State Consumer Disputes Redressal Commission
Vijay Kumar Goyal & Anr. vs M/S Ansal Housing & Construction Ltd. on 31 May, 2023
CC. NO. 1377/2018 D.O.D.: 31.05.2023
MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 20.10.2018
Date of hearing: 15.02.2023
Date of Decision: 31.05.2023
COMPLAINT CASE NO.- 1377/2018
IN THE MATTER OF
1. MR. VIJAY KUMAR GOYAL,
S/O MR. DESRAJ GOYAL
2. MS. PINKI GOYAL
W/O MR. V.K. GOYAL
BOTH RESIDENTS OF:
R/O FLAT NO. - 26,
MAHABHADRAKALI APTTS,
PLOT NO-3, SECTOR - 13, DWARKA,
NEW DELHI.
(Through: Mr. Vishal Garg, Advocate)
...Complainant
VERSUS
M/S ANSAL HOUSING & CONSTRUCTION LTD.
THROUGH ITS MANAGING DIRECTOR,
15, UGF, INDRAPRAKASH,
21, BARAKHAMBA ROAD,
NEW DELHI - 110001.
(Through: Mr. Shiv Kant Arora, Advocate)
...Opposite Party
ALLOWED PAGE 1 OF 11
CC. NO. 1377/2018 D.O.D.: 31.05.2023
MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Vishal Garg, counsel for the complainant
Mr. Pratyush Singh, (Enrl. No. D-5159/22) and Mr. Shiv
Kant Arora (Enrl. No. D-848/98 & Mob. 9810294364)
for OP.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been returned from the District Commission vide dated 06.08.2018 on the ground of pecuniary jurisdiction, filed by the Complainants before this commission alleging deficiency of service and unfair trade practice by the opposite party and has prayed the following:
a) Restrain the defendant from overcharging of Rs.3,75,385/-
which is illegal, arbitrary and against the terms and conditions of the contract and the interest amount of Rs. 75,000/- from the complainant to refund an of Rs 1,54,794/- paid by the complainant under duress and;
b) Pay an compensation of Rs.1,00, 000/- towards the mental agonies and harassment to the complainant and;
c) Cost towards the filing of the petition and;
d) Any other relief deem fit and necessary and proper in the facts and circumstances of the case.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainants booked a four-bedrooms flat in the pre- launch project named "Ansal Estella" of the Opposite Party, situated at sector-103, Gurgaon, Haryana. The Complainants paid a booking amount of Rs. 3,25,687/- as demanded by the Opposite Party on 28.02.2011. The Opposite Party assured the Complainants ALLOWED PAGE 2 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023 MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
that the construction of the said project will commence from July/August, 2011 but no construction was started by it till Nov/Dec, 2011. In the month of the September, 2011, the Complainants came to know that the area of the booked four - bedrooms flat was increased from 2250 sq. ft. to 2600 sq. ft. without any increase in the carpet area/plinth area of the flat, also failed to give any justification regarding the same to the Complainants. The Complainants also raised issue against the arbitrary increase in the super area as it had put the financial burden on him. Therefore, having no option, the Complainants had to switch to three bedrooms flat having an area of 1945 sq. ft. as it was within the financial capacity of the Complainant.
3. Thereafter, an Agreement dated 16.11.2011 was executed between the parties for three bedrooms flat bearing super area of 1945 sq. ft. at the rate of Rs. 2,800/- per sq. ft. The Complainants requested the Opposite Party to provide some documents, which were required to avail the Bank loan. However, the Opposite Party failed to provide the same but kept on imposing penal interest on delayed payments. Further, the Opposite Party sent a letter to the Complainants and asked to send back the signed Agreement dated 16.11.2011 as some corrections was to be made. As a result, new Builder Buyer Agreement dated 02.06.2012 was executed between them. More so, the Opposite Party also sent letter dated 13.06.2012 to M/S HDFC ltd. mentioning that the M/S Ansals have booked a flat of 1945 sq. ft. for the Complainant at a total cost of Rs. 65,04,265/-. Accordingly, tri-partite agreement was executed between the HDFC Home Loan, Complainant and the Opposite Party and loan of Rs.1,56,334/- was sanctioned by the said Bank in the last week of ALLOWED PAGE 3 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023 MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
June, 2012. Thereafter, the Complainants also kept inquiring regarding the progress of the construction of the said project, however, the Complainants shocked to receive letter dated 01.10.2012 from the Opposite Party demanding Rs. 1,54,794/- stating that "During the regular audit procedure, it has been pointed out that the PSFT rate of Rs. 2,800/- mention in all your correspondence, including the Flat Buyer Agreement, w.e.f. November 2011 is wrong. This was due to clerical inadvertence while shifting your unit from 2600 sq. ft. to 1945 as per your request. Upon receiving said letter, the Complainants replied back vide letter dated 12.10.2012, protesting against the illegal, arbitrary and unjustified demand of the Opposite Party. The Complainants made several requested to Opposite Party settle down the matter but instead of solving the matter, the Opposite Party threatened to cancel the allotment of the Complainants and also forced to sign another Flat Buyer Agreement. Therefore, the Complainants paid final demand of the Opposite Party as per letter dated 01.10.2012 of Rs. 1,54,794.17/- vide cheque no. 141719 on 26.11.202. However, till date Opposite Party did not stop reminders to pay increase payment of Rs. 3,75,385/-. Thus, left with no other option, the Complainants approach this commission seeking reliefs against the Opposite Party.
