Delhi

StateCommission

CC/382/2019

MRS. KRISHNA CHAUDHURI - Complainant(s)

Versus

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

01 Nov 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:01.11.2019

                                                                                                              

                                                                   Date of decision:08.11.2019

 

Complaint No.382/2019

 

IN THE MATTER OF

 

Mrs. Krishna Chaudhuri

W/o Sh. Ranendra Nath Chaudhuri

 

Sh. Rupendra Nath Chaudhuri

S/o Sh. Ranendra Nath Chaudhuri

 

Sh. Ranendra Nath Chaudhuri

S/o Late Rabindra Nath Chaudhuri

 

All Residents of:-

Flat No. 312, Dakshinayan Apartment,

Plot No. 19, Sector-4

Dwarka, New Delhi                ….Complainants

 

VERSUS

 

M/s Ansal Properties and Infrastructure Ltd

115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi-110001

Through its Chairman

 

The Chairman,

M/s Ansal Properties and Infrastructure Ltd

115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi-110001                                                     ....Opposite Parties

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. Aloke Kumar Bhattacharya and Sh. S. Mukherjee, Counsel for the Complainant

                         None for the OPs, although they were allowed time to make submissions on or before 06.11.2019

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.             This complaint has been filed before this Commission by Smt. Krishna Chaudhuri, Sh. Rupendra Nath Chaudhuri and Sh. Ranendra Nath Chaudhuri, resident of New Delhi, for short complainants, 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 they having not handed over possession of the flat booked by them despite agreed period having elapsed and despite sale consideration having been paid to the extent required and praying for relief as under:-

 

1. Direct the respondent/OPs to pay a sum of Rs. 7,50,250/- to the complainants alongwith interest @ 18% p.a. from the date of payment made by the complainants to the respondents/OPs till realization of the same by the complainant;
2. Direct the respondent/OPs to pay a sum of Rs. 3,00,000/- to the complainants as compensation for the mental agony and harassment suffered by the complainants for the acts done by the respondents/OPs.
3. Direct the respondent/OPs to pay the cost of the proceedings to the complainants, and
4. Pass any other order or orders as this Hon’ble Forum thinks fit and proper in the interest of justice.

 

2.                 Facts of the case necessary for the adjudication of the complaint are these.
3.             This complaint was originally filed in the District Forum in 2014 but relying on the orders/judgment of the Hon’ble NCDRC passed in the matter of Ambrish Kumar Shukla and ors vs. Ferrous Infrastructure Pvt. Ltd. on 07.10.2016 in CC/97/2016 as reported in MANU/CF/0499/16, laying down, inter alia, the principle for competing pecuniary jurisdiction of a consumer forum, and returning the complaint vide their order dated 19.02.2019, this complaint has been filed here for adjudication.
4.             The OP-1 entered into an agreement dated 30.05.2005 with Sh. Ram Niwas Sharma, S/o Sh. Jaggi Dutt and Sh. Lalit Kumar Vashisht S/o Sh. Ram Niwas Sharma, both residents of H. No. 1357, old no. 560, New Railway Road, Dayanand Colony, Gurgaon, whereby the said Sh. Ram Niwas Sharma and Sh. Lalit Kumar Vashisht were allotted the apartment No. 04 on 4^th floor in Tower No. 26 having a super area of approximately 119 sq. mt. in the proposed group housing complex of the OP-1 i.e. Green Escape, Sonepat for a total basic price of 19.12.500. The said Sh. Ram Niwas Sharma and Sh. Lalit Kumar Vashisht, sold all their rights, title and interests in the said flat no. 04 on the 4^th floor of the tower no. 26 measuring 1275 sq. ft. situated at Green Escape, Sonepat, Haryana provided to them by the OP-1 to the complainants jointly. As a consequence thereof a total sum of Rs. 7,59,250/- has been paid by the complainants to the OP-1 as per the schedule towards the purchase of the flat. But the OPs have failed to give the possession of the said flat to the complainants within the time as agreed to. Infact the said project was not even constructed to its second floor and it was constructed upto the first floor roof slabs in October, 2013. The complainant having been pushed to the wall issued a legal notice to the OPs. The OPs on receipt of the notice showed some interest to settle the matter and the negotiations started between the parties for settlement. The OPs in furtherance to the discussion addressed a letter to the complainant which letter reads as under:-

 

 

“I discussed with you, we can allot you a new unit, having no. 01030241401, Green Escape. This unit is also on verge of completion and construction to build remaining part is going on in full swing. We are positive that we would be able to offer possession against the tower in next 7 to 8 months. The pricing calculation of the unit and the calculation of the amount which you have to pay upfront is attached herewith for your kind reference. It is really good option to you. Kindly acknowledged and advice take on that. With due respect Aseem Sharma, Sale and Marketing, Sushant City Kundli,”. The offer was however not acceptable to the complainants.

 

5.             The OPs thereafter came out with second offer. That offer was also not acceptable to the complainant since the construction even in the second alternate was no where near completion and resultantly the complainant had sought for the refund, which refund not having been done, this complaint has been filed by the complainants for the redressal of their grievances.
6.             OPs were noticed and in response to that thereto they have filed their reply resisting the complaint both on merit and technical ground and stating inter alia, that they are prepared to refund the deposited amount with 9% interest. The complainants have filed rejoinder rebutting the contentions raised in the reply and reiterating the averments contained in the complaint. Both sides have filed evidence in support of their pleadings. Both sides have filed their written arguments/submissions.
7.             This matter was listed before this Commission for final hearing on 01.11.2019 when the counsel for the complainant appeared and advanced his arguments praying for the refund of the amount. None was present on behalf of the OPs. Arguments on behalf of the complainants concluded. Liberty was granted to the OPs to conclude their arguments till 06.11.2019. No one has appeared on behalf of the OPs even in the extended period.
8.             Short question for adjudication in this complaint is whether the complainant is entitled for the refund as prayed for in the facts and circumstances of the case when admittedly the OPs have not been able to complete the construction within the time as agreed to.
9.             Having bestowed my consideration to the facts at hand, I am 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. 
10.             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 he has suffered at the hands of OPs on account of non-delivery of the allotted flat.
11.             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 my 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.
12.             From the above it is apparent that this Commission can pass orders regarding the refund of the amount deposited to the company by the complainants, notwithstanding the proceedings pending in any other forum.
13.             Besides, 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.

 

14.                 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,

           

1. Emaar MGF Land Ltd. and Anr versus Amit Puri-II[2015] CPJ 568 (NC)
2. Parasvnath Exotica Residents Association versus Parasavnath Developers Ltd. and ors-IV[2016] CPJ 328 (NC).

 

15.             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”.

 

16.                 I take note of the fact that the OPs have already agreed to refund the deposited amount with interest at the rate of 9%. Keeping in view the facts and circumstances of the case and the legal position discussed above, I am 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 8%. This payment be made by the OPs within a period of two months from the date of receipt of this order.
17.             Ordered accordingly, leaving the parties to bear the cost.
18.             A copy of this order be forwarded to the parties to the case free of cost as statutorily required.  
19.             File be consigned to records.

 

 

(Anil Srivastava)​

Member