Delhi

StateCommission

CC/457/2014

AJAY SAREEN & ANR. - Complainant(s)

Versus

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

06 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 06.08.2018

                                                                                                              

                                                                   Date of decision:09.08.2018

 

 

Complaint No. 457/2014

 

 

IN THE MATTER OF:

 

Mr. Ajay Sareen

(Deceased) Through LRs

R/o C-41, Third Floor,

Shakti Nagar Extension,

New Delhi-110052

 

Mr. Atul Ahluwalia,

S/o Sh. B.S. Ahliwalia,

R/o 23, Walia Building,

Near Deep Cinema,

Ashok Vihar, New Delhi-110052                                    ….Complainant                                                   

VERSUS

 

M/s Ansal Properties &

Infrastructure Ltd.,

Having its Registered Office

At 115, Ansal Bhawan,

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. Saurabh Jain, Counsel for the complainant

                   Sh. Robin Raju, Counsel for the OPs.

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           This complaint has been filed before this Commission under Section 17 of the Consumer Protection Act 1986 (the Act) by Sh. Ajay Sareen, since deceased, substituted by LRs, and Sh. Atul Ahluwalia, resident of New Delhi, for short complainants, against M/s Ansal Properties & Infrastructure Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of the OP they not having delivered the possession of a shop booked by them in the project of the OPs for earning their livelihood on 31.01.2005, despite the agreed period having elapsed and despite the agreed amount having been paid under the construction linked plan and praying for the relief as under:

 

1. Declare the letter dated 06.12.2013 of the OP as illegal, null and void.
2. Direct the OP to deliver the possession of property to the complainants or to return the amount of Rs. 12,13,210.22/- to the complainant as paid by the complainant to the OP alongwith the damages as claimed.
3. Direct the OP to pay a sum of Rs. 2,41,504/- as on 04.07.2014 towards compensation and interest payable at 24% per annum as per clause 10 of the agreement till realisation.
4. Direct the OP to further pay compensation to the complainant as per clause 10 of the agreement, from 05.07.2014 till handing over the possession.
5. Direct the OP to pay a sum of Rs. 20,00,000/- as compensation for loss of business and opportunity cost on account of delay of possession of the property.
6. Direct the OP to pay a sum of Rs. 5,00,000/- as compensation towards mental pain and agony as suffered by the complainant.
7. Direct the OP to pay a sum of Rs. 50,000/- towards litigation expenses.
8. Pass any order/orders may deem fit and proper in the facts and circumstances of the present case.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainants for the purpose of their livelihood by means of self employment had booked with OPs on 31.01.2005 a commercial shop/space in one of their projects, namely, “Ansal Highway Plaza” at Sushant City, Sonipat, Haryana, paying the booking amount of Rs. 1,07,730/-. As a consequence thereof an allotment letter was issued on 04.02.2005, allotting the complainants a space no. 223, admeasuring 513 sq. ft. @ Rs. 2800/- per sq. ft. for a total consideration of Rs. 14,36,400/- and assuring the delivery of the shop within 33 months from the date of issue of the allotment letter. Further payments for the purpose were to be made by the complainants, having opted for it, under the “Construction linked interest free instalment plan.”
4.           According to the complainant, the Ops while intimating them that the construction in the project is nearing completion, additional amount was demanded which they paid, faced with the situation where they were helpless. Further OPs increased the area of the unit from the allotted super area of 513 sq. ft. to 549 sq. ft., and demanded the additional amount which again the complainant, left with no option paid. The complainants have finally alleged that they had made the payment as per demand raised by the OPs from time to time under the plan opted for but the construction of the project being incomplete, the possession of the booked unit was far from reality within the timeframe as agreed to.
5.           The worse came when alleging default in making due and necessary payment on the part of the complainant the OPs, vide their letter dated 06.12.2013, cancelled the allotment of the Unit. Disputing the factum about the delay in making the payment, the complainant served a legal notice to OPs requiring him to withdraw the letter cancelling the allotment of the unit as also to furnish the explanation for the delay done in the delivery of the possession. Efforts were made to settle the matter amicably but all in vain. In these circumstances the complaint has been filed for the redressal of the grievances.
6.           The OPs were noticed and in response thereto they have filed their written statement resisting the complaint on various grounds, namely, the complainants having invested for commercial purpose are not consumers and thus not entitled to raise consumer dispute. Secondly in the absence of any specific deficiency having been alleged, there subsists no cause of action qua the OPs. Thirdly, payments having not been made as per schedule, the complainants are estopped from alleging deficiency of service on the part of OPs. Fourthly, their averment is that they are not at all at fault. They have acted as per the agreed terms and conditions. Finally about increasing the area of the unit their submission is that in the allotment letter, allotting him of the unit of 513 sq. ft. it was made clear that that was provisional which means, they are within their right to increase the area keeping in view the need and necessity.
7.           The complainants have later filed rejoinder rebutting the allegations of the OPs and reiterating their averments contained in the complainant. Subsequently the evidence by affidavit was also filed by the complainant. The matter was listed before us for final hearing on 06.08.2018 when counsel for 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.           It is a fact that the complainants had applied for a shop making the payment. It is also undisputed that the construction in the project has not been completed within the agreed period. No evidence has been filed by the OPs setting out the grounds for the delay done in completing the projects, despite sufficient opportunities having been afforded. Infact OPs were ordered to be proceeded ex-parte vide proceedings recorded on 14.03.2017. The arguments of the OP that the complainants having invested for commercial purpose are not consumers, has no legs to stand since the investment made by the complainants, as per the evidence filed is for earning livelihood by self employment, covered under the exception clause under Section 2(1)(d) of the Consumer Protection Act 1986. This leads to an inescapable conclusion that the OPs have nothing substantial to submit and thus are deficient in rendering service.
9.           During the course of hearing of the case on 25.04.2018, both the parties intimated that the talks for the amicable settlement are going on. The complainants reaction to the settlement was positive. But the representative of the OPs, who were directed to appear before us to report about the settlement did not appear consequently the talks for settlement failed.
10. The complainant number 1 during the pendency of this case had passed away and therefore by orders dated 25.04.2018 his LRs were brought on record.
11. During the course of the argument the ld. Counsel for the complainant prayed for the refund of the amount with reasonable interest. This was objected to by the Ops on the ground that there is no prayer for refund and thus this is not maintainable. We do not agree with the submissions of the OP. If the construction is not complete within the agreed period of time, the complainant cannot be compelled to accept the possession at a later date in which case refund of the principal amount is the only alternate. We are fortified in our view by the judgment of the Hon’ble NCDRC in the matter of Parsvnath Exotica Ghaziabad Residents Association versus Parsvnath Buildwell Pvt. Ltd. and Anr [CC No: 46/2015] pronounced on 06.05.2016, holding, inter alia, as under:

