State Consumer Disputes Redressal Commission
Raj Kumar Data & Shafali Data vs Ansal Housing Limited on 19 December, 2024
CC/277/2020 D.O.D.: 19.12.2024
MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
IN THE DELHI SATE CONSUMER DISPUTES REDRESSAL
COMMISION
Date of Institution: 01.12.2020
Date of Hearing: 05.09.2024
Date of Decision: 19.12.2024
CONSUMER COMPLAINT NO. 277/2020
IN THE MATTER OF:
MR. RAJ KUMAR DATA & SHAFALI DATA
3-A, MANU MARG,
ALWAR, RAJASTHAN - 301001.
(Through: Mr. Amit Goel, Advocate)
...Complainants
VERSUS
1. M/S ANSAL HOUSING LTD.
(THROUGH MR. KUSHAL ANSAL, WHOLETIME
DIRECTOR/CEO)
HAVING REGISTERED OFFICE AT:
606, 6TH FLOOR, INDRA PRAKASH 21
BARAKHAMBA ROAD, NEW DELHI-110001.
2. MR. DEEPAK ANSAL
(EX-MAANAGING/PROMOTER DIRECTOR)
ANSAL HOUSING LIMITED
606, 6TH FLOOR, INDRA PRAKASH 21
BARAKHAMBA ROAD, NEW DELHI-110001.
3. MR. SURRINDER LAL KAPUR
(DIRECTOR)
161 A/1, WESTERN AVENUE
SAINIK FARMS, SOUTH DELHI-110062.
4. MS. NEHA ANSAL
(DIRECTOR)
ANSAL HOUSING LIMITED
VILL B6, APJ ABDUL KALAM ROAD
NEW DELHI - 110011.
(Through: Mr. Shivkant Arora, Advocate)
...Opposite Parties
ALLOWED PAGE 1 OF 13
CC/277/2020 D.O.D.: 19.12.2024
MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Mr. Amit Goel, Counsel for the Complainants.
Mr. Shivkant Arora & Mr. Ashutosh Aggarwal, Counsel for
Opposite Parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the Complainants alleging deficiency in service and unfair trade practices by the Opposite Parties and have prayed the following reliefs:
a) To direct the Opposite Party to refund a sum of Rs. 1,41,81,645/-
towards the actual amount paid for both the Flat No-EDNBG- 1403 & 1404; and
b) Interest @ 24% p.a., calculated until 30.06.2018 from the date of first payment, amounting to a total sum of Rs. 1,49,48,107.21/- for both the Flat No-EDNBG-1403 & 1404;
Alternatively;
To direct the Opposite Party to handover the possession of the Flat No. EDNBG-1403 & 1404, located at Sector-103, Ansals Highland Park, Gurgaon, Haryana, India, ad-measuring about 1940 sq.ft., in the fully developed, operational and habitable residential complex upon obtaining the occupation certificate, named as "ANSALS HIGHLAND PARK' within further six months from the date of this Complaint; and Also to award an interest @ 24% per annum from the agreed date ALLOWED PAGE 2 OF 13 CC/277/2020 D.O.D.: 19.12.2024 MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
of possession, till the date of possession, if offered possession within 6months;
c) To award a compensation of Rs. 10,00,000/- for undue hardships, mental and physical agony and tension to the Complainant / Petitioner, due to negligent and deficient services of the Opposite Partys;
d) To allow the costs in favour of the Complainants and against the Opposite Party Company.
