FIRST ADDITIONAL BENCH

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No. 72 of 2017

Date of Institution : 07.02.2017 Order Reserved on : 03.01.2018 Date of Decision : 04.01.2018

1. Jagpreet Singh Sarai s/o Brig. Jagjit Singh Sarai (Retd.) S/o Sh. Fateh Singh, residents of H.No. 2269-A, Sector 47-C, Chandigarh.

2. Brig. Jagjit Singh Sarai (Retd.). S/o Sh. Fateh Singh, residents of H.No. 2269-A, Sector 47-C Chandigarh

….Complainants

Versus

1. Ansal Properties & Infrastructure Ltd., 1202-04, Antriskh Bhawan, 22 Kasturba Gandhi Marg, New Delhi 110 001, through its Managing Director.

2. Ansal Properties & Infrastructure Ltd., SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh 160 009, through its Authorized Signatory.

Opposite parties

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

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Shri J. S. Klar, Presiding Judicial Member. Smt. Surinder Pal Kaur, Member. Present:-

For the complainants : Sh. R.P Singh, Advocate For opposite party no.1 : Dismissed vide order dated 13.11.2017 For opposite party no.2 : Ex-parte.

…………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that in the year 2007, OPs came up with a residential project in the name and style as "Exclusive Floors" at Golf Link -1 Sector 114 Kharar - Landran Road District Mohali and OPs widely publicized the offer of selling residential flats in their project known as Exclusive Floors. Information brochure regarding the above said project was provided to them. On the allurement of OPs, the complainant no.2 agreed to purchase one 3 BHK flat bearing no. 932/GF in the above said project. At the time of booking, OPs assured them that flat was having super area of 1275 sq. ft @ Rs.2447/- per sq. ft + Rs.115.87/- per sq. ft, as external development charges (EDC) at a total price of Rs.32,67,734/- (3120000 + 147734) in this project known as "Exclusive Floors". The complainants had applied for the said flat on 22.10.2010 and deposited the earnest/application money of Rs.4,68,000/-, vide Canara Bank cheque bearing no. 275722 dated 22.10.2010 with OPs. OPs also assured them that the project has been approved by Government of Punjab with all necessary sanctions. Allotment letter /agreement dated 13.11.2010 was signed between the complainants and OPs containing certain terms and conditions. OPs specifically mentioned in Clause 12 of the Allotment Letter to the effect that the possession of the independent floor/flat was likely to be completed within 24 to 30 months from commencement of work. It was further alleged by OPs that construction work has already been started, when the flat in question has been allotted to the complainants on 13.11.2010, therefore, possession of the flat was to be delivered to them by 13.05.2013. Thereafter, complainants decided to make the payments under the down payment plan and accordingly got the finance from India Bulls for a sum of Rs.24,96,000/-, which was disbursed by India Bulls to OPs on behalf of complainants on 30.04.2011, vide sanction letter dated 25.04.2011. The complainants also deposited another sum of Rs.80,340/- and Rs.36,933/- on 07.01.2011 another sum of Rs.36,273/- on 18.06.2011, another sum of Rs.37,628/- on 20.01.2012 and Rs.3,00,000/- on 01.08.2014 and also an amount of Rs.2,02,584/- to OPs. The complainants paid the total amount of Rs.36,57,758/- to OPs till date. It was further averred that OPs failed to apprise them about the progress of the project during its construction and even after expiry of the committed construction period at the time of booking, which was told to be 24 to 30 months from the date of commencement of construction work, which has already been expired on 13.04.2013, but same has not been delivered to them till date. The complainants booked their flat under the Subvention Scheme, whereby OPs were supposed to pay the pre-EMI interest on the amount financed from the date of disbursement of loan amount till the date of actual handing over the possession of the flat to them, whereas OPs failed to do so and have paid the pre-EMI interest initially only up to December 2012, which was later on adjusted till the date of offer of possession i.e. 30.06.2014 by refunding an amount of Rs.2,07,507/- after wronglfully deducting an amount of Rs.45,565/- towards TDS, vide its letter dated 02.03.2015. This action of OPs also amounts to deficiency in service and unfair trade practice. OPs stopped paying the pre-EMI of the loan amount taken on the flat to the India Bulls after December 2012 under subvention scheme, therefore, complainants were forced to pay the pre-EMI interest from January 2013 onwards, which were supposed to be paid by OPs till the actual handing over the possession of flat. After great persuasion, OPs have adjusted the amount of pre-EMI interest up to 30.06.2014 only, when the

