Complaint case No. : 40 of 2020 Date of Institution : 07.02.2020 Date of Decision : 03.12.2020 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Amardeep Singh Dhillon, S/o Late Sh.Sarabjit Singh Dhillon R/o House No.690, Sunny Enclave, Old Sunny, Sector 125, S.A.S. Nagar, Mohali, Punjab. Complainant V e r s u s M/s Ansal Properties & Infrastructure Ltd. having its Registered Office at 115, Ansal Bhawan, 16, K.G. Marg, New Delhi-110001, through its Whole Time Directors, Sh.Sushil Ansal and Sh.Pranav Ansal (Also at :- M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh through its Whole Time Directors, Sh.Sushil Ansal and Sh.Pranav Ansal) Sh.Sushil Ansal, Whole Time Director of M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh. Sh.Pranav Ansal, Whole Time Director of M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh. Sh.Anil Kumar, Managing Director of M/s Ansal Properties & Infrastructure Ltd., having its office at SCO 183-184, Sector 9-C, Madhya Marg, Chandigarh. ..Opposite Parties No.1 to 4 Housing Development Finance Corporation Limited having its Office at SCO 153-154, Sector 8-C, Madhya Marg, Chandigarh, through its Whole Time Director/Managing Director. ..Proforma Party BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS.PADMA PANDEY, MEMBER. MR. RAJESH K. ARYA, MEMBER. Present through Video Conferencing:- Sh.Savinder Singh Gill, Advocate for the complainant. Sh.Sandeep Kumar, Advocate for the opposite parties no.1 to 4. Ms.Neetu Singh, Advocate for proforma party no.5. JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT The above captioned complaint has been filed by the complainant seeking refund of amount of Rs.27,23,648/-, paid by him towards purchase of unit bearing no.912-SF, measuring 1299 square feet, in a project launched by opposite parties no.1 to 4, under the name and style Exclusive Floors, Golf Links, Sector 114, SAS Nagar, Mohali, Punjab (in short the unit), total sale price whereof was fixed at Rs.28,40,000/-, as they failed to deliver possession thereof by 24.04.2013 i.e. within a maximum period of 30 months from the date of commencement of construction work as per Clause 12 of the allotment letter/agreement dated 25.10.2010 (Annexure C-1) for dearth of construction and development works at the project site. It has been averred that for making payment towards price of the said unit, the complainant has availed housing loan from proforma party no.5, under subvention scheme, vide tripartite agreement Annexure C-2. By stating that by not offering possession of the unit in question by the stipulated date, opposite parties no.1 to 4 are deficient in providing service and are guilty of adopting unfair trade practice, the instant complaint has been filed by the complainant seeking refund of amount paid alongwith interest, compensation and litigation expenses. The claim of the complainant has been contested by opposite parties no.1 to 4, on numerous grounds, that he has concealed material facts from this Commission;inter alia, that he did not fall within the definition of consumer as he is a speculator; that because the period of 30 months, for delivering possession of the unit was tentative, as such, time was not to be considered as essence of the contract; that this Commission is not vested with territorial jurisdiction to entertain this complaint; and that the complaint filed is beyond limitation. On merits, the fact with regard to payment made by the complainant towards the unit in question as mentioned in the complaint; execution of allotment letter/agreement aforesaid; execution of tripartite agreement; non delivery of possession of unit by the promised date; obtaining of housing loan under subvention scheme has not been disputed. It has been pleaded that possession of the unit in question has been offered to the complainant vide letter dated 15.03.2018, Annexure OP-1-4/4, after completing the construction and development works at the project site and also after obtaining occupation and completion certificates from the competent Authorities, yet, he failed to come forward to take the same after making remaining payment and, on the other hand, has filed the instant complaint. It has been stated that opposite parties no.1 to 4 have paid Pre-EMI to proforma party no.5, under subvention scheme till the date when possession of the unit was offered to the complainant. It has been averred that since no definite period for delivering possession of the unit was mentioned in the allotment letter/agreement and also possession was to be offered only after receipt of all sanctions/approvals from the competent Authorities, as such, in that event also time was not to be considered as essence of the contract. Prayer has been made to dismiss the complaint. Proforma party no.5 in its written version pleaded that since no specific allegations have been levelled against it, as such, it has no concern, with the dispute, qua the complainant and opposite parties no.1 to 4. It has been stated that the account of the complainant is irregular and 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 proforma party no.5, so that it is able to seek apportionment of its dues. In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those contained in written version of opposite parties no.1 to 4. This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence; and also produced numerous documents. We have heard the contesting parties and have gone through the evidence and record of the case, including the written arguments filed by the parties concerned, very carefully. First coming to the objection raised to the effect that the complainant did not fall within the definition of consumer, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to opposite parties no.1 to 4 to establish that the complainant has purchased the unit in question to indulge in purchase and sale of units/flats as was held by the Honble National Commission in Kavit but since