RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 144 OF 2022
Mr. Paresh Prasad, S/o Late Dr. Raghuvesh Prasad, Resident of 3, Kabir Marg, Lucknow-226001 Uttar Pradesh…. ....Complainant
VERSUS
1. M/s Ansal Properties & Infrastructure Limited Through its Vice Chairman & Board of Directors 115, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001
2. M/s Ansal Properties & Infrastructure Limited through its Vice Chairman & Board of Directors, 1st Floor, YMCA Campur 13, Rana Pratap Marg, Lucknow…
3. Mr. Sushil Ansal, Chairman, M/s Ansal Properties & Infrastructure Ltd. 26, Firoz Shah Road, New Delhi-110001
4. Mr. Pranav Ansal, Vice Chairman, M/s Ansal Properties & Infrastructure Ltd., 26 Firoz Shah Road, New Delhi-110001….
....Opposite Parties
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT
For the Complainant : Sri Siddharth Yadav, Ld. Senior Counsel
Assisted by Sri Asim Goswami.
For the Opposite Parties : Sri Manvendra Pratap Singh, Advocate.
Dated :
JUDGMENT
PER MR. JUSTICE ASHOK KUMAR, PRESIDENT
This complaint has been filed by the complainant for following relief :-
“A. Direct the respondents to complete the Civil Construction and Interior Work of the House, as per contractual specifications between the parties, and forthwith hand-over possession of Unit No.149, Sector-D, Pocket 2, ‘Sushant Golf City’, Sultanpur Road, Lucknow to the Complainant.
ALTERNATIVELY
B. In case the respondents do not comply with Prayer (A), then the respondents be directed to hand-over of the House to the complainant and to pay a sum of Rs. 61,67,128.68/- (Rupees Sixty One Lakh Sixty Seven Thousand One Hundred and Twenty Eight Paise Sixty Eight Only) to the complainant, who shall then have the Civil Construction and Interior Work of the house completed from a Contractor, himself, to meet the contractual specifications;
AND
C. Direct the respondents to pay a sum of Rs. 51,77,432/- towards compensation and loss of income/rental suffered by the complainant w.e.f. November, 2014 till the date of handing over of possession of the House;
D. Direct the respondents to pay a sum of Rs. 1,12,02,477/- (One Crore Twelve Lakh Two Thousand Four Hundred Seventy Seven Only) towards over-due interest paid by the Complainant, to M/s HDFC and a sum of Rs. 5 Lakhs towards mental agony and harassment;
E. Direct the respondents to jointly and severally, pay costs of the present proceedings to the complainant;
F. Pass any other or further order which this Hon’ble Court deems fit and proper.”
The brief facts of the complaint are that in pursuance to the claims and assertions made by the Respondents that the complainant agreed to book two (2) Built Houses/Built Up Units admeasuring 538 Square Yards each (450 Sq. Mts.) having a built-up area of 4798 Square Feet each (445.74 Sq. Mts.) in the said project of Respondent No.1 at the basic Sale Price of Rs. 2,19,15,210/- (Rupees Two Crore Nineteen Lakh Fifteen Thousand Two Hundred and Ten Only). The Complainant booked two (2) Units, one each for future residential purposes of his two (2) daughters. The complainant opted for a ‘Down-Payment Plan’, hence was offered a discount @ 12% on the 90% of the basic selling price. Whereas, the respondents confirmed the complainant that construction of the ‘Built-Up Units’ commenced in November, 2012. At the time of booking, complainant had two (02) young unmarried daughters and as a caring and living parent, the complainant considered it appropriate to book one unit for each daughter.
It is submitted that at the time of initial booking, the complainant paid to the respondents a sum of Rs. 10,95,761 (Rupees Ten Lakh Ninety Five Thousand Seven Hundred Sixty One only). The ready to use Built-Up House had been specifically booked by the complainant for residential use & occupation of his elder daughter. It is also submitted that at the time of booking the complainant had chosen the ‘Down Payment Plan’, hence was opted a rebate of 12% on the total sale price, thereby required to pay only a total sum of Rs. 1,95,48,368/- Plus tax. The respondents allotted Plot No. 0149 in Sector D, Pocket (‘House’) in the name of complainant and subsequently on November 05, 2012 executed a ‘Built Up Agreement’ with the complainant.
