District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.314/2022.
Date of Institution: 09.06.2022.
Date of Order: 02.12.2022.
M/s. Subhash Chander Jindal (HUF) through its Karta Sh. Rajan Jindal S/o Shri Subhash Chander Jindal R/o H.No. 536,Sector-15, Faridabad – 121007.
…….Complainant……..
Versus
M/s. Ansal Crown Infrabuild Private Limited, Registered office at 118 UFF, Prakash Deep Building 7, Tolstoy Marg, New Delhi – 110 001. Through its Director.
2nd address:
Site office: Sector-80, Faridabad – 121006.
…Opposite party……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Ankur Gosain, counsel for the complainant.
Sh. Jatinder Singh, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that one person namely Karma Ghale made a booking of a flat in the project of the opposite party namely “Ansal Crown Heights” at Faridabad by paying a booking amount of Rs.4,00,000/-. Subsequently Shri Karma Ghale surrendered/transferred his booking in faovur of the complainant on 11.06.2008 and the said payment of Rs.4 lakh stands adjusted in the name of the complainant. The said payment of Rs.4,00,000/- adjusted in account of the complainant was admitted vide letter dated 22.04.2009 sent by the opposite party to the complainant. Thereafter vide allotment letter dated 29.03.2010. Flat bearing No. 101 on 1st floor of Tower No. 8 admeasuring super area of 1520 sq. ft. (approx.) was allotted to the complainant and apartment Buyer’s Agreement was also executed on 25.01.2011. Vide letter dated 22.04.2009 total basic sale price of flat was apprised as Rs.18,90,000/- + other charges. Since the allotment of the flat was transferred in the name of the complainant the above said amount received in respect of flat bearing No. 101 on 1st floor to Tower No. 8 admeasuring super area of 1520 sq, ft . (Approx) was credited to the allotment of the complainant and vide said letter dated 22.4.2009 and the terms and conditions of the booking/allotment became applicable to the complainant. The possession of the said floor was to be handed over to the complainant within reasonable period of three years from the date of execution of Apartment Buyer’s Agreement. The complainant kept on making payment from time to time as and when the same was demanded by the opposite party and had paid a total sum of Rs.29,74,068.40 ps. To the opposite party against the cost of aforesaid flat. Inspite of receiving the total cost of flat and almost after lapse of eleven years, the opposite party failed to complete the construction of the flat and there was no likelihood that the construction would be completed in near future as the work of construction at the site had been put at halt for the last few years. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) refund the amount of Rs.29,74,068.40 Ps. alongwith interest @ 18% p.a. from the date of payment made by the complainant to the opposite party, till the refund in made to the complainant.
b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 2,00,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the present complaint had been filed without any cause of action and the construction of Tower No. 8 wherein flat No. 101 on the first floor was allotted to the complainant and was almost completed. The refund claim by the complainant was against the allottees in general. It was submitted that the project was already registered with Haryana RERA at Panchkula vide registration NO. HRERA-PKL-FBD-28-2018 dated 24.08.2018. As a result of the opposite party’s relentless efforts the construction work at the project was nearing completion. As on date the construction work had been going on in respect of 8 of the total 10 towers in the project while the construction of the remaining 2 towers had not yet been started as the same was still lying unsold by the opposite party. It was imperative to note that the construction work of 4 of the 8 towers, (i.e. Tower NO. 7,89 & 10) in the project was almost complete and the finishing of the interiors and completion of the service facilities were going on. Whereas, the construction work in the remaining 4 towers was also expeditiously being undertaken. It was submitted that the opposite party was granted license, to develop and construct the project in question having 10 towers, by the Department of Town and country Planning, Haryana. However, subsequent to the issuance of the licence by the Directorate of Town and country Planning, Haryana, the construction on the project got delayed time to time due to delays on the part of Directorate of Town and Country Planning, Haryana in renewing the license of the opposite party. It was submitted that between 2007 to 2020 the construction work of the project got delay by a period of 1109 days due to delay on the part of Directorate of town and country planning, Haryana in the renewal of license of the opposite party despite the fact that on each occasion it had applied for the renewal well in advance before the expiry of its validity period. Further the opposite party had duly applied to Director, Town and Country Planning, Haryana, for renewal of licence on 21.09.2017, however, the same remains pending with the department further delay in completion of the project. As such the project got delayed by a total 1286 days for the reasons above mentioned which were beyond the control of the appellant. Further again, application for renewal was file don 13.10.2016 which revalidated till 17.09.2017. The appellant again had duly applied to Directorate, Town and Country Planning, Haryana, for renewal of license on 21.09.2017, however, the