IN THE STATE COMMISSION: DELHI

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

Date of Hearing:19.03.2021                                                                                                             

Date of Decision:26.03.2021

Complaint No. 676/2019

IN THE MATTER OF

SH. VIKRAM LAKRA

SH. YOGITA LAKRA

Resident of

Flat No. 218, Pocket-24,

Sector-24, Rohini,

New Delhi-110055….Complainant

VERSUS

ANSAL PROPERTIES & INFRASTRUCTURE LIMITED

(through its Proprietor/C.E.O./Managing Director)

115, Ansal Bhawan, 16, K.G. Marg,

New Delhi-110001                                                                                             ....Opposite Party-1

DIRECTOR GENERAL,

TOWN & COUNTRY PLANNING DEPARTMENT,

Haryana, Chandigarh-160018                                                                       ....Opposite Party-2

DIRECTOR GENERAL,

LAND RECORDS AND LAND CONSOLIDATION,

Panchkula, Haryana                                                                                          ....Opposite Party-3

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:          Complainant in person

                        Sh. Tanuj Sharma, Counsel for the OPs

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             This complaint under Section 17 of the Consumer Protection Act 1986, the Act, has been filed by Sh. Vikram Lakra and Smt. Yogita Lakra, resident of New Delhi, for short complainant, against the Ansal Properties & Infrastructure Ltd. and ors, hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs they having not handed over the possession of the flat booked by the complainants within the agreed time frame and, secondly, alleging unfair trade practice the OPs having not refunded the deposited amount as sought for by the complainants, the construction of the flat not having been done, and praying for the relief as under:-

It is, therefore, most respectfully prayed hereunder:-

1. That this Hon’ble Forum take cognizance of the complaint and the prayers listed herein and summon all records of the respondent no. 1,2 and 3 prior and later than, the date of cause of this complaint or any other records as it deems fit.
2. That this Hon’ble Forum be pleased to Grant relief under Section 14.1 (a),(b),(e), (f), (g),(h) and pass orders for restraining the respondent no. 1,2 and 3 from depriving, interrupting or discontinuing the access of the complainant and his family from visiting the project and site in Sushant City.
3. That this Hon’ble Forum be pleased to Grant relief under Section 14.1 (c) and pass orders for the respondent no. 1 to pay interest @ 24% on all payment made till date, from the date of booking the flat and till today. Further pay interest the date of handling over peaceful possession of the complete apartment.
4. That this Hon’ble Forum be pleased to Grant relief under Section 14.1 (d) and pass orders for Punitive Compensation to the extent of Rs. 10,000/- per month till the date of handling over peaceful possession of the complete apartment for not handing over the possession of the apartment in time to the complainant.
5. That this Hon’ble Forum be pleased to Grant relief under Section 14.1 (c) and pass orders for respondent no. 1 to restore the Original Flat No. 0114-D-0402 at 4^th Floor in Block D at the same location according to the Brochure.
6. That this Hon’ble Forum be pleased to Grant relief under Section 14.1 (d) and pass orders for respondent no. 1 for punitive compensation to the extent of Rs. 50,000/- for harassment and mental torture.
7. To complete the construction work within six months from the filing of this present complaint.
8. That this Hon’ble Forum be pleased to Grant relief under Section 14.1 (i) and pass orders against the respondent no. 1 to the costs of this litigation to the extent of Rs. 22,000/- and any other associated expenses.

2.             Facts of the case necessary for the adjudication of the complaint are these.
3.             The complainants desirous of purchasing an apartment/flats their use in the area of Sonepat, had booked a flat on 21.10.2009 with the OPs submitting an application form paying the initial booking amount of Rs. 78,315/-. The complainant and the OP-1 through its authorised representatives thereafter entered into a ‘Flat Buyer Agreement’ on 20.11.2009 for the apartment no. 0114-D-0402 in Block-D on the 4^th floor for a sum of Rs. 18,61,400/- plus Rs. 1,00,000/- for a covered garage. The clause A of the agreement lays down that M/s Ansal Properties and Infrastructure Limited were developing the plot within Sushant City duly approved by the Govt. of Haryana. The complainant in these circumstances made substantial payments on demand of the OP-1, keeping in view obligations as per agreed payment plan. Till date substantial payment of Rs. 18,07,590/- amounting to approx. 97% of the basic cost has been paid by the complainant.
4.             The complainants have alleged that the OP no. 1 unilaterally decided to amend the allotment of their apartment from D-0402 to D-1002 and simultaneously increased the area of the apartment to 1265.825 sq. ft., leading to increase in the value of the contract by approx. 29%. The worse was that overall implication of the change of the apartment was not explained to the complainants. They realised that the flat allotted to them had been shifted from 4^th floor to the 10^th floor without their explicit approval necessarily required in terms of the agreement. Worst happened when the complainants visited the site but found no progress there. Even the excavation of the site had not been done, forcing the complainants to approach the OPs seeking an explanation on the subject and in response thereto the OPs by way of mail informed as under:-

From: ChandanTo: Date: Sat, 28 Jan 2012 12:34:01+0530

Subject: FW: Status about project Europa, Kundli

Dear Sir,

Ansal Europa Residency has been cancelled due to some reasons.

