STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                Date of Institution: 11.05.2016

                                                         Date of final hearing: 25.05.2023

Date of pronouncement: 09.08.2023

CONSUMER COMPLAINT NO. 69 OF 2017

IN THE MATTER OF: -

Dr. Jitendra Kumar Agarwal S/o late Sh. Ram Kishan Dass, R/o House No.5/505, Amar Colony, Sonepat.                   …..Complainant

Versus

1.      Ansal Properties & Infrastructure Limited, Registered Office at 115, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi through its Managing Director.

2.      Ansal Properties and Infrastructure Limited, Branch Office at Rai, District Sonepat through its Authorized Signatory.

3.      Sh. Sushil Ansal, Chairman and Whole Time Director, Ansal Properties & Infrastructure Limited, 115, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi Also at: Vishranti, 26, Feroze Shah Road, New Delhi-110001.

4.      Sh. Anil Kumar, Managing Director, Ansal Properties & Infrastructure Limited, 115, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi.

          Also at : G-156, Sarita Vihar, New Delhi -110044.

5.      Pranav Ansal, CEO and Whole Time Director, Ansal Properties & Infrastructure Limited, 115, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi-110001.

          Also at Vishranti, 26, Feroze Shah Road, New Delhi -110001.

…..Opposite Parties

CORAM:              Naresh Katyal, Judicial Member

Argued by:-       Dr. Jitendra Kumar Aggarwal, complainant in person.

Sh. Karan Inder Singh, proxy counsel for Sh. Ajay Ghanghas, counsel for opposite parties.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:

Note:- Complaint No. 118 of 2016 was earlier filed by complainant on 11.05.2016. It was dismissed on 08.07.2016 on the ground that: complaint does not fall within pecuniary jurisdiction of State Commission. Complainant had assailed legality of said order dated 08.07.2016 in First Appeal No. 1096 of 2016 before Hon’ble National Consumer Disputes Redressal Commission-New Delhi. His appeal was allowed vide order dated 23.12.2016. Order dated 08.07.2016 passed by State Commission, Haryana was set aside. Complaints were restored to the Board of State Commission for adjudication on merits. This is how this complaint has been registered, afresh, by Registry of this Commission as Complaint No. 69 of 2017.

2.      Facts in complaint are: In October and November, 2009, there was advertisement campaign for booking of sale of flats in: ‘The Europa Residency’ Sushant City, Kundli, District-Sonepat by opposite parties (OPs). Complainant booked a flat/unit in said project in October-2009 by depositing Rs.87,750/-. Unit No.B-102 measuring 975 sq. ft. in said project was allotted to him.  Net basic price thereof was Rs.16,81,875/-, preferential location charges were Rs.73,125/-, composite charges were Rs.3,16,875/- and Rs.1,00,000/- was for covered car parking.  Complainant signed pre-printed agreement. Buyer’s agreement is Annexure C-2. He paid six installments, each of amount of Rs.87,750/- (total Rs.5,26,500/-) till 05.06.2010. It is alleged that he has paid Rs.19,59,491/- in total till filing of complaint. Agreement papers in duplicate, were signed by him. Copy thereof was to be returned to him after duly signed by company, but same was not sent to him and he wrote letter dated 28.10.2011 (Annexure C-5).

3.      Vide letter dated 26.12.2012 (Annexure C-6); he was informed by OPs that they have commenced construction work of the project and ground breaking (Bhoomi Poojan) process has already been completed on 08.11.2012. OPs had changed the number of complainant’s flat as C-101, in place of previous allotted Flat No. B-102 and now covered area of his flat would be 1281.713 sq. ft. instead of 975 sq. ft. earlier fixed. It is pleaded that increase in area was only increase in super area of project and there was no corresponding increase in covered/carpet area of allotted flat.

Following table reflects the payment made by complainant on different dates:

It is pleaded that complainant had deposited amount demanded by OPs without delay and in total Rs.20,62,581.37 has already been paid against total sale price of Rs.20,71,875/-. Possession was required to be delivered within 36 months w.e.f. 05.10.2009 i.e. till 05.10.2012, but it had not been given, after more than 6½ years, despite that complainant made payment of 90% of amount of sale price of unit. When contacted; OPs made false excuse to deliver possession shortly. Complainant made application dated 17.10.2015 (Annexure C-21) requesting OP to handover possession of flat. He again wrote letter dated 29.03.2016 (Annexure C-22) to OPs to inform him about expected date of possession of his unit and amount of compensation to be paid for delay in delivery of possession. Identical is letter dated 26.04.2014 (Annexure C-23).  OPs have neither delivered him possession of unit, nor made payment of compensation in view of delay in delivery of possession of unit. OPs have arbitrarily increased price of unit on the ground that: super area has been increased. Complainant has never consented to increase super area. Even unit number has been changed without his consent. OPs have not given any final date for handing possession of allotted flat. Complainant has been penalized for huge amount on the pretext of parking area. All this constitute deficiency in service on their/OPs part. It is pleaded that OPs have unilaterally changed the construction plan without intimation to allottee/complainant and the parks and open space of project have also been illegally reduced/omitted from many places. Complainant was informed, from employees of OPs that: it (OPs) have no permission/NOC from concerned Government Department for alternation of construction plan. Unilateral change in layout plan by OPs at the back and without informing allottee is also deficiency in their services. Now, as per plea, OPs have completely stopped the construction at site.

