Delhi

StateCommission

CC/170/2017

AKHILESH KUKREJA & ANR. - Complainant(s)

Versus

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

RAVI PRABHA

22 Nov 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 22.11.2018

                                                                                                              

                                                                   Date of decision:06.12.2018

 

 

Complaint No. 170/2017

 

IN THE MATTER OF:

 

Sh. Akhilesh Kukreja,

S/o Sh. Dharamveer Kukreja                              

 

Bhawna Wadhwa,

W/o Sh. Anil Kukreja,

 

Both

R/o H.No-366, Sector-8-9 II,

Urban Estate,

Karnal, Haryana-132001                                               ….Complainants                     

VERSUS

 

M/s Ansal Properties and Infrastructure Ltd.

Through its Managing Director/Director(s),

Regd. Office: 115, Ansal Bhawan,

15, Kasturba Gandhi 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:       Smt. Ravi Prabha, Counsel for the Complainant

                   None for the OPs. They are ex-parte

 

PER:           ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.                 This is yet another complaint filed before this Commission under Section 17 of the Consumer Protection Act 1986 (the Act) where the complainant is pressing for refund of the deposited amount with such interests as may be ordered by this Commission, owing to the builders not even having commenced the construction in the project despite having collected a huge money from those aspiring to have the possession of the flat booked by them for their self use. Sh. Akhil Kukreja and Smt. Bhawna Wadhwa, both resident of Karnal, Haryana, have filed this complaint (for short complainants) against M/s Ansal Properties and Infrastructure Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs, they not having delivered the possession of the flat booked by the complainants, despite agreed period of time for the purpose having elapsed and despite payment as per schedule having been made and praying for the relief as under:

 

1. Direct the respondent to pay Rs. 21,44,395/- being the amount deposited by the complainants with the respondent.
2. Direct the respondent to pay interest @ 20% per annum compounded quarterly on Rs. 21,44,395/- from the date of deposit.
3. Pass an award of Rs. 10,00,000/- by way of compensation for causing mental agony and harassment to the complainant on account of inaction and negligence on the part of the respondent as a result of the above acts of omission on the part of respondent;
4. Award cost of the present complaint in favour of the complainant and against the respondent.
5. Any other relief which this Hon’ble Commission deems fit.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainants making the payment of Rs. 1,59,443/- on 18.01.2012 as registration money, had booked a flat in the project of OPs, namely, Green Escape Phase II, at Kundali, Sonepat, Haryana and in response thereto the OPs had provisionally allotted a flat no:0102-22-0803 admeasuring 1717 sq. ft. at a total basic sale price of Rs. 32,07,015/- and at a total sale consideration of Rs. 40,57,590/-. Thereafter based on the demand received from time to time the complainant had made further payment to the OPs to the extent of Rs. 21,44,395/-.
4.           Flat Buyer Agreement was executed between the complainants and the OPs on 17.04.2012 clearly laying down inter alia that the possession of the flat booked by the complainants and provisionally allotted to them would be handed over within 42 months with an extended period of six months from the date of execution of the agreement which means and to put it differently, the agreement having been executed on 17.04.2012, the possession of the flat had to be delivered by 16.04.2016 which includes even the extended period of six months. In these circumstances this complaint has been filed for the redressal of his grievances.
5.           OPs were noticed and they having not appeared despite service of notice, have been ordered to be proceeded ex-parte vide proceedings recorded on 01.09.2017. The complainants have filed their evidence by way of affidavit in support of the averments contained in the complaint. The matter was listed before us for final hearing on 22.11.2018 when the ld. Counsel for the complainant appeared and advanced her arguments. We have perused the records of the case and given a careful consideration to the subject matter.
6.           In the first instance the ld. Counsel for the complainant argued that the agreed period of time for handing over possession having elapsed he is no longer interested in the possession and pressed for refund of the amount alongwith interest as this commission may order.
7.           The fact that the complainant had booked a flat with the OPs is undisputed. Payment to the extent of requirement has been made, is also not in dispute. Agreed period for handing over possession also stands over. But the possession is no where near possibility.
8.           In that view of the matter the inevitable conclusion is that there was gross deficiency as defined in Section 2(1)(g) of the Act on the part of the OPs in its failure to deliver possession of the flat to the complainant in terms of the allotment letter. It is trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency of service, such deficiencies or omissions as per the law settled by their Lordships in the Apex Court in the matter of Lucknow Development Authority versus M.K. Gupta as reported in (1994) 1 SCC 243 tantamount to unfair trade practice as defined in Section 2(1)(r)(ii) of the Act as well.
9.           Further the complainant, as argued, cannot be expected to wait indefinitely for the possession. Their Lordships in Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor D’lima and ors as reported in II[2018] CPJ 1 (SC) are pleased to hold as under:

 

Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation.

 

10. The Hon’ble NCDRC in the matter of Parasvnath Buildwell Pvt. Ltd. and Anr versus Varun Dev, as reported in II[2018] CPJ 212 (NC) is pleased to direct as under:

 

“Flat booked was never constructed. Allottee cannot be made to wait indefinitely for possession. They are entitled for refund. Refund allowed with 12% interest.

 

          The Hon’ble NCDRC has taken similar view in the following matters also, namely,

         

Emaar MGF Land Ltd. and Anr versus Amit Puri-II[2015] CPJ 568 (NC)

Parasvnath Exotica Residents Association versus Parasavnath Developers Ltd. and ors-IV[2016] CPJ 328 (NC).

 

11. Having arrived at the said conclusion we are of the considered opinion that the complaint deserves to be accepted. The core question for consideration now is as to how the complainants are to be compensated for the suffering caused to the complainant at the hands of the OPs for indulging in the unfair trade practice. The provisions of the Act enable a consumer to claim and empower the commission to redress any injustice done to a consumer. The commission is entitled to award compensation for the injustice suffered by him.
12. The Hon’ble NCDRC in the matter of Anil Raj and ors versus Unitech Ltd. and ors in CC-346/2013 decided on 02.05.2016 as reported in MANU/CF/0105/2016 is pleased to observe as under:

 

“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 OPs”.

 

13. In Ghaziabad Development Authority v. Balbir Singh-MANU/SC/0282/2004: (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 benefit of escalation of the price of the flat/plot. Additionally, in our 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. Keeping in view the facts and circumstances of the case and the legal position discussed above, we are of the considered view that possession of the flat not having been handed over within the agreed time, the ends of justice would be met if a direction is issued to the OPs to refund the principal amount, with simple interest at the rate of 10%. This payment be done by the OPs within a period of two months from the date of receipt of this order, failing which the complainant would be at liberty to move this Commission under Section 25 and 27 of the Consumer Protection Act 1986.
15. Ordered accordingly.
16. 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)                                                                                            (O.P.GUPTA)

              MEMBER                                                                                       MEMBER (JUDICIAL)