Delhi

StateCommission

CC/201/2017

RANJIT SINGH KOHLI & ANR. - Complainant(s)

Versus

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

SELF

02 Apr 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing: 02.04.2018

                                                                                                              

                                                                   Date of decision:04.04.2018

 

Complaint No.201/2017

 

 

IN THE MATTER OF:

 

1. Sh. Ranjit Singh Kohli
2. Ms. Jagjit Kaur Kohli

          R/o T-44, Ground Floor,

          Rajouri Graden,

New Delhi-110027                                                         ….Complainant

                                                                                                                  

VERSUS

 

Ansal properties and infrastructure ltd.,

115, Ansal Bhavan,

16, K.G. Marg,

          New Delhi-110001                                                         ….Opposite Parties

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER

 

 

 1.   Whether reporters of local newspaper be allowed to see the judgment? Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

 

Present:       Sh. G.P. Singh, authorised representative of the complainant

                   Sh. Siddarth, Counsel for the Opposite Parties.            

 

PER: SHRI ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1. Sh. Ranjit Singh Kohli and Smt. Jagjit Kaur Kohli, husband and wife, resident of Delhi, have filed this complaint under Section 17 of the Consumer Protection Act 1986, for short complainants, against the Ansal Properties & Infrastructure Ltd, hereinafter referred to as Opposite Parties, alleging deficiency of service in rendering service to them in not handing over the plot of the land, despite total sale consideration having been paid and despite agreed period of time having elapsed in this behalf.
2.           Facts of the case necessary for the adjudication of the complaint are there.
3.           The complainants having been induced by the OPs and the promises made for additional facilities, had taken over the rights of a 299 sq. yards plot of land bearing number F-2556, Section 67, Gurgaon, on 23.07.2010 in the project known as ESSENCIA which was originally booked by the Satbir Singh Chadha on 21.02.2006. The complainant had paid full amount of consideration to the Opposite Party for the purchase of the said plot. The complainant thereafter received the letter of allotment, whereafter they visited the site and found the area totally under developed, far below the level of development assured by the OPs at the time of initial transaction. Possession was to be handed over within 24 months as per Clause 5.1 of the agreement. The said clause reads as under:

 

Subject to Clause 5.2 and subject further to all the buyers of the plots in the Residential colony making timely payment, the Company shall endeavor to complete the development of Residential Colony and the Plot as far as possible within 24 (Twenty Four) months with an extended period of (6) six months from the date of execution of this plot buyer agreement.

 

4.           The complainant has also objected to the demand of OPs with respect to holding changes as also maintenance changes. According to him these changes are payable only after the physical possession in handed over.
5.           On 09.08.2016 the OPs had sent an offer of possession without the assured development having been carried out and the worse was that the OPs demanded more changes without explaining the reasons therefor. The complainants have alleged that the OPs by not handing over the possession of the plot duly developed as per agreement, despite the entire payment having been received, has indulged in unfair trade practice and finding no response, this complaint has been filed praying for the relief, as under:

 

1. Direct the Op to hand-over the possession of the plot with Registration before Sub-Registrar.
2. Direct the Opposite Parties to pay the delay period interest @ as per chart appended.
3. Direct the Opposite Parties to pay a sum of Rs.111,000/- towards litigation charges.
4. That the cost of Rs.10 Lacs be imposed on the OP for mental agony and harassment.
5. Pass any other and such orders and reliefs as fit and proper by this Hon’ble Forum in view of the facts and circumstances of this case.

 

6.           OPs were noticed and they having not put in appearance despite service of notice, have been ordered to be proceeded ex-parte vide proceedings recorded on 04.09.2017. The complainants have filed their evidence reiterating the averments made in the complaint and maintaining the allegations against the OPs.
7.           The matter was listed before us for final hearing on 02.04.2018 when both sides appeared and advanced their arguments. We have perused the records of the case and given a careful consideration to the subject matter.
8.           The authorised representative appearing on behalf of the complaint argued that the OPs have been deficient they not having handed over possession of the plot despite receipt of the payments. The allegations made and the points raised by the complainant remained uncontroverted, the OPs having been proceeded ex-parte.
9.           The matter was also referred to the mediation centre on receipt of the consent from both sides but as per the report received from them the parties could not arrive at any settlement.
10. On perusal of the facts of the case the inevitable conclusion is there was gross deficiency as defined in Section 2(1)(g) of the Act, on the part of the OP in its failure to deliver the possession of the flat in terms of the agreement. It is also a trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade practice as defined in Section 2(1)(r)(ii) of the Act, as well [See: Lucknow Development Authority versus M.K. Gupta-(1994) 1 SCC 243.
11. Having arrived at the said conclusion, the core question for consideration is as to how the complainants are to be compensated for the monetary loss mental and physical harassment they have suffered at the hands of the OPs on account of non delivery of the allotted flat.
12.  The provisions of the Act enable a consumer to claim and empower the Commission/Forum to redress any injustice done to a consumer. The commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation, the Commission/Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the Opposite Party. In Ghaziabad Development Authority vs. Balbir Singh-(2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon’ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the case where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat. He is not only deprived of the flat, he has been deprived of the benefit of escalation of the price of the flat. Additionally, in our view, in such situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc., if it happens to be a plot of land. Having noticed the broad principles, to be kept in view while determining the compensation, we may advert to the facts at hand.
13. We also do not find any merit on the demand raised by the OPs with respect to holding charges or maintenance charge as this is contrary that to the law settled by the Hon’ble NCDRC. In the matter of Kamal Kishore versus Supertech as reported in II(2017) CPJ 483 (NC) the Hon’ble NCDRC is pleased to hold as under:

 

“Maintenance charges would be payable only after the date when occupancy certificate is obtained. Therefore the maintenance charges, in my opinion, would be payable from the date on which the possession is offered to the complainant after obtaining the occupancy certificate provided the construction of the villa is complete in all respect at that time.”

 

14. The Hon’ble NCDRC with respect to holding charges is pleased to hold in the matter of Puneet Malhotra versus Parasvnath Developers Ltd. (CC-32/14 decided on 29.01.2015) as under:

 

Payment of holding charges calculated @ of Rs.5/- per sq.ft/ per month of the super area for the period the possession is delayed was rejected holding that such a clause applies only in a case where construction of flat is delayed but despite delay the buyer accepts the possession of the plot from the settler and consequently the accounts have to be settled between the parties. We observed in this regard that the buyer will have to pay the agreed holding charges to the setter and the setter to pay the agreed compensation on account of delaying the construction of flat.:

 

15. Keeping the facts and circumstances of the case and having reached to the conclusion that the OPs have been deficient, we direct the OPs to refund the principal amount with simple interest at the rate of 10% from the date deposit till realisation within a period of three months from the date of receipt of the order. Ordered accordingly.
16. A copy of this order may be forwarded to the parties to the case free of cost as statutorily required. File be consigned to records.

 

 

 

(ANIL SRIVASTAVA)                                                                                           (O.P.GUPTA)

MEMBER (GENERAL)                                                                            MEMBER (JUDICIAL)