Last Updated on February 3, 2024 by Satish Mishra
This case talks about ATS Estates Complaint in Consumer Court wherein refund was allowed to homebuyer.
Assuring More Powers to Customers
In this case, we will talk about how State Commission asserted more power to the customers and made customer believe that there is a watchman who is safeguarding their interest during unfair practice. The case which we will study is how a builder did not deliver the property to the allotee within the prescribed period of time and what compensation were request by complainants under Consumer Protection Act, 1986
Mr.Sonika Phaugat vs M/S Ats Estates Pvt. Ltd.
The case was entertained by Punjab State Consumer Dispute Tribunal and the complainants were Sonika Phaugat, serving in an IT company and her Husband, Raj Singh Phaugat, serving in Private Défense Service. The complaint was filed under Section 17 (1) (a) of The Consumer Protection, 1986 (will be referred as CP act) which basically states that State Commission will have jurisdiction if the contention amount exceeds more that two lakhs rupees or against the decision of the district court.
Also Read- Pankaj Kumar vs M/s ATS Estates Pvt. Ltd.
Facts of the case
Both the complainants decided to reside permanently near Chandigarh and when they saw the advertisement of the opposition party’s house project they decided to booked the apartment which was Flat no. 743, 14th Floor, Tower No. 7 in ATS Golf Meadows situated in Barwala Road Derabassi, District SAS Nagar (Punjab) by depositing Rs.7,49,625/-, vide two separate cheques of IDBI Bank. Total sale price of the unit was Rs.49,97,500/- with additional charges of Rs.50,000/- for maintenance deposit and Rs.1,00,000 for power back up. The Opposition Parties confirmed the booking on 31.05.2013
Due to the clause 14 of the buyer’s agreement possession is to be hand over to the complainant within 36 months with further 6 months grace period. So, the date that the Opposition Parties was supposed to deliver the property to the possession of the complainant was 30.11.2016.
- The Complainants obtained a home loan from HDFC and a tripartite agreement was set up accordingly between complainants, opposition parties and bank. HDFC released the above said loan and the complainants paid Rs. 47,70,788 to the Opposition Parties except the small amount of Rs. 3,69,710 which was supposed to be paid at the time of allotment.
The Opposition Parties failed to hand over the possession of the allotment unit to the Complainant. The complainants cleared the loan amount taken from HDFC Bank. There was no progress on the spot and complainants were in dire need of accommodation. As per buyer’s agreement, the opposition parties started paying compensation to the complainants Rs 9,500/- per month.
Punjab RERA – Maj Deepak Chauhan vs ATS Estates Private Limited
The complainants have accused Opposition Parties for Unfair Trade and Practice and demands the Opposition Parties to refund 47,70,788 with interest of 15 % per annum from the date of their respective deposits till actual payment along with Rs. 5,00,000 for mental harassment and Rs. 1,00,000 for litigation.
The Opposition’s Response
Opposition Parties in response to the notice filed an affidavit claiming following things
Complaints are not maintainable
Clause of the buyer’s agreement are not binding on parties to the agreement
- This forum does not have any territorial jurisdiction under clause 35 of the buyer’s agreement.
The complainant is barred by time because the cause of action occurred to complainants on 31.05.2013. when the buyer’s agreement was executed and complaint was not filed within two years period, it leads to barred under section 24-A of The CP Act. (24A. Limitation period-The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.)
Clause 14 of the buyer’s agreement is only provisionary and not binding on the parties to the agreement and has not legal bounding for the opposition parties to submit residence area within 36 months.
The delay of the possession cannot be delivered because of the unseen circumstances and here the case was unavailability of adequate supply of steel, so therefore the performance stood extended between parties because of section 63 of The Contract Act, 1872(63-Promisee may dispense with or remit performance of promise.—Every promise may dispense with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance,1or may accept instead of it any satisfaction which he thinks fit)
- The complainants are not consumer as they purchased the unit for investment and not for self-residence.
Opposition Parties requests to dismiss the complainant by rejecting any means of unfair trade practice and reject the refund.