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possession of the flat was to be offered to them. The OPs have offered the possession of the flat to them, vide their letter dated 30.06.2014 without obtaining the occupation and completion certificates from competent authority. The OPs have offered the possession of the flat, which was not complete with basic amenities like street lights, water , sewerage and drainage system etc. As per Clause 12 of the allotment letter/agreement , possession of the complete flat with all basic amenities was to be delivered by OPs to complainants by 13.05.2013, but same has not been completed and delivered till date. At the time of booking, OPs offered incomplete possession of the flat and super area of the flat in question was 1275 sq. ft but on 30.06.2014 when the possession of the flat was offered to complainants, OPs informed them that they have increased the super area of flat from 1275 to 1344.241 sq. ft. In this regard, OPs have not taken any such consent of complainants and have enhanced super area of their flat at their own and thereby burdened them for another sum of Rs.1,69,437/-. The OPs have delayed the possession of the flat and charged an amount of Rs.7,832/- towards interest on the delayed payments. The complainants alleged deficiency in service and unfair trade practice on the part of OPs in the complaint. The complainants have prayed that OPs be directed to refund the amount of Rs.36,57,758/- along with interest @ 18% p.a from the respective dates of their deposits till actual realization, further to pay Rs.5 lac as compensation for mental agony and harassment and Rs.55,000/- as cost of litigation.

2. Complaint is dismissed against OP no.1 by this Commission, vide order dated 13.11.2017 and OP no.2 was set exparte before this Commission, vide order dated 20.09.2017.

3. The complainant tendered in exparte evidence his affidavit Ex.CA along with copies of documents Ex.C-1 to Ex.C-14 and closed it.

4. We have heard learned counsel for the complainants at considerable length and have also examined exparte evidence on the record.

5. The pleadings of the complainants are to this effect that they booked three bed room flat with OPs bearing no. 932GF in the above said project i.e. Exclusive Floors at Golf Link-1 Sector 114 Mohali on 22.10.2016. A super area of the flat was 1275 sq. ft @ 2447/- per sq.ft plus Rs.115.87 per sq. ft as external development charges (EDC) at a total price of Rs.32,67,734/-. The complainant deposited earnest money of Rs. 4,68,000/- , vide cheque no. 275722 dated 22.10.2010 with OPs. The averment of the complainants is further to the effect that OPs represented that the project has been approved by Government of Punjab with all the necessary sanctions and approvals from the competent authorities. Allotment letter dated 13.11.2010 was issued by OPs to complainant in this regard containing clause 12 agreeing to deliver the possession of the flat within 24 to 30 months from the date of commencement of work.

6. The complainants contended in their complaint that they got loan financed from India Bulls for a sum of Rs.24,96,000/- for its disbursement to OPs on their behalf on 30.04.2011, which was sanctioned on 25.04.2011. The amount of Rs. 24,96,000/- was disbursed to OPs through India Bulls financer of complainants. The complainants have paid total amount of Rs.36,57,758/- to OPs. The gravamen of the complainants in this case is that despite expiry of the period of 24 to 30 months, as stipulated in Clause 12 of the allotment letter, OPs failed to complete the construction work and to deliver the complete possession of the flat to them. The complainants booked the flat under Subvention Scheme, whereby OPs were supposed to pay the pre-EMI interest on the amounts financed from the date of disbursement of loan amount till the date of actual handing over the possession of the flat to complainants, but OPs failed to do so and have paid the pre-EMI interest initially only up to December 2012. The complainants were forced to pay the pre-EMI interest from January 2013 onwards, which were supposed to be paid by OPs till the actual handling over the possession of the flat. OPs increased super area of flat from 1275 to 1344.241 sq ft without any written consent of the complainant. The complainant further stated that the project is not yet complete for delivery of the possession of the flat to complainants, as there are defects in it. The complainants sought the refund of the deposited amounts in the prayer clause of the complaint. These are the pleadings of the complainants in nutshell.

