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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President, Dr. S.M. Kantikar, Member and Binoy Kumar, Member
Shreya Kumar and Ors. – Complainants
versus
M/s. Ansal Housing &
Construction Ltd. and Ors. – Opp. Parties
Consumer Case No.1021 of 2017
Decided on 5.5.2022
Consumer Protection Act, 1986 – S.12(1)(a)[Consumer Protection Act, 2019 – S.35(1)(a)] – Services – Real Estate – Complaints filed for Alleged delay in competition of Flats – “Force Majeure” – Instances of - Shortage of sand due to restrictions imposed by the National Green Tribunal – “ demonetization and reservation agitation”- Whether can be termed as Force Majeure – Non communication of to Complainant - In the present case also, the Opposite Party Developer has not informed the Complainants about passing of the said Orders by the National Green Tribunal and there is no whisper in the Written Statement filed by it in resisting the Complaint as to what efforts were made by the Developer to arrange water from other sources. In the absence of any documents evidence, plea cannot be accepted - The other explanation to substantiate the plea of Force Majeure is shortage of sand due to restrictions imposed by the National Green Tribunal. It can be seen from the record that the Flat Buyer’s Agreements were entered into way back in the years 2012-2013 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 demonetization 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. [Para 19, 20]
(ii) Consumer Protection Act, 1986 – S.12(1)(a)[Consumer Protection Act, 2019 – S.35(1)(a)] – Services – Real Estate – Enhancement in the price of the Covered Car Parking Space and the Club Charges - If can be construed as reasonable - With regard to the dispute regarding enhancement in the price of the Covered Car Parking Space and the Club Charges, it is submitted on behalf of the Complainants that Rs.2,00,000/- and Rs.50,000/- were to be charged for the same respectively but the Developer arbitrarily enhanced it to Rs.3,00,000/- and Rs.75,000/- respectively. A bare perusal of the Clause 20 of the Agreement would reveal that the Complainants were liable to pay an additional amount of Rs.3,00,000/- to the Developer towards grant of exclusive right to use one Covered Car Parking Space. Since, the Complainants has failed to lead any documents in support of their contention regarding charges of Rs.2,00,000/-payable for the Covered Car Parking Space and Rs.50,000/- towards Club Charges, the said contention is rejected. [Para 23]
(iii) Consumer Protection Act, 1986 – S.12(1)(a)[Consumer Protection Act, 2019 – S.35(1)(a)] – Services – Real Estate – Complaints filed for Alleged delay in competition of Flats – Delayed Compensation – Entitlement for - Complainants are entitled for Compensation for delay in delivery of the possession of the Flats. Keeping in mind the peculiar facts and circumstances of the case- Consequently, the Complaint filed u/s 12 (1) (c) on behalf of all the Allottee of the Project is partly allowed. [Para 25]
Result: Compliant allowed.
ORDER
1. The present Consumer Complaint has been filed under Section 21(a) (i) read with Sections 2(b) (iv) and 12(1)(c) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants, in the representative capacity, agitating their joint, personal as well as collective grievance against the Opposite Parties, M/s. Ansal Housing and Construction Ltd. and M/s. Samyak Projects Pvt. Ltd. (hereinafter referred to as the ‘Developer’) for the inordinate delay in handing over possession of the Flats booked by them in the Project under the name and style of “Ansal Heights” (hereinafter referred to as the “Project”) proposed to be developed by the Developer at Sector 92, Gurgaon, Haryana.
2. Vide Order, dated 11.07.2017, the Complaint initially filed on behalf of the 12 Complainants, was allowed to be treated as a Joint Complaint u/s 12 (1) (c) of the Act on behalf of all the Allottees of the said Project. Further, vide Order dated 10.05.2019, a notice was also directed to be published u/s 13(6) of the Act in the Newspapers. During the proceedings of the case, I.A. Nos. 23100 of 2018, 13243 of 2019, 15844 of 2019, 16899 of 2019, 3567 of 2020, 1383 of 2021, 103 of 2021, 2312 of 2021, 6876 of 2021 and 10557 of 2021 were filed by the Allottees of the same Project seeking impleadment in the present Consumer Complaint. The Applications were allowed by this Commission by various Orders and the Applicants were allowed to join the proceedings as Co-Complainants.
3. According to the Complainants, the facts of the case are that in the year 2012, the Opposite Parties Developer launched a Group Housing Complex, christened as “Ansal Heights” supposed to be developed by them in Sector 92, Gurgaon, Haryana. The Project was advertised widely and many lucrative offers were promised. Complainants allured by the wide publicity of the Developer, booked their respective Residential Flats/Apartments in the said Project by paying the initial booking/application amount. Identical Allotment Letters containing the details of Flat/Apartment allotted to the Complainants and the payment schedule, were issued to them. Further, Identical Flat Buyer’s Agreements (hereinafter referred to as the Agreement) were executed in respect of allotted Apartments between the 12 initial Complainants and the Developer during the period from 12.03.2012 to 31.07.2012. As per Clause 29 of the Agreement, the possession of the allotted Flat/Apartment was to be handed over to the Complainants within a period of 36 months plus grace period of 6 months, from the date of the execution of the Agreement. The Clause 29 of the Agreement is reproduced as under:-
“The Developer shall offer possession of the Unit any time, within a period of 36 months from the date of execution of Agreement or within 36 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 Clause 30. Further, there shall be a grace period of 6 months allowed to the Developer over and above the period of 36 months as above in offering the possession of the unit.”
4. It is averred in the Complaint that some of the Complainants are the subsequent buyers who had purchased the Apartments from the Original Allottees on payment of premium. The Opposite Parties acknowledged the transfer of the Apartment after payment of transfer charges and assured that the committed date of delivery of the Apartment would remain unchanged as prescribed in the Agreement. The amount received from the Original Allottee was also credited in the account of the Subsequent Buyer by the Opposite Parties.
5. It is further stated that the Complainants visited the site of the Complex regularly but were shocked and surprised to see that the construction w
(i) the Opposite Party Developer shall complete the construction of allotted flats/Apartments in all respect within a period of six months from today and shall offer possession to the Complainants af....
The Builder must fulfill contractual obligations and cannot enforce unfair terms; delayed possession warrants compensation and potential refunds to buyers.
Consumers are entitled to timely possession of purchased property and cannot wait indefinitely for possession; failure to deliver justifies a refund with interest.
1) Keeping in view the Judgment passed by this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is ....
Delayed construction – Complainants cannot be asked to wait indefinitely for an Apartment, possession of which has not only been delayed but construction is not even complete.
(1) Negligence on Part of Builder – If the builder, whose services are engaged by a buyer for construction of a residential house for him fails to complete the construction and deliver its possession....
(1) Earing profits - The onus of establishing that the Complainant was dealing in real estate i.e. in the purchase and sale of plots/ flats in his normal course of business to earn profits, shifts to....
(1) No documentary evidence has been filed by the Developer to establish that how many days’ delay occurred due to natural calamities.(2) Not in dispute that the possession of the allotted Flats was ....
Consumer agreements with one-sided clauses are unenforceable; delayed possession incurs compensation at 8% interest.
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