount. Thus there was deficiency in service on the part of the O.Ps.

2. Notice of the complaint was issued against the O.P. Nos. 1 and 2 and the reply was filed, wherein the complainant approached the O.P. Nos. 1 and 2 in the year 2012 for purchase of flat in Green Escape project. The answering OP informed that flats were available in re-sale. The complainant purchased the apartment in resale from the market. The flat purchased by the complainant was initially allotted to Mr. Naveen Satija and buyer agreement was executed on 18.1.2012. The flat was transferred in the name of the complainant on 4.8.2012. The basic sale price of the apartment was Rs. 25,02,400 (excluding GST) and total cost of flat was Rs. 33,98,400. The complainant has not deposited the installments in time. An amount of Rs. 4,11,032 was still outstanding against the complainant. The complainant had paid total amount of Rs. 26,34,138 against the flat till 15.4.2017. Answering O.P. denied that delivery of possession of flat was to be made by 17.7.2015. As per terms and conditions of the agreement, the O.P. Nos. 1 and 2 were bound to deliver the possession of the unit within 42 + 6 (grace period)=48 months from the date of buyer’s agreement or from the date of commencement of construction of the particular tower/block in which the said unit is situated subject to sanction of the builder plan whichever is later. The answering O.P. has not committed any breach of agreement. The complainant has no right to demand the refund as the answering O.P. have not refused to complete the development work and offer possession of flat to the complainant. However, in case the complainant requires the possession of flat at an earlier time then the company may consider the request for allotment of any alternative flat to the complainant in the same project at the site where construction is at an advanced stage. The answering O.P. will offer the possession of the flat to the complainant after completion of development work. Thus there was no deficiency in service on the part of the answering O.Ps. Preliminary objections about maintainability of the complaint, concealment of material facts pecuniary jurisdiction etc. were also raised and requested to dismiss the complaint.

3. O.P. No. 3 filed separate written statement in which preliminary objections about locus standi was raised. The complainant has not sought any relief against answering O.P.in the present case. The complainant has availed housing loan from answering O.P. Answering O.P. further alleged in the reply that in case the Hon’ble Court allows the complaint of the complainant qua the O.P. No. 1 then in such case first charge over the refund amount may be of answering bank equivalent to outstanding loan amount. The complaint was not maintainable qua the O.P. No. 3 and deserves to be dismissed.

4. When the complaint was posted for recording evidence of the parties, complainant-Dilbag Singh Sabharwal-CW-1 in his evidence has tendered the affidavit Ex.CW1/A vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-6 and closed his evidence.

5. On the other hand, in order to rebut the evidence led on behalf of the complainant, O.P. Nos. 1 and 2 had also tendered the affidavit Ex.OPW1 that of Mr. Suresh Kumar and further tendered the documents Ex. OP-1 (statement of account) and closed its evidence.

6. O.P. No. 3 had also tendered the affidavit Ex.OPW2/A that of Ms. Megha Ahluwalia, Area Operations Head, Axis Bank and further tendered the documents Ex.OP-2 i.e. copy of authority letter and copy of loan account statement Ex.OP-3 and closed its evidence.

7. The arguments have been advanced by Mr. Mukesh Pandit, the learned Counsel for the complainant as well as Mr. Sunny Tyagi proxy Counsel for Mr. Ajay Ghangas, the learned Counsel for the opposite parties Nos. 1 and 2 and Mr. Abhimanyu Singh, the learned Counsel for the opposite party No. 3. With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

8. As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned Counsel for the parties, the basic and foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he has already deposited, along with the interest?

9. While unfolding the arguments it has been argued by Mukesh Pandit, the learned Counsel for the complainant that as far as the executing the buyers agreement is concerned it is not in dispute. It is also not in dispute that the basic price of the flat was Rs. 25,02,400 (excluding GST). It is also not in dispute that the flat was transferred in the name of the complainant on 4.8.2012. A total sum of Rs. 26,41,544 had been paid by the complainant to the O.P. Nos. 1 and 2. As per the buyers agreement and the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainant by the O.Ps. on or before 17.7.2015. However inspite of the fact that total amount stands paid. The period within which, the possession of the flat was to be delivered had already expired and under these circumstances the complainant had no other option, but, to seek the refund of the amount along with interest, which he had already paid.