7. The complainants also adduced exparte evidence on the record on record to substantiate their

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case. Affidavit of Brig. Jagpreet Singh Sarai one of the complainants is Ex.C-A on the record. He has stated the pleaded case of the complainant on oath in his affidavit on the record. Ex.C-1 is receipt dated 22.10.2010 for deposit of Rs.4,68,000/- by complainants with OPs, as earnest amount. Allotment letter was issued by OPs to complainants on 22.10.2010, vide Ex.C-2 on the record. The terms and conditions of the allotment are incorporated in the allotment letter Ex.C-2 on the record. Clause 12 of the allotment letter is the relevant provision of law, which lays down that construction of the said floor is likely to be completed within 24 to 30 months of commencement of work, which shall be tentatively the date of receipt of all requisite sanctions/approvals/permissions/clearances, subject to force majeure circumstances. Allotment letter Ex.C- 2 is dated 22.10.2010 and time stipulated for delivery of the possession of the flat is 24 to 30 months, which expired in the year 2013. The complainant opted for down payment plan, vide loan sanctioned letter dated 25.04.2011 Ex.C-3 to the tune of Rs.24,96,000/-. Vide statement of account issued by India Bulls to complainants Ex.C-4, various amounts were remitted by India Bulls on behalf of complainants to OPs towards this loan amount as incorporated in it. The complainants paid Rs.80340/- to OPs on 07.01.2011, vide Ex.C-5. Vide Ex.C-6 complainants paid Rs.36237/- to OPs on 18.06.2011. Rs.37628/- on 20.01.2012 to OPs, vide Ex.C-7 and Rs.3 lac to OPs on 08.01.2014, vide receipt Ex.C-8. Vide letter dated Ex.C-9, the recoverable amount has been shown only Rs.202584/- as PMI refund for unit no. 932 GF. OPs wrote letter dated 30.06.2014 and offer of possession Ex.C-10 to complainants. The submission of counsel for complainants is that this is a sham letter recorded on paper only by OPs to avoid their liability.

8. The argument of counsel for complainants is that photographs were taken by complainants on 07.10.2015 and project has not yet been completed by OPs. We have carefully perused the photographs placed on record by the complainants. These photographs can be taken into account, which are Ex.C-11 (colly). These photographs indicate that they were snapped on 07.10.2015, whereas 'kacha pavements' have been shown therein in the project. These photographs nowhere prove this fact that OPs have completed entire project with occupancy certificate, as mandated by Section 14 of Punjab Apartment of property & Regulations Act 1995. OPs have not obtained any occupancy certificate so far, as required by above provisions of law from the competent authority. Ex.C-13 is legal notice sent by complainants to OPs pointing out deficiency in service as gathered from evidence of complainants and pleadings. Below noted deficiencies are still existing in the project despite the fact that year 2017 is about to come to close :-

i) Approach road towards the flat which is still a kutcha road and it becomes a pool of mud and water during rainy days;

ii) Street lights are not provided/installed in the said area;

iii) The area where the flat is situated is in the remotest location of the complex with close proximity with other private agriculture land and OPs have not constructed the security wall partitioning the said complex with the other's agriculture land, therefore, it is not safe to reside in the said flat as any untoward incident can be occurred;

iv) There is an uncovered drain/nullah passing through the said complex, which is just next to the complainant's flat. Therefore, it is not at all safe, health wise, to reside in the said flat as the drain/nullah is a breading ground for the mosquitoes;

v) That there are many plots/vacant land around the flat of the complainants. Also there is one vacant plot next to complainants' flat where all floods water accumulates during rainy season and becomes breeding place for mosquitoes.

vi) At the time of booking, the complainants flat was shown to be corner flat. Now the complainants came to know from the officials of the OPs that the OPs have put the said plot along with some other plots for sale and now the flat of the complainants will no more remain a corner flat. Thus, this also constitutes gross deficiency in service and unfair trade practice on the part of OPs. Consequently, we hold that the complainants have proved in exparte evidence that OPs have not completed the project within stipulated period despite the receipt of sale consideration from complainants. This is an

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unfair trade practice on the part of OPs. They have misutilized the hard earned money of the complainants, which is not permissible, as held by National Commission in Emaar MGF Land Ltd & Anr. versus Dyal Singh, reported in 2015(4) CPJ 294 by National Commission duly approved by Apex Court in Special Leave Petition no. 32942 of 2015 decided on 11.12.2015.

9. Consequently, the complainants are held entitled to refund of the deposited amounts from OP no.2 with interest thereon. The complaint of the complainant is exparte accepted against OP no.2 by directing it to refund the entire deposited amounts of complainants with interest @ 12% p.a from the date of their deposits till actual payments. OP no.2 is also directed to pay Rs.1 lac as compensation for mental harassment and Rs.40,000/- as costs of litigation to the complainants, whereas the complaint has been dismissed against OP no.1 on 13.11.2017 by this Commission for want of prosecution by complainants. The above said amounts shall be paid by OP no.2 to complainants within 45 days from the date of receipt of certified copy of this order.

10. Arguments in this complaint were heard on 03.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

11. The complaint could not be decided within the statutory period due to heavy pendency of court cases.

(J. S. KLAR)

PRESIDING JUDICIAL MEMBER

(SURINDER PAL KAUR)

MEMBER

January 4 , 2018 (ravi)

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