…….Complainant……..
Versus
1. Ansal Crown Infrabuild Pvt. Ltd., Now Ansal Buildwell Ltd. Reg, Office at 118 UFF, Prakash Deep Building 7, Tolstoy Marg, New Delhi – 110001.Phone No. 9810705733.
2. The Manager/principal Officer, Ansal Crown Infrabuild Limited, Now Ansal Buildwell Ltd. Reg, Office at 118 UFF, Prakash Deep Building 7, Tolstoy Marg, New Delhi – 110001.Phone No. 9810705733.
3. The Manager/principal Officer, Ansal Crown Infrabuild Limited, Now Ansal Buildwell Ltd. Site office at: Sector-80, Near BPTP Pull, Faridabad- 121002.
4. Mr. Gopal Ansal, Chairman-cum-Managing Director, Ansal Crown Infrabuild Limited, And Ansal Buildwell Ltd. Regd. Office:- 118, UFF, Prakash Deep Building, 7, Tolstoy Marg, New Delhi – 110001.
5. Sanjeev Kumar Gularia Director, Ansal Crown Infrabuild Limited, and Ansal Buildwell Ltd., Regd. Office: 118, UFF, Prakash Deep Building, 7, Tolstoy Marg, New Delhi – 110 001. Mob:- 9873196324.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Shri Ashok Sharma, counsel for the complainant.
Sh. Jatinder Singh, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant company had booked the flat in question i.e. flat NO. T-3/102 for residential purpose of the directors of the company . Ms. Garima Tewari D/o Sh. K.c.Tewari resident of House NO. E-803, Pavitra Apartment, Plot No.12, Vasundhara Enclave, Delhi – 110 096 had booked a residential apartment with the opposite parties on 27.09.2010 for a total consideration of Rs.73,73,969/- i.e. Rs.56,49,765/- BSP +rs.17,24,204/- other charges in Group Housing Project namely Ansal Crown Heights to be developed in Sector-80, Faridabad and Flat NO. T-3/102 measuring approximate super area of 2118 sq. ft. was allotted to her vide allotment letter dated 04.12.2010. Flat Buyer Agreement dated 14.5.2011 there was complete description of payment plans in clause 3(b). Ms. Garima Tewari sold the said flat to Shri Pankaj Kumar Tewari and after sale said flat was transferred by the opposite parties in the name of Pankaj Kumar Tewari vide letter serial No. 320 dated 27.07.2013. As on that date a sum of Rs.32,26,384/- was credited to the account of Pankaj Kumar Tewari which was paid to the opposite parties by Ms. Garima Tewari and by Pankaj Kumar Tewari. The complainant purchased the aforesaid allotment from said Mr. Pankaj Kumar Tewari vide agreement dated 01.05.2019 and in furtherance thereto the opposite parties issued a transfer letter dated 22.05.2019 to the complainant in respect of transfer of the flat No. T3/102 in the name of the complainant . Rs.62,89,548/- was credited to the account of the complainant on account of part payment of the flat NO. T-3/102 as mentioned in the transfer letter dated 22.052019 which was paid by Ms. Garima Tewari, Sh. Pankaj Kumar Tewari and the complainant. As per clause 4 of Apartment Buyer Agreement dated 14.05.2011 the opposite parties were to deliver the possession of the flat to the complainant in 36 months from the execution of the said agreement i.e. by 14.05.2014. It was further mentioned that in case of delay in construction of the said unit attributable to delay on the part of intending developer/seller the intending developer/seller would pay a penalty to the unit buyer @ Rs.5/- sq. ft. per month for the period of the delay and likewise it would be applicable vice-versa. The complainant had paid total amount of Rs.62,89,548/- to the opposite parties towards the cost of the flat and other charges upto 01.03.2016 including the payments made by Garima Tewari and Pankaj Kumar Tewari the previous owners of the flat in question. At the time of transfer of the said flat in the name of the complainant vide letter No. 22.05.2019 the opposite parties assured the complainant that the possession of the flat should be offered to the complainant within six months positively. The complainant visited the site of the flat on different occasions and noticed that the opposite parties had failed to take over the construction as per schedule and there was hardly any progress at the site. The inordinate delay in construction on the part of the opposite parties had left the complainant with no other alternate than to seek either delivery of possession of the allotted flat within 6 months of the filing of the complaint alongwith penalty as per clause 4 of Apartment Buyer Agreement dated 14.05.2011 or to get the refund of his hard earned money with upto date interest from the opposite parties alongwith interest @ 15% p.a. from due date till final payment. Through various personal visits and phone calls the complainant requested the opposite parties either to deliver the possession of the flat alongwith penalty as per clause 4 of the Apartment Buyer Agreement dated 14.05.2011 or to refund the invested amount of money of Rs.62,89,548/- alongwith upto date interest but all in vain. The opposite parties had deliberately failed to accede to the request of the complainant. The complainant sent legal notice dated 14.09.2020 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) either to deliver the possession of the flat in question to the complainant within 6 months from the date of filing of the present complaint alongwith penalty as per clause 4 of the Apartment Buyer Agreement dated 14.05.2011 or to refund the amount of Rs.62,89,548/- to the complainant alongwith upto date interest @ 15% p.a. w.e.f.27.09.2010 till final payment.
