MRS. M. SHREESHA, MEMBER

These Complaints have been filed by the Complainants under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short “the Act”) against M/s. Ansal Housing & Construction Limited. As all these Consumer Complaints  are relating to the same project and the reliefs sought are identical, hence these Consumer Complaints are being disposed of by this Common Order.

2.       For the sake of convenience, Consumer Complaint No. 514 of 2018 is being taken as the lead case.

Consumer Complaint No. 514 of 2018

3.       The brief facts as stated in the Complaint are that the Complainant applied for allotment of an Apartment in the group housing scheme launched by M/s Anshal Housing & Constructions Ltd. known as the “Ansal Heights, 86” in Sector 86, Gurgaon, Haryana. On 01.07.2013, a Builder Buyer Agreement was executed and the Complainant was allotted an Apartment/Unit No.E-0203 having super area of 1690 sq. ft. for a total sale consideration of  ₹67,82,016/-, out of which the Complainant paid a sum of ₹65,32,261/- to the Opposite Party. It is stated that as per Clause 31 of the Buyer’s Agreement, the Complainant was assured that the possession of the Apartment would be delivered by 01.01.2017 that is within 42 months from the date of signing of the Agreement, with a grace period of six months.

4.       It is averred that at the time of applying for the Flat and payment of Application Money, the Buyer’s Agreement was not shown to the Allotees/Complainants. The Complainant had to sign the already prepared documents and that some of the clauses are totally unreasonable and one sided and no modification was entertained by the Opposite Party to change the one sided clauses and the Complainant was made to sign the Buyer’s Agreement as it is. It is pleaded that despite having paid substantial amounts  on time and making several requests, the Opposite Party has failed to deliver the possession of the Flat to the Complainant till the date of filing of the present Complaint. It is pleaded that as per Clause 37 of the Buyer’s Agreement, it was agreed that in case the Opposite Party is not able to hand over the possession to the Complainant within the grace period of six months, the Opposite Party shall pay to the Complainant compensation, at the rate of ₹5/-per sq. ft. per month of the super area, which comes to approximate 1.4% interest per annum for the period of delay. Further, as per clause 24, of the Buyer’s Agreement, if there is any delay in payment of any amount due to the Complainants the Opposite Party would charge interest @ 24% p.a., compounded quarterly on the said amount. It is pleaded that the Complainant has specifically booked the Flat for the specific purpose of using it as a home for their family and are suffering from tremendous financial losses and mental agony only on account of the conduct of the Opposite Party in not delivering the possession within the promised time period, which squarely falls within the ambit of definition of deficiency of services and unfair trade practices as defined under the Consumer Protection Act 1986, and hence Complainants deserves to be adequately compensated.  

5.       It is pleaded that the Complainants have lost all faith in the project of the Opposite Party; that the construction quality is very low; that the Director of town and Country Planning, Haryana vide memo dated 24.05.2017, declined the grant of Occupancy Certificate to the Opposite Party due to non-compliance of statutory requirements and other issues and  the Complainants do not now wish to reside in a Flat even if the Opposite Parties deliver the possession of the same to them in the near future. Hence the Complainant seeks for refund of the money paid along with the interest @ 18% p.a. from the date of payment till the date of realisation, by way of damages and compensation of ₹5,00,000/-.

6.       The Opposite Party has miserably failed to comply with its contractual obligations of handing over possession of the subject Flat in “Ansal Heights, 86”, and even after several months, they have not completed the entire construction work, which clearly is  an act of  “deficiency in service” on the part of the Opposite Party and as the Complainants have suffered a lot of mental harassment and agony at the hands of the Opposite Party they are entitled to be adequately compensated.

7.       Hence it is pleaded that  for the delay committed by Opposite Party, they should be made liable to pay interest @ 18% p.a. from the date of each deposit till its actual realization which amounts to ₹58,80,983/-. Hence the Complainants approached this Commission seeking direction to the OP to refund the sum of ₹64,53,259/- paid towards sale consideration together  with  interest amount of ₹58,80,983/- and ₹5,00,000/- towards mental agony and cost of litigation.