they failed to discharge their onus, henceAhuja vs. Shipra Estates I (2016) CPJ 31 we hold that the complainant is a consumer. Now we will deal with the objection regarding territorial jurisdiction of this Commission, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the present case, perusal of cheque dated 16.09.2011 in the sum of Rs.7,15,094/- and payment receipt dated 27.11.2014 (at pages 35 and 36 of the paper book) reveal that the same were received by Chandigarh Office of opposite parties no.1 to 4 as the same bear round stamp of the said office. Not only as above, even the occupation certificate dated 08.03.2018, Annexure OP-1-4/1 and partial completion certificate dated 30.06.2017, Annexure OP-1-4/2, reliance whereupon has been placed by opposite parties no.1 to 4 themselves, shows that the said documents were sent by the competent Authorities to the company at SCO No.183-184, Sector 9-C, Chandigarh. Furthermore, even the offer of possession letter dated 15.03.2018, Annexure OP-1-4/4, also shows that the same has been sent to the complainant by the Back Sales Office of opposite parties no.1 to 4 from SCO No.183-184, Sector 9-C, Madhya Marg, Chandigarh, meaning thereby that the company was actually and voluntarily residing and carrying on its business, from the said Chandigarh Office and personally work for gain hereat. As such, objection taken in this regard is rejected. 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 to 4, against which they had received substantial amount of Rs.27,23,648/- against total sale consideration of Rs.28,40,000/-, 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 to 4 by 27.11.2014, yet, Counsel for opposite parties no.1 to 4 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 24.04.2013. 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 payment plan (at page 19 of the paper book), wherein, it has been mentioned that 20% of the basic sale price equal to Rs.5,84,000/- was required to be paid by the complainant in the first instance and, thereafter, the remaining 80% was to be paid as per construction linked plan, out of which first 30% of amount i.e. Rs.8,46,000/- was to be paid at the time of start of construction meaning thereby the moment the amount of Rs.14,30,000/- (Rs.5,84,000/- (+)Rs.8,46,000/-) stood received by opposite parties no.1 to 4, construction work was to be started by them. In the present case, it is evident from the payment details, reflected in para no.4 of the complaint, that till 30.03.2012, the complainant has already paid an amount of Rs.20,28,742/- to opposite parties no.1 to 4. Thus, in the present case, if the date of construction is taken as 30.03.2012 i.e. when opposite parties no.1 to 4 have already received an amount of Rs.20,28,742/- against required amount of Rs.14,30,000/-, committed date of delivery of possession of the unit in question comes to 29.09.2014 (24 months plus 6 . Thus,months from the date of start of construction being 30.03.2012 as referred to above) it is held that opposite parties no.1 to 4 were legally bound to deliver possession of the unit in question latest by 29.09.2014. Under these circumstances, it is held that opposite parties no.1 to 4 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. 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. 29.09.2014 and no reason has been assigned by opposite parties no.1 to 4 in that regard. When confronted with the situation, as to why, possession of the unit in question was not offered and delivered within 30 months from the date of start of construction, Counsel for opposite parties no.1 to 4 again tried to wriggle out by taking a bald plea that time was not the essence of contract. The facts of the case transpire that the opposite parties no.1 to 4 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 to 4 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 to 4 to induce the complainant to enter into a contract and also intent to deceive him. Infact, 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 to 4 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. 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 3 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 to 4, 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 Honble Supreme Court of India in Pioneer Urban Land & Infrastructure Ltd. Vs. and also in Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 wherein it wasFortune Infrastructure Versus Trevor D Lima & Ors. (2018) 5 SCC 442 , 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. wherein it was heldNeelam Sharma, Civil Appeal no.3417 of 2003 decided on 18.08.2004, 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. 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 07.02.2020 is well within limitation. Objection taken in this regard, as such, stands rejected. For the reasons recorded above, this complaint is partly accepted, with costs and opposite parties no.1 to 4, jointly and severally, are directed as under:- To refund the amount of Rs.27,23,648/- to the complainant, alongwith interest @12 % p.a. from the respective dates of deposit onwards, , within a periodwithout deducting any TDS of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs. 27,23,648/- 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. 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 to 4 shall be at liberty to deduct the total amount paid by them to proforma party no.5 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. 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 proforma party no.5 and at the same time, it shall be the responsibility of opposite parties no.1 to 4 to pay the Pre-EMI interest, if any, due to be paid to proforma party no.5 till 15.03.2018. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to Record Room, after completion. Pronounced. 03.12.2020 Sd/- [JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/- [PADMA PANDEY] MEMBER Sd/- (RAJESH K. ARYA) MEMBER