Haryana

StateCommission

CC/338/2017

SUSHANT GUPTA - Complainant(s)

Versus

ANSAL PROPERTIES AND INFRASTRUCTURE LTD. - Opp.Party(s)

MANU RATTAN

06 Jul 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

Consumer Complaint No.338 of 2017

Date of Instituion:30.05.2017

                Date of decision:06.07.2022

         

 

1.      Sushant Gupta

2.      Vishal Gupta sons of Dr. Subhash Chandra Gupta, R/o House No.242, Sector-4, Urban Estate, Gurgaon-122001.

                                                                                      .….Complainants

Versus

 

1. M/s Ansal Properties and Infrastructure Ltd., through its Managing Director/Chairman, Address-Regd Office:-115, Ansal Bhawan,16, Kasturba Gandhi Marg, New Delhi-110001.
2. Ansal Management Services, Kundli, District Sonipat through its Manager.

                                         .….Opposite Parties

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Mr.A.K. Bishnoi Singh, Advocate for the complainants.

Mr. Ajay Ghanghas, 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 they (complainants) on 15.04.2013 booked a flat having approximate super area measuring 1148 Sq. Ft. in the upcoming project of the opposite parties (OPs) namely “Green Escape” in Phase-2, Sonepat. Total sale consideration of the said flat was Rs.27,46,430/-, which was to be paid according to payment schedule provided by Ops. Agreement was executed between the parties on 26.08.2013. The complainants were allotted apartment Unit-2 B/R number 0102-17-1003. The complainants made payments on different dates to the Ops as per table:

Sr. No.	Date of Payment	Amount	Receipt No.
1	15.04.2013	1,48,782/-	285090
2	29.05.2013	2,02,708/-	290928
3	30.07.2013	2,27,411/-	298600
4	26.09.2013	2,89,581/-	307384
5	22.11.2013	75,448/-	321329
6	22.11.2013	75,447/-	321330
	Total	10,19,377/-

 

The possession of flat in question was to be handed over within a period of 42 months from the date of agreement. As per the agreement, the possession was to be handed over till 27.02.2017.   As per the complainants, OPs have not commence the construction work, what to talk about handing over possession of the flat in question. Thereafter, complainants visited the office of Ops many times with a request to refund the deposited amount with interest of 24% p.a. but the Ops did not consider their genuine request. Thus, there was deficiency in service on the part of the OPs.  The complainants prayed that OPs be directed to refund the deposited amount i.e. Rs.10,19,377/- alongwith interest at the rate of 24% p.a from the date of deposit till its realization; Rs.2,00,000/- as compensation on account of mental agony, financial loss and harassment and Rs.55,000/- as costs of litigation expenses.

2.                Notice of the complaint was issued against the OPs and the written statement was filed, wherein the OPs admitted that the complainants booked an apartment bearing Unit No.0102-17-1003, measuring 1148 Sq. Ft. in their project “Green Escape” at Phase-2, Sonepat. Basic sale price of the said flat was Rs.27,46,430/-. It was also admitted that agreement was executed between the parties on 26.08.2013. The complainants had opted construction linked plan. The possession was agreed to be delivered within a period of 42 months with an extended period of 6 months from the date of agreement or from the commencement of date of construction.   As per agreement, there was a provision for compensation to be paid to the buyer@ Rs.5/- per sq. ft. of the super area of flat per month for the delayed period. As per the Ops, construction was delayed from the stipulated period of 42 months and the OPs agreed to pay the compensation at the agreed rate for the delayed period. It was submitted that the complainants never approached the Ops for refund of deposited amount. Other allegations made in the complaints are denied. Thus, there was no deficiency in service on the part of the O.Ps.

3.                When the complaint was posted for recording evidence of the parties, one of the complainant-Vishal Gupta in his evidence has tendered the affidavit Ex.CW-1 vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-20 and closed the evidence.

4.                On the other hand, learned counsel for opposite parties tendered into evidence affidavit of Shri Naresh Pandey, Authorized Representative as Ex.RA and closed the evidence on behalf of opposite parties.

5.                The arguments have been advanced by Mr. A.K. Bishnoi, the learned counsel for the complainants and Shri Ajay Ghanghas, learned counsel for 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 parties 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 complainants, the foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to get refund of the amount which they had already deposited, alongwith the interest? 

7.                While unfolding the arguments, it has been argued by Mr. Manu Rattan, the learned counsel for the complainants that as far as the factum of executing the buyers agreement  Ex.C-1 is concerned, the same is not in dispute.  It is also not in dispute that complainants have paid Rs.10,19,377/- (Receipts Ex.C-3 to Ex.C-8) to the OPs. It is also not in dispute that the basic price of the apartment was Rs.27,46,40/.  A total sum of Rs.10,19,377/- had been paid by the complainants to the  OPs.  As per the buyers agreement and the terms and conditions incorporated therein including date of delivery of the possession of the apartment, the possession complete in all respect was to be delivered to the complainants by the OPs  within 42 months subject to some reservations.  The period within which, the possession of the apartment was to be delivered had already expired despite depositing the amount of Rs.10,19,377/-. In these circumstances the complainants 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 Mr. Ajay Ghanghas, counsel for the OPs that complainants have not paid the installment as per the repayment schedule. The basic sale price of the said unit was Rs.26,46,430/- and total sale consideration was of Rs.33,41,730/-. It has been further argued that the complainants delayed the execution of agreement inspite of repeated requests. As per the clause 5.2 of the agreement it is clearly provided that the parties agree and acknowledge that where the completion of development work is delayed by any reason beyond the control of the company, including force majeure circumstances, than no claim whatsoever, shall lie against the company. Further, as per the clause 5.4 of the agreement, in the event the company fails to deliver the possession of flat with the stipulated period, then the company shall pay to the buyer compensation at the rate of Rs.5/- per square feet of the super area of the flat per month for the delayed period. Since, there were some unavoidable circumstances and certain reasons which were beyond the control of the OPs and the possession of the flat could not be delivered to the complainants in time.  However, on one pretext or the other the possession was not delivered and now by taking the shelter of this Commission, the complainants seeks refund of the amount and infact this amount has already been invested for making all developmental activities.  The answering Ops have not committed any breach of agreement. The complainants have no right to demand the refund as builder has not refused to complete the developmental work and offer possession of flat to the complainants.    The answering OPs will offer the possession of the flat to the complainants after completion of development work.   Thus, the complainants are 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 booked by the complainants for a cost of Rs.27,46,430/- against which an amount of Rs.10,19,377/-  had been paid.  Buyer agreement is also not disputed.  As per buyer agreement, the possession of the apartment was to be delivered within period of 42 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 5 years had expired, the possession of the apartment has not been delivered by Ops.  As such, there is a clear breach of terms and conditions of the buyer’s agreement on behalf of the OPs.   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, complainants is well within his legal rights to get the refund of the amount of Rs.10,19,377/-  (Rs. Ten lacs nineteen thousand three hundred seventy seven only)   which they had already deposited with the OPs.  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/OPs. 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 Ops are directed to refund of the amount of Rs.10,19,377/-  (Rs. Ten lacs nineteen thousand three hundred and seventy seven only)  alongwith interest @ 6%  per annum from  the dates 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 complainants would further be entitled to get the interest @ 9% per annum, for the defaulting period. The complainants are also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainants are also entitled of Rs.25,000/-  (Twenty Five 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. 

11.              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.

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

 

 

July 06^th, 2022                 S.C Kaushik,                            S.P.Sood

                                       Member                                    Judicial Member   

                                      Addl. Bench                              Addl. Bench                    

R.K.