b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
d) pass any other order or grant any other relief as may be deemed fit in the interest of justice.
2. Opposite parties put in appearance through counsel and filed written statement wherein Opposite parties refuted claim of the complainant and submitted that the opposite party was granted license, , to develop and construct the project in question having 10 towers, by the Department of Town and Country Planning, Haryana. However, subsequent to the issuance of the licence by the Directorate of Town and country Planning, Haryana, the construction on the project got delayed time to time due to delays on the part of Directorate of Town and country Planning, Haryana in reviewing the license of the opposite party. It was pertinent to mention that between 2007 to 2020 the construction work of the project got delayed by a period of 1109 days due to delay on the part of Directorate of Town and Country Planning, Haryana in the renewal of license of the opposite party despite the fact that on each occasion it had applied for the renewal well in advance before the expiry of its validity period. Further it was pertinent to mention that the opposite party had duly applied to Director, Town and country Planning, Haryana, for renewal of licence on 21.09.2017, however, the same remains pending with the department causing further delay in the completion of the project. As such the project got delayed by a total 1286 days for the reasons above mentioned which had beyond the control of the appellant. Further again, application for renewal was filed on 13.10.2016 which revalidated till 17.09.2017. The appellant again had duly applied to Directorate, Town and Country Planning, Haryana, for renewal of license on 21.09.2017, however, the same was only renewed vide letter dated 30.4.2018 which was valid upto 17.09.2019. Further it was pertinent to mention that the appellant had duly applied to Director, Town and Country Planning, Haryana for renewal of licence on 17.09.2019 which hadn’t approved by the authorities till date. It was submitted that during the intervening period construction work also got affected due to delays caused by the contractor or appointed by opposite party company for the present project. Initially, the opposite arty had awarded the construction work of four of the towers to M/s CRS Infra Projects Limited vide a letter of intent dated 14.03.2011 as a contractor. As per the terms of the letter of intent the contractor had to complete the construction within 24 months, however the contractor with his lackadaisical attitude was lagging greatly behind the scheduled construction. The opposite party through various letters and correspondence between the period of 18.06.11 and 10.02.2012 urged the contractor to increase its pace, however there was no significant improvement in the performance of the contractor. Left with no other resort the opposite party terminated the service of the contractor vide a letter dated 21.04.2012 but M/s. CRS Infra Projects Limited raised disputes due to which the opposite party could not retender the work to another contractor. It was only on 05.11.2012 that the opposite party could retender the construction work to M/s. Pyare Lal Hari Singh Builders Pvt. Ltd., However, the M/s. CRS Infra Projects Limited having malafide intention and being a dominant force in the local construction market, created regular hindrances for the newly appointed contractor who was acting as its replacements in form of lockouts, labour problems and in procurement material. Due to the said hindrances created by M/s. CRS Infra Projects Limited, M/s. Pyare Lal Hari Singh Builders Pvt. Ltd., the overall construction work of all the 8 towers was gravely affected at the site and thus the contract with M/s. Pyare Lal Hari Singh Builders Pvt. Ltd. Had to be terminated and fresh tendering had to be organized. Thereafter, the opposite party granted the contract for construction to M/s. Radha Laxaman Contracts vide a letter dated 31.01.2013. It was submitted that apart from delays caused on account of the licensing authority, the pace of completion of the project had also suffered due to the ban of construction imposed from time to time by various authorities considering the air pollution levels in the Delhi NCR region including Faridabad. In the year 2019 itself a serried of notifications and directions passed by various authorities had banned construction in NCR from time to time. It was submitted that first Environment Pollution (Prevention and Control) Authority for NCR vide its direction dated1.11.2019 bearing NO. EPCA-R/2019/L-53 imposed a complete ban was from 1.11.2019 to 5.11.2019. Further, Hon’ble Supreme Court vide its order datd04.11.2019 in the matter bearing W.P.