Haryana

StateCommission

CC/731/2017

KARAN SINGH - Complainant(s)

Versus

ANSAL HOUSING AND CONSTRUCTION - Opp.Party(s)

RAJNI MEHTA

26 Jun 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:16.11.2017

                Date of final hearing:31.05.2024

                                                Date of pronouncement: 26.06.2024

 

Consumer Complaint No.731 of 2017

 

IN THE MATTER OF

 

Karam Singh Sansarwal aged about 65 years son of Shri Mehar Singh, resident of House No.1518, Sector-17, HUDA Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                      .….Complainant

Through counsel Mr. J.S. Hooda, Advocate

 

Versus

 

1.      Ansal Housing & Construction Ltd. having its registered office at 15 UGF, Indra Parkash, 21, Barakhamba Road, New Delhi-110001 through its Chairman/Managing Director/Authorized Signatory.

2.      Manager, Ansal Housing and Construction Ltd., Ambala Road, Galleria Building, Sector-20, Jagadhri, Yamuna Nagar.

….Opposite parties No.1 & 2.

Through counsel Mr. B.P.S. Thakur, Advocate

 

3.      Sunrise Estate Management Services (SEMS), Regd. Office 110, Indra Prakash Building, 21 Barakhamba Road, New Delhi-110001 through its Chairman/Managing Director.

Opposite party No.3.

Opposite party No.3 Given up.

 

CORAM:   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. J. S. Hooda, counsel for the complainant.

Mr. B.P.S. Thakur, counsel for opposite parties No.1 & 2. Opposite parties No.3 given up vide order dated 27^th October, 2022.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that the opposite parties (“OPs”) floated a housing project under the name and style “Ansal Town Yamuna Nagar” situated at Yamuna Nagar, Haryana. On 09.05.2012, complainant applied for a 5 BHK residential unit in the said project of OPs. A unit No.A-63, measuring 2765 sq. ft. was allotted to complainant vide allotment letter dated 24.05.2012. Basic sale price of said unit was Rs.45,00,000/- i.e. Rs.1627/- per sq. ft.  As per allotment letter, possession of the said unit was to be delivered by the OPs to the complainant within 36 months subject to payment of balance outstanding dues along with interest as would be demanded at the time of making offer of possession.  Complainant paid an amount of Rs.53,64,554/- in total i.e. entire cost of the unit in question to the OPs on different dates as per their demands. It was alleged that despite making payment of entire cost of the unit in question, the OPs failed to offer the possession of unit in question.

2.                It was further alleged that without giving actual physical possession of residential unit, OP illegally demanded common maintenance charges from the complainant vide Bill No.ATAMUNA/2015-2016/Q4/1498 in January/February 2016  for the period 01.01.2016 to 31.03.2016 despite the fact that while making offer of possession vide letter dated 28.04.2015, said amount was duly paid by complainant. Thereafter, complainant approached OPs and requested to give actual physical possession of unit and also objected to the aforesaid demand of OPs. Request of the complainant was flatly refused by the OPs and it was informed that actual possession would only be given after making the payment of said demand. It was further alleged that the OPs cannot demand the common maintenance charges as well as holding charges etc. unless and until they gave actual physical possession of the unit. Moreover, a format of Tripartite Agreement was also provided to the complainant, but OPs themselves failed to execute the same. Further, as per clause 32 of said agreement it reveals that holding charges are liable to be paid only when the allottee fails to pay the dues before due date or fails to take possession, but the complainant had already paid entire cost of unit in question.

3.                It was further alleged that the complainant also made a representation dated 19.07.2016 with regard to maintenance & holding charges with request of actual physical possession, but of no use. It was further alleged that the OPs failed to hand over actual physical possession of residential unit in question to the complainant despite the fact that entire sale consideration of the unit was paid by the complainant. Thus, there was deficiency in service on part of OPs and complainant prayed for physical possession of residential unit; not to charge/recover common maintenance charges and holding charges etc.; to refund excess amount of Rs.5,25,040/- along with interest @ 12% p.a. received by OPs; to pay Rs.5,00,000/- as compensation on account of deficiency in service on the part of OPs; to pay interest @ 12% p.a. on the total deposited amount from the date of deposits till delivery of actual possession and to pay Rs.25,000/- as litigation expenses.

4.                Notice of the complaint was issued against the Ops, upon which OPs No.1 & 2 have appeared before this Commission through their counsel and filed their written version. However, OP No.3 was given up by the complainant by making a statement as no relief was claimed against it. OPs No.1 & 2 submitted in their written version that  complainant applied for a 5BHK residential unit and unit No.A-63, measuring 2765 sq. ft. @ 1627 sq. ft. was allotted to him with basic sale price of Rs.45,00,000/-. Allotment letter dated 24.05.2012 was issued to complainant and also informed that he can take possession of unit in question after clearance of common maintenance charges (CMC) as well as holding charges. Further, as per allotment letter, it has clearly been stated that possession would be delivered within a reasonable time. It was further submitted that the complainant himself failed to fulfill the conditions laid down for release of physical possession by non-deposition of maintenance charges and holding charges which was clear cut violation of rules laid therein.

