Haryana

Gurgaon

CC/301/2020

Amit Gupta - Complainant(s)

Versus

Ansal Properties and Infrastructure Ltd and Other - Opp.Party(s)

Sh. Akshat Goel

08 Mar 2022

ORDER

 

DISTRICT   CONSUMER   DISPUTES   REDRESSAL COMMISSION GURGAON-122001.

                                                                 Consumer Complaint No. 301 of 2020                                                                 Date of Institution: 21.09.2020                                                                             Date of Decision:  08.03.2022

Amit Gupta son of Shri Hem Raj Gupta, resident of 4406, Achievers Builders Colony, Near Sainik Colony, Sector-49, Faridabad.                                                                                                                                                          ……Complainant                                                   Versus

1. Ansal Properties and Infrastructure Ltd., having its registered office at 115, Ansal Bhawan, 16 KG Marg, New Delhi 110001.

2. Samyak Projects Pvt. Ltd. having its registered office at 111 First Floor, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001.

 

     .......Opposite parties

                                                                                    

Complaint under Sections 34 & 35 of Consumer Protection Act,2019

BEFORE:    SHRI SANJEEV JINDAL, PRESIDENT.

                    DR. RISHI DUTT KAUSHIK, MEMBER.

                    

Present:       Shri Anubhav Singh, Advocate for the complainant.

                    OP No.1 exparte vide order dated 29.11.2021.

                    OP No.2 exparte vide order dated 05.02.2021.

                  

ORDER       SANJEEV JINDAL, PRESIDENT.   

 

                    Briefly stated, the complainant has averred that he had booked a residential flat in the multistoried group housing scheme/colony namely ‘ The Fernhill’ situated at Sector 91, Gurgaon (Haryana).  A ‘Flat Buyer Agreement’ had been executed between the parties on 10.07.2013 containing all the terms and conditions as well as payment plan.  In pursuance of this booking, the complainant deposited a sum of Rs.4,00,000/- vide letter dated 16.06.2021 issued by the OP No.1 as shown in Annexure-C-1.  Thereafter, the complainant also deposited a sum of Rs.2,58,471/- as demanded by the OP No.1. Initially, the Flat/Apartment No. B-0504, 5^th Floor, having tentative super area of 1618 Sq.Ft., was provisionally allotted to the complainant having a tentative sale value of Rs.45,60,510/-ft by the opposite party vide Allotment letter dated 22.07.2011 but lateron the Flat bearing No.0704-B-0501, 5^th Floor, Tower No.B was allotted by the OPs with the assurance that the possession of the same would be given within the stipulated period.  The payment was to be made by the complainant as per the schedule given by the OPs.  It was also agreed that if the payment was delayed by the complainant, then, the installments would be paid with penal interest. The complainant made payments to the OPs as per the schedule and, thus, he had deposited a total sum of Rs.46,84,360/- with the OPs according to the Account Statement dated 14.09.2020 maintained by the OP No.1 as shown in Annexure-17. It was assured under Clause No.5.1 of the ‘Flat Buyer Agreement’ that the OPs shall complete the construction and offer the possession of the unit of the complainant within 48 months from the date of agreement.  Thus, the OPs were under legal obligation to deliver the possession up to July 2017. (Copy of ‘Flat Buyer Agreement’ was attached as Annexure-14).  It was also agreed in pursuance of the said agreement that the handing over of the possession of the flat/apartment to the complainant could be extended by 31^st July,2018 with the extension of a period of 6 months, as the construction of the Tower/Block in which the flat/apartment allotted to the complainant was situated, started on/around 31.07.2014.  The OPs as on date had not offered the possession of the flat/apartment to the complainant booked by him, thereby completely breaching the agreed stipulations of the agreement dated 10.07.2013.  So much so, even after more than almost 6 years no work as assured by the OPs company had been done.  Thus, the opposite parties had deceived the complainant under the garb of false assurances and misrepresentations for a huge amount of Rs. 46,84,360/- till date and had been using the hard-earned money of the complainant for their own benefit.  Therefore, the complainant had no other option except to seek the refund which had not been paid by the OPs till the present date.  Hence, this complaint.  In the end, the complainant prayed that a direction be given to the OPs to refund the deposited amount of Rs.46,84,360/-alongwith interest @ 12% p.a from the date of its respective deposits till realization and also a compensation of Rs.1,00,000/-on account of mental agony and physical harassment caused to the complainant.  Further, the compensation of Rs.85,000/- as litigation expenses has also been prayed for.

