Haryana

StateCommission

CC/852/2017

RENU GULATI AND ANOTHER - Complainant(s)

Versus

M/S ANSAL PROPERTIES - Opp.Party(s)

06 Jul 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.852 of  2017

Date of the Institution:29.12.2017

Date of Decision:    06.07.2022

 

1. Renu Gulati W/o Sh.Manoj Gulati

 

2. Sarla Rani Kapoor W/o Sh.Shyam Lal Kapoor

 

Both R/o F-131/129, B.K.Dutt Colony, Lothi Road, New Delhi.

 

                                                                   .….Complainants

Versus

1. Ansal Properties and Infrastructure Ltd., Ansal Highway Plaza, NH-1, Kundli Distt. Sonepat through its Branch Manager.
2. Ansal Properties and Infrastructure Ltd., Regd. Office 115, Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi-110001 through its Managing Director.

                                                          .….Opposite Parties

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Mr.Chander Shekhar, Advocate for the complainant.

Mr.KunalJain proxy counsel for 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 complainants got booked a flat in the project namely Green Escape Apartment, Phase-II,  Sonepat.  Initially, they had paid booking amount of Rs.1,50,000/- by way of chequeNo.161893 dated 30.03.2012. On receiving of booking amount, the opposite parties (O.Ps.) booked a flat in the name of complainants against Unit No.0102-15-1204 and a consumer code  No.138144.  On 08.02.2013, agreement was executed between the parties.  In total, the complainants have paid total amount of Rs.19,08,273/- to the opposite parties.  As per buyer agreement, the OPs agreed to offer possession of the property within 42 +6 months from the date of execution of the agreement subject to some reservations.  The OPs were bound to complete the construction work and handover the possession upto 2017, but, till today the OPs did not hand over the possession of the flat. There was no development on the proposed site for the said project. The OPs failed to develop the area as per the buyer’s agreement.  There was no hope for possession in near future as the construction of the plot has not been started yet. The complainant No.1 filed the complaint before the District Consumer Forum, Sonepat, which was dismissed on the ground of pecuniary jurisdiction in view of order dated 22.02.2017 passed by the Hon’ble National Commission in case of Raj Kishore Vs. TDI (First AppealNo.280 of 2016). Hence the complainants are filing the instant complaint.  Due to delay of project, the complainant lost interest in the flat and requested the OPs to refund the entire amount i.e. Rs.19,08,273/- paid by them but, they did not consider their genuine request.  Thus there was deficiency in service on the part of the OPs.  The complainant prayed that OPs be directed to refund the deposited amount i.e. Rs.19,08,273/- alongwith interest at the rate of 24% p.a from the date of deposit till its realization; Rs.5,00,000/- as compensation on account of mental agony and harassment and Rs.1,00,000/- as cost of litigation expenses.

2.                Notice of the complaint was issued against the O.Ps. and the written statement was filed, wherein the O.Ps. admitted that  agreement dated 08.02.2013  was executed  between the parties. The opposite parties shall endeavour to complete the deve3lopment of the unit within 42 months with an extended period of six months from the date of execution of the agreement.  As per agreement, the OPs shall be entitled to reasonable extension of time for handing over possession of the flat to the buyer under certain circumstances. It was denied that the possession has to be delivered within 4 years from the date of booking.   It was submitted that the OPs had already received the demarcation of the area where the tower No.15 has to be constructed.  However, in case the complainants require the possession of flat at an earlier time then the company may consider their request for allotment  of any alternative flat to them in the same project at the site where construction was at an advanced stage.  The complainants have no right to demand the refund of deposited amount with interest at this stage as the OPs have not refused to complete the development work and offer possession of flat to  them. Thus there was no deficiency in service on the part of the OPs.  Other objections about  maintainability of complaint, accruing cause of action, concealment of material facts, territorial jurisdiction, pecuniary jurisdiction etc. were also raised and requested to dismiss the complaint.

3.                When the complaint was posted for recording evidence of the parties, one of the complainant-Renu Gulati in her evidence has tendered the affidavit Ex.CA vide which she has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-11 and closed her evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainants, O.Ps. have also tendered the affidavit of Mr.Amandeep Singh authorized representative (AR) Ex.OP-A and closed its evidence.

5.                The arguments have been advanced by Mr.Chander Shekhar, learned counsel for the complainants as well as Mr.Kunal Jain proxy counsel for Mr.Ajay Ghangas, learned counsel for the 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 complaint 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 parties, 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 Chander Shekhar, the learned counsel for the complainant that as far as the executing the buyers agreement  is concerned it is not in dispute.    It is also not in dispute that the basic price of the flat was Rs.31,57,015/-.  A total sum of Rs.19,08,273/- had been paid by the complainants to the  O.Ps.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainants by the O.Ps.  within 48 months subject to some reservations.  The period within which, the possession of the flat was to be delivered had already expired despite depositing the amount of Rs.19,08,273/-.  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. Kunal Jain proxy counsel for Mr.Ajay Ghangas, the learned counsel for the O.Ps. that complainants have not paid the installment as per the repayment schedule.  There was a delay in making the payment of the amount.  It is true that the documents were executed between the parties, which includes the buyers agreement, which contains all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession.  Since, there were some unavoidable circumstances and certain reasons which were beyond the control of the O.Ps. and the possession of the flat could not be delivered to the complainant 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.  As per terms and conditions of the agreement, the O.Ps. was bound  to deliver the possession of the apartment within 48 months.  The answering O.Ps. has not committed any breach of agreement. The complainants has no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to them.    The answering O.Ps. will offer the possession of the flat to the complainant after completion of development work.   Thus, the complainants were 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 purchased by the complainant for a cost of Rs.31,57,015/- against which an amount of Rs.19,08,273/-  had been paid.  Buyer agreement  is also not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 48 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 9 years had expired, the possession of the flat has not been delivered by O.Ps.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps.   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 are well within their legal rights to get the refund of the amount of Rs.19,08,273/- (Nineteen Lacs eight thousand two hundred and seventy three)   which they had already deposited with the O.Ps.  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/O.Ps. 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 O.Ps. are directed to refund of the amount of Rs.19,08,273/- (Nineteen Lacs eight thousand two hundred and seventy three)  alongwith interest @ 6%  per annum from  the date 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.              Applications pending, if any stand disposed of in terms of the aforesaid order.

12.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

13.              File be consigned to record room.

 

July 6th, 2022        Suresh Chander Kaushik,                   S.P.Sood

                             Member                                              Judicial Member                                 

S.K.(Pvt.Secy)