It is also submitted that the complainant has been regular in making payment towards the ‘House’ and till date has made a total payment of Rs. 1,84,52,607/- whereas presently only a sum of Rs. 10,95,761/- remain due and outstanding against the House, which is required to be paid at the time of handing over physical possession of the completely constructed House along with swimming pool (valued at Rs. 5,00,000) and the house finished in all respects. The chart elaborating the payment (s) made by the complainant in respect of the House till date is enclosed.
It is further submitted that after the expiry of promised period of delivery by November, 2014 the complainant approached the respondents, especially the Senior Management of respondent no.1 on several times but the visits were unfruitful as neither any competent person was personally available to attend to the complainant nor clear answers were ever provided with regard to completion date or progress of work at site.
Since the house was to be handed over to the complainant in November, 2014 hence the complainant has additionally lost rental income thereon which comes to Rs. 51,77,432/-, over and above, having paid interest to M/s HDFC Bank towards the loan availed. The rental income is being calculated @ Rs. 40,000/- per month with increment @ 10% per annum from January 2015 till August 2022. By committing several defaults and also delaying in handing over possession the respondents have completely ruined the plans of the complainant and also the future of his elder daughter.
It is also submitted that in a last attempt to explore the possibility of completion of the house by the respondents and also pay compensation to the complainant for the damage caused, the complainant visited the office of respondent no.2 in May, 2022. However, the officers of respondents have confirmed that they shall not be carrying-out any further work on the house nor completing the same nor pay any compensation to the complainant, hence left with no other efficacious remedy he is preferring the present complaint for reliefs sought by means of the instant complaint.
Learned Counsel for the complainant has filed certain annexures along with the complaint.
Annexure-C-1 to the complaint is the Photostat copy of the brochure published by respondents.
Annexure-C-2 to the complaint is the copy of the receipt dated 22-11-2012 issued to the applicant towards booking of a Built-Up in Pocket 2, Sector D, Sushant Golf City, Lucknow.
Annexur-C-3 to the complaint is the copy of the application dated 22-11-2012.
Annexure-C-4 to the complaint is the typed copy of the Agreement for Plot No. 149
Annexure-C-5 to the complaint is the chart elaborating the payment (s) made by the applicant till date and the payment receipts with typed copy.
Annexure-C-6 to the complaint is the recent photographs of the Site/Unit No. 0149.
Annexure-C-7 to the complaint is the copy of the loan documents.
Annexure-C-8 to the complaint is the chart of re-payment along with interest charged by M/s HDFC Housing Bank Limited.
Annexure-C-9 to the complaint is the copy of Reports of M/s. ARINEM Consultancy Services Private Limited.
Annexure-C-10 to the complaint is the copy of the order dated 15-11-2021 in Writ Petition (s) (Civil) No. (s). 1001/2020.
The instant complaint has been filed and has been entertained by this Court on 05-12-2022.
The notices with regard to the instant complaint have been handed over to Sri Manvendra Pratap Singh on 05-12-2022 of which acknowledgment of notice has been mentioned in the order-sheet by Sri Manvendra Pratap Singh, learned counsel for the opposite party.
Heard Sri Siddharth Yadav, learned senior counsel assisted by Sri Asim Goswami, learned counsel for the complainant and Sri Manvendra Pratap Singh, learned counsel for the opposite party.
Till date no written statement has been filed by the opposite parties.
The counsel for the opposite party for the first time, after a gap of more than seven months, has come with reply and requested this Commission to take it on record.
It is well settled by the Hon’ble Apex Court in the case of New India Assurance Vs Hilli Multipurpose Cold Storage Pvt. Ltd. reported in CPJ 2020 (2) SC, the period of filing the written statement is 30 days + 15 days i.e. 45 days. The opportunity of filing the written statement is closed long back in the instant complaint.