2.                 Upon notices, initially, the OP No.1 appeared through counsel and filed its written statement but lateron, at the time of arguments, he opted to remain absent and hence, he was proceeded against ex-parte vide order dated 29.11.2021.  On the other hand, the OP No.2 had already been proceeded against exparte vide order dated 05.02.2021, as he did not appear despite service.

  In his written statement, the OP No.1 contended that the present complaint was pre-mature as the project was nearing completion and the work at the site was going on at full pace and further that the unit was likely to be delivered to the complainant within next 9-10 months i.e. maximum by the end of the year 2021. The work at the site had suffered some set-back due to lockdown imposed by the Government in the month of March, 2020 because of widespread COVID-19 pandemic.  The OP No.1 had already invested a lot of money in form of land and erecting structures etc. on the project and if the buyers leave the project at the final stage only due to the reason that the property market had sunk, then the other buyers would also suffer as the real estate companies who were already suffering from liquidity issues, would face even more worst situation in case, they were asked to refund money at such an advanced stage when the project was nearing completion within months. The complainant was putting only half-baked truth before this Commission as the basic sale price of the unit/flat was Rs.44,76,610=00.  As per the agreement, the complainant was bound to pay EDC, IDC, Service tax, club charges and various other charges and had agreed for these charges. The complainant was trying to project a false image of the entire scenario in a manner so that he could extract much more from the OP No.1 than what he was bound to pay.  In this way, the complainant was trying to run away from the project as there had been a slump in the property market.  The complainant also had to pay another installment of Rs.2,28,026/- as was demanded vide letter dated 19.11.2020.  All other allegations levelled by the complainant were also refuted by the opposite party No.1 as false and frivolous.  In the end, the OP No.1 prayed for dismissal of the complaint with costs.

3.                To substantiate his case, the complainant has placed on the record of this file his affidavit Ex.CW1/A and certain documents which are Ex.C-1 to C-17.

4.                We have heard the complainant and have perused the record available on the file carefully.  Besides, we have also gone through the written arguments submitted by the complainant.

5.                As per pleadings of the complainant, he had booked a flat/apartment in the project of the OPs and had paid a total amount of Rs,46,84,360/- but the OPs failed to fulfill their contractual obligations by not offering the possession of the flat to the complainant within the stipulated time.  It is the specific stand of the complainant that in the event of inordinate delay in offering the possession by the OPs, he could not be compelled by the OPs for taking the possession of the flat and that he was entitled to terminate the agreement and for the refund of the entire consideration paid alongwith interest @ 12% p.a.   In our view, as per the terms and conditions of the Flat Bayer Agreement which was executed between both the parties, it was the burdened duty of the OPs to offer the possession of the flat/apartment which was booked by the complainant in the year 2014 but the OPs did not do so, and thus, the complainant certainly becomes entitled for the refund of his amount which was deposited by him with regard to the flat in question and the refusal on the part of the OPs to pay the same certainly amounted to deficiency in service on behalf of the OPs.

6.                The complainant in his evidence has tendered his affidavit Ex.CW1/A and certain other documents i.e. Ex. C-1 to C-17.  In the aforesaid affidavit, the complainant has reiterated the averments made by him in his pleadings almost on the similar lines and hence the contents of the affidavit are not being reproduced herewith in order to avoid the repetition.  The documents i.e. Ex. C-1 to C-17 submitted by the complainant also confirms the aforesaid version of the complainant.

Since, the opposite parties in this case have been proceeded against exparte and there is no evidence on their behalf on the record of this file, so the evidence produced on the record of this file by the complainant goes unrebutted and as such this Commission does not find any reason to disbelieve the same.  Accordingly, the complaint of the complainant is accepted with costs.

7.                Therefore, after considering all the facts and circumstances of the case, we direct the opposite parties to refund the deposited amount to the tune of Rs.46,84,360/- to the complainant along with interest @ 9 % p.a. from the date of each deposit till realization.  The complainant is also entitled to compensation for harassment and mental agony to the tune of Rs.50,000/-as well as litigation expenses to the tune of Rs.5500/-. The opposite party shall make the compliance of the order within 30 days from the date of receipt of the copy of this order. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance.

 

Announced                                                      (Sanjeev Jindal)

08.03.2022                                                           President,

                                                              District Consumer Disputes

                                                               Redressal Commission, Gurgaon

 (Rishi Dutt Kaushik)

               Member