1. The present Consumer Complaint has been filed Under Section 21 read with Section 12(1)(a) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants against the Opposite Party, M/s. Ansal Housing & Construction Ltd. (hereinafter referred to as the “Developer”) seeking refund of ₹82,89,574/- paid by the Complainants towards purchase of the Residential Apartment in the Project of the Developer, i.e. “Ansal Highland Park”, along with interest and costs as the Developer has miserably failed to hand over the possession of the booked Apartment within the prescribed time.   

2. The facts leading upto the present Complaint are that on 06.12.2012, the Complainants had booked a Residential Apartment in the Group Housing Project, namely, “ANSAL HIGHLAND PARK”, proposed to be developed by the Developer at Sector 103, Gurgaon, Haryana. The Apartment Buyer’s Agreement (hereinafter referred to as “the Agreement”) was executed between the parties on 04.04.2013. Complainants were allotted Unit No. EDNBG-1502, having approximate Sale Area of 1940 sq. ft. at the basic rate of ₹4909.28/- per sq. ft. for total Sale Consideration of ₹1,02,31,440/- including charges for EDC, IDC, PLC and Club Membership Charges. The allotment of the Apartment was confirmed by letter dated 22.12.2014, wherein the Developer had incorrectly mentioned date of booking as 05.04.2013, whereas originally the Apartment was booked on 06.12.2012. 

3. As per Clause 31 of the Agreement, possession of the booked Unit was to be handed over to the Complainants within 48 months from the date of execution of the Agreement or within 48 months from the date of obtaining all the required sanctions and approval necessary for commencement of constructions, whichever is later, along with grace period of six months. According to the Complainants, the possession of the booked Apartment was to be delivered by the Developer latest by 04.10.2017 including the grace period of six months. The Complainants had paid an amount of ₹82,89,574/-  i.e. 83% of the total Sale Consideration towards the purchase of the Apartment to the Developer, however, despite having received such a huge amount, they have failed to deliver the possession in terms of the Agreement. The Complainants have obtained the Home Loan of ₹55,00,000/- from the Housing Development Finance Corporation Limited (for short, “the HDFC”) at the interest rate of 10.50% p.a. to ensure timely payment to the Developer but because of malafide act of the Developer, they are under a financial burden as they have to pay the instalment of the loan amount of the Apartment which is nowhere near completion. It is stated by the Complainant that the Developer has stalled the work of the Project. It is alleged that the Developer continued to collect significant amount of money from the Complainants even when they were not in a position to handover timely possession and till date they are not in a position to inform the excat date of handing over the possession of the Apartment. It is further stated by the Complainant that the terms and conditions of the Agreement are one-sided, unjust, unfair and arbitrary. The Developer has no reasonable justification for the inordinate delay in construction of the Project and none of the circumstances resulting in delay were beyond their control. The Developer had fraudulently diverted the funds collected from the Complainants and other Buyers to its some other Projects. It is stated that the Complainants have spent valuable time and resources while visiting the office of the Developer and making representations, which had been to no avail. Therefore, the Complainants urge that they are no longer interested in taking possession of the Apartment and aggrieved by the callous approach and deficient service of the Developer, they are before us with following prayer:-

“a) Direct the Opposite Party, for an immediate 100% refund of the total amount of ₹82,89,574/- (Rupees Eighty Two Lacs Eighty Nine Thousand Five Hundred and Seventy Four Only) paid by the consumer/buyer/Complainant in the project “ANSAL HIGHLAND PARK” at Sector 103, Gurgaon, along with a penal interest of 18% per annum from the date of receipt of payments made to the Opposite Parties;

 

b) Direct the Opposite Party, to refund wrongfully charged taxes, which included but not limited to Service Tax, and other charges along with the interest on that amount at the rate of 12% from the date of receipt of such wrongfully levied charges and taxes;

c) Direct the Opposite Party to pay compensation, jointly or severally, of ₹5,00,000/- (Rupees Five Lakh Only) to all the consumers/buyers, individually, in “ANSAL HIGHLAND PARK” at Sector 103, Gurgaon for mental agony, harassment, discomfort and undue hardships caused to them as a result of the above acts and omissions on the part of the Opposite Party;

 

d) Direct the Opposite Party to pay, a sum of ₹2,00,000/- (Rupees Two Lakhs Only) to the consumer in the “ANSAL HIGHLAND PARK” at Sector 103, Gurgaon, towards litigation costs;

 

e) Pass any other order and/or further relief in favour of the consumers in the “ANSAL HIGHLAND PARK” at Sector 103, Gurgaon as the Hon’ble Commission may deem fit and proper in the fact and circumstances of the case.”