It is pleaded that OPs have cheated innocent persons like complainant. They have mis-utilized crores of rupees collected from innocent buyers. They have indulged in unfair, deceptive and restrictive trade practice. Complainant has suffered mental agony, financial loss. Inter-aila on these pleas; complainant has filed this complaint and sought following direction against OPs:-

1. To complete the incomplete work of the project and to obtain occupation certificate from the competent authority in respect of the flat of the complainant in the project known as Europa Residency, Kundli, Sonepat.
2. To restore back the parks and open area shown to the complainant in the layout plan at the time of booking of the flat.
3. To handover the possession of the Unit within some short stipulated period or to refund the amount of Rs.20,71,875/- paid by the complainant with 24% interest.
4. To pay sum of Rs.10 lacs on account of mental agony and harassment.
5. To pay Rs.10 lacs on account of penalty in lieu of not handing over the possession of Unit for last 6 years.
6. To pay compensation of Rs.1000/- per day for delay in handing over of the possession till the date of actual handing over of the possession.
7. To pay interest at the rate of 20% on the amount deposited by the complainant payable from the date of payment to the date of actual handling over of flat/unit.
8. To pay a sum of Rs.55,000/- for litigation expenses.

Entire text of complaint is supported by complainant’s duly sworn affidavit.   

4.      OP raised contest. In joint defence so entered; in preliminary objections thereof, it is asserted that; complainant has no cause of action. Complaint has been filed with ulterior motive. Complainant is not a consumer. He has concealed true facts. It is pleaded that: as per clause 10.1.a of the agreement; company has proposed to hand over possession of apartment within 36 months from date of agreement. Company shall be entitled to grace period of 90 days after expiry of period of 36 months. In certain circumstances, specified in subsequent clauses; date of possession shall be extended and allottee shall not be entitled to raise any claim for such period.  Complaint is barred by limitation. It is admitted that complainant is an allottee of flat in ‘The Europa Residency’ Sushant City, Kundli. Flat No. B-102 was initially allotted in his favour. There was no mass advertisement campaign. Letter dated 26.12.2012 (Annexure C-4) was rightly issued. It was accepted by complainant without protest. It is mentioned in the booking form that company shall have the right to effect suitable and necessary alternation in the lay out plan, if necessary, which may involve all or any of the changes namely: change in position of unit, number, dimensions, height, size, area, layout or change of entire scheme. It is denied that there was no increase in area of flat of complainant. It is pleaded that payments made by complainant (Annexure C-4, Annexures C-7 to C-20) is the matter of record. It is denied that as per terms of agreement; possession of unit was to be delivered within 36 months, till 05.10.2012, w.e.f. 05.10.2009. It is denied that OPs have not taken necessary approvals. It has denied that complainant has made payment of 90% amount of total sale price of flat. OPs have right to charge car parking charges. It is denied that OPs have diverted the funds of present project, to other projects and misappropriated the funds of complainant.  It is denied that complainant visited office of OPs on several occasions. It is pleaded that there was no huge increase in properties price, in fact, there is sudden fall in properties over last few years. By denying other pleas of complaint as well, Inter alia, on above referred primary pleas; dismissal of complaint has been prayed.

5.      Parties to this lis, led their respective evidence. Complainant Dr. Jitendra Kumar Aggarwal appeared in witness box as CW-1 on 08.05.2018 and made statement on oath: that he booked flat on 01.10.2021 with Ansal Properties and Infrastructure Limited (Developer)/OPs. Initially, he was allotted Flat No. B-102 having area of 975 sq. ft., The Europa Residency, Sushant City, Kundli, Sonepat. Basic price of flat was Rs.16,81,875/- plus composite charges of Rs.3,16,875/-. Flat Buyer’s Agreement dated 06.11.2009 was executed between him and developer, but developer had given him agreement in year 2013. He has deposed that: as per clause 10.1.a of the Buyer’s Agreement; possession of the flat was to be handed over within period of 36 months from date of signing the agreement i.e. on or before 06.11.2012 (it should have been 06.10.2012 but wrongly typed as 06.11.2012 due to inadvertence). In all, he paid Rs.20,62,581.20 to the developer. On 26.12.2012, developer reallocated Flat No. C-101 having area of 1281.713 sq. ft. in place of flat No. B-102 without his consent and also increased the price of flat to Rs.28,23,633.80. He also made request to developer to deliver the possession of the flat at the earliest. Till date (08.05.2018- when his statement was recorded in this Commission) construction work has not been completed by developer on the site.  Since, the developer has failed to deliver possession to him, he requests to deliver the possession along with interest rate of 15% p.a. on the deposited amount and compensation of Rs.5,00,000/- along with other expenses. He tenders, in evidence, his affidavit Ex.CW-1/A along with documents C-1 to C-9.

