District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.482/2021.
Date of Institution: 21.09.2021.
Date of Order: 02.12.2022.
1. Mr. Jitender Pratap Singh s/o Late Sh. J.K.Yadav.
2. Mrs. Kavita Yadav W/o Mr. Jitender Pratap Singh r/o H.No. 595, Sector-7, Block-B, Faridabad, Haryana – 121006, Mob. 9818876613. Email. Kyadav.add@gmail.com.
…….Complainant……..
Versus
1. Ansal Crown Infrabuild Pvt. Ltd., Reg, Office at 118 UFF, Prakash Deep Building 7, Tolstoy Marg, New Delhi – 110001.
Site office at:-
Ansal Crown Heights, Sector-80, Faridabad.
2. The District Town Planner Faridabad, HUDA Complex, Sector-12, Faridabad.
3. The Director Town and Country Planning Chandigarh, SCO-71-75, Sector-17C, Chandigarh – 160017. …Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Ms. Kavita Yadav alongwith Shri Harish Chetal Advocate.
Sh. Jatinder Singh, counsel for opposite party No.1.
Opposite party Nos.2 & 3 given up vide order dated 6.6.2022.
ORDER:
The facts in brief of the complaint are that the complainant purchased the flat/unit No. 304, 3rd floor, measuring 1788 sq. ft. in Tower-4, Ansal Crown Heights, situated at Sec-80 Tehsil & Distt. Faridabad, Haryana at the rate of 2200/- per sq. ft. of super area amounting of Rs.59,00,400/-. Opposite parties had issued allotment letter dated 17.11.2012 and Buyer Agreement dated 17.11.2012 in favour of the complainants and confirmed the allotment of above said flat and payment plan was opted as construction linked plan and schedule.
Additional charges also mentioned as under:-
EEFC (External Electrification & fire Fighting Charges) Rs.125/- p. sq. ft.
PLC – Rs.50 sq. ft.
Club Charges – Rs.75000/-
Power Back up – Rs.50000/-
Car parking under stilt – 2,25,000/-
The complainants had deposited all installments as and when opposite parties demanded and have also offered 2% rebate in basic price if deposit within time, the complainant had deposited all installments within period as the opposite parties have mentioned in demand letter. This was also a trick to grab more and more amount from the complainants as early as possible. Complainant NO.2 had already booked a flat No. 101 on first floor measuring 1095 sq. ft. in the same project in situated in Sector-80 on 29.06.2011 for her own usage as complainant have two children, they have a dream to live both children in the same of area with their parents but all were ruined by the opposite parties. Till 2013 the opposite party No.1 have constructed the structure of the towers of the project in very fast way to grab all consideration amount of flats as per their one sided buyer agreement construction linked plan. The complainants had deposited total amount of Rs.60,52,213/- as and when demanded by the builder till 2015. The complainant were assured at the time of purchase of flat that the possession of the flat would hand over within two years. The complainant had deposited more than of 95% cost of flat as and when opposite party No.1 demanded. The opposite parties had demanded the last payment 26.12.2015 and they had stopped construction works before this demand. Complainant had visited so many times at the site and at the head office and met with officials personally and asked about the construction but every time they had told to the complainant that builder had no money for further construction and they were making arrangements. The complainants had asked about the progress of construction and for the date of possession through e-mail, opposite parties had never replied for the same. The complainant had also requested to give the details of RERA registration and penalty for delay of possession but opposite parties had neglected the same. The complainant sent legal notice dated 03.11.2017 to the opposite parties but all in vain. The complainant also filed a criminal complaint on 29.11.2017 in the office of Police Commissioner Faridabad and copies were supplied on CM Window Faridabad. The said complaint was referred to the Economic Offence Wing Faridabad and the builder wassummned by the police department where the opposite party had propsoed to exchange the another flat in the another tower in the same project which was almost completed and assured thatthey would hand over the pssession of the new flat in december 2018. On relying the statement of opposite parties the complainants had accepted the offer of bilder as there was no option with complainants as they were in need of the flat. The opposite parties had exchanged the flat No. 1702 on 17th floor measuring 1820 sq. ft. in Tower NO. 7 at Ansal Crown Heights , sEctor-80, Faridabad in lieu of flat NO. 304, 3rd floor, measuring 1788 sq. ft. in Tower-4 at Ansal crown Heights, Sector-80, Faridabad vide allotment letter dated 20.12.2017 alongwith statement the consideration amount of new allotted flat and given