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Bal Mukand & Another v/s Ansal Housing Limited Formerly Ansal Housing & Construction Limited (Formaly Ansal Housing & Construction Limited)

    Consumer Case Nos. 510 to 514 of 2020

    Decided On, 15 February 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT
    By, THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER & THE HONOURABLE MR. BINOY KUMAR
    By, MEMBER

    For the Complainants: Pawan Kumar Ray, Advocate. For the Opposite Parties: Attin Shankar Rastogi, Mayank Mala, Advocates, Vikas Tiwari, Ritika Priya, Advocates.



Judgment Text

R.K. Agrawal, President

These Consumer Complaints have been filed by the Complainants under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short “the Act”) against M/s. Ansal Housing Limited (Formerly M/s. Ansal Housing & Construction Limited). As the issues and facts involved in these matters are similar, except minor variations and all these matters are related to the same project, namely, “Estella” of the Opposite Party and the reliefs sought are identical, hence these Consumer Complaints are being disposed of by this Common Order.

2. For the sake of convenience, Consumer Complaint No. 510 of 2020 is being taken as the lead case.

CONSUMER COMPLAINT NO. 510 OF 2020

3. The facts in brief as stated in the Complaint are that the Complainants have booked an Apartment on 20.04.2011, with the Opposite Party by paying an amount of Rs.6,17,000/- towards booking. The Complainants have opted for construction linked payment plan. The Apartment Buyer’s Agreement (in short “the Agreement”) was executed on 06.06.2012 for Apartment No. N-0501, Tower N, 3 BHK + Utility, admeasuring 1945 sq. ft., for a total sale consideration of Rs.75,84,025/- including PLC, out of which the Complainants have paid a sum of Rs.72,47,710/-. As per Clause 30 of the Agreement the possession of the Apartment in question was to be delivered within 36 months from the date of execution of the Agreement or within 36 months from the date of obtaining all required sanctions and necessary approvals for commencement of construction, whichever is later with a grace period of 6 months, subject to certain conditions.

4. It is averred by the Complainants that at the time of booking, the Opposite Party had assured them that the Opposite Party had obtained all the necessary approvals and sanctions from the concerned authorities and the possession of the Apartment will be delivered within 3 to 3 years; that the Agreement was executed belatedly after one year and two months from the date of booking and that too after receiving a substantial amount of Rs.26,08,850/-, which constitutes almost 34% of the total sale consideration of Rs.75,84,025/- and that the Agreement was made to suit the whims of the Opposite Party and some of the Clauses of the Agreement are totally unreasonable and one sided and as the Complainants have already paid a substantial amount they are left with no other option but to sign the Agreement. It is submitted that on the one hand the Opposite Party, has the right to charge interest @ 24% per annum for any delay in payment of instalments by the purchasers, as per Clause 23 of the Agreement and on the other hand the Opposite Party was liable to pay a meagre compensation @ Rs.5/- per sq. ft. per month of the super area, which squarely falls within the ambit of definition of deficiency in service and unfair trade practices as defined under the Consumer Protection Act 1986.

5. It is averred that when the Opposite Party failed to hand over the possession of the Apartment on the due date i.e., 06.12.2015, the Complainants contacted the Opposite Party in the year of 2016 and have made various representations to the Opposite Party with regard to the delivery of possession, however, the Opposite Party failed to give any fixed date for completion of the Project. Thereafter, the Complainants visited the construction site and were shocked to see that the construction was at standstill and there were no workers/labourers at the site and seeing the status of the construction it is understood that the it will take at least another 2 to 3 years to complete the project. It is further averred that despite collecting a substantial amount of Rs.72,47,710/- from the Complainants, the possession of the Apartment, has not been delivered and the construction of the Project is not complete even till the date of filing of the Complaint. The Opposite Party has miserably failed to comply with its contractual obligations of handing over possession of the Apartment within the stipulated time, which is an act of ‘deficiency in service’ on the part of the Opposite Party and as the Complainants have suffered a lot of mental harassment and agony at the hands of the Opposite Party they are entitled to be adequately compensated.

