Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
Chirag Aggarwal and Anr. – Complainants
versus
M/s. Ansal Phalak
Infrastructure Pvt. Ltd. – Opp. Party
Consumer Case No.933 of 2017
Decided on 21.11.2022
(A) Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – booking of units – for commercial purpose – Compliant in business of real estate – proof of - Complaint has been filed for alleged delay in delivery of possession of flats - Opposite Party alleged that the Complainants booked the unit for commercial purpose. They are, therefore, not “Consumers.” - The Opposite Party had not produced any evidence to show that the Complainants were in the business of real estate. The Opposite Party made bald allegation without there being any supporting evidence – Therefore, it is clear that the Complainants are Consumers as defined under Section 2 (1) (d) of the Act and the Consumer Complaint is maintainable. [Paras 15 to 17]
(B) Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Proof of – Entitlement for Refund - As far as delay in delivery of possession is concerned, it is admitted by the Opposite Party that the unit in question is complete and they had offered the delivery of possession, vide letter dated 28.12.2020 but the Complainants refused to accept the same - The Opposite Party delayed in delivery of possession of the unit. Neither any new legislation was enacted nor an existing rule, regulation or order was issued stopping/suspending or delaying construction. There was no evidence of any lock-out or strike by the labour at the site of the project. There was no civil commotion, war, enemy action, terrorist action, earthquake or any act of God which could have delayed the construction of the project. The Opposite Party merely narrated a set of events and obstacles which are routinely faced by project developers. The Opposite Party failed to prove that there was any unforeseen and unexpected event which prevented the completion of the Project within the stipulated time period - The Opposite Party failed to show that the Occupancy Certificate has been received. The Opposite Party builder failed to fulfil its contractual obligation of delivering possession of the flat to the Complainants within the time stipulated in the agreement, or within a reasonable time thereafter. The Complainant cannot be compelled to wait indefinitely for taking possession of the flat – Thus, consumer cannot be kept to wait for taking possession of the apartment. In these circumstances, the Complainants are entitled to refund of the principal amount with reasonable interest - Complaint is partly allowed. Opposite Party is directed to refund the entire amount deposited by the Complainants with interest @ 9% p.a. [Paras 17 to 20]
Result: Complaint allowed.
ORDER
According to the Complainants on 19.09.2012, they applied for allotment of a residential unit in the project “Sovereign Floors”, Esencia, Sector-67, Gurgaon Haryana developed by the Opposite Party. The unit was booked for residential purpose of the Complainants. The Opposite Party allotted residential unit No.D-1567-SF, 2nd Floor, vide allotment letter dated 26.09.2012. Consideration payable was Rs.1,60,00,000/- for the 2198 sq. ft. unit. Pursuant to the allotment letter, the Complainants and Opposite Party signed Floor Buyer Agreement dated 05.10.2012. According to the Agreement, in case of delay in payment, the Complainants were required to pay interest @ 18% p.a. for three months and 21% p.a. beyond the delay of three months. Possession of the unit was to be handed over within 36 months from the date of the agreement with an extension of 6 months, subject to receipt of requisite building plans, approvals, permissions and force majeure etc. In case of failure to deliver possession within 36 months, the Opposite Party was required to pay delay compensation @ Rs.10/- per sq. ft. per month of the total super area of the unit. The Complainants, vide letter dated 08.10.2012 requested the Opposite Party to covert the plan to subvention payment scheme. As per subvention payment scheme, the Complainants were to pay 20% of the sale consideration and rest of the amount during 24 months from the loan. The Opposite Party raised demand of Rs.38,17,585/- out of which the Complainants paid Rs.1,31,835 on 13.12.2012 and Rs.8 lakhs on 19.01.2013 from their own resources and Rs.28,85,750/- on 28.02.2013 by way of home loan. The Opposite Party, however, demanded delayed payment interest from 26.12.2012 to 28.02.2013. The Opposite Party also changed the payment plan from subvention to construction linked plan and denied the Complainants of the benefit of the subvention scheme, due to which the Complainants had to bear high rate of interest burden. The Complainants also suffered loss of Rs.3,34,318/- due to interest. The Opposite Party, vide letter dated 25.10.2012, demanded Rs.6.40 lakhs as PLC charges. The Complainants requested the Opposite Party to withdraw PLC charges but the Opposite Party insisted on payment of PLC charges. On 01.12.2012, the Opposite Party issued third demand for Rs.19,74,710/- and fourth demand for Rs.18,72,765/- on 26.12.2012. Thereafter, on 30.01.2013, the Opposite Party issued pre-cancellation notice to the Complainant.
2. The Complainants filed a Complaint under Section 22-C of Legal Services Authorities Act, 1987 before the Lok Adalat, Gurgaon. The same was dismissed with liberty to the Complainants to approach appropriate Forum.
3. Regarding their grievance relating to PLC charges, the Complainants also filed another Consumer Complaint before the District Forum, Gurgaon in January, 2016. Regarding the grievance relating to subvention scheme, the Complainants filed Consumer Complaint before the District Forum, Gurgaon in November, 2016. Thereafter, the Complainants withdrew the said Consumer Complaints. The District Forum, therefore, vide order dated 16.03.2017, dismissed the Complaints as withdrawn with liberty to the Complainants to approach the competent Forum having jurisdiction.
4. The Complainants paid Rs.1,42,97,983/- as on 22.11.2014. The Opposite Party, however, had not offered possession of the unit even after expiry of 42 months. On 23.12.2016, the Complainants gave notice to the Opposite Party seeking refund of the deposited amount with interest @ 21% per annum.
5. Alleging deficiency in service on the part of the Opposite Party, the Complainants filed the instant Consumer Complaint with following prayer:—
“(a) Direct the Opposite Party to refund the amount of Rs.1,42,96,983/- paid by the Complainants with appropriate interest as may be granted by this Hon’ble Commission as per law, from respective dates of payment till date of payment as depicted in the chart prepared by the Complainants;
In T
(1) Possession - Complainant cannot be compelled to wait indefinitely for taking possession of the flat.(2) Consumer - Consumer cannot be kept to wait for taking possession of the apartment.
Failure by the Opposite Party to deliver possession within the stipulated time constituted a deficiency in service, entitling the Complainants to a refund with interest.
(1) Contract - A term of a contract, will not be final and binding if it is shown that the consent to the said term was not really voluntary, if the person giving consent had no other choice. (2) Nom....
(1) Final and Binding terms of a Contract – A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract fra....
Delayed Possession - possession has not been offered to the Complainants and there is inordinate delay of over 9 years in handing over possession to the Complainants. They are entitled to a reasonabl....
The court affirmed consumer rights to timely possession and reasonable compensation despite contractual waivers, emphasizing obligations of developers in real estate transactions.
(1) Interest – when the Project has not taken off, the OP Developer is duty bound to refund the amount to the said Complainants alongwith appropriate interest.
(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....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