e) To provide any other relief(s) that may be deem fit and proper in the facts and circumstances of the present case.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainants booked two residential apartments bearing apartment numbers EDNBG-1403 and EDNBG-1404, for their own personal use, admeasuring about 1940 sq. ft. of super area in the project Ansal Highland Park of the Opposite Party No. 1, situated in Gurgaon, Haryana. The Opposite Party No. 1 vide letter dated 07.09.2012, allotted the said apartments to the Complainants for a total consideration of ₹88,44,515/- and ₹90,77,803/- respectively. Thereafter, the Apartment Buyer Agreement was executed between the parties, and the original copies of both executed Apartment Buyer Agreements were returned to the builder for its signatures. Inadvertently, the photocopies of the said agreements were not retained by the Complainants. Moreover, the Complainants made several communications requesting Opposite Party No. 1 to provide copies of the said agreements, but Opposite Party No. 1 gave vague replies to the queries of the Complainants and failed to provide the same. Further, the possession of the said apartments was to be handed over to the Complainants within 48 months from the date of execution of the Agreement or within 48 months from the date of obtaining all the required sanctions and approvals necessary ALLOWED PAGE 3 OF 13 CC/277/2020 D.O.D.: 19.12.2024 MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
for the commencement of construction, whichever is later, along with a grace period of six months. However, the same has not been handed over by Opposite Party No. 1 to date, despite the fact that the Complainants had paid a total amount of Rs.1,41,81,645/- to Opposite Party No. 1 for the apartments as and when demanded. Furthermore, the Complainants submitted that it was misrepresented by Opposite Party No. 1 at the time of booking that the necessary permissions and building plan approvals had been duly obtained from the relevant authority. Aggrieved by the aforesaid deficiency in handing over possession of the said apartments and the misrepresentation by the Opposite Parties, the Complainants have filed the present complaint.
3. The Opposite Parties have contested the present case and raised preliminary objections as to the maintainability of the instant complaint. The counsel of the Opposite Parties submitted that the Complainants do not fall under the category of 'consumer' provided by the Consumer Protection Act, 2019 as they invested the money to earn speculative gains. The counsel for the Opposite Parties further submitted that the Complainants were requested time and again to provide relevant documents for the purpose of execution of apartment buyer agreement but the same was not provided by them.
4. He also submitted that in terms of Clauses 31 and 32 of the Agreement, possession was supposed to be handed over within 48 months along with another grace period of 6 months from the date of execution of the Agreement or from the date of obtaining all the required sanctions and approval necessary for construction, whichever is later and the delay, if any, has been caused on account of force majeure events which were beyond the control of the Opposite Parties such as, Orders of the Hon'ble High Court of Punjab & Haryana whereby ground water extraction was banned in Gurgaon, Orders passed by National Green Tribunal whereby mining of sand in Haryana and Rajasthan was banned, Reservation agitation in ALLOWED PAGE 4 OF 13 CC/277/2020 D.O.D.: 19.12.2024 MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
Haryana, Orders of National Green Tribunal to stop construction to prevent emission of dust, etc; in accordance with Clause 32 of the Agreement, therefore, the Complainants are not entitled to any compensation on ground of delay due to force majeure circumstances. Further, he submitted that the construction of the said apartments is going on in full swing and the project is near completion; possession of the Apartment to the Complainants would be handed over within short span of time. As a result, the complaint is pre- mature and deserves to be dismissed. Pressing the aforesaid objections, the counsel appearing on behalf of the Opposite Parties prayed that the instant complaint should be dismissed with cost.
5. The Complainants have filed the Rejoinder rebutting the written statement filed by the Opposite Parties. Thereafter, both Complainants and Opposite Parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
6. Both the parties have filed their written arguments and the same has been considered by this Hon'ble Commission before finalizing the present judgment.
7. We have perused the material available on record and heard the counsel for the parties.
8. The fact that the Complainants had booked two apartments with the Opposite Party no.1 is evident from the Allotment letters dated 07.09.2012 (Annexure C-4(colly). Payment to the extent Rs. 1,41,81,645/- by the Complainants to the Opposite Parties is admitted in Para 10 of the parawise reply of the written statement.
9. The first question for consideration before us whether Complainants fall in the category of 'consumer' under the Consumer Protection Act, 2019?