(C) No. 13029/1985 also banned the construction activities in Delhi NCR till further orders keeping in mind the damage caused to the environment due to construction and demolition activities. It was further necessary to mention that, Supreme Court had only on 09.12.2019 partially uplifted the ban on construction activities in Delhi NCR between 6 a.m. to 6p.m. Where after despite facing practical issues I arranging manpower, the opposite party had managed to maintain 170 constant labour forces on the project. So as to camp the pending work at the earliest, which clearly shows bonafide intention of the present management to complete the project. Even in the year 2018, vide notification no. EPCA-R/2018/L-91 and EPCA-R/2018/1 periodic ban on constructions were imposed. Such bans that had been imposed from time to time in the past several years, not only had enormous adverse impact on the construction of infrastructure projects during the period when the ban was imposed but its adverse effects continues much further as it took a long time to reorganize the labour force once the ban was lifted. Another factor to be considered that most of the labour force in NCR hails from Easter UP/Bihar so during such period wherein the ban remains in effect, the labour force usually heads back to their hometowns, since it becomes difficult for them to sustain herein without any source of income. It was an admitted fact, consequently, on an average the construction ban of 1 day was equivalent to a 10 day delay in construction. It was also pertinent to mention that such bans majorly affect the projects which were near completion like the project in question. Hence, even after putting night and day in completing the project delay was caused due to such circumstances which were beyond the control of opposite party.It was submitted that although the opposite party pumped in funds from internal sources, as well as the initial payments received from the flat buyers, and from that the construction of the project was started. The allottees started defaulting in the timely payments of the due instalments as per the payment plans opted by them. Majority of the allottees started delaying the timely payments of the due instalments as per the payment plans opted by them. Majority of the allottees started delaying the payments of their due instalments on regular basis. It was pertinent to mention herein a sum of Rs.9,02,69,300/- was still outstanding from the defaulting allottees, which the said allottees had neglected to pay despite the receipt of repeated demand letters/notices issued by the opposite party from time to time. It was needless to mention herein that realization of this outstanding amount would immensely benefit the project. The bonafide of the opposite party was also clear from the fact, that even though the delay cause was not due to any negligence or lackadaisical attitude of the opposite party, still keeping in mind the sole benefit of the buyers, the opposite party had reduced the interest that was payable by the buyers on delayed payments to 9% p.a. from 24% as stipulated in the Apartment-Buyer Agreement, since 01.01.2017. Hence, there could not be an iota of doubt that the bonafide intentions of the opposite party. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite parties– M/s. Ansal Crown Private Infrabuild with the prayer to: a) either to deliver the possession of the flat in question to the complainant within 6 months from the date of filing of the present complaint alongwith penalty as per clause 4 of the Apartment Buyer Agreement dated 14.05.2011 or to refund the amount of Rs.62,89,548/- to the complainant alongwith upto date interest @ 15% p.a. w.e.f.27.09.2010 till final payment. b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment . d) pass any other order or grant any other relief as may be deemed fit in the interest of justice.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Shobhit Aggarwal, Annx.C-1 – Minutes of meeting, Annx.C-2 – allotment letter, Ex.C-3 - letter dated 17,07,2013 regarding change of right to purchase unit No. 102 in Tower 3 at Ansal Crown Heights in Sector-80, Faridabad, Annx.C-4 – letter dated 27.7.2013, Annx.C-5 – letter dated 25.02.2015, Annx.C-6 – Flat Buyer Agreement, Annx. C-7 – letter dated 22.5.2019 regarding transfer of plot/flat/house/shop NO. T-3/102, Annx.C-8 – legal notice,, Annx.C-9 – letter dated September 24,2019, Annx.C-10 & 11 – photographs.
