R.K. Agrawal, President
This Consumer Complaint has been filed by the Complainant 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) 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 Complainant till date i.e. Rs.77, 61,336/- (Rupees Seventy Seven Lakhs Sixty One Thousand Three Hundred and Thirty Six only) along with interest @ 18% from the respective date of payment until realization; and
c. Pass an order directing the Opposite Party to pay to the Complainant a sum of Rs.10,00,000/- (Rupees Ten Lakhs only) as compensation for mental agony and harassment; and
d. Pass an order directing the Opposite Party to pay to the Complainant a sum of Rs.5,00,000/- (Rupees Five Lakhs only) as compensation for loss of opportunity and time; and
e. Pass an Order directing the Opposite Party to pay to the Complainant a sum of Rs.5,00,000/- (Rupees Five Lakh only) as litigation expenses; and
f. Pass any other order(s);”
2. The facts in brief as stated in the Complaint are that in the year 2011, the Opposite Party launched a residential project by the name and style of ‘Ansal Heights 86’ situated at Sector 86, Gurgaon, which was widely published in the electronic and print media. Lured by the eye catching advertisements and representations made by the representatives of the Opposite Party regarding amenities and timely delivery of possession, the Complainant booked an Apartment on 10.10.2011 for residential purpose and paid a sum of Rs.6,00,000/- towards booking amount. It is alleged that even though the booking was done in the month of October, 2011, neither the Allotment Letter was issued nor the Apartment Buyer’s Agreement was executed despite several follow ups and after a lapse of almost 10 months, on 31.08.2012, the Flat Buyer’s Agreement (in short “ the Agreement”) was executed between the Parties for Unit No. B-1002, 3 BHK-3T+SQ, having super area of 1895 sq. ft. for basic sale consideration of Rs.70,68,066.75/-.
3. It is pleaded that many of the Clauses of the Agreement are one-sided, unfair and arbitrary and as the Complainant has paid a substantial amount of 20,09,452/- prior to signing of the Agreement, he had no other option but to sign the Agreement. The Arbitrariness and Unfairness of the Agreement can be seen from the Clauses 24, 25 and 37 of the Agreement. As per Clause 25 of the Agreement the Opposite Party was allowed to cancel the allotment of the unit at its sole discretion in the event the Buyer breaches any of the term of the Agreement and forfeit the earnest money i.e. 20% of the basic sale consideration and no such liberty was provided to the Complainant under the Agreement, in the event the Opposite Party breaches the terms of the Agreement. Further, as per Clause 24 of the Agreement, the Opposite Party was entitled to charge interest @ 18 % per annum, compounded quarterly for any delay in payment of installments by the Complainant and as per Clause 37 of the Agreement, the Opposite Party was made liable to pay a meager compensation@ Rs.5/- per sq. ft. per month for any delay in handing over of possession of the unit. These types of Clauses squarely falls within the ambit of definition of deficiency in service and unfair trade practices as defined under the Consumer Protection Act 1986.
4. It is pleaded that as per Clause 31 of the Agreement the possession of the unit was to be delivered to the Complainant within 42 months from the date of execution of the Agreement or within 42 months from the date of obtaining all the requisite approvals for commencement of construction, whichever is later with a grace period of 6 months. It is averred that in October, 2011 itself at the time of booking, the Complainant was informed by the representatives of the Opposite Party that all the necessary approvals and licenses for commencement of construction has been obtained and possession of the Unit will be delivered within the promised time. Therefore, the time for possession of the unit was to be taken from the date of Agreement, i.e. 31.08.2012, hence, the possession of the unit was to be delivered by 31.08.2016, which includes six months grace period.
5. It is submitted that the Complainant paid a total sum of Rs.77,61,366/-, which is more than the actual sale consideration agreed and that the Complainant had also obtained a home loan of Rs.70,00,000/- from the Housing Development Finance Corporation Limited at floating interest rate. It is alleged that the Opposite Party without reaching the concerned milestone in the Construction had made arbitrary demand, despite the fact that the Complainant had opted for a Construction Linked Payment Plan.