 

4. Upon notice, the Opposite Party Developer has filed its Written Version denying the contents of the Complaint and contending that; the Complaint is not maintainable for want of pecuniary jurisdiction inasmuch as the Complainants have deliberately exaggerated the compensation and claim with the sole objective to bring the Complaint within the jurisdiction of this Commission; the Complainants are the investors and the Complaint is beyond the purview of the Consumer Protection Act; as per Clause 64 of the Agreement, the disputes arising between the parties are supposed to be referred and resolved through arbitration, in terms of Clauses 31 and 32 of the Agreement, possession was supposed to be handed over within 48 months along with another grace period of 6 months from the date of execution of the Agreement or from the date of obtaining all the required sanctions and approval necessary for construction, and since approval of Building Plans and Environment Clearance had been granted only on 16.04.2013 and 15.10.2013, this Complaint is liable to be rejected on account of lack of cause of action; the delay, if any, has been caused on account of force majeure events which were beyond the control of the Opposite Party such as, Orders of the Hon’ble High Court of Punjab & Haryana whereby ground water extraction was banned in Gurgaon, Orders passed by National Green Tribunal whereby mining of sand in Haryana and Rajasthan was banned, Reservation agitation in Haryana, Orders of National Green Tribunal to stop construction to prevent emission of dust, etc; in accordance with Clause 32 of the Agreement, the Complainants are not entitled to any compensation on ground of delay due to force majeure circumstances; the present Complaint requires careful consideration and detailed examination of documents on record and as such the present dispute cannot be tried summarily before this Commission; that the Complainants have deliberately suppressed factual position and status of the Project; the construction work is going on in full swing and the project is near completion; possession of the Apartment to the Complainants would be handed over within short span of time; the complaint is pre-mature and deserves to be dismissed. The booking, allotment of Apartment and consideration paid by the Complainants, have not been disputed by the Developer. 

5. We have heard the Learned Counsel for the Parties at some length and also perused the material available on record as well as the Written Arguments.

6. Mr. Aditya Parolia, learned counsel appearing for the Complainants strenuously submitted that the Complainants are facing great hardship and financial loss due to deficient service and Unfair Trade Practices adopted by the Developer. The Developer has failed to honour the terms of the Agreement, most pertinently, Clause 31 of the Agreement whereby they were under an obligation to hand over the possession of the Apartment to the Complainants by October, 2017. Learned Counsel has further urged that the Complainants had obtained a Home Loan of ₹55,00,000/- from the HDFC at the rate of interest of 10.50% p.a. only to ensure the timely payment of the due installments. The Complainants had paid ₹82,89,574/- i.e. 83% towards the total Sale Consideration of the Unit, however the Developer, with malafide intentions has failed to handover the possession, thereby frustrating the purpose of the Complainants to have his own house/shelter. He vigorously argued that in view of the law settled by the Hon’ble Supreme Court in catena of judgements, the Complainants cannot be asked to wait indefinitely for an Apartment, possession of which has not only been delayed but construction is not even complete. Therefore, learned Counsel for the Complainants has prayed for refund of the entire amount paid by the Complainants along with interest and costs. 

7. In support of his case, learned Counsel appearing for the Complainants has placed reliance on the decision dated 01.10.2019 rendered by another Bench of this Commission in Manoj Kumar Sharma Vs. M/s. Ansal Housing Construction Ltd. (Consumer Complaint No. 514 of 2018 and connected matters) which relates to the same Opposite Party and the Project, known as “Ansal Heights, 86” located at Sector 86, Gurgaon, Haryana. 

8. We find that the defence taken by the Developer in the present Complaint is more or less similar to that taken in the case of Manoj Kumar Sharma(supra). While dealing with the similar reasons taken by the Developer for delay in handing over the possession in the aforereferred Complaints, the Coordinate Bench of this Commission has observed as under:-

“11. Heard counsel for the parties at length.

 

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/- 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.”

 

09. With regard to the objection raised by the learned Counsel for the Developer that the Clause of Arbitration in the Agreement bars this Commission from entertaining the Complaint, the Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs Aftab Singh - I (2019) CPJ 5 (SC), has laid down the law that the Arbitration Clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. 

10. In view of the aforesaid discussion, we are of the considered opinion that in the present case also, the Complainants cannot be made to wait indefinitely for possession of the flat, as the construction is still incomplete and the Developer is not in a position to give an exact date of offering of possession to the Complainants. Therefore, the Complainants are entitled for refund of the principal amount with reasonable rate of interest and costs.

11. Now, we address ourselves to the percentage of interest that has to be awarded to the Complainants to meet the ends of justice. 

12. In the light of the observations of the Hon’ble Supreme Court of India in a catena of judgments awarding interest keeping in view the current market situation and that the Banks have lowered the interest rates and considering the recent downtrend in the rates of interest and the erosion in the values of real estate in the market, we are of the opinion that the Complainants are entitled to the refund of the amount deposited by them with interest @ 9% p.a. from the respective dates of deposits till the date of realization. 

13. Consequently, the Complaint is partly allowed with a direction to the Opposite Party Developer to refund the entire amount deposited by the Complainants along with interest @9% p.a. from the respective dates of deposits till payment, within a period of six weeks from the date of receipt of a copy of this Order failing which the amount shall carry interest @12% p.a. for the same period. The Complainants are also entitled for a sum of ₹50,000/- towards costs of litigation. 

14. The Consumer Complaint is allowed in above terms.  The pending applications, if any, also stand disposed of.