This court has passed the various orders after hearing the counsel for the parties on 05-12-2022, 10-01-2023 and 20-03-2023. Lastly on 21-04-2023 the following order has been passed :-
“21-04-2023
The instant complaint is pending since last six months and on various dates the Counsels for the respective parties were heard. Finally on the last date i.e. on 20-03-2023 after hearing the learned Counsel for the parties and after going through the contents and the prayer made in the instant complaint petition, the following order has been passed which reads as follows:-
“20-03-2023
The instant complaint has been filed by the complainant before this Court on 23-11-2022. The complaint has been entertained and following order has been passed on 05-12-2022.
05-12-2022
पुकार की गई। विपक्षीगण की ओर से विद्वान अधिवक्ता श्री मानवेन्द्र प्रताप सिंह उपस्थित है, जिनके द्वारा प्रस्तुत परिवाद में विपक्षीगण की ओर से अपना वकालतनामा एवं उत्तर शपथपत्र 04 सप्ताह में प्रस्तुत किये जाने की प्रार्थना की, प्रार्थना स्वीकृत है। चूंकि कि विद्वान अधिवक्ता श्री मानवेन्द्र प्रताप सिंह सभी विपक्षीगण की ओर से उपस्थित होकर नोटिस प्राप्त कर रहे हैं,अत्एव सभी विपक्षीगण की ओर से अपना वकालतनामा एवं उत्तर शपथपत्र भी प्रस्तुत करेंगे।
परिवादी के विद्वान अधिवक्ता द्वारा अवगत कराया गया कि परिवादी द्वारा विपक्षीगण द्वारा प्रस्तावित 'Down-Payment Plan' के अन्तर्गत विला/यूनिट नं0-149, सैक्टर-डी, पॉकेट-2, सुशांत गोल्फ सिटी, सुलतानपुर रोड़, लखनऊ में बुक कराया गया था, जिस हेतु विपक्षीगण द्वारा अपेक्षित सम्पूर्ण धनराशि अर्थात 1,95,48,368.00 वर्ष-2012 में ही प्राप्त/जमा करायी जा चुकीहै। परिवादी के अधिवक्ता के कथनानुसार मात्र 30-35 प्रतिशत निर्माण कार्य ही 10 वर्ष व्यतीत होने के उपरांत विपक्षीगण द्वारा कराया गया है, जबकि धनराशि हेतु परिवादी द्वारा बैंक से ब्याज पर ऋण प्राप्त कर विपक्षीगण को धनराशि प्राप्त करायी गई है, जिस पर ब्याज का भुगतान नियमित रूप से परिवादी द्वारा भारी धनराशि के रूप में किया जा रहा है। परिवादी के अधिवक्ता का कथन है कि एक ओर तो परिवादी को आवंटित विला/भवन निर्धारित समयावधि में प्राप्त नहीं कराया गया, दूसरी ओर परिवादी को भारी धनराशि ऋण के एवज में ब्याज के रूप में बैंक को देनी पड़ रही है।
उपरोक्त तथ्यों को दृष्टिगत रखते हुए विपक्षीगण के विद्वान अधिवक्ता को आदेशित किया जाता है कि वे ऊपर उल्लिखित आवंटित विला/यूनिट के निर्माण के सम्बन्ध में समस्त विवरण भी शपथपत्र एवं रंगीन छायाचित्रों के साथ प्रस्तुत करेंगे। तद्नुसार उभय पक्ष के विद्वान अधिवक्ता द्व्य की सहमति से प्रस्तुत परिवाद को पुन: दिनांक 10.01.2023 को नवीन वाद के रूप में सूचीबद्ध किया जावे।
On behalf of the opposite parties Sri Manvendra Pratap Singh put appearance on the last date i.e. on 10-01-2023 and thereafter the following order has been passed on 10-01-2023.