6. It is averred that the Opposite Party failed to deliver the possession of the unit by the promised date of delivery and also failed to inform the Complainant about the status of the Project. Later, after lapse of considerable time from the promised date of delivery of possession and no status update, the Complainant visited the construction site and found that the construction of the project was at standstill and no workers were there at the site. Thereafter, the Complainant contacted the Opposite Party and he was informed that the construction will resume shortly and the date of delivery of possession was arbitrarily extended to January, 2018. However, the Opposite Party failed to meet the new deadline and deliver the possession even in January, 2018. Thereafter on 15.05.2018, the Complainant sent an email to the Opposite Party enquiring about the status of the Project and delivery of possession, which was not responded by the Opposite Party. The Complainant on 07.06.2018 sent a reminder to the Opposite Party, to which the Opposite Party replied on 11.06.2018 and informed him that the Opposite Party will deliver the possession of the unit by the first quarter of 2019. As the Opposite Party failed to meet the arbitrarily extended deadlines for delivery and failed to deliver the possession of the unit even after more than 8 years from the date of booking, the Complainant does not want to wait indefinitely for possession of the unit and has lost all faith in the project of the Opposite Party and does not wish to continue with the allotment and has asked the Opposite Party for refund of the amount paid but the Opposite Party failed to refund the money.
7. Hence, vexed with the attitude of the Opposite Party, the Complainant alleging deficiency in service and unfair trade practice on the Part of the Opposite Party approached this Commission seeking the aforenoted reliefs.
8. The Complaint was contested by the Opposite Party by filing the Written Statement admitting to the booking, allotment, execution of the Agreement dated 31.08.2012 and to Clause 31, wherein the Opposite Party has agreed to deliver the possession of the Apartment within 42 months from the date of execution of the Agreement or within 42 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.
9. It is averred that this Commission lacks pecuniary jurisdiction to entertain the present Complaint and that this Commission has no jurisdiction to entertain the present Complaint as Clause 64 of the Agreement dated 31.08.2012 provides that any dispute between the parties shall be adjudicated under the provisions of the Arbitration and Conciliation Act, 1996. It is alleged that the Complainants have concealed the material fact that they has booked another unit with the Opposite Party and the Complainant is a speculative investor and not Consumer as defined under Section 2 (1) (d) the Act. Booking of two units by the Complainant itself shows that these units were booked for commercial purpose and for reaping the benefit of price escalation. But now after seeing that the downturn in the real estate industry and there being no premium the Complainant is seeking refund of the amount. It is further averred that the Complainant had persistently defaulted in making the payment of installments towards the sale consideration, therefore being the defaulter himself, he cannot be granted any relief by this Commission. No unfair trade practice has been committed by the Opposite Party as the Complainant has executed the Agreement after going through all the terms and conditions and being satisfied, out of his free will and volition. If he had any reservation in respect of any terms and conditions of the Agreement, the Complainants would have pointed it out the same at time of execution of the Agreement.
10. So far as delay in the completion of the project is concerned, the Hon’ble High Court of Punjab and Haryana restricted the use of ground water for construction activities and there was acute shortage of water at construction site. The National Green Tribunal had passed an Order and banned mining of sand in Haryana and Rajasthan. The demonetization 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. 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 to the Opposite Party. It is submitted that despite all adversities the Opposite Party is endeavoring its best to complete the project and construction is going on at full swing and the project is 70% complete. All the other averments made in the Complaint were denied and the Opposite Party sought dismissal of the Complaint with costs.
11. Heard the learned Counsel appearing for the Parties and perused the material on record.
12. All the aforementioned grounds on which the Complaint is resisted by the Opposite Party has been specifically dealt with and rejected by this Commission in several 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, which relates to the same project of the Opposite Party namely, ‘Ansal Hights 86’. 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:
“12. The contention of the learned Counsel for the Opposite Party that the Complaint is barred on account of pecuniary jurisdiction is untenable as it can be seen from the record that the total sale consideration is 67,82,016/- and as per the principle laid down by a larger Bench of this Commission in "Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited I (2017) CPJ 1 NC", the value of goods and services in addition to the compensation prayed for has to be considered while ascertaining the pecuniary jurisdiction. In this case the value of goods is 67,82,016/- and the compensation prayed for is refund of the money paid which is 65,32,261/- and the compensation prayed for is refund of the money paid which is 65,32,261/- with interest @ 18% p.a. and compensation of 5,00,000/-, which far exceeds the pecuniary jurisdiction of this Commission, which is rupees one crore and above. The next contention of the learned Counsel for the Opposite Party that the Complainant is not a Consumer as he has purchased the said unit for commercial purpose is not substantiated by any documentary evidence and the ratio laid down by this Commission in Kavita Ahuja vs. Shipra Estates - I (2016) CPJ 31, squarely apples to the facts of this case.