an affidaivt dateaad 09.01.2018 that they would handover the possession of the flat on or before December 2018 and assured that company shall continue with the 2% timely payment discount on the installments given by the complainants. Thereafter opposite parties had issued agareement endorsement letter dated 31.01.2018 and mentioned that the terms and conditions mentined under flat Buyer Agreement dated 17.11.2012 would be consdered against unit NO. 1702 in Tower-7 at Ansal Crown Heights, Sector-80, Faridabad. Thereafter complainantts have received a letter again that there were some changes in the composition of builder company and demanded a sum of Rs.3,65,563/- and assured that they had applied for the occupation certificte for the tower in which the flat situated. On the assurance of builder tha they would get the occupation certificte within 3 months. The complainants had deposited an amount of Rs.2,06,500/- +88,500/- for the amenities charges (car parking) vide receipt dated 15.03.2019. The oppsite parties No.1 had issued a letter dted 18.03.2019 that they had allotted an open car parking and one covered parking. In this way the complainants had deposited a sum of Rs.60,52,213+2,06,500+88,500= Rs.63,47,213/-. Opposite parties had failed to handover the possession of even exchanged flat till date and even after receiving 100% cost of flat. Opposite party NO.2 had not issued occupation certificate till date. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) handover the possession of flat alongwith registered conveyance deed and occupancy certificate.
b) pay compound interest @ 24% p.a. from the date of each such deposit till the possession of the flat.
c) pay Rs. 10,00,000/- as compensation for causing mental agony and harassment .
d) pass any other order or grant any other relief as may be deemed fit in the interest of justice.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the opposite party was granted license, , to develop and construct the project in question having 10 towers, by the Department of Town and Country Planning, Haryana. However, subsequent to the issuance of the licence by the Directorate of Town and country Planning, Haryana, the construction on the project got delayed time to time due to delays on the part of Directorate of Town and country Planning, Haryana in reviewing the license of the opposite party. It was pertinent to mention that between 2007 to 2020 the construction work of the project got delayed by a period of 1109 days due to delay on the part of Directorate of Town and Country Planning, Haryana in the renewal of license of the opposite party despite the fact that on each occasion it had applied for the renewal well in advance before the expiry of its validity period. Further it was pertinent to mention that the opposite party had duly applied to Director, Town and country Planning, Haryana, for renewal of licence on 21.09.2017, however, the same remains pending with the department causing further delay in the completion of the project. As such the project got delayed by a total 1286 days for the reasons above mentioned which had beyond the control of the appellant. Further again, application for renewal was file don 13.10.2016 which revalidated till 17.09.2017. The appellant again had duly applied to Directorate, Town and Country Planning, Haryana, for renewal of license on 21.09.2017, however, the same was only renewed vide letter dated 30.4.2018 which was valid upto 17.09.2019. Further it was pertinent to mention that the appellant had duly applied to Director, Town and Country Planning, Haryana for renewal of licence on 17.09.2019 which hadn’t approved by the authorities till date. It was submitted that during the intervening period construction work also got affected due to delays caused by the contractor or appointed by opposite party company for the present project. Initially, the opposite arty had awarded the construction work of four of the towers to M/s CRS Infra Projects Limited vide a letter of intent dated 14.03.2011 as a contractor. As per the terms of the letter of intent the contractor had to complete the construction within 24 months, however the contractor with his lackadaisical attitude was lagging greatly behind the scheduled construction. The opposite party through various letters and correspondence between the period of 18.06.11 and 10.02.2012 urged the contractor to increase its pace, however there was no significant improvement in the performance of the contractor. Left with no other resort the opposite party terminated the service of the contractor vide a letter dated 21.04.2012 but M/s. CRS Infra Projects Limited raised disputes due to which the opposite party could not retender the work to another contractor. It was only on 05.11.2012 that the opposite party could