8.       The Complaint was contested by the Opposite Party on the following

that the Complainants are not “Consumers” but just investors in the Project; since the agreed sale consideration is ₹69,78,080/-, this Hon’ble Commission lacks pecuniary jurisdiction to entertain the Complaint;  that the present Complaint is premature as the period of delivery of 42 months is not sacrosanct because the delay in any event is attributable to force majeure events as explained under Clause 31 and 32; that this Commission has no jurisdiction to entertain the instant Complaint as Clause 64 of the Agreement dated 01.07.2013 provides that any dispute between the parties shall be adjudicated under the provision of the Arbitration and Conciliation Act, 1996. It is averred that ground water excavation was banned in Gurgaon by the order of the Hon’ble Punjab and Haryana High Court; another factor which resulted in the delay was the ban on mining of sand in Haryana and Rajasthan by the National Green Tribunal; that there was a ban on construction  by National Green Tribunal in the month of April, 2015 and November,2016 and that all  the aforenoted reasons led to delay in the construction, which was beyond the control of the Developer and falls under force majeure condition.  It is further averred that despite all existing circumstances beyond the control, the Opposite Party is trying hard to complete the construction with finishing works going on and possession would be handed over within a short span of time. It is stated that vide letter dated 31.05.2017, the Opposite Party has applied for Occupation Certificate along with relevant documents.  It is further stated that the Complainants have signed the Agreement out of his free will and volition after fully analyzing the terms of the agreement and now cannot demand refund of the amount paid with interest and compensation. All the other averments made in the Complaint were denied and the Developer seeks dismissal of the Complaint with costs.

9.       The Complainant filed his Affidavit by way of Evidence and marked Exhibit  PW1/A (Builder Buyer’s Agreement), PW1/B(Interest Calculation Sheet), PW1/C (Memo  dated 24.05.2017), PW1/D (Copy of email of Opposite Party admitting delay)  and PW1/X (Complaint) on his behalf.

10.     The Opposite Party filed its Affidavit by way of Evidence and marked Exhibit OPW-1/1 (copy of board resolution), OPW-1/2 (Letter of commencement of construction dated 03.09.2013), OPW-1/3 (Colly) (copy of newspaper reports), OPW-1/4 (Colly) (Photographs of the construction site) and OPW-1/5 (copy of letter dated 31.05.2017 for grant of occupation certificate)

11.     Heard counsel for the parties at length.

12.     The contention of the learned Counsel for the Opposite Party that the Complaint is barred on account of pecuniary jurisdiction is untenable as it can be seen from the record that the total sale consideration is ₹67,82,016/- and as per the principle laid down by a larger Bench of this Commission in “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited I (2017) CPJ 1 NC”,  the value of goods and services in addition to the compensation  prayed for has to be considered while ascertaining the pecuniary jurisdiction. In this case the value of goods is ₹67,82,016/- and the compensation prayed for is refund of the money paid which is ₹65,32,261/- with interest @ 18% p.a. and compensation of ₹5,00,000/-, which far exceeds the pecuniary jurisdiction of this Commission, which is rupees one crore and above. The next contention of the learned Counsel for the Opposite Party that the Complainant is not a Consumer as he has purchased  the said unit for commercial purpose is not substantiated by any documentary evidence and the ratio laid down by this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, squarely apples to the facts of this case.

13.     Now we address ourselves as to whether the Opposite Party was able to deliver possession within the stipulated period as contemplated in Clause 31 of the Flat Buyer’s Agreement dated 01.07.2013 entered into between the Opposite Party and the Complainant. For better understanding of the case, Clause 31 is reproduced as hereunder:

“31. The Developer shall offer possession of the Unit any time, within a period of 42 months from the date of execution of Agreement or within 42 months from the date of obtaining all the required sanctions and approval necessary for commencement of construction, whichever is later subject to timely payment of all the dues by Buyer and subject to force-majeure circumstances as described in clause32. Further there shall be a grace period of 6 months allowed to the Developer over and above the period of 42 months as above in offering the possession of the Unit”

14.     Learned Counsel appearing for the Opposite Party vehemently argued that the Clause specifies that the delivery of possession is subject to force majeure conditions and that there were several reasons and circumstances beyond the control of the Opposite Party such as interim orders of the Hon’ble Punjab and Haryana High Court, whereby ground water extraction was banned in Gurgaon; orders passed by the National Green Tribunal (NGT), whereby mining of sand in Haryana and Rajasthan was banned; reservation agitation in Haryana; orders of NGT to stop construction to prevent emission of dust in the month of April, 2015 and again in November, 2016, demonetisation etc.

