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Nitin Hastir & Another v/s Ansal Properties and Infrastructure Limited & Others

    Complaint Case Nos. 111 of 2019, 137 of 2019
    Decided On, 10 March 2021
    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh
    By, THE HONOURABLE MR. JUSTICE RAJ SHEKHAR ATTRI
    By, PRESIDENT & THE HONOURABLE MRS. PADMA PANDEY
    By, MEMBER
    For the Complainants: Vansh Malhotra, Advocate. For the Opposite Parties: Neetu Singh, proxy for Shekhar Verma, Advocates.


Judgment Text
Padma Pandey, Member

1. By this order, we propose to dispose of the aforesaid two consumer complaints. Since, the facts involved in the above complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.

Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.111 of 2019 titled as Nitin Hastir Vs. Ansal Properties and Infrastructure Limited.

2. The facts in brief are that the complainant booked a flat/apartment No.906 GF on 28.08.2010 measuring approximately 250 sq. yards by paying amount of Rs.1,00,000/- in the project of Opposite Parties No.1 & 2/builder €œExclusive Floors at Golf Links-I, Sector 114, Mohali€ for a total consideration of Rs.31,20,000/-. Thereafter, allotment letter dated 20.10.2011 was issued by the builder (Annexure C-3) alongwith terms and conditions, which was signed by both the parties. As per Clause 12 of the said allotment letter, possession of the unit was to be delivered to the complainant within a period of 24 to 30 months of commencement of construction after getting requisite approvals/clearances from the competent authorities, subject to force majeure circumstances i.e. on or before 01.05.2013. Further, the builder offered the special scheme of €œNo pre EMI interest till offer of possession€ in association with HDFC Ltd., which was opted by the complainant. Therefore, Tripartite Agreement dated 28.07.2011 was executed between Opposite Party No.1 and HDFC Ltd. (Annexure C-5) for sanctioning the loan of Rs.24,96,000/-. It was stated that the complainant paid an amount of Rs.7,62,732/- on his own and Rs.23,34,000/- through HDFC totalling Rs.30,96,732/- i.e. 90% of the total amount and 10% amount is to be paid at the time of possession. Ultimately, the complainant sent legal notice dated 27.02.2018 to Opposite Parties No.1 & 2 but to no avail. Thereafter, the builder offered possession of the unit vide letter dated 15.03.2018 (Annexure C-7) to the complainant and demanded Rs.6,63,512/-. The complainant was shocked that the super area of the flat was increased from 1275 sq. ft. to 1344.241 sq. ft. without taking the consent from him or any communication to the complainant. It was further stated that the builder paid few pre-EMI interest but thereafter they stopped to pay the same. It was further stated that despite receipt of the huge amount, the builder failed to offer possession within stipulated time frame, as mentioned in the allotment letter. It was further stated that the aforesaid acts, on the part of builder, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the €˜Act€™ only), was filed.

3. Opposite Parties No.1 & 2 in their written version by way of affidavit of Sh.Rakesh Kumar, Authorised Signatory, has taken objection that the complainants did not fall within the definition of €œConsumer€ as defined in the Consumer Protection Act, 1986, as they purchased the unit for the purpose of speculation/commercial purposes. It was further stated that possession of the unit was proposed to be delivered within tentative period of 24-30 months from the date of allotment, which would run from the date all requisite sanctions/approvals/permissions/clearances from the authorities were received subject to force majeure circumstances. It was further stated that a bare reading of the said clause would reveal that time was not the essence of the contract and that the period of 30 months for delivery of possession was given on estimate basis. It was further stated that the complaint is time barred as the complainant till offer of possession never sought refund of the amount paid by him. It was further stated the replying Opposite Parties continued to pay Pre-EMI interest to Opposite Parties No.3 & 4, as such, the complainant is not entitled to claim interest on the loan amount. It was further stated that possession was offered to the complainant on 15.03.2018 and the complainant remained silent and kept on enjoying pre-EMI interest scheme and willingly waited for the possession but when the possession was offered, he has to set up a false claim that he do not want to accept possession. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 & 2, nor they indulged into unfair trade practice.

4. HDFC Limited (Opposite Party No.3) in its respective written versions pleaded that since no specific allegations have been levelled against it, as such, it has no concern, with the dispute, qua the complainant(s) and builder/Company. However, its Counsel pleaded that, in case, this Commission comes to the conclusion that the complainant is entitled to refund of amount paid, then first charge be ordered in favour of HDFC Limited.

5. The Parties led evidence, in support of their case.

6. We have heard the Counsel for the contesting parties, and have gone through the evidence and record of the case, carefully.