          In cross examination; he has only been confronted with suggestion that: he has deposed falsely, to which he has denied. Complainant has closed his evidence on 08.05.2018 itself. OPs have tendered duly sworn affidavit Ex.OPW-1/A of Jyoti Sadana- authorized representative of Ansal Properties and Infrastructure Limited. OPs have also relied upon documents Ex.OP-1 and closed its evidence on 27.02.2019.

6.      Written synopsis dated 09.10.2022 has been placed on record by complainant. This Commission has heard oral arguments so addressed by learned counsel for both parties on 25.05.2023. Complainant has laid thrust, primarily on the fact that despite paying Rs.20,62,852/- to the OPs; possession of flat allotted to him has not been handed over to him and there is violation of clause 10.1.a of the buyer’s agreement by the OPs in this regard. It is urged that even till date; OPs have not handed over the possession of the flat to complainant and thus, he is entitled to relief, as claimed.

7.      Refuting above contentions; learned counsel for OPs, while admitting the fact that complainant has paid amount as and when demanded by OPs, has still urged that there is no deficiency in the service of OPs. As per contention, there were certain unavoidable circumstances, beyond the control of OPs which had caused delay in handing over the possession of flat to complainant. It is further urged that circumstances which have caused delay in handing over the possession are explained in buyer’s agreement itself.

8.      It is admitted that complainant booked flat in the project of OPs i.e. The Europa Residency Sushant City, Kundli Sonepat. Flat Buyer’s Agreement Ex.C-2 does not recite the date, on which it has got its light of day. Complainant’s stand is that he booked flat on 01.10.2009 and deposited Rs.87,750/- as initial booking amount. Customer’s ledger Ex.C-3/Ex.OP-1 also reflects this basic entry i.e. cheque’s date as 01.10.2009 and also recites the date of clearance of cheque as 06.10.2009. Complainant’s specific stand in Paragraph No. 6 of his complaint is that he signed duplicate copy of agreement, one copy thereof was to be returned to him after its signing by company, but same was not returned to him. Curiously enough, OPs, for reasons best known to it, have not mentioned anywhere, either in its written version, or in the duly sworn affidavit of its representative namely: Jyoti Sadana-Ex.OPW-1/A tendered in evidence on 27.02.2019, about the date of execution of Flat Buyer’s Agreement. This being so, for all intends and purposes; this Commission takes the date (06.10.2009) being the date of execution of Flat Buyer’s Agreement, as on this date complainant’s cheque meant for booking of flat was admittedly encashed, as it is so apparent from perusal of his ledger account Ex.C-3/Ex.OP-1 and this date (06.10.2009) would be considered in any case i.e., be it, be for Flat No. B-102 (initially allotted) or Flat No. C-101 (subsequently allotted). This is particularly when change in allotment of flat to C-101 has been made as part of Flat Buyer’s Agreement. It is also admitted that initially allotted Flat No. B-102 has covered area of 975 sq. Ft. while subsequently allotted Flat No. C-101 has covered area of 1281.713 sq. ft. Flat Buyer’s Agreement dated 06.11.2009 is Ex.C-2. Clause 10.1.a thereof is explicit and unambiguous in itself. Phraseology of this clause is that: possession of apartment would be handed over within period of 36 months from the date of signing of agreement. It also recites that company shall be entitled to grace period of 90 days, after expiry of 36 months. Clause 7 of the agreement stipulates that: time is the essence. As per complainant’s stance in complaint, as well as in his affirmative statement on oath as CW-1 recorded on 08.05.2018, Flat Buyer’s Agreement was executed on 06.10.2009. Period of 36 months reckoning from 06.10.2009 would elapse on 06.10.2012. If grace period of 90 days is further added, then the period would elapse on 06.01.2013. It is admitted stand of both the parties to this lis that complainant was reallocated flat No. C-102 on 26.12.2012. Apparently, this reallocation was done by OPs, after expiry of period of 36 months meant for handing over the possession of flat. In any case, OPs cannot be allowed to make the complainant, to wait for claiming possession of his flat, for endless period in flagrant abuse of clause 10.1.a of Flat Buyer’s Agreement by it.