 

 Though, in Consumer Complaint No.45 of 2015, the main prayer made by the complainant is to direct delivery of the possession of the flats to the allottees complete in all respects, coupled with execution of the tile deed in their favour, when this matter came up for hearing on 27.4.2016, the learned counsel for the complainant stated on instructions, that since the building plans for construction of towers No. A-D have already lapsed and the revised plans have not been sanctioned as yet, the said allottees are not interested in waiting any longer for delivery of the possession of the flats and want to take refund, along with appropriate compensation for the financial loss suffered as well as the harassment and mental agony caused to them.  The learned counsel for the opposite party submitted in this regard that no prayer for refund has been made in Consumer Complaint No.45 of 2015.  In our opinion, even in the absence of any specific prayer, it is always open to this Commission to grant a relief which is justified and warranted in the facts and circumstances of the case.  These allottees booked the flats way back in the year 2007-08.  The possession of the flats was to be delivered to them by June, 2001.  Almost five years have expired since the date by which the construction was to be complete.  Since the revised building plans have not been approved as yet, it cannot be known when the opposite party will be able to complete the construction of these four towers and deliver possession to the allottees.  In fact, as stated in the written submissions filed by M/s. Devidayal Aluminium Industries (P) Ltd., even the development contract with the builder has been cancelled by them.  Therefore, at present neither the builder has valid building plans which would enable it to resume the development nor does it have a subsisting development agreement with the land owner.   In these circumstances, the allottees cannot be made to wait indefinitely for the possession of the flats booked by them and they are entitled to seek refund of the entire money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them by keeping their money with the opposite party.  The money which they paid to the opposite party may have been borrowed or may be their own money.  In case, they had taken loans, they would have paid interest on the said loan.  In case, they have given their own money to the opposite party, the very same money would have been used by them either by way of a financial investment or in purchase of some other flat the value of which would have appreciated substantially with the passage of time and in which they would also have been able to live.

 

12. Having bestowed our anxious consideration to the facts at hand, we are of the opinion, that the complaint deserves to be accepted. The objections raised by the OPs regarding maintainability of the complaint or on merit, in complete ignorance of the statutorily provisions and the settled legal positions, are stated to be outrightly rejected sequentially. Having arrived at the said conclusion, the core question for consideration is as to how the complainant are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of the OP on account of non-delivery of the allotted unit.
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. 
14. The Hon’ble Apex Court in the matter of Balram Prasad [Dr.] Advanced Medicine and Research Institute Ltd., and ors versus Dr. Kunal Saha as reported in IV [2013] CPJ 1 SC is pleased to hold as under:

 

“Principle of just compensation is based on ‘restitution in integrum i.e. claimant must receive sum of money which would put him in same position as he would have been if he had not sustained the wrong.”

 

15. 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. 
16. Having noticed the board principles, to be kept in view while determining the compensation we may advert to the facts at hand. The complainants have deposited the amount with the OP is an undisputed fact. OPs have not been delivered the possession of the unit is also not disputed.
17. In this view of the matter we direct the OPs to refund the principal amount with simple interest at the rate of 10% from the date of deposit till realisation. This be done within two months from the date of receipt of certified copy of this order failing which the complainants would be free to file execution petition under Section 25 & 27 of the Consumer Protection Act 1986.
18. Ordered accordingly.
19. A copy of this order be forwarded to the parties to the case free of cost as statutorily required. File be consigned to record.

 

 

 

(ANIL SRIVASTAVA)                                                                                        (O.P.GUPTA)

       MEMBER (GENERAL)                                                                           MEMBER (JUDICIAL)

sl