On the other hand counsel for the opposite parties strongly
agitated and opposed. As per the evidence of the opposite party No.1 Ex.RW1/A – affidavit of Vishal Sehgal, authorized Signatory of opposite party company having its registered office at 118 Upper First floor, Prakashdeep Building, 7, Tolstory Marg, New Delhi, Annx..R1 – Resolution ,Annx.R2 – letter regarding change of right to purchase Unit No. T-3/102, Annx.R3 – notification, Annx.R4 – not readable, Annx.R-5 – letter dated October 27,2018,, Annx.R6 – not readable, Annx.R7 – letter dated 16.08.2016, Annx.R8 – order dated 24.3.2020 passed by Government of India, Ministry of Home Affairs, Annx.R-9 – affidavit cum undertaking.
6. In this complaint, the complaint was filed by the complainant with the prayer to either to deliver the possession of the flat in question to the complainant within 6 months from the date of filing of the present complaint alongwith penalty as per clause 4 of the Apartment Buyer Agreement dated 14.05.2011 or to refund the amount of Rs.62,89,548/- to the complainant alongwith upto date interest @ 15% p.a. w.e.f.27.09.2010 till final payment.
7. As per Flat Buyer Agreement vide Annexure C-6 Flat No. T3/102 admeasuring super area of 2118 sq. ft. on Ist floor, in the proposed Group Hosing “Ansal Crown Heights, Sector-80, Faridabad was allotted to the complainant and Apartment Buyer’s Agreement was also executed on 14.05.2011. Ms. Garima Tewari sold the said flat to Shri Pankaj Kumar Tewari and after sale said flat was transferred by the opposite parties in the name of Pankaj Kumar Tewari vide letter serial No. 320 dated 27.07.2013. As on that date a sum of Rs.32,26,384/- was credited to the account of Pankaj Kumar Tewari which was paid to the opposite parties by Ms. Garima Tewari and by Pankaj Kumar Tewari. The complainant purchased the aforesaid allotment from said Mr. Pankaj Kumar Tewari vide agreement dated 01.05.2019 and in furtherance thereto the opposite parties issued a transfer letter dated 22.05.2019 to the complainant in respect of transfer of the flat No. T3/102 in the name of the complainant . Rs.62,89,548/- was credited to the account of the complainant on account of part payment of the flat NO. T-3/102 as mentioned in the transfer letter dated 22.052019 which was paid by Ms. Garima Tewari, Sh. Pankaj Kumar Tewari and the complainant. As per clause 4 of Apartment Buyer Agreement dated 14.05.2011 the opposite parties were to deliver the possession of the flat to the complainant in 36 months from the execution of the said agreement i.e. by 14.05.2014.
8. After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite party and the complainants have waited for more than 8 years to see the project to be completed. So that unilateral clause about the cancellation by the allottee debar him from seeking refund is not binding in view of the ratio of laid down in the following cases:
1) Ram Vilas “Sharma & 23 others Vs. M/s. Gold Souk Infrastructuress Private Ltd. in consumer case No. 421 of 2018 passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi referred the authority passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II(2019) CPJ 29 (SC)……….In the circumstances, we are of the view that the orders passed by the SCDRC and by NCDRC for refund of moneys were justified.”
ii) Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him alongwith compensation. The complainant had been waiting for completion of the project in which allotted unit is located for more than six years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the refund of the amount deposited with the opposite party besides interest and compensation.
9. Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite party is directed to refund the deposited amount of Rs.62,89,548/- to the complainant with compensation in the form of simple interest @ 9% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 06.12.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