7. The first question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act as he purchased the unit in the project of Opposite Parties No.1 & 2/builder purely for investment/speculation purposes. After going through the record, we are of the view that the objection taken by Opposite Parties No.1 & 2 does not carry any weight and is liable to be rejected because Opposite Parties No.1 & 2 failed to mention the reasons in their written statement that how the complainant is not a consumer. Moreover, the complainant has specifically mentioned in his complaint that due to non-delivery of the complainant€™s own home, huge rent is being paid for rented accommodation. So, it is clearly proved that due to non-delivery of possession within the stipulated time frame, the complainant paid huge rent. Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 & 2, mere bald assertion i.e. simply saying that the complainant purchased the property for investment/speculation purposes and, as such, he did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in the aforesaid case, is fully applicable to the present case. The complainant, thus, falls within the definition of a €˜consumer€™, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 & 2, in their written reply, therefore, being devoid of merit, is rejected.

8. There is no dispute with regard to the fact that the complainant had purchased the unit in question, in the project of Opposite Parties No.1 & 2, against which they had received substantial amount of Rs.30,96,732/- (Rs.7,62,732/- complainant paid on his own + Rs.23,34,000/- through HDFC) against total sale consideration of Rs.31,40,000/-, under subvention scheme. However, despite the fact that the unit in question was booked as far as back in 2010 and the aforesaid amount stood received by Opposite Parties No.1 & 2 by February, 2015 (as per Annexure C-9), yet, Counsel for Opposite Parties No.1 & 2 contended with vehemence that since no definite period was mentioned in the allotment letter/agreement for completion of construction work and delivery of possession of the unit, as such, time was not to be considered as essence of contract. Whereas, on the other hand, Counsel for the complainant contended with vehemence that possession of the unit in question was to be delivered latest by 20.04.2014.

9. Under above circumstances, this Commission would, first like to decide the issue, as to by which date/period possession of the unit in question was to be offered and delivered to the complainant. For deciding this issue, it is important to refer clause 12 of the allotment letter/agreement, which says that construction of the unit in question was likely to be completed within 24 to 30 months from the date of commencement of work. In the present case, to find, as to on which date, construction work was started, we need to refer to the statement given by Opposite Parties No.1 & 2 (AnnexureC-9), wherein, it has been mentioned that on start of Construction and due date is mentioned as 30.07.2011, on which date, amount of Rs.9,36,000/- was received by the Company. Not only this, it is also mentioned that till 28.08.2010, Opposite Parties No.1 & 2 received an amount of Rs.4,68,000/-, therefore, on the start of construction, Opposite Parties No.1 & 2 received an amount of Rs.4,68,000/- + Rs.9,36,000/- = Rs.14,04,000/-. Thus, in the present case, if the date of construction is taken as 30.07.2011, committed date of delivery of possession of the unit in question comes to 30.01.2014 . Thus, it is held that Opposite Parties No.1 & 2 were legally bound to deliver possession of the unit in question latest by 30.01.2014. Under these circumstances, it is held that Opposite Parties No.1 & 2 cannot wriggle out of the situation by taking a plea that since there was no definite period mentioned in the allotment letter/agreement, time was not to be considered as essence of the contract.

10. It is also not in dispute that possession of the unit booked by the complainant was not offered to him, by the promised date i.e. 30.01.2014 and no reason has been assigned by Opposite Parties No.1 & 2 in that regard, except Opposite Parties No.1 & 2 tried to wriggle out by taking a bald plea that time was not the essence of contract. The facts of the case transpire that Opposite Parties No.1 & 2 made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and he may act in reliance on it. The complainant is thereby involved in a disadvantageous contract with Opposite Parties No.1 & 2 and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent of Opposite Parties No.1 & 2 to induce the complainant to enter into a contract and also intent to deceive him. In fact, the acts committed by the Company are not only fraud but also amount to misrepresentation of facts. Furthermore, there is nothing on record to show that Opposite Parties No.1 & 2 suffered any force majeure circumstances, on account of which, construction and development work at the project site could not be completed and possession of unit was not delivered to the complainant by the committed date, referred to above.

11. However, it is coming out from the record that possession of the unit in question was, for the first time, offered to the complainant vide letter dated 15.03.2018 i.e. after a huge delay of more than 4 years. Under these circumstances, the moot question which falls for consideration is, as to whether, the complainant was obliged to take possession of the unit so offered by Opposite Parties No.1 & 2, after such a huge delay, even if the same was genuine. Our answer to this question is in the negative, in view of settled principle of law laid down by the Hon€™ble Supreme Court of India in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also in Fortune Infrastructure Versus Trevor D€™ Lima & Ors. (2018) 5 SCC 442, wherein it was held that in case of delay in delivering possession of the residential units/plots by the project proponent, the buyer cannot be compelled to take possession at later stage and, on the other hand, he/she is entitled to refund of the amount paid alongwith interest. Under these circumstances, it is held that the complainant is entitled to get refund of the amount paid alongwith interest @12% p.a. from the respective dates of deposits onwards till realization in view of principle of law laid down by the Hon`ble Supreme Court of India in H.U.D.A. Vs. Neelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment.

