Chandigarh

StateCommission

CC/50/2022

Lalit Kumar Arora - Complainant(s)

Versus

M/s Ansal Housing & Construction Ltd. - Opp.Party(s)

Shiv Charan Bhola & Dharminder Kashyap Adv.

11 Oct 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	50 of 2022
Date of Institution	:	08.06.2022
Date of Decision	:	11.10.2022

 

 

Lalit Kumar Arora, aged 57 years, son of Ram Saran Kumar resident of H.No. 5446/1, M.H.C, Manimajra, Chandigarh

2nd Address: H.No. 5419/1, M.H.C. Manimajra, Chandigarh

… Complainant

 

V e r s u s

 

1. M/s Ansal Housing & Constructions Ltd. (Now Ansal Housing Limited) ISO an ISO 9001:2008 Company, Head Office # 15 UGF, Indra Prakash, 21 Barakhamba Road, New Delhi- 110001 through its Director/Managing Director/Authorised Representative.

 

2nd Address: M/s Ansal Housing & Constructions Ltd. (Now Ansal Housing Limited) ISO An ISO 9001:2008 Company, Head # 2F-AHCL, 2nd Floor, Ansal Plaza, Sector -1, Vishali, Ghaziabad, UP 201010 through its Director/Managing Director/Authorised Representative.

 

3rd Address: M/s Ansal Housing & Constructions Ltd. (Now Ansal Housing Limited) ISO An ISO 9001:2008 Company, Head Office # 606, 6th Floor, Indra Prakash, 21, Barakhamba Road, New Delhi 110001 through its Director/Managing Director/Authorised Representative.

 

 

2. Director / Managing Director / Authorised Representative of M/s Ansal Housing & Constructions Ltd. (Now Ansal Housing Limited) ISO An ISO 9001:2008 Company, Head Office # 15 UGF, Indra Prakash, 21 Barakhamba Road, New Delhi- 110 001

 

2nd Address: M/s Ansal Housing & Constructions Ltd. (Now Ansal Housing Limited) ISO An ISO 9001:2008 Company, Head Office # 2F-AHCL, 2nd Floor, Ansal Plaza, Sector -1, Vishali, Ghaziabad, UP 201010

 

3rd Address: M/s Ansal Housing & Constructions Ltd. (Now Ansal Housing Limited) ISO An ISO 9001:2008 Company, Head Office # 606, 6th Floor, Indra Prakash, 21, Barakhamba Road, New Delhi 110001

…..Opposite parties

 

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                           MRS.PADMA PANDEY, MEMBER.

                           MR.PREETINDER SINGH, MEMBER.

 

 

Present:-               Sh.Shiv Charan Bhola,  Advocate for the complainant.

Opposite parties exparte vide order dated 03.08.2022. Mrs.Rupali Shekhar Verma, Advocate for HDFC Limited (not party in this case)

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  

                   This complaint has been filed  by the complainant  seeking following relief:-

 

1. “…..Call for the records of the respondents related to the original proposal and also the subsequent change.
2. For setting aside the Demand of Rs.6,29,399.23 raised by the respondent in their statement dated 14.02.2022 received on 23.03.2022 alongwith letter dated 14.02.2022.
3. For issuance directions to the respondent to pay @ Rate of 5/- per Sq Feet per Month on Super area of the Apartment due to late offer of possession in accordance with Clause 35 of the Apartment's Buyer Agreement dated 30.07.2012, alongwith interest @ 24% per annum.
4. Direct the respondents to pay interest for every month of delay at prescribed rate i.e. 24% Compounded quarterly from due date of possession i.e. 31.01.2016 till the offer of the possession to the allottee.
5. And to pay compensation to the tune of Rs.10,00,000/- for harassment and mental agony suffered due to interest paid by the complainant towards home loan and due to the acts of the OPs.
6. Further to pay Rs.1,33,000/- as Litigation Charges incurred by the complainant in pursuing the present complaint….”