15.     All the aforenoted reasons do not fall within the ambit of reasons beyond their control as it can be seen from the  record that the Flat Buyer’s Agreement was entered into way back in July, 2013 and the orders of NGT to prevent emission of dust in April, 2015 and in November, 2016 cannot be construed to be any substantial reason and definitely not a force majeure condition.  Even demonetisation and reservation agitation cannot be construed as force majeure. With respect to other reasons there is no documentary evidence on record that they have led to the delay in the delivery of possession.

16.     It is also stated in the Written Version that required sanctions and approvals were only got in the month of September 2013, whereas the Flat Buyer’s Agreement was entered in July, 2013. The floating of the project and collecting money from the Flat buyers without having necessary sanctions is per se deficiency in service.

17.     Learned Counsel for the Opposite Party also contended that the project work is nearing completion and the finishing work is going on and in all likelihood the possession of the unit would be handed over in a short period of time. Even in the Written Version there is no specific date given for the handing over of possession of the subject flats. Even if we take into consideration the submission of the learned Counsel that the possession of the unit is due only in the month of October 2017, taking into consideration the 42 months’ time period and also the grace period, still the fact remains that the Opposite Party is unable to give a specified date by which time they can handover legal possession with the Occupation Certificate. Hence the decision of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 (SC), wherein the Hon’ble Apex Court has laid down that the flat purchaser cannot be made to wait indefinitely for delivery of possession, squarely applies to the facts of this case.

18.     Learned Counsel appearing for the Complainant vehemently contended that the flat purchasers were made to sign the Flat Buyer’s Agreement and that they did not have an opportunity to protest with respect to the one-sided Clauses. It is seen from the record that Clause 37 of the Agreement refers to the compensation to be paid by the Developer at ₹5/- per sq. ft. per month on the super area for any delay in offering possession of the unit after adjusting all the dues. These charges are further to be paid only after the stipulated period of 42 months plus grace period has lapsed. Learned Counsel for the Complainant argued that this meagre sum of ₹5/- per sq. ft. for every month of delay is approximately 1.4% rate of interest per annum, whereas the Opposite Party is charging interest @ 24% p.a. on any amounts due. At his juncture we find it a fit case to place reliance on the principle laid down by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2009) CPJ 34 (SC), wherein the Hon’ble Apex Court had examined such Clauses present in the Builder Buyer Agreements and has observed that such one-sided Clauses amount to unfair trade practice. Keeping in view the facts and circumstances of the case we have no hesitation to hold that Clause 37 of the subject Flat Buyer’s Agreement falls within the definition of unfair trade practice as defined under Section 2 (r) of the Act.

19.     Keeping in view the aforenoted reasons, we are of the considered opinion  that there is a deficiency of service on behalf of the Opposite Party and the Complainant is entitled to refund of the amount paid with interest @ 12% p.a. and costs of ₹25,000/-. It is relevant to note that this interest @ 12% p.a. is being awarded to meet the ends of justice specially keeping in view the submission of the learned Counsel appearing for the Complainant  that some  of the Complainants, have taken housing loans  and paying interest rate ranging from 9% to 10.25% p.a.; the loss of opportunity of the  Complainant  as had the Complainant invested the same amount of money elsewhere or if he had purchased the house in another project, would have a better opportunity of exercising his options and could fulfil his dream of owning a house and finally taking into consideration the principal of restitutio in integrum which specifies that the aggrieved person should necessarily be compensated for the financial loss suffered due to the event and get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. Hence, We are of the view that awarding interest @ 12% p.a. is not only reasonable but also justified. It is pertinent to mention that no additional amounts are being awarded under the head of ‘Compensation’ at the cost of repetition this interest rate @ 12% p.a. is being awarded by way of damages and compensation.