Not only as above, even under Section 12 of the Punjab Apartment and Property Regulation Act, 1995, read with Rule 17 of the Rules thereunder, it has been specifically mentioned that if the amount is to be refunded, it is to be refunded alongwith interest @12% p.a.

12. As far as objection taken to the effect that this complaint is time barred, it may be stated here that if a period of two years are taken from 15.03.2018 i.e. the date when possession of the unit was offered to the complainant, though belatedly, then this complaint having been filed on 13.05.2019 is well within limitation. Objection taken in this regard, as such, stands rejected.

13. For the reasons recorded above, this complaint is partly accepted, with costs and Opposite Parties No.1 & 2, jointly and severally, are directed as under:-

i. To refund the entire amount deposited by the complainant, alongwith interest @12% p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the amount deposited shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.

ii. To pay Rs.50,000/-, in lumpsum, towards compensation for causing mental agony and harassment and cost of litigation to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

However, Opposite Parties No.1 & 2 shall be at liberty to deduct the total amount paid by them to Opposite Parties No.3 & 4 towards Pre-EMI against loan amount only till 15.03.2018 i.e. till the date when possession was offered, out of the amount of interest ordered at sr. no. (i) above.

14. It is further made clear that it shall be the responsibility of the complainant to refund the entire loan amount alongwith up-to-date interest, if any, due after 15.03.2018, to Opposite Parties No.3 & 4 and at the same time, it shall be the responsibility of Opposite Parties No.1 & 2 to pay the Pre-EMI interest, if any, due to be paid to Opposite Parties No.3 & 4 till 15.03.2018.

Consumer Complaint No.137 of 2019 titled as Sunil Mahajan Vs. Ansal Properties and Infrastructure Ltd.

15. The complainant booked unit No.906 F.F in the project €œExclusive Floors at Golf Links-1, Sector 114, Mohali€ of Opposite Parties No.1 & 2 and paid the total amount of Rs.26,45,714/-, out of the total amount of Rs.28,20,000/-. Thereafter, allotment letter dated 20.10.2010 was issued in favour of the complainant. As per Clause 12 of the allotment letter, possession of the unit was to be delivered within a period of 24 to 30 months of commencement of the construction after getting requisite approvals/clearances from the competent authorities, subject to force majeure circumstances i.e. on or before 01.05.2013. Despite receipt of the huge amount from the complainant, Opposite Parties No.1 & 2 did not offer possession of the unit, in question, to the complainant within the stipulated time frame as mentioned in the allotment letter, rather offered possession vide letter dated 15.03.2018 (Annexure OP1-2/4) i.e. after a delay of more than four years, which amounted to deficiency in service and indulgence into unfair trade practice.

16. Opposite Parties No.1 & 2 filed same reply as filed in CC/111/2019, therefore, there is no need to reiterate it.

17. In the present case, since no specific date of start of construction has been mentioned by both the parties, so we count 30 month from the date of allotment i.e. 20.10.2010 for handing over possession of the unit, in question i.e. by 20.04.2013 and not more than that. However, Opposite Parties No.1 & 2 failed to hand over possession within the stipulated time frame, rather offered possession vide letter dated 15.03.2018 after a huge delay of more than four years, which amounted to deficiency in service and indulgence into unfair trade practice.

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18. For the reasons recorded above, this complaint is partly accepted, with costs and Opposite Parties No.1 & 2, jointly and severally, are directed as under:- i. To refund the entire amount deposited by the complainant, alongwith interest @12% p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the aforesaid amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization. ii. To pay Rs.50,000/-, in lumpsum, towards compensation for causing mental agony and harassment and cost of litigation to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization. However, Opposite Parties No.1 & 2 shall be at liberty to deduct the total amount paid by them to Opposite Parties No.3 & 4 towards Pre-EMI against loan amount only till 15.03.2018 i.e. till the date when possession was offered, out of the amount of interest ordered at sr. no. (i) above. 19. It is further made clear that it shall be the responsibility of the complainant to refund the entire loan amount alongwith up-to-date interest, if any, due after 15.03.2018, to Opposite Parties No.3 & 4 and at the same time, it shall be the responsibility of Opposite Parties No.1 & 2 to pay the Pre-EMI interest, if any, due to be paid to Opposite Parties No.3 & 4 till 15.03.2018. 20. The aforesaid appeals stand dismissed qua Opposite Parties No.3 & 4. 21. Certified Copies of this order be sent to the parties, free of charge. 22. The file be consigned to Record Room, after completion.
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