Delhi

StateCommission

CC/175/2016

RAJ SHARMA - Complainant(s)

Versus

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

MANJIT SINGH

28 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 28.08.2018

                                                                                                              

                                                                   Date of decision:05.09.2018

 

 

Complaint No. 175/2016

 

IN THE MATTER OF:

 

1. Mr. Raj Sharma

S/o Late Sh. R.C. Sharma

 

2. Mr. Subhanshu Sharma

S/o Sh. Raj Sharma,

 

Both Residents of

G-204, Arya Apartments

Plot No. 8, Sector-15,

Rohini, Delhi                                                                      ….Complainant

 

VERSUS

 

1. M/s Ansal Properties and Infrastructure Ltd.

115, Ansal Bhawan,

16, Kasturba Gandhi Marg

New Delhi.

 

2. The Managing Director

M/s Ansal Properties and Infrastructure Ltd.

115, Ansal Bhawan,

16, Kasturba Gandhi Marg

New Delhi                                                                       ….Opposite Parties

 

 

HON’BLE  SH. O.P. GUPTA, MEMBER(JUDICIAL)

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER (GENERAL)

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Mrs. Adarsh Sharma Kaushik, Counsel for the Complainant alongwith complainant number 1

None for the OPs

                  

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           This complaint has been filed by Sh. Raj Sharma and Sh. Subhanshu Sharma, resident of Delhi, for short complainants, before this Commission under Section 17 of the Consumer Protection Act 1986 (the Act) against M/s Ansal Properties and Infrastructure Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of the OP in not handing over the possession of the flat booked by them in the year 2009 in the project of OPs, namely, “Europa Residency Sonepat” and praying for the relief as under:-

 

1. Direct the respondents to hand over the allotment letter as well as possession of the aforesaid flat no. G-0406, 124.07 sq. ft. “Europa Residency Sonepat” after receiving the balance payment.
2. Award compensation in terms of money quantified at Rs. 21,0,000/- towards damages, losses, hardship, mental trauma, opportunity loss, anxiety suffered by the complainants on account of the acts and omission and deficiency in service, negligence jointly and severally of the respondent/OPs as detailed in the complaint damages.
3. Award compensation/penalty @ Rs. 25,000/- towards delay in handing over the possession of the flat from the date of application till date of possession of aforesaid flat and direct the respondent to allot flat at fourth floor as agreed earlier.
4. Pass such other or further order(s) as this Hon’ble Forum deem fit and appropriate in the facts and circumstances of the case.

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant lured by the advertisements and advancements of the OPs with regard to their new residential project launched in the year 2009, namely, “Europa Residency Sonepat” booked a flat there and on receipt of the initial payment the OPs had allotted a flat no.0114-C-406, 4^th floor, “Europa Residency Sonepat” admeasuring 124.07 sq mtrs./ 1335 sq. ft. for a total consideration of Rs. 23,02,875/-. Apartment Allottee(s) Agreement between the complainant and the OPs was executed. Clause 10.1 (a) of the agreement dealing with the period by which the possession of the flat was agreed to be handed over posits as under:

 

Subject to terms of this clause and subject to the allottee having complied with all the terms and conditions of this agreement and not being in default under any of the provisions of this agreement and complied with all provisions, formalities, documentation etc., as prescribed by the company, the company proposes to handover the possession of the apartment within a period of thirty six months from the date of signing of this agreement. The allottee agrees and understands that the company shall be entitled to a grace period of 90 days after the expiry of thirty six months for applying and obtaining the occupation certificate and completing any other formalities. If any, in respect of the apartment.

