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Kapil Aggarwal v/s Ferrous Infrastructure Pvt. Ltd

    Complaint No. 1893 of 2017

    Decided On, 09 April 2021

    At, Delhi State Consumer Disputes Redressal Commission New Delhi

    By, THE HONOURABLE DR. JUSTICE SANGITA DHINGRA SEHGAL
    By, PRESIDENT & THE HONOURABLE MR. ANIL SRIVASTAVA
    By, MEMBER

    For the Petitioner: Raza Abbas, Advocate. For the Respondents: Ex parte.



Judgment Text

Dr. Justice Sangita Dhingra Sehgal, President - [Via Video Conferencing]

1. The present complaint has been filed before this commission under Section 17 of the Consumer Protection Act, 1986 by Mr. Kapil Aggarwal (hereinafter referred to as ‘Complainant’) against Ferrous Infrastructure Pvt. Ltd. (hereinafter referred to as ‘Opposite Party’) seeking the following reliefs:

(a) Direct the opposite party to execute the sale deed in favour of the complainant in respect of Flat/Unit No. 1002, in Tower-E, on the 10th Floor, with Super Area 1,194 sq. ft. @ Rs. 1,300 per sq. ft, land allotted by HUDA for Ferrous City at Faridabad and handover the possession of the aforesaid allotted apartment without increasing the super area; and

(b) Pass an order thereby restraining the opposite party to Flat/Unit No. 1002, in Tower-E, on the 10th Floor, with Super Area 1,194 sq. ft. on Ferrous City at Faridabad to anybody else except the complainant till the final decision of the complaint; and

(c) Direct the opposite party to pay an interest @ 12% P.A. on the entire amount deposited by the complainant from the date of possession offered till the date of actual possession with the delay penalty of the possession @ Rs. 5 pm after 36 months of the advance booking deposited from 11.3.2006; and

(d) Pass an order in favour of the complainant and against the O.P to make entire amount deposited of Rs. 20,82,548 (Rupees Twenty Lacs Eighty Two Thousand Five Hundred Forty Eight Only), refund with interest 12% p.a. (Aprox 137 months) @ Rs. 20,825 p.m., which comes to Rs. 28,53,025. Thus, the total amount with interest Rs. 49,35,573 and also paid the delay penalty towards the loss, harassment and mental agony caused to the complainant and his family members by the O.P. due to their deficiency in services; and

(e) Direct the opposite party to pay Rs. 5,00,000 (Five Lac only) toward the mental and physical agony; and

(f) Direct the opposite party to pay the litigation and legal notice charges of Rs. 2,00,000 (Two Lacs Only);

(g) Pass any other or further order (s) as this Hon’ble Forum may deem fit and proper in the interest of justice.

2. Brief facts necessary for the adjudication of the present complaint are that the complainant booked a flat bearing No. 1002, in Tower-E, on the 10th Floor with the opposite party in the housing project named as “FERROUS CITY” at Sector-89, Faridabad. Thereafter, the Buyers agreement was executed between the parties on 16.12.2009. As per Clause 14 of the Buyers Agreement dated 16.12.2009 the Opposite Party had to hand over the possession of the said flat to the complainant within a period of 36 months from the date of the start of the construction of the tower in which the said premises is located or from the execution of this Agreement whichever is later. On 7.4.2016 Opposite Party sent a letter to the complainant offering possession alongwith an exorbitant demand of Rs. 7,45,644, which is disputed by the complainant. However, till date possession of the flat has not been handed over by the Opposite Party. The complainant over the time had paid a sum of Rs. 20,82,548 to the Opposite Party as and when demanded by him.

3. During the course of the proceedings, notice was issued to the Opposite Party on 6.7.2018. However, despite service neither Opposite Party appeared nor the written statement was filed by the opposite party. In pursuance to this, the Opposite Party was proceeded ex parte vide order dated 29.7.2019.