10. The Opposite Parties contended that the Complainants are not Consumer as defined under the Consumer Protection Act, 2019 as they invested the ALLOWED PAGE 5 OF 13 CC/277/2020 D.O.D.: 19.12.2024 MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
money to earn profit, which amounts to commercial purpose. To resolve this issue, we deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
"6. ....... A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
11. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act."
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MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
12. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Parties to prove that the apartments 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 Complainants.
13. In the present case, the Opposite Parties have merely made a statement that the Complainants purchased the apartments for commercial purpose and on perusal of the record before us, we fail 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 apartments. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the objection raised on behalf of the Opposite Parties is answered in the negative.
14. The Opposite Parties further contented that the delay in handing over the possession of said apartments was due to force majeure circumstances, which were beyond the control of the Opposite Parties as per clause 31 and 32 of the said agreement.
15. To deal this issue, we deem it appropriate to Consumer Case no. 1624 of 2018 tilted as Sachin Goel & Anr. V. M/S. Ansal Housing & Construction Limited decided on 13.07.2022, wherein similar case Hon'ble NCDRC held:
"12.Admitted facts of the case are that complainants were to get possession of the apartment within 48 months with 6 months grace period. It is submitted that extraction of ground water was banned in Gurgaon by Punjab and Haryana High Court, therefore, construction was delayed. This cannot be a ground for Force Majeure because the opposite party could have used tankers and other sources to get water for the construction purpose and, ALLOWED PAGE 7 OF 13 CC/277/2020 D.O.D.: 19.12.2024 MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
therefore, this plea of Force Majeure is not a valid plea.
13. As regards ban on the mining of sand in Haryana and Rajasthan is concerned, it is not such an act which was beyond the control of the opposite party or would have made it impossible for the opposite party to complete the construction because dust could have been obtained from other sources. It is also submitted that delay had occurred due to ban on the use of dust in 2015-2016 by the National Green Tribunal. It is expected form the opposite party that while making the promise regarding the date of possession, it should assess the anticipated date of possession after taking construction or the likely impediment in the construction. The opposite party certainly would have considered all these factors and that is why it gave time of 6 months of Force Majeure. It is also clear that no specific period during which the use of dust etc was banned by the National Green Tribunal has been mentioned by the opposite party. It is apparent that promised date of possession was 02.04.2017 and the present complaint was filed in the year 2018 and continued till 2022 and till date, there is no evidence that construction had been completed and the occupancy certificate has been obtained. Therefore, the ground that they could not complete the construction due to these reasons are meritless and baseless and has been taken with the intention to gain some advantage. It is a proved fact that opposite party had failed to give offer of possession of the subject apartment till date i.e. even after the expiry of five years."
16. We also deem it appropriate to refer Consumer Case No. 235 Of 2018 titled Narinder Sachdeva & Anr. V. M/S. Ansal Housing & Construction Limited decided on 06.01.2022, wherein NCDRC held:
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MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
"14. Learned Counsel appearing for the Opposite Party vehemently argued that the Clause specifies that the delivery of possession is subject to force majeure conditions and that there were several reasons and circumstances beyond the control of the Opposite Party such as interim orders of the Hon'ble Punjab and Haryana High Court, whereby ground water extraction was banned in Gurgaon; orders passed by the National Green Tribunal (NGT), whereby mining of sand in Haryana and Rajasthan was banned; reservation agitation in Haryana; orders of NGT to stop construction to prevent emission of dust in the month of April, 2015 and again in November, 2016, demonetization etc.
15. All the aforenoted reasons do not fall within the ambit of reasons beyond their control as it can be seen from the record that the Flat Buyer's Agreement was entered into way back in July, 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."