9.      Legally, Flat Buyer’s Agreement Ex.C-2 would constitute binding force between parties to this lis and OPs cannot wriggle out from the legal import and ramifications so flowing from this.  No tangible evidence, worth the name, has been led by OPs in order to justify this Commission that due to certain unavoidable circumstances beyond its control, possession of flat could not be handed over to complainant within stipulated period as specified in the Flat Buyer’s Agreement Ex.C-2, despite that, time was the essence of agreement (as per clause 7). Bald statement in the written statement, as well as, in the duly sworn affidavit Ex.OPW-1/A of Jyoti Sadana- authorized representative of OPs to the effect that date of handing possession shall be extended in certain circumstances specified in subsequent clauses of Flat Buyer’s Agreement will not suffice their cause, even remotely particularly when during arguments, no such circumstance has been highlighted, much less pleaded by OPs in their written version. Reasons in this regard are obvious. Firstly, there is no evidence led by OPs to the effect that complainant was ever conveyed any reason thereby justifying about delay in handing over the possession of allotted flat to him. Secondly, during this period; OPs were repeatedly demanding money from complainant at regular intervals, in relation to flat allotted to him, and complainant had been regularly paying the amount, as per their (OPs) demand. If OPs were receiving the amount from complainant and there is no default on the part of complainant on that front, then obviously OPs were equally obliged to strictly adhere to time limit (36 months with grace period of 90 days) meant for handing over the possession of flat so enshrined in clause 10.1.a of Flat Buyer’s Agreement Ex.C-2 and not to willfully disobey the spirit of this clause.

10.    Specific stand of complainant, in his statement as CW-1 is that he has paid Rs.20,62,581.20 to developer (OPs). Complainant has justified his above stance through his ledger account Ex. C-3. Identical is that state of affairs, visible as such, from perusal of document Ex.OP-1 (customer’s ledger running in 7 pages) which also recites at page No. 6 thereof that Rs.20,62,581.37 has been paid by complainant. Consequently, aspect of amount (Rs.20,62,581.37 rounded off to Rs.20,62,581/-) so received by OPs becomes an admitted fact. In scenario of above, OPs cannot be allowed to enrich itself at the cost of complainant, without simultaneously handing possession of flat allotted to complainant as per agreement which stipulates that time is the essence. Palpably, OPs were making their fortunes from complainant’s misfortune. OPs have not projected any justifiable cause as to why it has failed to deliver the possession of allotted flat to complainant and consequently, in strict legal sense, OPs have conceded its majestic failure in this arena. Consequently, this case, unerringly prove grave deficiency in services of OPs towards complainant. Complainant cannot be forced to wait for unlimited time to claim possession of flat allotted to him, particularly when, he has admittedly parted with huge amount for getting possession of flat, in the project of OPs. 

11.    Despite having received an amount of Rs.20,62,581/-, as evident from customer’s ledger Ex.C-3/Ex.OP-1; the act and conduct of OPs has clearly demonstrated their attitude of willful neglect and creation of sordid conditions for complainant to face for no fault on his part. Nothing can be more vulnerable situation for complainant, than this. Consequently, in the interest of justice, OPs are directed to release/pay back this amount of Rs.20,62,581/- to complainant, who is also entitled to claim interest on the said amount. This being so, it is ordered that amount of Rs.20,62,581/- will also carry interest @ 9% per annum from 13.02.2017- the date, when the complaint was put up before this Commission, after its remand from Hon’ble National Consumer Dispute Redressal Commission, New Delhi through its order dated 23.12.2016, till its actual realization of amount. In addition; Rs.1,00,000/- be paid to complainant towards deficiency in services of OPs, towards him which has led him to face harassment and encounter mental agony. Complainant is also entitled cost of litigation expenses to the tune of Rs.11,000/-. It is made clear that compensation granted to complainant towards deficiency in service and amount awarded to him towards cost of litigation as mentioned above will not carry any interest. This complaint stands disposed of, being allowed, in above terms.

12.    Two months’ time is given to OPs to comply with the directions contained in this order, else, complainant would be at liberty to adopt appropriate legal recourse, for execution of this order and in that eventuality, interest on principal amount of Rs.20,62,581/- will escalate from 9% p.a. to 12% p.a. from 13.02.2017- the date, when the complaint was put up before this Commission, after its remand from Hon’ble National Consumer Dispute Redressal Commission, New Delhi through its order dated 23.12.2016, till its actual realization of amount.  

13.    Applications pending, if any stand disposed of in terms of the aforesaid judgment.

14.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

15.    File be consigned to record room.

Date of pronouncement: 09^th August, 2023

                                                                                         Naresh Katyal

                                                                                         Judicial Member

                                                                                         Addl. Bench-II