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STATE CONSUMER DISPUTES REDRESSAL COMMISSION, DELHI
Sangita Dhingra Sehgal, President and Rajan Sharma, Member (Judicial)
Ajay Mishra and Anr. – Complainants
versus
Ansal Hi-Tech Township
Ltd. and Ors. – Opp. Parties
Complaint Case No.1203/2018
Decided on 28.7.2022
(A) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Delay in delivery of possession of Flats – “Consumer” – Commercial Purpose - Whether Complainants Fall in the Category of ‘Consumer’ under the Consumer Protection Act, 1986 - it is for the Opposite Parties to prove that the flat purchased was for commercial purpose, by way of some documentary proof and a mere bald statement is not sufficient to raise adverse inference against the Complainant - In the present case, the Opposite Party no. 3 & 4 have merely made a statement that the Complainants had purchased the flat for commercial purpose and on perusal of the record before thus Commission, Commission fails to find any material which shows that the Complainants are engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such flats. Mere allegation, that the purchase of the property is for achieving windfall gains and reaping high profits, cannot be the ground to reject the present consumer complaint. [Para 16]
(B) Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Delay in delivery of possession of Flats – False Assurance - Flat Buyer Agreement - Whether the Opposite Parties are deficient in providing its services to the Complainants - the Opposite Party no. 1 & 2 were bound to handover the possession of the said flat within 42 months from the date of execution of the Agreement - However, the Opposite Party No. 1 & 2 failed to handover the possession of the said flat till date – Thus Opposite Party no. 1 & 2 deficient in providing its services to the Complainants as the Opposite Party No. 1 & 2 had given false assurance to the Complainants with respect to the time for completing the construction of the said project and kept the hard-earned money of the Complainants - Therefore, direct the Opposite Party 1 & 2 to refund the entire amount i.e. Rs. 8,84,208/- (Rs.4,54,218/- as paid by the Complainants and Rs. 4,29,990/- for the loan amount disbursed by the Opposite party no. 3 & 4 in favour of the Opposite Party no. 1 & 2), along with interest. [Paras 18 to 24]
JUDGMENT
Sangita Dhingra Sehgal, President—The present Consumer Complaint was initially filed before the District Commission on 28.01.2015. However, the Complainants withdrew their complaint on the ground of pecuniary jurisdiction with a liberty to file it before appropriate Commission. Therefore, vide order dated 24.08.2018, the District Commission dismissed the complaint as withdrawn with a liberty to file it before appropriate Commission. Thereafter, the present complaint was re-filed before this Commission under Section 17 of the Consumer Protection Act, 1986, by the Complainants alleging deficiency in service and Unfair Trade Practice on the part of Opposite Parties and has prayed the following reliefs:—
(a) “Hold the Opposite Party no. 1-4, guilty of deficiency of service and unfair trade practice.
(b) Direct Opposite Party No. 1-2 to the refund the entire monies amounting to Rs. 4,50,000/- deposited by the Complainants together with 18% interest from the date of deposit of the same till the date of realization.
(c) Grant the Complainants, compensation of Rs. 2,00,000/- as compensation for the mental harassment and agony suffered over the uncertainty of their dream place of residence.
(d) Grant the complainant exemplary damages of Rs. 3,00,000/- for the costs of incurred by the Complainant towards payment of rent and other charges in absence of the residence which was to be provided by the Opposite Party No. 1-2.
(e) Grant the Complainant Rs. 4,00,000/- as compensation towards the rise in property prices which will have to be borne by the Complainants in case the Complainants attempt to procure a residence in the present times.
(f) Direct the Opposite Party No. 3-4 to pay Rs. 1,00,000/- as compensation for the harassment, embarrassment and agony caused to the Complainants.
(g) Direct the Opposite Party No. 3-4 to refund the EMIs amounting to Rs. 70,133/- paid by the Complainants in furtherance of the Tripartite Agreement.
(h) Direct the Opposite Party No. 3-4 not to harass the Complainants for recovery of the money which it has paid to Opposite Party No. 1-2.
(i) Pass any other and further orders as may be deemed fit and proper.”
2. Brief facts necessary for the adjudication of the present complaint are that the Complainants booked a flat in the project of the Opposite Party no. 1 & 2 namely “Megapolis” where Opposite Party no. 2 was developing Group Housing Complex by the name of “Fairway Golf Apartment” Sector 7 near Dadri, adjoining Greater Noida, Uttar Pradesh for a total amount of Rs. 28,66,625/-. Booking amount of Rs. 1,51,000/- was made by the Complainants to Opposite Party No. 1 & 2 and Flat No. G-148 was allotted in the Fairway Golf Apartment. Thereafter, the Opposite Party no. 1 & 2 entered into a Flat Buyer Agreement dated 06.11.2009 with the Complainants. In accordance with the said agreement, the Opposite party no. 1 & 2 assured the Complainants that the possession of the said flat will be given within 42 months from the date of the execution of the Agreement.
3. For financial assistance, Complainants approached the Opposite Party No. 3 & 4 to get a Home Loan and a Tri Partite Agreement dated 20.08.2010 was entered into by the Complainants, Opposite Party no. 1 & 2 with the Opposite Party No. 3 & 4. Under the terms of the Tri Partite Agreement, Opposite Party No. 4 agreed to disburse the sanctioned loan amount in favour of the Opposite Party No. 1 towards the payment of the instalment of the flat in question.
4. Complainants over the time had paid a total sum of Rs. 8,84,208/- (including an amount of Rs. 4,29,990/- which was disbursed by the Opposite Party No. 3 & 4 to the Opposite Party No. 1 & 2. Complainants also repaid the partial loan amounting to Rs. 70,133/- through different monthly instalments to Opposite Party No. 3 and 4. Thereafter, the Complainants stopped making monthly instalments to the Opposite Party No. 3 and 4 due to which an interest was accrued upon the Complainants amounting to
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