same was only renewed vide letter 30.04.2018 which was valid upto 17.09.2019. The appellant had duly applied to Director, Town and Country Planning, Haryana for renewal of licence on 17.09.2019 which had not been approved by the authorities till date. It was submitted that during the intervening period construction work also got affected due to delays caused by the contractor or appointed by opposite party company for the present project. Initially, the opposite arty had awarded the construction work of four of the towers to M/s CRS Infra Projects Limited vide a letter of intent dated 14.03.2011 as a contractor. As per the terms of the letter of intent the contractor had to complete the construction within 24 months, however the contractor with his lackadaisical attitude was lagging greatly behind the scheduled construction. The opposite party through various letters and correspondence between the period of 18.06.11 and 10.02.2012 urged the contractor to incrase its pace, however there was no significant improvement in the performance of the contractor. Left with no other resort the opposite party terminated the service of the contractor vide a letter dated 21.04.2012 but M/s. CRS Infra Projects Limited raised disputes due to which the opposite party could not retender the work to another contractor. It was only on 05.11.2012 that the opposite party could retender the construction work to M/s. Pyare Lal Hari Singh Builders Pvt. Ltd., However, the M/s. CRS Infra Projects Limited having malafide intention and being a dominant force in the local construction market, created regular hindrances for the newly appointed contractor who was acting as its replacements in form of lockouts, labour problems and in procurement material. Due to the said hindrances created by M/s. CRS Infra Projects Limited, M/s. Pyare Lal Hari Singh Builders Pvt. Ltd., the overall construction work of all the 8 towers was gravely affected at the site and thus the contract with M/s. Pyare Lal Hari Singh Builders Pvt. Ltd. Had to be terminated and fresh tendering had to be organized. Thereafter, the opposite party granted the contract for construction to M/s. Radha Laxaman Contracts vide a letter dated 31.01.2013. It was submitted that apart from delays caused on account of the licensing authority, the pace of completion of the project had also suffered due to the ban of construction imposed from time to time by various authorities considering the air pollution levels in the Delhi NCR region including Faridabad. In the year 2019 itself a serried of notifications and directions passed by various authorities had banned construction in NCR from time to time. It was submitted that first Environment Pollution (Prevention and Control) Authority for NCR vide its direction dated 25 October bearing NO. EPCA-R/2019/L-49 imposed partial ban from 26.10.2019 to 3010.2019 on construction activities. Thereafter, Environment Pollution (Prevention and Control) Authority for NCR vide direction dated 01.11.2019 bearing EPCA-R/2019/L-53 imposed a complete ban was from 1.11.2019 to 5.11.2019. Further, Hon’ble Supreme Court vide its order dated 04.11.2019 in the matter bearing W.P © No. 13029/1985 also banned the construction activities in Delhi NCR till further orders keeping in mind the damage caused to the environment due to construction and demolition activities. It was further necessary to mention that, Supreme Court had only on 09.12.2019 partially uplifted the ban on construction activities in Delhi NCR between 6 a.m. to 6p.m. Where after despite facing practical issues I arranging manpower, the opposite party had managed to maintain 170 constant labour forces on the project. So as to camp the pending work at the earliest, which clearly shows bonafide intention of the present management to complete the project. Even in the year 2018, vide notification no. EPCA-R/2018/L-91 and EPCA-R/2018/1 periodic ban on constructions were imposed. Such bans that had been imposed from time to time in the past several years, not only had enormous adverse impact on the construction of infrastructure projects during the period when the ban was imposed but its adverse effects continues much further as it took a long time to reorganize the labour force once the ban was lifted. Another factor to be considered that most of the labour force in NCR hails from Easter UP/Bihar so during such period wherein the ban remains in effect, the labour force usually heads heads back to their hometowns, since it becomes difficult for them to sustain herein without any source of income. It was an admitted fact, consequently, on an average the construction ban of 1 day was equivalent to a 10 day delay in construction. It was also pertinent to mention that such bans majorly affect the projects which were near completion like the project in question. Hence, even after putting night and day in completing the project delay was caused due to such circumstances which were beyond the control of opposite party. It was submitted that the delay to the project was caused due to the policy of demonetization introduced by the government of Indian on November 2016 being an event of Force Majeure i.e. by change in national currency which consequently resulted in a great phenomena that caused shortage of money to everyone for months and it was hard to pay for daily wages or workers, payments for construction materials as the instalments pending at were stopped by buyers due to shortage of new notes/currency. It was submitted that although the opposite party pumped in funds from internal sources, as well