Please contact me on this no. 8130779331 for further questions.

Regards

Chandan Sharma

5.             This according to the complainants constitutes a “deficiency” under the Consumer Protection Act, 1986. Further, after repeatedly meeting the representatives of the OP No. 1 it was explained that the cancellation was due to non-approval from the Government and local authorities but they assured that the matter was being perused with the concerned authorities and it would be resolved soon. However, OPs threatened that in case the complainants fail to make further payments as demanded, the allotment of the flat would be cancelled. 
6.             The complainant have also alleged that as per revised plan enforced by the Architects M/s AECOM of the site labelled-proposed group housing in Sushant City, Sector-62, Sonipat-Kundli showed that the Block-D of the apartment had been shifted away from the main road and now would be surrounded by Block C, E and G thereby curtailing the free view, sunlight and air to the apartment which was their primary consideration for booking the flat.  In these circumstances the complainant feeling cheated by the OPs have approached this Commission for the redressal of their grievances.
7.             The OPs in their reply furnished before the District Forum which complaint having been filed in this Commission in pursuance of the orders of the District Forum passed on 05.11.2018, have resisted the complaint both on merit and on technical ground stating that the complainant was the defaulter. Secondly change of the unit was as per the agreement and with the consent of the complainant. Thirdly, on merit they have denied the averment made. 
8.             This complaint was listed before this Commission for final hearing on 19.03.2021 when the appearance was made from both sides. The complainant appearing in person argued that they having not been handed over the possession of the flat within the agreed period of three years, their deposited amount be refunded with interest. The Counsel for the OPs on the other hand argued that they are ready to offer the possession and therefore the complainants are not entitled for the refund as argued.
9.             Short question for adjudication in this complaint is whether the complainant can claim refund in the facts and circumstances of the case.  
10.             The fact that the complainant had booked a flat is not disputed. Without going on other points, I may advert to the period within which the possession was to be handed over. The relevant clause of the agreement in this behalf is as indicated below:-

Subject to terms of this clause and subject to the allottee having complied with all the terms and conditions of this agreement and not being in default under any of the provisions of this agreement and complied with all provisions, formalities, documentation etc., as prescribed by the company, the company proposes to hand over he possession of the apartment within a period of thirty six months from the date of signing of this agreement. The allottee agrees and understands that the company shall be entitled to a grace period of 90 days, after the expiry of 36 months, for applying and obtaining the Occupation Certificate and completing any other formalities. If any, in respect of the apartment.

11.             Possession of the flat was not handed over within the agreed period. Besides the OPs commenced collecting of the amount without obtaining approval from the competent authority. In these circumstances the complaint deserves to be accepted and it is ordered accordingly.
12.             Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment he has suffered at the hands of OPs on account of non-delivery of the allotted flat within the agreed period.
13.             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 cases 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/plot. He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot. Additionally, in my view, in such a 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.
14.             From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
15.             The Hon’ble NCDRC in the matter of Anil Shantilal Gandhi versus Sahara Prime City Ltd. as reported in IV [2019] CPJ 24 (NC) in pleased to direct refund of the amount deposited with interest @ 10%, the OP having failed to offer the possession of the allotted unit to complainant even after more than eight years time.
16.             The Hon’ble NCDRC in yet another matter, in the matter of Universal Infrastructure and Anr versus Binay Pal Singh and Anr. as reported in IV [2019] CPJ 437 (NC), relying on a judgement of the Hon’ble Supreme Court of India in the matter of Kolkata West International City Pvt. Ltd. versus Devasis Rudra, Civil Appeal 3182/2019, decided on 25.03.2019, noting that more than seven years have a already expired held that the complainant cannot be expected to wait indefinitely for possession of the allotted flat and thus entitled for compensation.
17.             Having regard to these established facts and the legal position explained, I am of the considered view that the ends of justice would be met if a directions issued to the OPs to refund the deposited amount with simple interest at the rate of 6%.
18.             Ordered accordingly, leaving the parties to bear the cost.
19.             A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. File be consigned to records.

(ANIL SRIVASTAVA)

MEMBER

PRONOUNCED ON

26.03.2021

sl