17. Above dicta reflect that the bans on groundwater extraction, sand mining, and the orders of the NGT, do not fall within the scope of circumstances beyond their control. Additionally, factors like demonetization and reservation agitation cannot be considered force majeure events. Furthermore, there is a lack of concrete documentary evidence to support the claim that these reasons have genuinely caused delays in delivering possession. Therefore, it can be concluded that the contentions made by the Opposite Parties in relation to force majeure hold no substantive basis. Also, in the present case the Apartment Buyer Agreement was executed way back in year 2013. Therefore, the contention taken by the Opposite Parties is devoid of any merits.
18. The main question for consideration before us is whether the Opposite Parties are deficient in providing its services to the Complainants?
ALLOWED PAGE 9 OF 13 CC/277/2020 D.O.D.: 19.12.2024
MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
19. Having discussed the preliminary objections raised on behalf of the Opposite Parties, the next issue which arises is whether the Opposite Parties are actually deficient in providing its services to the Complainants. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(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.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a ALLOWED PAGE 10 OF 13 CC/277/2020 D.O.D.: 19.12.2024 MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
contractual obligation.
20. At this stage, it is appropriate to refer to Clause 31 of the Apartment Buyer's Agreement annexed by the Opposite Parties, which is reproduced as hereunder:
"31. The Developer shall offer possession of the Unit any time, within a period of 42 months from the date of execution of Agreement or within 42 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 32. Further there shall be a grace period of 6 months allowed to the Developer over and above the period of 42 months as above in offering the possession of the Unit."
21. It reflects that the Opposite Party no.1 was bound to hand over possession of the said flat within 42 months from the date of execution of Agreement or within 42 months from the date of obtaining all the required sanctions and approval necessary for commencement of construction, whichever is later. However, the Opposite Party no.1 miserably failed to hand over the possession of the said Apartments till date. Therefore, it is clear that the Opposite Party no.1 failed it contractual obligation.
22. The counsel for the Opposite Party no.1 also contended that the project work is nearing completion and the finishing work is going on and in all likelihood the possession of the unit would be handed over in a short period of time. Therefore, it is clear that even in the Written Version there is no specific date given for the handing over of possession of the subject apartments. Hence, the decision of the Hon'ble Supreme Court in Kolkata West ALLOWED PAGE 11 OF 13 CC/277/2020 D.O.D.: 19.12.2024 MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
International City Pvt. Ltd. Vs. Devasis Rudra,: II (2019) CPJ 29 (SC), wherein the Hon'ble Apex Court has laid down that the apartment purchaser cannot be made to wait indefinitely for delivery of possession, squarely applies to the facts of this case.
23. In view of the aforesaid discussion, we are of the considered opinion that in the present case also, the Complainants cannot be made to wait indefinitely for possession of the flat, as the construction is still incomplete and the Opposite Parties is not in a position to give an exact date of offering of possession to the Complainants.
24. Relying on the above settled law, we hold that the Opposite Parties is deficient in providing its services to the Complainant as the Opposite Parties had given false assurance to the Complainant with respect to the time for completing the construction of the said flat and kept the hard-earned money of the Complainant for many years.
25. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party no.1 to refund the entire amount paid by the Complainants i.e., Rs. 1,41,81,645/- 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 no.1 till 19.12.2024 (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 no.1 pays the entire amount on or before 19.02.2025;
C. Being guided by the principles as discussed above, in case the Opposite Party no.1 fails to refund the amount as per the ALLOWED PAGE 12 OF 13 CC/277/2020 D.O.D.: 19.12.2024 MR. RAJ KUMAR & ANR. VS. M/S. ANSAL HOUSING AND CONSTRUCTION LTD. & ANR.
aforesaid clause (A) on or before 19.02.2025, the entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party no.1 till the actual realization of the amount.
26. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party no.1 is directed to pay a sum of A. Rs. 5,00,000/- as cost for mental agony and harassment to the Complainants; and B. The litigation cost to the extent of Rs. 50,000/-.
27. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
28. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
29. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On: 19.12.2024 L.R.- ZA ALLOWED PAGE 13 OF 13