4. The Opposite Party has contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Party submitted that the matter related to factum of pricing and unreasonable demands cannot be adjudicated by this commission. Hence, the Complainants have no right to file complaint against the Opposite party. He further ALLOWED PAGE 4 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023 MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
submitted that the existence of arbitration clause in the allotment letter barred the jurisdiction of this commission. He also submitted that the Complainant is guilty of suppression very suggestionfalsias the complainants all along known that the rate of the flat is Rs. 3,000 per sq. ft. not Rs. 2,800/-. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Party prayed that the present complaint should be dismissed.
5. The Complainants have filed the Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
6. We have perused the material available on record and heard the counsel for the parties.
7. Whether the existence of arbitration clause in the allotment letter barred the jurisdiction of this commission?
8. The next preliminary objection raised by the Opposite Party is that since there exists an arbitration clause in the Allotment Letter, the parties should be referred to arbitration and this commission is barred from exercising its jurisdiction. To deal with this issue, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at I (2019) CPJ 5 (SC), wherein the Apex court has held as under: -
"55. We may, however, hasten to add that in the event a person entitled to seek an additional special remedy provided under the statutes does not opt for the additional/special remedy and he is a party to an arbitration agreement, there is no inhibition in disputes being proceeded in arbitration. It is only the case where ALLOWED PAGE 5 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023 MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
specific/special remedies are provided for and which are opted by an aggrieved person that judicial authority can refuse to relegate the parties to the arbitration."
9. The Hon'ble Apex Court has put to rest the controversy relating to the existence of arbitration clauses in the allotment letter/apartment buyer agreement etc. as is evident from the relevant paragraph of Emaar MGF Land Limited (supra). In the present case also, the Complainants have opted for the special remedies provided under the Consumer protection Act, 1986 therefore, this commission can refuse to relegate the present case to the arbitration. Hence, this commission is authorized to adjudicate the case and the existence of an arbitration clause in the allotment letter does not affect the jurisdiction of this commission.
10. Whether the present complaint should be decided by the civil court?
11. The Consumer Protection Act, 1986, came into being in order to protect the interests of Consumers who are affected by the acts of the service providers, who in order to attract the Consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.
12. Deficiency has been defined under section 2 sub-clause (g) which reads as follows:
"(2) (g)"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;"
ALLOWED PAGE 6 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023
MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
13. Returning to the facts of the present complaint, the perusal of the record shows that the Complainants avail the services of the Opposite Party for a consideration. However, the Opposite Party demanded illegal and arbitrary amount of Rs. 3,75,385/- from the Complainants, aggrieved by which, the Complainants have sought reliefs, which is to restrain it from asking an amount of Rs.3,75,385/. Hence, the Complainants are entitled to file the present complaint before this commission since the Complainant are aggrieved by the deficient services of the Opposite Party i.e., demanding more amount than it was assured and it is only due to this reason, that the reliefs have been sought from the Opposite Party, which this Commission is authorised to adjudicate.
14. Our view is further fortified by the dicta of Hon'ble Supreme Court in Narne Construction P. Ltd., etc. v. Union Of India and Ors. Etc., reported at AIR 2012 SC 2369, wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers.