as the initial payments received from the flat buyers, ad from that the construction of the project was started. The allottees started defaulting in the timely payments of the due instalments as per the payment plans opted by them. Majority of the allottees started delaying the payments of their due instalments on regular basis. It was pertinent to mention herein a sum of Rs.9,02,69,300/- was still outstanding from the defaulting allotttees, which the said allottees had neglected to pay despite the receipt of repeated demand letters/notices issued by the opposite party from time to time. It was needless to mention herein that realization of this outstanding amount would immensely benefit the project. The bonafide of the opposite party was also clar from the fact, that even though the delay cause was not due to any negligence or lackadaisical attitude of the opposite party, still keeping in mind the sole benefit of the buyers, the opposite party had reduced the interest that was payable by the buyers on delayed payments to 9% p.a. from 24% as stipulated in the Apartment-Buyer Agreement, since 01.01.2017. Hence, there could not be an iota of doubt that the bonafide intentions of the opposite party. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party – M/s. Ansal Crown Infrabuild Pvt.Ltd. with the prayer to: a) refund the amount of Rs.29,74,068.40 Ps. alongwith interest @ 18% p.a. from the date of payment made by the complainant to the opposite party, till the refund in made to the complainant. b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 2,00,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Vishal Sehgal, Ex.C1 – Surrender/Transfer of provisional registration, Ex.C-2- receipt, Ex.C-3 – photocopy of cheque of Rs.4,00,000/-, Ex.C-4 - letter dated 22.4.2009 regarding provisional registration for future project,, Ex.C-5 – letter dated 29.03.2019 for allotment of flat in Ansal Crown Heights, Sector-80, Faridabad, Ex.C-6 – Apartment Buyer’s agreement, Ex.C-7 to 20– receipts, Ex.C-21 to 3- - letters
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Shri Vishal Sehgal, authorized signatory of the opposite party company having its registered office at 118, Upper first floor, Prakashdeep Building 7, Tolstoy Marg, New Delhi, Ex.R-1 – resolution, Ex.R-3 (colly) – letter dated 19.10.2009 regarding renewal of licence NO. 226 of 2007,, Ex.R-4 – letter dated 30.04.2018, Ex.R-5 (colly) - - letter dated 14.3.2011 regarding letter of intent, Ex.R-6(colly) – not readable, Ex.R-7 - - not readable, Ex.R-8 - letter, Ex.R-9 (colly) – order dated 24.2.2020 regarding order, Ex.R-10 (colly)Affidavit cum undertaking, Ex.R-11 - letter dated 24.5.2022 regarding occupation certificate.
6. In this complaint, the complaint was filed by the complainant with the prayer to refund the amount of Rs.29,74,068.40 Ps. alongwith interest @ 18% p.a. from the date of payment made by the complainant to the opposite party, till the refund in made to the complainant.
7. As per Apartment Buyer Agreement vide Ex.C6 , flat No. 101 on Ist floor of Tower No. 8 admeasuring super area of 1520 sq. ft. (approx.) was allotted to the complainant and Apartment Buyer’s Agreement was also executed on 25.01.2011. As per letter dated 22.04.2009 vide Ex. C4 the total basic sale price of flat was apprised as Rs.18,90,000/- + other charges, Since the allotment of the flat was transferred in the name of the complainant, the amount of Rs.4,00,000/- received respect of flat bearing NO. 101 on Ist floor of Tower NO. 8 admeasuring super area of 1520 sq. ft. (approx.) was credited to the allotment of the complainant vide letter dated 22.04.2009 and all the terms and conditions of the booking/allotment became applicable to the complainant. As per Ex.C-7 to C-20, the complainant has paid an amount of Rs.29,74,068.40. As per Apartment Buyer’s Agreement, the possession of the said apartment was to be handed over to the complainant within reasonable period of three years from the date of execution of apartment Buyer’s Agreement. More than a period of 8 years had already been lapsed but the opposite party had failed to provide the possession of the said apartment to the complainant.
8. After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite party and the complainants have waited for more than 8 years to see the project to be completed. So that unilateral clause about the cancellation by the allottee debar him from seeking refund is not binding in view of the ratio of laid down in the following cases:
1) Ram Vilas “Sharma & 23 others Vs. M/s. Gold Souk Infrastructuress Private Ltd. in consumer case No. 421 of 2018 passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi referred the authority passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II(2019) CPJ 29 (SC)……….In the circumstances, we are of the view that the orders passed by the SCDRC and by NCDRC for refund of moneys were justified.”
ii) Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him alongwith compensation. The complainant had been waiting for completion of the project in which allotted unit is located for more than six years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the refund of the amount deposited with the opposite party besides interest and compensation.
9. Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite party is directed to refund the deposited amount of Rs.29,74,068.40 to the complainant with compensation in the form of simple interest @ 9% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 02.12.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