retender the construction work to M/s. Pyare Lal Hari Singh Builders Pvt. Ltd., However, the M/s. CRS Infra Projects Limited having malafide intention and being a dominant force in the local construction market, created regular hindrances for the newly appointed contractor who was acting as its replacements in form of lockouts, labour problems and in procurement material. Due to the said hindrances created by M/s. CRS Infra Projects Limited, M/s. Pyare Lal Hari Singh Builders Pvt. Ltd., the overall construction work of all the 8 towers was gravely affected at the site and thus the contract with M/s. Pyare Lal Hari Singh Builders Pvt. Ltd. Had to be terminated and fresh tendering had to be organized. Thereafter, the opposite party granted the contract for construction to M/s. Radha Laxaman Contracts vide a letter dated 31.01.2013. It was submitted that apart from delays caused on account of the licensing authority, the pace of completion of the project had also suffered due to the ban of construction imposed from time to time by various authorities considering the air pollution levels in the Delhi NCR region including Faridabad. In the year 2019 itself a serried of notifications and directions passed by various authorities had banned construction in NCR from time to time. It was submitted that first Environment Pollution (Prevention and Control) Authority for NCR vide its direction dated 25 October bearing NO. EPCA-R/2019/L-49 imposed partial ban from 26.10.2019 to 30.10.2019 on construction activities. Thereafter, Environment Pollution (Prevention and Control) Authority for NCR vide direction dated 01.11.2019 bearing EPCA-R/2019/L-53 imposed a complete ban was from 1.11.2019 to 5.11.2019. Further, Hon’ble Supreme Court vide its order dated 04.11.2019 in the matter bearing W.P © No. 13029/1985 also banned the construction activities in Delhi NCR till further orders keeping in mind the damage caused to the environment due to construction and demolition activities. It was further necessary to mention that, Supreme Court had only on 09.12.2019 partially uplifted the ban on construction activities in Delhi NCR between 6 a.m. to 6p.m. Where after despite facing practical issues I arranging manpower, the opposite party had managed to maintain 170 constant labour forces on the project. So as to camp the pending work at the earliest, which clearly shows bonafide intention of the present management to complete the project. Even in the year 2018, vide notification no. EPCA-R/2018/L-91 and EPCA-R/2018/1 periodic ban on constructions were imposed. Such bans that had been imposed from time to time in the past several years, not only had enormous adverse impact on the construction of infrastructure projects during the period when the ban was imposed but its adverse effects continues much further as it took a long time to reorganize the labour force once the ban was lifted. Another factor to be considered that most of the labour force in NCR hails from Easter UP/Bihar so during such period wherein the ban remains in effect, the labour force usually heads back to their hometowns, since it becomes difficult for them to sustain herein without any source of income. It was an admitted fact, consequently, on an average the construction ban of 1 day was equivalent to a 10 day delay in construction. It was also pertinent to mention that such bans majorly affect the projects which were near completion like the project in question. Hence, even after putting night and day in completing the project delay was caused due to such circumstances which were beyond the control of opposite party. It was submitted that the delay to the project was caused due to the policy of demonetization introduced by the government of Indian on November 2016 being an event of Force Majeure i.e. by change in national currency which consequently resulted in a great phenomena that caused shortage of money to everyone for months and it was hard to pay for daily wages or workers, payments for construction materials as the instalments pending at were stopped by buyers due to shortage of new notes/currency. It was submitted that although the opposite party pumped in funds from internal sources, as well as the initial payments received from the flat buyers, and from that the construction of the project was started. The allottees started defaulting in the timely payments of the due instalments as per the payment plans opted by them. Majority of the allottees started delaying the payments of their due instalments on regular basis. It was pertinent to mention herein a sum of Rs.9,02,69,300/- was still outstanding from the defaulting allotttees, which the said allottees had neglected to pay despite the receipt of repeated demand letters/notices issued by the opposite party from time to time. It was needless to mention herein that realization of this outstanding amount would immensely benefit the project. The bonafide of the opposite party was also clear from the fact, that even though the delay cause was not due to any negligence or lackadaisical attitude of the opposite party, still keeping in mind the sole benefit of the buyers, the opposite party had reduced the interest that was payable by the buyers on delayed payments to 9% p.a. from 24% as stipulated in the Apartment-Buyer Agreement, since 01.01.2017. Hence, there could not be an iota of doubt that the bonafide intentions of the opposite party. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Shri Bagender Bhadana, counsel for the complainant has made a statement that “I want to give up opposite parties Nos.2 & 3 being unnecessary parties.” Accordingly, opposite parties Nos.2 & 3 given up from the array of the opposite parties vide order dated 06.06.2022.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties– M/s. Ansal Crown Private Infrabuild with the prayer to: a) handover the possession of flat alongwith registered conveyance deed and occupancy certificate. b) pay compound interest @ 24% p.a. from the date of each such deposit till the possession of the flat. c) pay Rs. 10,00,000/- as compensation for causing mental agony and harassment . d) pass any other order or grant any other relief as may be deemed fit in the interest of justice.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Jitender Pratap Singh, Ex.C1 – allotment letter, Ex.C-2 – Flat Buyer Agreement,, Ex.C-3 – letter, Ex.C-4- statement, Ex.C-5 – legal notice, Ex.C-6 – complaint to Police Commissioner, Ex.C-7 – letter dated 22.02.2017 regarding allotment of flat No. 1702 in Tower-07 at Ansal Crown Heights, Faridabad, Ex.C-7A - details of flat, Ex.C-8 – affidavit, Ex.C-9 – letter dated 31.01.2018 egarding agareement endorsement, Ex.C-10 & 11 – letters, Ex.C-12 & 13 – receipts, Ex.C-14 – letter dated 18.03.2019, Ex.C-15 – arrangement letter.
On the other hand counsel for the opposite party No.1 strongly
agitated and opposed. As per the evidence of the opposite party No.1 Ex.RW1/A – affidavit of Vishal Sehgal, authorized Signatory of opposite party company having its registered office at 118 Upper First floor, Prakashdeep Building, 7, Tolstory Marg, New Delhi, Ex.R1 – Resolution ,Ex.R2 – letter dated 19.10.2009 regarding renewalof licence NO. 226 of 2007, Ex.R-3 – letter dated 30.04.2018, Ex.R-5 (colly) – not readable, Ex.R-6 – not readable, Ex.R-7 – letter dated 16.08.2016, Ex.R-19– affidavit cum undertaking.
7. As per Flat Buyer Agreement vide Ex.C2 , flat No. 304 on 3rd floor of Tower No. 4 admeasuring super area of 1788 sq. ft. was allotted to the complainant and Apartment Buyer’s Agreement was also executed on 17.11.2012. As per Ex.C-4 the complainant had deposited total amount of Rs.60,52,213/-/-.
As per Apartment Buyer’s Agreement, the possession of the said apartment was to be handed over to the complainant within one year. More than a period of 10 years had already been lapsed but the opposite party had failed to provide the possession of the said apartment to the complainant.
8. During the course of arguments, Ms. Kavita Yadav, Complainant in person has made a statement that “We do not want the possession in question of flat as there is no hope of the possession of the flat in question. Hence, we want the refund amount alongwith interest.”
9. After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite party and the complainants have waited for more than 12 years to see the project to be
completed. So that unilateral clause about the cancellation by the allottee debar him from seeking refund is not binding in view of the ratio of laid down in the following cases:
1) Ram Vilas “Sharma & 23 others Vs. M/s. Gold Souk Infrastructuress Private Ltd. in consumer case No. 421 of 2018 passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi referred the authority passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II(2019) CPJ 29 (SC)……….In the circumstances, we are of the view that the orders passed by the SCDRC and by NCDRC for refund of moneys were justified.”
ii) Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him alongwith compensation. The complainant had been waiting for completion of the project in which allotted unit is located for more than six years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the refund of the amount deposited with the opposite party besides interest and compensation.
10. Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite party is directed to refund the paid amount to the complainants with compensation in the form of simple interest @ 9% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 02.12.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