 

2.           It is the case of the complainant that he purchased a residential apartment No.N-0402k, 3BHK, having approximate Sale Area of 1725 Sq. Ft @Rs.2,800/- per sq. ft. in the project of the opposite parties  named “ESTELLA” situated at Sector 103, Gurgaon, Haryana, for total sale consideration of Rs.49,16,250/- including charges for EDC, IDC, PLC & Club Membership Charges. Allotment in respect of the unit in question was confirmed vide letter dated 15.01.2011, Annexure C-1. The complainant paid an amount of Rs.61,29,098.79 i.e. 100% of the total sale consideration towards the said unit, yet, the opposite parties failed to deliver possession thereof till date, whereas, on the other hand, it was to be handed over within a period of 36 months from the date of execution of Apartment Buyer’s Agreement dated 30.07.2012, Annexure C-1, as envisaged in Clause 30 thereof. It has been stated that even various terms and conditions of the said agreement were one sided, favouring the opposite parties. It has been averred that for making part payment towards the said unit, the complainant obtained loan of Rs.30 Lakhs from the HDFC Bank.  The opposite parties issued letter dated 14.02.2022 (Annexure C-3) whereby an illegal demand of Rs.6,29,399.23 was made by them in respect of the unit in question. However, at the same time, it was also found that even the area of the unit in question has been wrongly mentioned as 1745 square feet instead of 1725 square feet. As such, the complainant vide letter dated 02.05.2022, Annexure C-4 requested the opposite parties to correct the area of the unit in question but to no avail.  Hence this complaint.
3.           As per report made by the office of this Commission, notice of this complaint was served to the opposite parties through registered cover on 22.06.2022 and also through email dated 28.06.2022.  However, when despite service, none put in appearance on behalf of the opposite parties, they were proceeded against exparte vide order dated 03.08.2022.
4.           The complainant led evidence in support of his case. 
5.           We have heard the Counsel for the complainant and have carefully gone through the entire record of the case, including the written arguments filed by him.
6.            Before going into the merits of this case, it is pertinent to mention here that vide order dated 10.06.2022, for the just and apt decision of the present matter, this Commission issued directions to the HDFC Bank to furnish the Balance Outstanding Loan Statement pertaining to the loan account of the complainant. In pursuance thereof, Mrs.Rupali Shekhar Verma, Advocate, who was available in the Court, undertook to furnish the aforesaid statement and accordingly, on 13.09.2022, she placed on record outstanding loan amount sheet dated 13.09.2022, showing the outstanding loan amount including all dues as Rs.21,61,967/- as on 13.09.2022.
7.           Coming to the merits of this case, it may be stated here that a bare perusal of record reveals that the unit in question was booked by the complainant vide application dated 15.01.2011 (Annexure C-1). Thereafter, agreement dated 30.07.2012 (marked as Annexure X by this Commission) was executed between the parties and as per clause 30 thereof, the opposite parties committed to deliver possession of the said unit latest by 29.01.2016 i.e. 36 months plus grace period of 6 months total 42 months. However, there is nothing on record, which shows that possession of the unit in question has been delivered by the committed date or even thereafter, except one letter dated 14.02.2022, Annexure C-3 which is an offer made to the complainant for fit-outs in the said unit. In this letter, it has been clearly mentioned by the opposite parties that process of possession for fit-outs in the said unit may take 45 days and that too subject to payment of Rs.6,29,399.23ps. which was reflected in the statement of accounts forming part of the letter dated 14.02.2022, Annexure C-3. However, it is coming out from the record that since the size of the unit in question was wrongly mentioned in letter-Annexure C-3 as 1745 square feet instead of 1725 square feet, as such, the complainant vide letter Annexure C-4 requested the opposite parties to make correction in that regard and thereafter raise fresh letter alongwith fresh calculations. However, there is nothing on record that the letter, Annexure C-4 was ever replied by the opposite parties and on the other hand, the Counsel for the complainant also stated that the said letter went unanswered by the opposite parties and in this manner, the  complainant has been left in lurch. All the allegations leveled by the complainant in his complaint and also by his Counsel during arguments has gone un-rebutted/unchallenged by the opposite parties, as they chose not to put in appearance, despite service, as a result whereof they were proceeded against exparte by this Commission.  
8.           It is significant to mention here that mere sending of offer of possession letter dated 14.02.2022, Annexure C-3 for fitouts in no way can be termed as possession letter. Our this view is supported by the observations made by the Hon’ble National Commission in Shri Rajeev Nohwar & Anr. Versus M/s Sahajanand HI TECH Construction Pvt. Ltd., Consumer Case No. 346 of 2014, decided on 06 May 2016, wherein, it was held as under:-