5.                It was further submitted that unit in question is complete in all respect and is ready for possession. The possession of unit was to be offered within 36 months subject to payment of all balance dues, but no fixed time for delivery of possession was promised to complainant. It was further submitted that when project was started, maintenance charges were being charged by OP from complainant, but as the project was near to completion and being a big project help of maintenance agency had been taken to maintain upkeep of project in question including safety, water connection, sewer connection etc. which also find mention. Execution of sale deed will start only after receiving full payment and required NOC from SEMS and a sum of Rs.1,19,740/- became payable by complainant towards common maintenance charges (CMC) & holding charges. It was further submitted that the delay in delivering the possession was due to force majeure circumstances because there was a ban on groundwater extraction by the Hon’ble High Court in CWP No.20032 of 2008, 31.07.2012 and 21.08.2012, ban on mining of sand in Haryana and Rajasthan by Hon’ble National Green Tribunal, Jaat agitation in Gurgaon, order of NGT to stop construction in April, 2015 and November, 2016 to emission of dust and demonetization of Rs.500/- and Rs.1000/- as legal tenders on 09.11.2016 and all of which cumulatively resulted in a delay of about 18 months in execution of work at site. Other allegations made in the complaint were denied and thus, there is no deficiency in service on the part of OPs No.1 & 2. Finally, prayed for dismissal of the complaint.

6.                When the complaint was posted for recording evidence of the complainant, Mr. Karan Singh Sansarwal (complainant) has tendered into evidence his affidavit as Ex.CA, vide which he reiterated all the averments of the complaint and further tendered various document (Ex.C-1 to Ex.C-15) and closed the evidence.

7.                Thereafter, learned counsel for OPs No.1 & 2 has tendered into evidence affidavit of Mr. Vaibhav Chaudhary, Authorized Representative of OPs as Ex.OP-A alongwith documents Ex.R-1 to Ex.R-4 and closed the evidence on behalf of OPs No.1 & 2.

 

8.      The arguments have been advanced by Mr. J.S. Hooda, Advocate learned counsel for complainant as well as Mr. B.P.S. Thakur, learned counsel for OPs No.1 & 2. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined.

9.                As per the basic averments raised in the complaint including the contentions raised by the learned counsel for the complainants, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get relief as prayed for in the complaint or not? 

10.             It is an admitted fact that OPs floated a project under the name & style of “Ansal Town Yamuna Nagar” situated at Yamuna Nagar and complainant applied for a 5BHK residential unit in the said project on 09.05.2012 by making a payment of Rs.2,00,000/-to OPs. It is also an admitted fact that unit No.A-63, measuring 2765 sq. ft. was allotted to complainant vide allotment letter dated 24.05.2012 having basic sale price of Rs.45,00,000/-  @1627/- per sq. ft. It is also admitted fact that as per allotment letter, possession of the said unit was to be delivered by the OPs to the complainant within 36 months subject to payment of balance outstanding dues along with interest as would be demanded at the time of making offer of possession.  It is also an admitted fact that the complainant had paid an amount of Rs.53,64,554/- in total i.e. entire cost of the unit in question to the OPs on different dates as per their demands, but the actual possession of unit in question was not delivered to him. It is also an admitted fact that common maintenance charges vide Bill No.ATAMUNA/2015-2016/Q4/1498 in January/February 2016  for the period 01.01.2016 to 31.03.2016 were demanded by OPs from complainant despite the fact that while making offer of possession vide letter dated 28.04.2015, said amount was duly paid by complainant.

11.              In view of the above submissions and after careful perusal of the entire record, it stands proved that upon floating a project by the OPs-builder, residential unit was purchased by the complainant for a basic sale price of Rs.45,00,000/-  and the complainant had paid entire sale price of unit i.e. Rs.53,64,554/- to the OPs. Allotment letter dated 24.05.2012 also stands proved according to which possession of the unit in question was to be delivered within a period of 36 months, complete in all respects subject to some reservation, but the OPs failed to deliver the same.  As far as the question regarding common maintenance charges vide Bill No.ATAMUNA/2015-2016/Q4/1498 in January/February 2016  for the period 01.01.2016 to 31.03.2016 demanded by OPs from complainant is concerned, in this regard it is pertinent to mention here that it also stands proved on record as well as admitted by the OPs that while making offer of possession vide letter dated 28.04.2015, said amount was duly paid by the complainant to OPs.  As such, there was a clear breach of terms and conditions of the Allotment letter dated 24.05.2012 on behalf of the OPs.

12.              It is the normal trend of the developers that a developer would collect their hard earned money from the unsuspecting individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard earned money is not completed.  Resultantly, completion of the project and the delivery of possession is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service on the part of OPs and thus, the complainants are well within their legal rights to get compensation on this count. Even otherwise also, there is a strong element of physical and mental agony caused to the complainants for their having invested a huge amount in the project and still being deprived of and not being put into possession of the flat and under these constrained circumstances, they had to knock at the door of this Commission for seeking justice. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

13.              As regards the rate of interest to be awarded, on account of delay in possession of the flat to the complainant, it may be relevant to keep the following factors into consideration. Keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by Nationalized Banks, there has been an increase in lending rate by the Nationalized banks. Accordingly, it would, in considered view of this Commission, be just fair and reasonable to award 9% as the rate of interest to the complainant.

14.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OPs are directed to offer complete vacant physical possession of the unit in question to the complainants as per the allotment letter dated 24.05.2012 within a period of 90 days from the date of receipt of copy of this order. OPs are also liable to pay interest @ 9% per annum on the deposited amount on account of delayed possession from the date the possession was due as per the allotment letter till the date of actual possession. The complainant is also entitled to a sum of Rs.50,000/- (Rs. Fifty Thousand Only) on account of compensation for mental and physical agony. In addition, the complainant is also entitled to an amount of Rs.25,000/- (Rs. Twenty Five Thousand Only) as litigation charges. However, the complainant is also liable to pay outstanding dues towards the cost of constructions of flat and other expenses like, IDC, EDC, Stamp Duty for Conveyance Deed and other statutory dues in accordance with the terms of agreement. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

15.              Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

16.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

17.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 26^th June, 2024                                                 S.C Kaushik,

Member        

Addl. Bench