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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Deepak Verma and Anr. – Complainants
versus
Ansal Crown Infrabuild Pvt.
Ltd. and Anr. – Opp. Parties
Consumer Case No.748 of 2019
Decided on 10.11.2021
Consumer Protection Act, 1986 – Section 21(a)(i) [Section 58(1)(a) – Consumer Protection Act, 2019] – Complainants booked residential flat for their personal use and one flat was allotted to Complainants - Flat Buyers Agreement executed between Parties on 12.12.2014 - Possession of flat to be delivered within 36 months from the date of execution of the Agreement, i.e., by 12.12.2014 - Per Construction Linked Payment Plan, Complainant deposited Rs.58,48,984/- on diff. dates - Opp. Party failed to deliver possession of Flat within stipulated prd., neither provided any specific date for delivery of possession nor refunded amt. deposited by Complainants - Alleging deficiency in service and Unfair Trade Practice on part of Opp. Party, Complainants filed present Complaint with prayer to grant sum of Rs.1,24,35,523/- (principal amt. of Rs.58,48,984/- along with compensation in form of interest amounting to Rs.65,86,539/- at 18% p.a. – Findings of this Commission: No hesitation in holding that terms of Apartment Buyer’s Agreement were wholly one-sided, unfair to Flat Purchaser - Builder cannot seek to bind buyer with such one-sided contractual terms - Proviso to Section 71(1) of RERA Act entitles complainant who had initiated proceedings under CP Act before RERA Act came into force, to withdraw proceedings under CP Act with permission of Forum or Commission, file appropriate application before adjudicating officer under RERA Act - Proviso thus gives right or option to complainant but does not statutorily force him to withdraw such complaint nor do provisions of RERA Act create any mechanism for transfer of such pending proceedings to authorities under RERA Act - In cases where such proceedings under CP Act are initiated after provisions of the RERA Act came into force, nothing in the RERA Act bars such initiation - Parliamentary intent is clear that choice or discretion is given to allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act – Thus, this Commission not barred from entertaining the present Complaint - Alleged delay in renewal of the licence from Directorate of Town & Country Planning, Haryana does not justify the delay in completion of construction - Do not find any force in defence taken by Opp. Party for inordinate delay in completion of the Project - A fit case to place reliance on the judgment of Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, Complainants cannot be made to wait indefinitely for possession of the flat, as construction is not completed (Paras 2, 7, 10, 12, 14 & 15)
Result: Opp. Party/Developer directed to refund Rs.58,48,984/- to Complainants alongwith interest @9% p.a. from the date of respective date of deposit.
ORDER
R.K. Agrawal, President.—The present Consumer Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act”) by Deepak Verma and his wife (hereinafter referred to as the Complainants) against Opposite Party, M/s. Ansal Crown Infrabuild Pvt. Ltd. (hereinafter referred to as the Developer), seeking refund of the amount paid towards purchase of Flat alongwith interest as the Opposite Party Developer failed to hand-over the possession of the Flat booked by them in the Project launched by the Developer in the name and style of “Ansal Crown Heights” located at Sector 80, Faridabad, Haryana.
2. It has been averred in the Complaint that the Opposite Party Developer launched a Residential Group Housing Project in the name and style of “Ansal Crown Heights” located at Sector 80, Faridabad, Haryana. The Complainants booked a residential flat for their personal use in the said Project. Flat No. 1501, Tower No. 3 admeasuring 2118 sq. ft. was allotted to the Complainants. Flat Buyers Agreement (hereinafter referred to as the Agreement) was executed between the Parties on 12.12.2011. As per Clause 4 of the Agreement, the possession of the flat was to be delivered within 36 months from the date of execution of the Agreement, i.e., by 12.12.2014. The Complainants had opted for Construction Linked Payment Plan and had deposited Rs.58,48,984/- on different dates as per demand of the Opposite Party Developer. Despite that the Opposite Party Developer miserably failed to deliver the possession of the Flat within stipulated period. Whenever the Complainants raised queries with the Opposite Party Developer regarding handing over the possession, the Developer neither provided any specific date for the delivery of the possession nor refunded the amount deposited by the Complainants. They have lost trust on the Opposite Party Developer and are no longer interested in having possession of the Flat. Alleging deficiency in service and Unfair Trade Practice on the part of the Opposite Party Developer, the Complainants has filed the present Consumer Complaint with the following prayer:
a) Grant a sum of Rs.1,24,35,523/- (principal amount of Rs.58,48,984/- along with compensation in the form of interest amounting to Rs.65,86,539/- at the rate of 18 % per annum as calculated upto 30.04.2019, along with pendent lite and future interest at the same rate or such higher rate of interest which this Hon’ble Commission may deem fit in the interest of justice, from the date of making payments till the date of actual realization of the payment;
b) Grant cost of litigation to the Complainants;
c) Any other order, relief or direction which this Hon’ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the Complainants and against the Opposite Party.”
3. The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer took preliminary objection that the Complaint is not maintainable as the terms of the Agreement are binding on both the Complainants and the Opposite Party and therefore, this does not give any rise to any cause of action entitling the Complainants to file the purported Complaint; the Project is registered under RERA, 2016 and therefore, in terms of RERA, this Commission is barred from entertaining the present Complaint and since t was stated that stated that the delay in completion of Project occurred due to delay on the part of the Directorate of Town & Country Planning Haryana in renewing the license of the Opposite Party and the Construction work was affected on account of the contractor appointed by the Developer having not completed the construction in time and thereafter having created hindrance in completion of the Project by another contractor. It is also alleged that out of ten towers, construction work is going on in eight towers and 95% work is completed in four towers whereas 70% w
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