“………The date by which the flat was to be offered for the purpose of fitouts cannot be said to be the date for handing over the possession to the purchaser since neither the builder is under an obligation to complete the construction in all respect by that date nor can the purchaser occupy the flat at the stage of offer of fitouts.  Section (2) (i) of MOFA mandates the promotor not to allow any persons to enter into possession until a completion certificate is duly given by the authorities.  It also mandates the purchaser not to take possession of a flat until such completion certificate has been duly given.  Therefore, the date on which the flat is made available for fitouts cannot be said to be the date for delivery of possession of the flat.  Such a date, by law, cannot be a date earlier than the date on which the completion certificate/occupancy certificate is issued by the concerned authority…..” 

         

9.           Hard earned money to the tune of Rs.61,29,098.79 was paid by the complainant with a hope to have his own unit/house. However, his hopes were dashed to the ground, as neither possession has been delivered to him nor delayed compensation for the period of delay has been paid by the opposite parties. Thus, from the peculiar circumstances of this case, it has been proved that the opposite parties  made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and he may act in reliance on it. All the facts established that from the very inception there was intent to induce the complainant to enter into the agreement, referred to above, in the year 2012 but there was no desire of the opposite parties to deliver possession of the unit purchased by the promised date, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties , which has definitely caused a lot of mental agony, harassment and financial loss to the complainant.  Thus, in our considered view, the complainant is entitled to get possession of the unit in question, measuring 1725 square feet in the project in question, alongwith delayed compensation for the period of delay in delivery of possession.
10.           Now, we will like to decide as to what amount of compensation should be granted to the complainant, for the period of delay in delivery of possession, starting from 29.01.2016  (42 months from the date of agreement being 30.07.2012). (It is made clear that the possession period has been calculated from the date of agreement because by the said date, substantial amount stood received by the opposite parties from the complainant and the same is beyond the first three installments/payments, as mentioned in the payment schedule, forming part of the said agreement) It may be stated here that failure on the part of the opposite parties  to provide possession of the unit within the stipulated period aforesaid amounts to deficiency in service and negligence. It is also matter of common parlance that for purchasing the unit/plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In the present case also, the complainant has taken loan from the HDFC, in the manner, stated above. On account of delay in actual delivery of possession within the stipulated period, the complainant suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, The Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

 

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the complainant has purchased the unit in question, as far as back in 2011 and remained empty handed for more than 10 years and has to approach this Commission for redressal of his grievance. The opposite parties  have played fast and loose with the complainant and have caused harassment and mental agony to him, which is unacceptable and this practice needs to be deprecated. In our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by him, from the due date of possession onwards till delivery of possession thereof, that will meet the ends of justice.

11.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-
    1. To deliver actual physical possession of the unit in question, measuring 1725 square feet in the project in question, to the complainant, complete in all respects, after obtaining occupation and completion certificates from the competent Authority, within a period of 03 months from the date of receipt of a certified copy of this order. However, it is made clear that fresh demand of the remaining amount, if any, shall be raised by the opposite parties keeping in mind the area of the flat as 1725 square feet only and also the amount(s), as agreed to between the parties, by way of execution of the agreement aforesaid.    
    2. To pay to the complainant, interest @9% p.a. on the amount deposited, starting from 29.01.2016  till 30.09.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.
    3. To pay to the complainant, interest @9% p.a. on the amounts deposited, w.e.f. 01.10.2022, onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the unit, complete in all respects. 
    4. To pay to the complainant, compensation to the tune of Rs.75,000/- for causing him  mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.

 

12.           Certified copies of this order be sent to the parties, free of charge.
13.           The file be consigned to Record Room, after completion.

 

Pronounced.

11.10.2022

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (PADMA PANDEY)

          MEMBER

 

 

 

Sd/-

 (PREETINDER SINGH)

 MEMBER

 Rg.