13. Now we address ourselves as to whether the Opposite Party was able to deliver possession within the stipulated period as contemplated in Clause 31 of the Flat Buyer's Agreement dated 01.07.2013 entered into between the Opposite Party and the Complainant. For better understanding of the case, Clause 31 is reproduced as hereunder:
"31. The Developer shall offer possession of the Unit any time, within a period of 42 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 32. Further there shall be a grace period of 6 months allowed to the Developer over and above the period of 42 months as above in offering the possession of the Unit.
14. 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, demonetization etc.
15. 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 demonetization 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.
16. It is also stated in the Written Version that required sanctions and approvals were only got in the month of September 2013, whereas the Flat Buyer's Agreement was entered in July, 2013. The floating of the project and collecting money from the Flat buyers without having necessary sanctions is per se deficiency in service.
17. Learned Counsel for the Opposite Party also contended that the project work is nearing completion and the finishing work is going on and in all likelihood the possession of the unit would be handed over in a short period of time. Even in the Written Version there is no specific date given for the handing over of possession of the subject flats. Even if we take into consideration the submission of the learned Counsel that the possession of the unit is due only in the month of October 2017, taking into consideration the 42 months' time period and also the grace period, still the fact remains that the Opposite Party is unable to give a specified date by which time they can handover legal possession with the Occupation Certificate. Hence, the decision of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra,: II (2019) CPJ 29 (SC), wherein the Hon'ble Apex Court has laid down that the flat purchaser cannot be made to wait indefinitely for delivery of possession, squarely applies to the facts of this case.
18. Learned Counsel appearing for the Complainant vehemently contended that the flat purchasers were made to sign the Flat Buyer's 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 37 of the Agreement refers to the compensation to be paid by the Developer at 5/- per sq. ft. per month on the super area for any delay in offering possession of the unit after adjusting all the dues. These charges are further to be paid only after the stipulated period of 42 months plus grace period has lapsed. Learned Counsel for the Complainant argued that this meagre sum of 5/- per sq. ft. for every month of delay is approximately 1.4% rate of interest per annum, whereas the Opposite Party is charging interest @ 24% p.a. on any amounts due. 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 has 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 Clause 37 of the subject Flat Buyer's Agreement falls within the definition of unfair trade practice as defined under Section 2 (r) of the Act.
19. Keeping in view the aforenoted reasons, we are of the considered opinion that there is a deficiency of service on behalf of the Opposite Party and the Complainant is entitled to refund of the amount paid with interest @ 12% p.a. and costs of Rs.25,000/-. It is relevant to note that this interest @ 12% p.a. is being awarded to meet the ends of justice specially keeping in view the submission of the learned Counsel appearing for the Complainant that some of the Complainants, have taken housing loans and paying interest rate ranging from 9% to 10.25% p.a.; the loss of opportunity of the Complainant as had the Complainant invested the same amount of money elsewhere or if he had purchased the house in another project, would have a better opportunity of exercising his options and could fulfil his dream of owning a house and finally taking into consideration the principal of restitutio in integrum which specifies that the aggrieved person should necessarily be compensated for the financial loss suffered due to the event and get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. Hence, We are of the view that awarding interest @ 12% p.a. is not only reasonable but also justified. It is pertinent to mention that no additional amounts are being awarded under the head of ‘Compensation’ at the cost of repetition this interest rate @ 12% p.a. is being awarded by way of damages and compensation.”
13. Accordingly, following the decision of this Commission in Manoj Kumar Sharma (Supra) and 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 a
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nd 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, we are considered of the opinion that the Complainant is entitle for refund of the amount deposited by him with adequate compensation in the form of interest as the Opposite Party has failed to Complete the Construction and deliver the possession even after lapse of more than 10 years from the date of booking and the construction is still not complete as the Opposite Party has itself admitted in the Written Version filed in December, 2020 that the project is almost 70% complete. 14. Now, we address ourselves to the quantum of interest that has to be awarded to the Complainant to meet the ends of justice. 15. Though, this Commission in Manoj Kumar Sharma (Supra), which is related to the same project, has awarded interest @ 12% per annum from the respective dates of deposit till realization, but keeping in view the recent decisions of the Hon’ble Supreme Court, wherein it has been awarding lower rate of interest, we are of the considered opinion that the simple interest @ 9% per annum together will meet the ends of justice. It is not out of place to mention here that the Complainant has obtained a Housing Loan from the Housing Development Bank Limited and is paying EMI and interest to the Bank. This interest rate @ 9% p.a. is being awarded by way of all damages and compensation and no other amount is awarded under the head of compensation. 16. Resultantly, 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 of this Order 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.