 

4.           The agreement having been executed on 27.07.2009, the possession of the flat was to be handed over by 26.07.2012. The complainants on their part made the payments as per the agreed schedule. The complainants have further submitted that as per original agreement the total cost of the flat was Rs. 23,02,875/- and as per said agreement the complainants was to pay 30% of the total cost i.e. Rs. 6,90,862.50/- within 245 days and 5% on the start of the excavation. As per payment schedule the composite charges @ 12.5% within one month from the date of excavation were to be paid and then subsequent charges on alternate months. The complainants have made a payment of more than Rs. 11 lacs by 08.12.2014 which is in excess of Rs. 5 lacs as per payment plan, as excavation of block of the complainants had not been started till date.
5.           The complainant has further alleged that without any explicit consent from them, the OPs had abruptly changed the plot size from 1335 sq. ft. to 1701.2 sq. ft. primarily with ulterior motive. Possession of the flat was however not handed over, though abnormal time has elapsed in the process. But the demand of the OP which was otherwise illegal continued and when the complainant did not succumb of the pressure of OP for making the payment, they had threatened the complainants to cancel of allotment. The demand made by the OPs was illegal and contra jus the agreement executed between them. Infact the cancellation notice was also issued by the OP on 05.08.2013. In these circumstances the complainants have approached this Commission for the Redressal of their grievances.
6.           OPs were noticed and in response thereto they have filed their written statement resisting the complaint both on technical ground and on merit. Their technical objection is that the complaint is not maintainable having withheld material facts but they have not explained the grounds in support of this averment. Secondly the contention of the OP that the complainant is not a consumer does not impress us since no evidence has been led to substantiate the point. Their third objection is that the complaint is time barred. Again this averment cannot be accepted since the OPs having accepted the payment and not delivering the possession of the flat booked by the complainant, the complainants have a continuous cause of action. Fourthly the OPs have defended their action regarding change of flat owing to the change in the lay out plan. We are not impressed with this submission since, as per the law settled by the Hon’ble Apex Court and Hon’ble NCDRC change of the flat can be done only with the explicit consent of the complainant. Finally their submission is that the complainant was irregular in making the payment. But the OPs have not indicated the details as to how there was delay in making the payment. Hence we reject this contention. On merit OPs have denied the averments made in the complaint. 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 thus outrightly rejected sequentially.  
7.           The complainants have filed their rejoinder and evidence rebutting the submissions made by the Ops in the written statement and reiterated what they had stated in the complaint. The OPs have not filed their evidence. Infact they were ordered to be proceeded ex-parte vide proceedings recorded on 26.04.2018.
8.           Initially we found that there was an element of settlement and therefore the matter was referred to the Mediation Centre of Delhi Govt. but later mediation also failed.
9.           The matter was listed before us for final hearing on 28.05.2018 when the counsel for the complainant appeared and advanced her arguments. None appeared on behalf of the OPs being ex-parte. We have perused the records of the case and carefully considered the issues involved.       
10. Point for consideration in this complaint is whether the allegation of deficiency of service as against the OPs has been made out, he having not delivered the possession of flat within the time as agreed to and, if so, whether he is entitled for the refund as prayed for and as argued by the Ld. Counsel.
11.  The fact that the complainant had booked a flat with the OPs is indisputed. He has made the payment to the OP as per the agreed payment schedule is also an undisputed fact. No denial has been done by the OPs on the averment of the complainant that the possession of the flat has not been handed over despite the fact that the agreed time for the purpose having been elapsed.
12.  Having bestowed our consideration to the facts at hand, we are of the opinion that the complaint deserves to be accepted, the possession of the flat not having been delivered within the time as agreed to despite the payment having been made as per the demand of the OP.  In these circumstances we reach to an inevitable conclusion that there was gross deficiency, as defined in Section 2(1) (g). It is a trite law that where possession of the property is not delivered within the stipulated period the delay so caused is not only deficiency in rendering service, such deficiencies or omission tantamount to unfair trade practice as defined in the Act as well. For reference Lucknow Development Authority versus M.K. Gupta-(1994) 1 SCC 243.
13.   Having arrived at the said conclusion, the point for consideration is as to how the Complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OPs on account of non-delivery of the allotted flat.
14. 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. In Ghaziabad Development Authority Vs. Balbir Singh - (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 the 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.
15. In view of the discussion done we direct the OPs to refund the principal amount paid by the complainant delivery of the possession of the flat since not a possibility, with simple interest @ 12% p.a. from the date of receipt of the amount till its realisation.
16. Ordered accordingly. 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)