Delhi

StateCommission

CC/11/2014

KOMAL SINGH - Complainant(s)

Versus

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

30 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing: 30.08.2018

                                                                                                              

                                                                   Date of decision:06.09.2018

 

 

Complaint No. 11/2014

 

IN THE MATTER OF:

 

Sh. Komal Singh

S/o Late Sh. Bhuri Singh

R/o VIII-Nagla Kodha,

PO- Sadabad, Distt. Hathras,

(U.P.) 281306                                                                  ….Complainant

 

VERSUS

 

M/s Ansal Properties & Infrastructure Ltd.,

115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi-110001

Through its Managing Director,

Mr. Pranav Ansal                                                 ….Opposite Parties No.1

 

M/s Ansal Landmark Townships Pvt. Ltd.,

210, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi-110001

Through its Director                                             ….Opposite Parties No.2

 

M/s Ansal Urban Condominiums Pvt. Ltd.,

115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi-110001

Through its Director                                             ….Opposite Parties No.3

 

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:       Sh. Bipin Sharma, Counsel for the Complainant

None for the OPs

They are ex-parte

                  

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. Komal Singh, resident of Hathras, U.P., for short complainant, since deceased through LRs against M/s Ansal Properties and Infrastructure Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of the OPs they having not delivered the possession of the flat booked by him despite the agreed period of time having elapsed and praying for the relief as under:

 

1. Pay to the complainant the principal sum of Rs. 10,93,450/- already paid by the complainant to the OP, and
2. Pay to the complainant a sum of Rs. 22,34,069/- as interest calculated @ 18% per annum till 31.12.2013 and further interest from 01.01.2014 till the date of actual payment,

In alternative to prayer b) above pay to the complainant a sum of Rs. 24,00,000/- as compensation on failure to fulfill their promises to deliver possession of the flat to complainant in time, thereby causing unlawful loss to complainant and unlawful gain to OPs including rental income which the complainant would have earned or for non-enjoyment of the property by the complainant himself, and

3. Pay to the complainant a sum of Rs. 10,00,000/- as compensation for mental torture and agony as an exemplary compensation to act as a deterrence to the builders from causing such mental agony and stress which they make the unsuspecting buyers who are kept eagerly waiting for their dream houses to come up after retirement after having invested their hard earned money with the builders, and
4. Allow the costs of the proceedings and other miscellaneous expenditure in favour of the complainant, and
5. Any other relief in favour of complainant and against the OPs which this Hon’ble Commission may deem fit and proper.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainant having been lured by the advertisement of the OPs launching of a residential complex under the scheme “AQUADOLIS DOONDAHERA” at NH 24, Ghaziabad had booked a residential unit of an area of 1390 sq. ft. bearing unit no. D-02/09/01 under the scheme code no: 806 and project code no: 809. Booking amount of Rs. 2,50,000/- was paid to the OPs and as a consequence thereof OPs had allotted the complainant the flat applied for vide their letter dated 29.01.2007. The possession was agreed to be handed over in 36 months from the date of booking which means by 2010. The complainant had paid all the installments as and when demanded by the OPs from time to time and by 22.01.2008 an amount of Rs. 10,93,450/- was paid.
4.           The complainant was surprised to receive the letter of Agreement from the OP No.2 which had certain anomalies. The said anomalies were duly conveyed to the OP by the complainant vide his letter dated 05.11.2008 and sought response. The complainant pointed out that no response was received from OPs office till he sought for refund of his hard earned money which was sought for owing to no progress in the project.
5.           The complainant having received no response from the OPs regarding his request for the refund of the amount deposited, filed this complaint for the redressal of his grievances.
6.           OPs were noticed and in response thereto they have filed their written statements denying the averments made in the complaint. However they have not led any evidence in support of their defence. The complainant has filed the rejoinder and evidence in support their averments made in the complaint.
7.           The matter was listed before me on 30.08.2018 when the ld. Counsel for the complainant appeared and advanced his arguments in support of his prayer for refund of the amount deposited and interest and damages. None appeared on behalf of the OPs. Infact they are ordered to be proceeded ex-parte vide proceedings recorded on 29.07.2016. I have perused records of the case and given a careful consideration to the subject matter.
8.           In the first instance it is noted that there has been no progress in the project within the time as agreed to. The complainant on the other hand had completed the formalities as required. He had never been defaulter. He had never breached any condition of agreement.
9.           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.
10.  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.  In these circumstances inevitable conclusion is 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.
11.   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.
12. 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.
13. In view of the discussion done we direct the OPs are directed to refund the principal amount paid by the complainant with simple interest @ 10% p.a. from the date of receipt of the amount till its realisation.
14. 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) 

                                                                                                                           MEMBER (GENERAL)