4. Evidence by way of affidavit and written arguments are duly filed by the complainant.

5. We have heard the Counsel for the complainant and perused through the material on record.

6. The fact that the complainant had booked a flat with the Opposite Party is not in dispute from the evidence on record. Payment to the extent of Rs. 20,82,548 by the complainant to the Opposite Party is evident from the receipts attached with the complaint.

DEFICIENCY OF SERVICE

7. The question which arises is whether the Opposite Party is actually deficient in providing its services to the complainant or not. The expression Deficiency of Service has been dealt with by the Hon’ble Apex Court in Arifur Rahman Khan and Ors. v. DLF Southern Homes Pvt. Ltd. and Ors., reported at IV (2020) CPJ 10 (SC)=VI (2020) SLT 50=2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:

“23. …….The expression deficiency of services is defined in Section 2(1)(g) of the CP Act 1986 as:

(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression ‘service’ in Section 2(1)(o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the Consumer Forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.”

8. Returning to the facts of the case the perusal of Clause 14 of the buyers Agreement dated 16.12.2009 entered into by both the contesting parties reflects that the Opposite Party was bound to handover the possession of the said flat within 36 months from the date of execution of the Buyers agreement. On perusal of the record before us, we find that the possession was offered by the Opposite Party vide letter dated 7.4.2016 alongwith a demand of Rs. 7,45,644. The complainant disputed the said demand but there was no response from the opposite party. Till date the possession of the flat in question has not been handed over by the opposite party to the complainant.

9. We further note that the possession as per the aforesaid buyer agreement was to be handed over by the Opposite party by December 2012 and the possession was actually offered by the Opposite party on 7.4.2016, which is not within the stipulated period as provided by the buyers agreement dated 16.12.2009.

10. We deem it appropriate to refer to Aashish Oberai v. Emaar MGF Land Limited, reported in I (2017) CPJ 17 (NC), wherein the Hon’ble National Commission has held as under:

“I am in agreement with the learned Senior Counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

11. The complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D’Lima, reported at II (2018) CPJ 1 (SC)=III (2018) SLT 556=(2018) 5 SCC 442).

12. Relying on the above settled law, we hold that the Opposite Party is deficient in providing its services to the Complainant as the Opposite Party had given false assurance to the complainant with respect to the time for delivery of possession of the flat and kept the hard earned money of the complainant for about 9 years. Moreover, the Opposite Party failed to handover the possession of the said flat to the complainant within the stipulated time period and therefore, now the complainant is not bound to take the possession of the said flat after the stipulated period.

13. Having discussed the liability of the Opposite Party, the only question left to adjudicate is as to how the complainant is to be compensated for the deficient acts of the Opposite Party. It is imperative to refer to the recent pronouncements of the Hon’ble Supreme Court in terms of “Interest” which is being allowed on the refunded amount. In Arifur Rahman Khan and Ors. (supra), which is the latest pronouncement (24.8.2020) on the cause, the Hon’ble Apex Court has allowed an interest @ 6% p.a. on the amount received by the Opposite Party, payable within one month and in case of default to pay within the stipulated period, an interest @ 9% p.a. was payable on the said amount.

14. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the complainant, i.e. Rs. 20,82,548 alongwith interest as per the following arrangement:

(a) An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 9.4.2021 (being the date of the present judgment);

(b) The rate of interest payable as per the aforesaid Clause (a) is subject to the condition that the Opposite Party pays the entire amount on or before 30.6.2021;

(c) Being

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guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid Clause (A) on or before 30.6.2021, the entire amount is to be refunded alongwith an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount. 15. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay the following sum to the complainant: (a) Rs. 1,00,000 as cost for mental agony and harassment to the complainant; and (b) The litigation cost to the extent of Rs. 50,000. 16. Applications pending, if any, stands disposed of in terms of the aforesaid judgment. 17. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties. 18. File be consigned to record room alongwith a copy of this Judgment. Ordered accordingly.
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