6. It is pleaded in the Complaint that the Complainants have booked this Apartment for the residential purpose of their children and as the Opposite Party failed to deliver the possession of the Apartment even after a lapse of almost 9 years from the date of booking, the Complainants have lost faith in the Project of the Opposite Party and sought refund of the amount paid by them. However, the Opposite Party failed to respond to the request of the Complainants for refund of the amount paid. Hence, the Complainants approached this Commission, alleging deficiency in service and unfair trade practice on the part of the Opposite Party, seeking the following reliefs:

a. Allow the present Complaint; and

b. Pass an order directing the Opposite Party to refund the amount paid by the Complainants till date i.e. Rs.72,47,710/- (Rupees Seventy Two Lakhs Forty Seven Thousand Seven Hundred and Ten only) along with 18% simple interest on the paid amount from the respective date of payment until realization; and

c. Pass an order directing the Opposite Party to pay to the Complainants a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation for mental agony and harassment; and

d. Pass an Order directing the Opposite Party to pay to the Complainants a sum of Rs.1,00,000/- (Rupees One Lakh only) as litigation expenses; and

e. Pass an order directing the Opposite Party to pay to the Complainants a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation for loss of opportunity and time; and

f. Pass any other order(s) as this Hon’ble Commission may deem fit under the facts and circumstances of the case;”

7. The Complaint was contested by the Opposite Party by filing the Written Statement admitting to the booking, allotment, receipt of amount, execution of the Agreement dated 06.06.2012 and to Clause 30, wherein the Opposite Party has agreed to deliver the possession of the Apartment within 36 months from the date of execution of the Agreement or within 36 months from the date of obtaining all the required sanctions and necessary approval for commencement of construction, whichever is later with six months grace period and this Clause was subject to force majeure circumstances and other conditions. It is also admitted that the construction of the project commenced on 25.05.2012 and the Opposite Party had all the approvals for commencing the construction by that date.

8. It is alleged that the Complainants have concealed the material fact that they have booked two separate units and the Complainants are speculative investors and not consumers within the meaning of the Act. Booking of two units by the Complainants shows that these units were booked for commercial purpose. But now after seeing that the real estate industry started facing the depressed marketing sentiments and there being no premium the Complainants are seeking refund of the amount. It is further averred that the Complainants have persistently defaulted in making the payment of instalments towards the sale consideration, therefore being the defaulter themselves the Complainants cannot be granted any relief by this Commission. No unfair trade practice has been committed by the Opposite Party as the Complainants have signed the Agreement after going through all the terms and conditions and being satisfied out of their free will and volition. If they had any reservation in respect of any terms and conditions of the Agreement, the Complainants would have pointed it out before signing. Now, it is not open for the Complainants to allege that the Agreement contains arbitrary terms.

9. So far as delay in the completion of the project is concerned, the demonetisation in the country has raised a financial problem in real estate industry. There were specific orders of National Green Tribunal for stopping all construction activities in the month of April, 2015 and in November, 2016 when pollution levels were alarming. The Hon’ble Punjab and Haryana High Court restricted the use of ground water for construction activities and there was acute shortage of water for construction activities which led to delay in the construction of the project. All the aforenoted reasons were beyond the control of the Opposite Party and falls under the definition of force majeure circumstances and therefore the delay cannot be attributed on it. It is submitted that despite all adversities the Opposite Party is endeavouring its best to complete the project and deliver the possession at the earliest. All the other averments made in the Complaint are denied and sought the dismissal of the Complaint with costs.

10. The facts not in dispute are that the Complainant booked Apartment No. N-0501, Tower N, 3 BHK + Utility, admeasuring 1945 sq. ft., for a total sale consideration of Rs.75,84,025/- including PLC, out of which the Complainants have paid a sum of Rs.72,47,710/- including PLC and service tax. As per Clause 30 of the Agreement the possession of the Apartment in question was to be handed over within 36 months from the date of execution of the Agreement or within 36 months from the date of obtaining all required sanctions and approvals necessary for commencement of construction, whichever is later with a grace period of 6 months. It is also specifically admitted by the Opposite Party that by 25.05.2012, the Opposite Party had all the necessary approvals for commencing the construction.

