Haryana

StateCommission

CC/330/2017

SOURABH SHARMA - Complainant(s)

Versus

ANSAL HOUSING AND CONSTRUCTION - Opp.Party(s)

AJAY CHIKARA

10 May 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.330 of  2017

Date of the Institution:25.05.2017

Date of Decision:    10.05.2022

 

Sourabh Sharma S/o Late Sh.Rajender Prashad Sharma, Permanent R/o Bunglow No.1, West Railway colony, Old Faridabad, Faridabad (Haryana).

Second Address: presently R/o B-101, Achal Leela Khushboo, D.P.Road,  Vishal Nagar,Pimple Nilkah, Pune Mahrashtra 411027.

 

                                                                   .….Complainant

Versus

1. Ansal Housing & Construction Ltd., Ansal Heights, Sector 92, Gurgaon through its Director.
2. Ansal Housing & Construction Ltd., 15, UGF, Indra Prakash, 21, Barakhamba Road, New Delhi 110001through its General Manager.

                                                          .….Opposite Parties

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Mr.Naren Patap Singh, Advocate for the complainant.

Mrs.Sapna  Khurana counsel for Mr. Vaibhav  Narang, Advocate for the Opposite Parties.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint  are that he (complainant) purchased independent floor i.e. property No.E-1106 in Ansal Heights, Sector 92 Gurgaon from Mrs. Supriya Ahuja.   On 06.11.2014, the flat was transferred in the name of complainant. As per the transfer letter dated 06.12.2014, the amount of Rs.36,41,071/- stand credited in the account of complainant by the opposite parties (OPs). The aforesaid property was originally booked on 29.12.2010. The complainant initially paid Rs.3.00 lacs with the OPs.  The OPs allotted independent floor No.E-1106 in Ansal Heights, Sector 92 Gurgaon in the project and executed buyer’s agreement with the original allottee on 26.06.2012 after the receipt of Rs.12,97,937/-. The value of the flat was fixed as Rs.40,18,200/-.  At the time of allotment, the construction of the independent floor would be completed within a period of three years and the possession would be handed over to the allottee within the said period. In total, the OPs has received the amount of Rs.40,44,326.43 in different dates. The complainant availed the loan facility from the OP No.3 for payment of the installments of the flat, which was approved on 15.11.2014. He is continuously paying the pre-EMI interest on the loan amount since 2014.  As per buyer agreement, the OPs shall offer possession of the property within 36 months from the date of execution of the agreement.  The OPs were bound to complete the construction work and handover the possession upto 26.06.2015, but, till today the OPs did not hand over the possession of the flat. The OPs have already taken more than Rs.40 lacs, however, the OPs still demanding more money from him instead of paying the compensation on account of delay in handing over the possession to him.  The OPs failed to develop the area as per the buyer’s agreement.  There is no hope for possession in near future as the construction was still under progress and in very low pace. Due to delay of project, the complainant lost interest in the flat and requested the OPs to refund the entire amount  i.e. Rs.41,55,562.83/- paid by him but, they did not consider the genuine request.  Thus there was deficiency in service on the part of the OPs.  The complainant prayed that OPs be directed to refund the deposited amount i.e. Rs.41,55,562.83/- alongwith interest at the rate of 24% p.a from the date of deposit till its realization; Rs.5,00,000/- as compensation on account of mental agony and physical harassment and Rs.1,00,000/- as cost of litigation expenses.

2.                Notice of the complaint was issued against the O.Ps. and the written statement was filed, wherein the O.Ps. admitted that unit was purchased by the complainant in resale from One Mrs. Supriya Ahuja and got it transferred in his name on 06.11.2014. The complainant become the owner of the unit on 06.11.2016. Other objections about  maintainability of complaint, accruing cause of action, concealment of material facts, complaint is false, frivolous and vexatious etc. were also raised and requested to dismiss the complaint.

                    On merits, the complainant purchased the unit in resale on 06.11.2014 from Mrs. Supriya Ahuja. The transfer fees have been received from Mrs. Supriya Ahuja the original allottee and not from him. The property was booked on 10.01.2011. The initial amount of Rs.Three lacs has been deposited by Supriya Ahuja and the entire payments till 06.11.2014 have been made by Mrs.Supriya Ahuja.  He became the customer of OPs on 06.11.2014. The total amount received by OPs was Rs.39,98,740/-.  No amount has been charged unnecessary or unexplained.  He has legally purchased the unit on  06.11.2014  and as per the agreement, the possession has to be handed over within a period of 36 months from the date of execution of agreement. The complainant has entered into agreement on 06.11.2014, so the complaint is pre-mature and is not maintainable as the period mentioned in complaint has not been completed. He could not demand the delivery of floor by 26.06.2015.  Thus there was no deficiency in service or any sort of unfair trade practice on the part of the O.Ps.