15. Moreover, nothing cogent has been brought on record by the Opposite Party which would reflect that there are such complicated questions involved which could not be settled on the basis of the pleadings filed on behalf of the contesting parties. Consequently, we ALLOWED PAGE 7 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023 MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
are of the view that the present complaint falls within the four corners of the jurisdiction of this commission and there is no bar with respect to the jurisdiction of this commission to entertain cases related to the unreasonable demands by the Opposite Party.
16. Having discussed the preliminary objections raised on behalf of the Opposite Party, the next issue arises is whether the Opposite Party is actually deficient in providing its services to the Complainant by asking an increased amount of Rs. 3,75,385/- for the flat in question.
17. The Complainants submitted that the Opposite Party arbitrary and illegally raised a demand of Rs. 3,75,385/- vide letter dated 01.10.2012 as they came to know that there has been error regarding rate in sq. ft., which was written 2800 sq. ft. instead of 3000 sq. ft. with respect to flat in question. To deal with this issue, it is important to refer said letter dated 01.10.2012:
"During the regular audit procedure, it has been pointed out that the psft rate of Rs. 2800/- mentioned in all your correspondence, including the Flat Buyer Agreement, we Nov 2011 is wrong. This was due to a clerical inadvertence while shifting your unit from 2600 sq ft to 1945 sq ft as per your request. You will appreciate that the mistake is being rectified today itself to avoid any problem at a later stage. We are extending a period of 30 days to make the balance payment amounting to Rs. 1,44130.00/-.
Hence, the correct psft rate is Rs. 3000/- which is the rate as mentioned on the application form on the date of booking (copy enclosed). You are thus requested to return Flat Buyer ALLOWED PAGE 8 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023 MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
Agreements so that the correct set is dispatched/ handed to you. We look forward to your cooperation in this regard."
18. The Opposite Party acknowledged in their letter that the rate per sq. ft. (PSFT) mentioned in the allotment letter and Flat Buyer Agreement was Rs. 1945.00, not for a 2600 sq. ft. area. However, the Opposite Party failed to provide any evidence to demonstrate how the error regarding the PSFT rate of Rs. 2800/- mentioned in all their correspondence, including the Apartment Buyer Agreement dated 02.06.2012, was identified during the regular audit procedure. Further, it also miserable failed to explain that why this clerical error occurred when the unit was changed from 2600 square feet to 1945 square feet. Moreover, it is evident from letter dated 26.10.2012, the Opposite Party threatened the Complainants to pay Rs. 1,54,794/- within 10 days, failing to which it will cancel the said booking of the flat in question. As a result, the Complainants had to make payment of Rs. 1,54,794/- under duress.
19. Therefore, the Opposite Party decision to increase the price of the booked flat by 3,75,385/- after the execution of the agreement is both arbitrary and unjust. The discovery of an error in the agreement, where the total square footage area was mistakenly stated as 1945 sq. ft. instead of the actual 2800 sq. ft., does not grant them the right to charge extra as an agreement has been executed, it becomes a binding contract and any subsequent changes or modifications should be mutually agreed upon by both parties. The Opposite Party's attempt to impose additional charges unilaterally violates the principles of contractual fairness and breach of contract.
ALLOWED PAGE 9 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023
MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
20. Consequently, we hold Opposite Party in arbitrary and illegally raising a demand of Rs. 3,75,385/- to the Complainant, which is beyond the contractual liabilities.
21. The Complainants further submitted that the Opposite Party demanded an extra amount of Rs. 75,000/- due to a delay in making payment towards the said flat but no relevant documents were not provided for the loan. Moreover, the Complainants are also under obligated under the terms of the agreement to make delayed payments accordingly. Therefore, in the absence of sufficient evidence, the submission made by the Complainants are devoid of any merit.
22. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to withdraw the demand of Rs.3,75,385/- and to refund an amount paid by the Complainants i.e., Rs.1,54,794/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 31.05.2023 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 31.07.2023;
C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 31.07.2023, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each ALLOWED PAGE 10 OF 11 CC. NO. 1377/2018 D.O.D.: 31.05.2023 MR. VIJAY KUMAR GOYAL AND ANR. VS. M/S ANSAL HOUSING & CONSTRUCTION LTD.
installment/payment was received by the Opposite Party till the actual realization of the amount.
23. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of:
A. Rs. 1,00,000/- as cost for mental agony and harassment to the Complainants; and B. The litigation cost to the extent of Rs. 50,000/-.
24. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
25. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
26. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) J.P. AGRAWAL MEMBER (GENERAL) Pronounced On:
31.05.2023 ALLOWED PAGE 11 OF 11