11. The contention of the Opposite Party that the Complainants are not Consumers as they have booked two units and are Investors is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, wherein this Commission has laid down the principle that the onus of establishing that the Complainants were dealing in real estate is on the Opposite Parties, which in the instant case they have failed to discharge by filing any documentary evidence to prove their case that the Complainants are Investors and not Consumers. Therefore we are of the considered opinion that the Complainants are Consumers as defined under Section 2 (1) (d) of the Act.

12. Now we address ourselves as to whether there is any delay in delivery of possession in terms of Clause 30 of the Agreement dated 06.06.2012, entered into between the Opposite Party and the Complainants. For better understanding of the case, Clause 30 of the Agreement is reproduced as hereunder:

“30. The Developer shall offer possession of the Unit any time, within a period of 36 months from the date of execution of Agreement or within 42 months from the date of obtaining all the required sanctions and approval necessary for commencement of construction, whichever is later subject to timely payment of all the dues by Buyer and subject to force-majeure circumstances as described in clause 31. Further there shall be a grace period of 6 months allowed to the Developer over and above the period of 36 months as above in offering the possession of the Unit”13. It is the case of the Opposite Party that the Clause specifies that the delivery of possession is subject to force majeure circumstances and that there were several reasons and circumstances beyond the control of the Opposite Party such as orders of the Hon’ble Punjab and Haryana High Court, whereby ground water extraction was banned in Gurgaon. The Orders passed by the National Green Tribunal (NGT), whereby mining of sand in Haryana and Rajasthan was banned, which led to the shortage of construction material. There was reservation agitation in Haryana which halted the construction. The National Green Tribunal (NGT) passed the Orders to stop construction to prevent emission of dust in the month of April, 2015 and again in November, 2016 and demonetisation etc. All these aforenoted grounds have been specifically dealt with by this Commission in catena of judgments including in Manoj Kumar Sharma Vs. M/s. Ansal Housing & Constructions Limited, Consumer Complaint No. 514 of 2018 and other connected matters, decided 01.10.2019. Therefore, the said grounds need not be examined again in the present matter. The observations made by this Commission in Manoj Kumar Sharma (Supra) are reproduced below:

“17. Learned Counsel appearing for the Opposite Party vehemently argued that the Clause specifies that the delivery of possession is subject to force majeure conditions and that there were several reasons and circumstances beyond the control of the Opposite Party such as interim orders of the Hon’ble Punjab and Haryana High Court, whereby ground water extraction was banned in Gurgaon; orders passed by the National Green Tribunal (NGT), whereby mining of sand in Haryana and Rajasthan was banned; reservation agitation in Haryana; orders of NGT to stop construction to prevent emission of dust in the month of April, 2015 and again in November, 2016, demonetisation etc.

18. All the aforenoted reasons do not fall within the ambit of reasons beyond their control as it can be seen from the record that the Flat Buyer’s Agreement was entered into way back in July, 2013 and the orders of NGT to prevent emission of dust in April, 2015 and in November, 2016 cannot be construed to be any substantial reason and definitely not a force majeure condition. Even demonetisation and reservation agitation cannot be construed as force majeure. With respect to other reasons there is no documentary evidence on record that they have led to the delay in the delivery of possession.”14. The Complainant contended that the Complainants were made to sign the Agreement and that they did not have an opportunity to protest with respect to the one-sided Clauses. It is seen from the record that Clause 35 of the Agreement refers to the compensation to be paid by the Opposite Party at Rs.5/- per sq. ft. per month on the super area for any delay in offering possession of the unit. This meagre sum of Rs.5/- per sq. ft. for every month of delay is approximately 1.6% rate of simple interest per annum, whereas the Opposite Party is charging compound interest @ 24% per annum for any delay in payment of instalments by the Buyers. At his juncture, we find it a fit case to place reliance on the principle laid down by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2009) CPJ 34 (SC), wherein the Hon’ble Apex Court had examined such Clauses present in the Builder Buyer Agreements and had observed that such one-sided Clauses amount to unfair trade practice. Keeping in view the facts and circumstances of the case, we have no hesitation to hold that these Clauses in the Agreement falls within the definition of unfair trade practice as defined under Section 2 (r) of the Act.