3.                When the complaint was posted for recording evidence of the parties, complainant-Sourabh Sharma in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-10 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps. has also tendered the affidavit of Mr.Vaibhav Chaudhary authorized representative Ex. RA and closed its evidence.

5.                The arguments have been advanced by Mr.N P Singh, the learned counsel for the complainant as well as Mrs.Sapna Khurana proxy counsel for Mr.Vaibhav Narang, learned counsel for the opposite parties.  With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited, alongwith the interest? 

7.                While unfolding the arguments, it has been argued by N.P.Singh, the learned counsel for the complainant that as far as the executing the buyers agreement  is concerned it is not in dispute.  It is also not in dispute that on 06.11.2014, the flat was transferred in the name of complainant.  It is also not in dispute that the basic price of the flat was Rs.32,27,400/-.  It is also not in dispute that the  Mrs. Supriya Pahuja (original allottee) and Mr. Sourabh Sharma executed agreement to sell on 21.08.2014 for the sale of flat for Rs.43,42,880.  A total sum of Rs.41,55,562.83/- had been paid by the complainant to the  O.Ps.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainant by the O.Ps.  within 36 months subject to some reservations.  The period within which, the possession of the flat was to be delivered had already expired despite depositing the amount of Rs.41,55,562.83/-.  In these circumstances the complainant had no other option, but, to seek the refund of the amount alongwith interest, which they had already paid. 

8.                On the other hand, it has been argued by Mrs. Supriya Khurna proxy counsel for Mr.Vaibhav Narang, the learned counsel for the O.Ps. that complainant has not paid the installment as per the repayment schedule.  The complainant purchased the unit in resale on 06.11.2014 from Mrs. Supriya Ahuja. The transfer fees have been received from Mrs. Supriya Ahuja the original allottee and not from him. The property was booked on 10.01.2011. The initial amount of Rs.Three lacs has been deposited by Supriya Ahuja and thereafter further payments till 06.11.2014 have been made by said allottee.  He became the customer of OP on 06.11.2014. The total amount received by OP was Rs.39,98,740/-. There was a delay in making the payment of the amount.  It is true that the documents were executed between the parties, which includes the buyers agreement, which contains all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession.  Since, there were some unavoidable circumstances and certain reasons which were beyond the control of the O.Ps. and the possession of the flat could not be delivered to the complainant in time.  However on one pretext or the other the possession was not delivered and now by taking the shelter of this Commission, the complainant seeks refund of the amount and infact this amount has already been invested for making all developmental activities.  As per terms and conditions of the agreement, the O.Ps. was bound  to deliver the possession of the apartment within 36 months.  The answering O.Ps. has not committed any breach of agreement. The complainant has no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainant.    The answering O.Ps. will offer the possession of the flat to the complainant after completion of development work.   Thus, the complainant was not entitled for the refund as prayed for.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, apartment was purchased by the complainant for a cost of Rs.32,27,400/- against which an amount of Rs.41,55,562.83/-  had been paid.  Buyer agreement  is also not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 36 months complete  subject to some reservation.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 7 years had expired, the possession of the flat has not been delivered by O.Ps.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps.   It is the normal trend of the developers/O.Ps. that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly,  the delivery of possession or completion of the project 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 of opposite parties  and thus, complainant is well within his legal rights to get the refund of the amount of Rs.41,55,562.83/- (say Rs.41,55,563/- (Forty One lac Fifty Five thousand Five Hundred and Sixty three Only)   which he had already deposited with the O.Ps.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.41,55,562.83/- (say Rs.41,55,563/- (Forty One lac Fifty Five thousand Five Hundred and Sixty three Only)    alongwith interest @ 6%  per annum from  the date of respective deposits till realization.   In case, there is a breach in making payment within the stipulated period  of  30 days, in that eventuality, the complainant would further be entitled to get the interest @ 9% per annum, for the defaulting period.   The complainant is also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.20,000/-  (Twenty Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

 

May 10th, 2022      Suresh Chander Kaushik,                   S.P.Sood

                             Member                                              Judicial Member                                 

S.K.(Pvt.Secy)