Also Read- Mrs. Pratibha vs Parsvnath Developers Limited
Arguments put in by Complainants in Response to Claims by Opposition Parties
The argument that there is arbitration clause and therefore the complainant is not maintainable does not stand leg in the court of law. In Aftab Singh v/s EMAAR MGF Land Ltd and Another, National Commission held that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum. Appex Court also declined appeal against the order and Appex Court in National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another (2012(2)CLT-382/383) and Fair Air Engineers (P) Ltd. vs. N. K. Modi( (1996) 6 SCC 385 ) stated that Section 3 of the CP provides additional remedy to the consumer.
Opposition Parties claim that there is no jurisdiction cannot be accepted because the subject matter is situated within the subject matter situated within the territorial jurisdiction of this Commission and it cannot be taken away by the Clause 37 of the Buyer’s agreement as the CP act was enacted for the safeguard of the consumers.
- The complaint was filed by both husband and wife for their self-residence purpose and the project itself is a residential project and it establishes that they purchased the unit for residence. At the time of the possession, the amount of maintenance deposit, power back up and basic selling price, totalling Rs. 3,50,000/- to be given at the time of delivery of the possession which is within 36 months with further period of six months of grace period from the date of buyer’s agreement that is on 30.11.2016.
There is legal obligation as the buyer’s agreement pertains to housing service wherein OPs were to deliver the possession to allottees after obtaining occupancy certificate from the competent authority under Punjab Apartment Property and Regulations Act, 1995 and hence, parties are governed under the provision of PARA Act.
Clause 16 made time an essential factor and the criteria that unseen circumstances emerged has no substance and unusual plea and has no substance in the court of law.
The Opposition have been using the Complainants hard earned money and parties are governed by PARA Act and not delivery of possession within two years and six month amounts to unfair trade practice.
The contention that the complaint is barred by time is misconceived as 3 year was at the time of allotment to give the possession of the said property with six months of grace period. The cause of act in such case is continuing and cannot be barred by time. Furthermore, the complaint was filed before the commission on 22.10.2018 within 2 years period commencing from 30.11.2016.
The complainants obtained loan from HDFC bank and returned the loan from their own hard earned money. Opposition Parties have been utilising their money whereas they were put to undue hardship for clearance of loan amount which violates section 9 of the PARA Act.
Contention of time stood extended for performance under section 63 of The Contract Act, 1872 is not applicable as Clause 16 made time an important ingredient and cannot dodge the obligation of PARA Act. The Fact that Opposition Parties deliver the property in the possession of the complainant where the later cleared all payments amounts to undue trade practice. In Emaar MGF Land Ltd. and another V/s Dyal Singh [2015(4)CPJ-294], National Commission have held that nit delivery of possession within said period of time amounts unfair trade practice. Appex Court rejected Special Leave Petition in the case.
Opposition Parties not entitled to refund deposit because they have paid the penalty in the shape of compensation from January 2017 to August 2018 of Rs. 9500/- . The Complainants do not deny the receiving of money from the Opposition Parties but the fact remains that complainants have faced greater hardship like paying the loan with interest from HDFC bank and in Puneet Malhotra and another V/s Parsvnath Developers Limited [(2015)CPJ-18(NC)], the National Commission asserted that the penalty is applicable, where the allottee seeks possession of the allotted property
Also Read- ATS Golf Meadows Lifestyle RERA Punjab Complaint
Conclusion
The State Commission gave the judgment in the favour of the Complainant and when the Opposition Parties went to National Commission it was ordered
Opposition Parties is obliged to refund the entire deposited amounts of complainants with interest @ 12% per annum from the date of their respective deposits till actual payment by deducting the amount of Rs.1,90,000/- already paid to complainants by Opposition Parties in the shape of penalty from January 2017 till August 2018.
The appellants are directed to refund, to the complainants, the entire amount deposited by the complainants, after deducting an amount of Rs. 1.90 lakh already paid to the complainants, and to also pay, to the complainants, the cost of litigation of Rs. 20,000/- awarded by the State Commission, within 8 weeks from today.
Also Read- Consumer Complaint Against ATS GOLF MEADOWS
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