15. Learned Counsel for the Opposite Party also contended that Construction work is going at full swing and in all likelihood the possession of the unit would be handed over in a short period of time. In the Written Statement, there is no specific date given for the handing over of possession of the subject flats. Taking into consideration the fact that the Apartment was booked in the year of 2011 and more than ten years have passed since booking and, still the fact remains that the Opposite Party is unable to give any specific date by which the possession of the Apartment can be delivered with the Occupation Certificate. Hence the Judgments of the Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, wherein it is held that the buyer cannot be made to wait for possession for unlimited period, in case of inordinate delay in offer of possession and the buyer is entitle for refund of money, squarely applies to the facts of the case in hand as more than ten years have passed from the date of booking of the Apartment.

16. For all the aforenoted reasons, we are of the considered opinion that the Complainants are entitled for refund of the amount deposited by them with simple interest @ 9% per annum from the date of deposit of the amount till the date of refund will mould the equities and meet the ends of justice. It is pertinent to mention this interest rate @ 9% p.a. is being awarded by way of all damages and compensation.

17. In the result, this Complaint is allowed in part and the Opposite Party is directed to refund the amount deposited by the Complainant along with simple interest @ 9% per annum from the respective dates of deposit till realization together with litigation costs of Rs.25,000/-. Time for compliance is two months from the date of receipt of copy of this Order, failing which the amount shall attract the interest @ 12% for the same period.

CONSUMER COMPLAINT NO. 512 of 2020

18. The Complainant booked an Apartment No. L-0104, Tower L, admeasuring 1945 sq. ft. and entered into Apartment Buyer’s Agreements on 14.06.2012 and 02.04.2015 with the Opposite Party. The Complainant paid a total amount of Rs.74,81,862/- and the promised date of delivery was 14.12.2015 including the grace period of six months. One of the plea taken by the Opposite Party in this case is that the Complainant has opted for change of Apartment and subsequently his Apartment is changed and the time for delivery of possession is to be taken from the date of fresh Agreement for new Apartment i.e. 02.04.2015 and not from the date of initial Agreement. As the changed Apartment is opted/ allotted is located in the same project and construction of the Project started on the same date, therefore the subsequent Agreement is to be read with the Original Agreement and hence the period of delivery of possession should be the same as mentioned in the Original Agreement. For all the aforenoted reasons in Consumer Complaint No. 510 of 2020, this Complaint is allowed in part and the Opposite Party is directed to refund the amount deposited by the Complainant along with simple interest @ 9 % per annum from the respective dates of deposit ti

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ll the date of realization together with costs of Rs.25,000/-. Time for compliance is two months from the date of receipt of copy of this Order, failing which the amount shall attract the interest @ 12% for the same period. CONSUMER COMPLAINT NO. 513 of 2020 19. The Complainants booked an Apartment No. N-0101, Tower N, admeasuring 1945 sq. ft. and entered into Apartment Buyer’s Agreements on 24.05.2012 with the Opposite Party. The Complainants paid a total amount of Rs.83,28,558/- and the promised date of delivery was 24.11.2015 including the grace period of six months. For all the aforenoted reasons in Consumer Complaint No. 510 of 2020, this Complaint is allowed in part and as the Complainants are being subsequent purchasers, the Opposite Party is directed to refund the amount deposited by the Complainants from 31.08.2013 (date of transfer of the unit in the name of the Complainants) and the subsequent dates of deposit till the date of realization together with costs of Rs.25,000/-. Time for compliance is two months from the date of receipt of copy of this Order, failing which the amount shall attract the interest @ 12% for the same period. CONSUMER COMPLAINT NO. 514 of 2020 20. The Complainants booked an Apartment No. N-0504, Tower N, admeasuring 1945 sq. ft. and entered into Apartment Buyer’s Agreements on 25.05.2012 and 02.04.2015 with the Opposite Party. The Complainants paid a total amount of Rs.71,92,634/- and the promised date of delivery was 25.05.2015 including the grace period of six months. For all the aforenoted reasons in Consumer Complaint No. 510 of 2020, this Complaint is allowed in part and the Opposite Party is directed to refund the amount deposited by the Complainants along with simple interest @ 9 % per annum from the respective dates of deposit till the date of realization together with costs of Rs.25,000/-. Time for compliance is two months from the date of receipt of copy of this Order, failing which the amount shall attract the interest @ 12% for the same period.
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