20.     In the result, this Complaint is allowed in part directing the Opposite Party to refund the principal amount with interest @ 12% p.a. from the respective dates of deposit till the date of realisation together with costs of ₹25,000/-. This amount is directed to be paid within four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 515 of 2018

21.     Ashish Aggarwal and Garvit Garg booked a residential Unit No. 0403,  Floor 04, Block B of 1895 sq. ft. and entered into a Builder Buyer Agreement on 30.07.2012, paying a total amount of ₹69,51,223/- and the promised date of delivery  was 31.01.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 516 of 2018

22.     Arun Kumar Kakar booked a residential Unit No. 0505,  Floor 05, Block E of 1690 sq. ft. and entered into a Builder Buyer Agreement on 12.09.2013, paying a total amount of ₹61,95,589/- and the promised date of delivery  was 12.03.2017. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 517 of 2018

23.     Neeraj Kumar Jain and Poonam Jain booked a residential Unit No. 0804,  Floor 08, Block J of 1690 sq. ft. and entered into a Builder Buyer Agreement on 27.07.2012, paying a total amount of ₹71,34,685/- and the promised date of delivery was 27.01.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 518 of 2019

24.     Deepak and Suman Sharma booked a residential Unit No. 0105,  Floor 01, Block J of 1690 sq. ft. and entered into a Builder Buyer Agreement on 26.07.2012, paying a total amount of ₹73,48,919/- and the promised date of delivery was 26.01.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 519 of 2019

25.     Tarun Pathak booked a residential Unit No. 0701,  Floor 07, Block E of 1690 sq. ft. and entered into a Builder Buyer Agreement on 04.09.2012, paying a total amount of ₹60,52,317/- and the promised date of delivery was 04.03.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 520 of 2019

26.     Achintya Bharat and Ishya Sharma booked a residential Unit No. 0801,  Floor 08, Block B of 1895 sq. ft. and entered into a Builder Buyer Agreement on 19.10.2012, paying a total amount of ₹67,38,373/- and the promised date of delivery was 19.04.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 521 of 2019

27.     Ajit Kaur and Gurpreet Singh Gill booked a residential Unit No. 0303,  Floor 03, Block J of 1690 sq. ft. and entered into a Builder Buyer Agreement on 15.11.2012, paying a total amount of ₹76,31,580/- and the promised date of delivery was 15.05.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 522 of 2019

28.     Neeraj Parnami and Manju Parnami booked a residential Unit No. 1204,  Floor 12, Block E of 1690 sq. ft. and entered into a Builder Buyer Agreement on 15.05.2014, paying a total amount of ₹63,93,890/- and the promised date of delivery was 15.11.2017. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 523 of 2019

29.     Vivek Upadhyay and Shipra Upadhyay booked a residential Unit No. 1201,  Floor 12, Block B of 1895 sq. ft. and entered into a Builder Buyer Agreement on 25.08.2012, paying a total amount of ₹77,15,124/- and the promised date of delivery was 25.02.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 524 of 2019

30.     B. D. Khatreja and Amita Khatreja booked a residential Unit No. 0204,  Floor 02, Block E of 1690 sq. ft. and entered into a Builder Buyer Agreement on 18.09.2012, paying a total amount of ₹66,34,101/- and the promised date of delivery was 18.03.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 525 of 2019

31.     Vipin Gulati booked a residential Unit No. 0406,  Floor 04, Block J of 1690 sq. ft. and entered into a Builder Buyer Agreement on 04.10.2012, paying a total amount of ₹69,24,423/- and the promised date of delivery was 04.03.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.

Consumer Complaint No. 526 of 2019

32.     Daya Shankar Singh and Prema Singh booked a residential Unit No. 0504,  Floor 05, Block J of 1690 sq. ft. and entered into a Builder Buyer Agreement on 06.02.2013, paying a total amount of ₹68,04,288/- and the promised date of delivery was 06.08.2016. For all the aforenoted reasons in Consumer Complaint No. 514 of 2018, this Complaint is allowed in part and the Opposite Party is directed to refund the amounts paid with interest @ 12 % p.a. from the respective dates of deposit till the date of realization together with costs of ₹25,000/- to be paid to  the first Complainant. Time for compliance four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @ 14% p.a. for the same period.