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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Subhash Chandra, Presiding Member
Sunil Gupta – Complainant
versus
M/s. Assotech Moonshine
Urban Developers Pvt. Ltd. – Opp. Party
Consumer Case No.447 of 2020
Decided on 7.7.2023
Consumer Protection Act, 1986 – Section 12(1)(a)[Consumer Protection Act, 2019 – Section 35(1)(a)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Refund ordered - Thus, in a case of an unreasonable delay in offering possession, a buyer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid with compensation. As the project is admittedly not complete, the complainant’s exercising of his option to seek a refund cannot be construed to be unjustified. The prayer of the complainant for refund with compensation in the form of interest is therefore justified - The contentions of the complainant seeking refund with compensation in the form of interest and cost of litigation are therefore valid and liable to succeed. The opposite party has held the deposited money for over 7 years with the promise of offering a residential flat without any progress even after over 7 years. The complainant’s prayer for the refund of his money with interest as compensation is entirely valid since he cannot be expected to wait indefinitely, especially since the project does not appear to have a completion or occupation certificate even as on date – Complaint disposed off. [Paras 10 to 17].
Result: Complaint disposed off.
ORDER
The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in service and unfair trade practice in respect of the flat booked by the complainant in project Assotech Blith, Sector-99, Gurgaon promoted and developed by the opposite party.
2. The Complainant had booked flat no. G-902, Assotech Blith, Sector-99, Gurgaon having super area of 1685 sq.ft. On the basis of Basic Sale Price (BSP) @ Rs.1680 per sq. ft on 01.05.2012, the total sale consideration was Rs. 92,54,675/-. An allotment letter-cum-agreement (in short ‘Agreement’) was issued on 30.06.2012. As per clause 57 of the Agreement, possession was to be delivered within 42 months from the date of allotment of the flat i.e. on 30.06.2012. However, possession was not offered till 11.01.2017 by when complaint had paid Rs.84,81,230/- to the opposite party in installments, against the total sale consideration. The complainant visited the site and found that the project was far from completion. As there had been more than 7 years of delay in completing the project and handing over possession to the complainant, he sent a legal notice on 02.10.2019 to the opposite party to refund the amount paid by complainant to which opposite party neither replied nor refunded the amount. The complainant has averred that the delay in offering possession has been inordinate and not offering possession within the stipulated time amounts to deficiency in service. Hence, the instant complaint has been filed before this Commission for refund of the amount paid by the complainant to the opposite party with interest. The prayer of complainant is to:—
(i) Allow the present complaint in favour of complainant and against the opposite party.
(ii) Direct the opposite party refund the entire amount of Rs.84,87,230/- paid to the opposite party with an interest of 18% from the date of receipt till realization to the complainant.
(iii) Direct the opposite party to pay damages of Rs. 20,00,000/- to the complainant for indulging in to unfair trade practice by the opposite party.
(iv) Direct the opposite party to pay damages of Rs. 20,00,008/- to the complainant for indulging in to unfair trade practice by the opposite party.
(v) Direct the opposite party to pay Rs.1,00,000/ towards cost of legal and miscellaneous expenses.
(vi) Pass such order or orders as are deemed fit and proper in the facts and circumstances of the present case and in the interest of justice.
3. The opposite party has resisted the complaint by way of reply and affidavit and contended that the delay in completing the project was due to force majeure conditions beyond the control of the opposite party due to the appointment of an official liquidator for M/s Assotech Limited, due to which construction was considerably delayed. Therefore, it is contended that the instant complaint is highly misconceived, vague, vexatious, baseless and a gross abuse of process of law and liable to be dismissed. Opposite party further contended that due to various directions from the authorities on different occasions, regarding water shortage, and pollution control etc., labourers and contractors abandoned the work which affected the progress of the project. The only contractor i.e., M/s Assotech Limited went into provisional liquidation on 08.02.2016 by the order of Delhi High Court, and thereafter, the Board of Directors who were deferring all the construction activity on site became ex- management and all their powers were taken over by the official liquidator. Due to force majeure and the Corona virus pandemic, from 23.03.2020 to 30.09.2020, construction work was stopped. The Opposite party is stated to be in the process of applying for Occupation Certificate (OC) and Completion Certificate (CC). According to the opposite party, the complaint is not maintainable because there is no deficiency in service on part opposite party. It is also averted that this Hon’ble Commis
Unreasonable Delay - In a case of an unreasonable delay in offering possession, a buyer cannot be compelled to accept possession at a belated stage and is entitled to seek refund of the amount paid w....
Installment – Once the instalments were collected, the buyers are sought to be non-suited on a multitude of grounds, primarily the liability of the Government in not providing infrastructure and to c....
Specified time - Therefore when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable Interes....
Right to Compensation - The right of the consumer to be compensated for inordinate delay in the offer of possession of a residential apartment booked by them due to inordinate delays by builders when....
(1) Bald assertion – In the absence of any evidence being brought on record, merely a bald assertion that the project was delayed due to in action by the Government or its statutory organisations and....
The court held that the delay in possession does not constitute a deficiency in service, provided the developer adheres to the agreed timeline including permissible grace periods.
Consumer rights include timely possession and refund in cases of inordinate delays by builders, ensuring protections under consumer law are maintained.
Delays in possession of real estate mandate full refund to consumers under the Consumer Protection Act.
Right to claim refund - the complainant in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation/interest from the OP.
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