10-01-2023
पुकार की गई। आदेश दिनांक 05.12.2022 में अपेक्षित उत्तर शपथपत्र विपक्षी के विद्वान अधिवक्ता द्वारा आज दिनांक तक प्रस्तुत नहीं किया गया है, जिस हेतु अंतिम रूप से 04 सप्ताह का समय प्रदान किये जाने की प्रार्थना विपक्षी की ओर से उपस्थित विद्वान अधिवक्ता श्री मानवेन्द्र प्रताप सिंह द्वारा की गई, प्रार्थना स्वीकृत है। तद्नुसार प्रस्तुत परिवाद को पुन: दिनांक 20.3.2023 को नवीन वाद सूची में सुनवाई हेतु सूचीबद्ध किया जावे।
Since last four months it appears that there is no development in the instant complaint. By means of the present complaint the following prayer has been made by the complainant :-
“It is therefore most respectfully prayed before this Hon’ble Commission that:
A. Direct the Respondents to complete the Civil Construction and Interior Work of the House, as per contractual specifications between the Parties, and forthwith handover possession of Unit No. 149, Sector D, Pocket 2, ‘Sushant Golf City, Sultanpur Road, Lucknow to the Complainant;
B. In case the Respondents do not comply with Prayer (A), then the Respondents be directed to hand-over of the House to the Complainant AND to pay a sum of Rs.61,67,128.68/- (Rupees Sixty One Lakh Sixty Seven Thousand One Hundred and Twenty Eight Paise Sixty Eight Only) to the Complainant, who shall then have the Civil Construction and Interior Work of the House completed from a Contractor, himself, to meet the contractual specifications;
-
C. Direct the Respondents to pay a sum of Rs.51,77,432/- towards compensation and loss of income/rental suffered by the Complainant w.e.f. Novermber, 2014 till the date of handing over of possession of the House;
D. Direct the Respondents to pay a sum of Rs.1,12,02,477/- (One Crore Twelve Lakh Two Thousand Four Hundred Seventy Seven Only) towards over-due interest paid by the Complainant, to M/s HDFC Bank and a sum of Rs.5 Lakhs towards mental agony and harassment;
E. Direct the Respondents to jointly and severally, pay costs of the present proceedings to the Complainant;
F. Pass any other or further order which this Hon’ble Court deems fit and proper.”
In the instant complaint as against the total value of the Villa in question i.e. Unit No. 0149, Sector-D, Pocket 2, Sushant Golf City, Sultanpur Road, Lucknow the complainant has deposited/paid huge amount of sum of Rs.1,90,22,960/-, out of which Rs.1,56,38,693/- has been paid by the complainant after getting the loan from bank in the year 2012 itself. The Villa in question was supposed to be handed over/delivered by the opposite parties to the complainant on or before November, 2014, however, till date the Villa in question has neither been handed over; nor the required work has been done which includes certain civil construction as well as interior work of the house. According to the complainant in fact the complainant has paid over and above 95-96% of the total value of the Villa in question that too long back in the year 2012.
Prima facie from the aforesaid facts it is a case where the opposite party has to compensate the full claim of the complainant including the handing over the complete Villa at the earliest possible time and the amount demanded/indicated by the complainant in his prayer mentioned hereinabove.
This Court has further noticed that the opposite party is not only cheating the buyers but is utilizing the huge money deposited by the buyers which has been taken by the buyer/complainant from the bank on loan and is paid long back in the year 2012 to the opposite party.
It is made clear that in case if the requisite affidavit and compliance of this order will not be done/made by the opposite party within a period of one month from today the bank account of the opposite party will be seized and the notices will be issued against the Directors of the Company to explain as to why the criminal proceedings should not have been initiated against the opposite party Company by the complainant.
List as first case before this bench on 21-04-2023.
In pursuance of the said order dated 20-03-2023 the opposite party has not filed any affidavit and the evidence; nor has given any proposal whatsoever.
Admittedly facts are alarming as mentioned in the order dated 20-03-2023 incorporated hereinabove, this Court deem it appropriate to direct the opposite party to pay immediately within a period of 15 days from today sum of Rs.50,00,000/- to the complainant.
Further this Court directs that second installment of Rs.50,00,000/- will be paid by the opposite party to the complainant by 15-06-2023.