10. On the other hand, it has been argued by Mr. Sunny Tyagi proxy Counsel for Mr.Ajay Ghangas, the learned Counsel for the O.P. Nos. 1 and 2 that the amount which the complainant had paid, has not been paid as per the repayment schedule. There was a delay in making the payment of the amount. The total cost of flat was Rs. 33,98,400. An amount of Rs. 4,11,032 was still outstanding against the complainant. The complainant had paid total amount of Rs. 26,34,138 (as per the customer ledger, the complainant paid Rs. 26,34,184) against the flat till 15.4.2017. It is true that the documents were executed between the initial allottee, which includes the buyers agreement, which contains all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession. Since there were a unavoidable circumstances and there was certain reasons which were beyond the control of the O.P. Nos. 1 and 2, the possession of the flat could not be delivered to the complainant in time. However on one pretext or the other the possession was not taken and now by taking the shelter of this Commission, the complainant seeks refund of the amount and infact this amount has already been invested for making all developmental activities. As per terms and conditions of the agreement, the O.P. Nos. 1 and 2 were bound to deliver the possession of the unit within 42+6 (grace period) = 48 months from the date of buyer agreement or from the date of commencement of construction of the particular tower/block in which the said unit is situated subject to sanction of the builder plan whichever is later. The answering O.P. has not committed any breach of agreement. The complainant has no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainant.

11. It has been further argued that in case the complainant requires the possession of flat at an earlier time then the builder consider the request for allotment of any alternative flat to the complainant in the same project at the site where construction is at an advanced stage. The answering O.Ps.will offer the possession of the flat to the complainant after completion of development work. Thus, the complainant was not entitled for the refund.

12. On the other hand, it has been argued by Mr. Abhimanyu Singh, the learned Counsel for the O.P. No. 3 that the complainant has not sought any relief against it in the present case. The complainant has availed housing loan from it. Learned Counsel for the O.P. No. 3 further argued that if this Commission allows the complaint of the complainant qua the O.P. No. 1 then in such case first charge over the refund amount may be of bank equivalent to outstanding loan amount. The complaint was not maintainable qua the O.P. No. 3 and deserves to be dismissed as prayed for.

13. In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, flat was purchased by the complainant for which total amount of Rs. 26,34,184 (Twenty six lacs thirty four thousand one hundred and eighty four only) had been paid. The flat was transferred in the name of the complainant on 4.8.2012 is also not disputed. As per buyer agreement, the possession of the flat was to be delivered within period of 42 + 6 months complete subject to some reservation. To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 3 years had expired, the possession of the flat has not been delivered by O.P Nos. 1 and 2. As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.P. Nos. 1 and 2. It is the normal trend of the developers/O.P. Nos. 1 and 2 that they would collect the hard earned money from the individuals and would invest the funds in other projects as a result thereof the project for which the investors have invested their hard earned money is not completed. As a result thereof the delivery of possession or completion of the project is delayed in the present case. When the project is not complete as such, this Commission is of the considered opinion that the complainant is well within their legal rights to get the refund of the amount of Rs. 26,34,184 (Twenty six lacs thirty four thousand one hundred and eighty four only) which he had already deposited with the O.P. Nos. 1 and 2. Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and the possession has not been delivered within the stipulated period and under the constraint circumstances, the complainant had to knock the door of this Commission even for seeking refund of the amount. In such like cases the Commission had to deal with the developers/O.P. Nos. 1 and 2 with severe hands who are misusing the funds o

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f the individuals. As such the question is answered in the affirmative. 14. Hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint, the O.P. Nos. 1 and 2 are directed to refund of the amount of Rs. 26,34,184 (Twenty six lacs thirty four thousand one hundred and eighty four only) along with interest @ 12% per annum from the date of respective deposits till realization. In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainant would further be entitled to get the interest @ 15% per annum, for the defaulting period. The complainant is also entitled of Rs. 1,00,000 (One lac only) for compensation of mental and physical agony. In addition, the complainant is also entitled of Rs. 50,000 (Twenty thousand only) as litigation charges. Since the first Charge is that of the Axis Bank which has extended the financial assistance of the complainant for raising the construction of the house, the outstanding amount would be paid to the bank-O.P. No. 3 firstly. The rest of the amount would be paid to the complainant. It is also made clear that for non-compliance, the provisions enshrined under Section 25 and 27 of the C.P. Act would also be attractable. Complaint allowed.
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