On the next date fixed the Counsels for the respective parties will provide the details of the amount deposited, the interest accrued thereon from the date of deposit of the amount and the payment made by the opposite party in compliance of this order. For the balance amount which is to be paid by the opposite party to the complainant this Court will pass an appropriate order on the next date fixed.
List again on 12-07-2023 within 30 cases.”
The Last order passed by this Court dated 21-04-2023 was supposed to be complied with by the opposite party which has not been complied with nor any application has been moved by the opposite parties.
This court has heard the matter at great length.
I have heard learned counsel for the complainant Sri Siddharth Yadav assisted by Sri Asim Goswami and Sri Manvendra Pratap Singh, learned counsel for the opposite parties.
The facts of the case are already mentioned hereinabove hence need no repetition. From the perusal of the facts narrated hereinabove it is clear that in the instant complaint as against the total value of the Villa in question i.e. Unit No. 0149, Sector-D, Pocket 2, Sushant Golf City, Sultanpur Road, Lucknow the complainant has deposited/paid huge amount of sum of Rs.1,90,22,960/-, out of which Rs.1,56,38,693/- has been paid by the complainant after getting the loan from bank in the year 2012 itself. The Villa in question was supposed to be handed over/delivered by the opposite parties to the complainant on or before November, 2014, however, till date the Villa in question has neither been handed over; nor the required work has been done which includes certain civil construction as well as interior work of the house. According to the complainant in fact the complainant has paid over and above 95-96% of the total value of the Villa in question that too long back in the year 2012.
Prima facie from the aforesaid facts it is a case where the opposite party has to compensate the full claim of the complainant including the handing over the complete Villa at the earliest possible time and the amount demanded/indicated by the complainant in his prayer mentioned hereinabove.
This Court has further noticed that the opposite party is not only cheating the buyers but is utilizing the huge money deposited by the buyers which has been taken by the buyer/complainant from the bank on loan and is paid long back in the year 2012 to the opposite party.
Having heard the learned Counsel for the parties, and after going through the material and evidence available on record I find force in the argument of learned Counsel for the complainants that the opposite parties have failed to complete the Vila in question and the relief sought by the complainant in his complaint is correct and genuine.
In view of the above it is clearly established that the opposite parties, the builders have not only committed illegality, arbitrariness but has harassed the complainant mentally, physically and monetarily, therefore, the complaint is liable to be allowed and the following order is being passed against the parties.
O R D E R
The instant complaint is allowed with costs. The opposite parties are directed as follows :-
1. the opposite parties to complete the Civil Construction and Interior Work of the House, as per contractual specifications between the Parties, and forthwith handover possession of Unit No. 149, Sector D, Pocket 2, ‘Sushant Golf City, Sultanpur Road, Lucknow to the Complainant;
2. In case the opposite parties do not comply with Prayer (A), then the opposite parties be directed to hand-over of the House to the Complainant AND to pay a sum of Rs.61,67,128.68/- (Rupees Sixty One Lakh Sixty Seven Thousand One Hundred and Twenty Eight Paise Sixty Eight Only) to the Complainant, who shall then have the Civil Construction and Interior Work of the House completed from a Contractor, himself, to meet the contractual specifications;
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3. the opposite parties further to pay a sum of Rs.51,77,432/- towards compensation and loss of income/rental suffered by the Complainant w.e.f. November, 2014 till the date of handing over of possession of the House;
4. the opposite parties to pay a sum of Rs.1,12,02,477/- (One Crore Twelve Lakh Two Thousand Four Hundred Seventy Seven Only) towards over-due interest paid by the Complainant, to M/s HDFC Bank and a sum of Rs.5 Lakhs towards mental agony and harassment;
Apart from that the opposite parties will also pay penalty/compensation towards the mental agony, harassment, financial hardship to the complainants to the tune of Rs. 20,00,000/- (Rs. Twenty Lakh) and Rs. 1,00,000/- (Rs. One Lakh) towards the costs of the case. The entire amount has to be paid within a period of 45 days from the date of this judgment and order.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
(JUSTICE ASHOK KUMAR)
PRESIDENT
Ashish
Court No.1
