National Consumer Disputes Redressal
Ansal Api Megapolis Buyer'S ... vs Ansal Hi-Tech Township Ltd. on 16 December, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1538 OF 2015 1. ANSAL API MEGAPOLIS BUYER'S ASSOCIATION & 13 ORS. (THROUGH ITS VICE PRESIDENT MR. ANMOL BAGGA,
261, KATRA GUL KHAN SUBJI MANDI, DELHI-110017 ...........Complainant(s) Versus 1. ANSAL HI-TECH TOWNSHIP LTD. (THORUGH ITS MD)
115, ANSAL BHAWAN, 16, KASTURBA GANDHI MARG, NEW DELHI-110 001 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER
For the Complainant : For the Complainants : Mr. Anil Shrivastav, Advocate For the Opp.Party : For the Opposite Party : Mr. Rakesh Kumar, Advocate
Dated : 16 Dec 2021 ORDER
This Complaint, under Section 21 read with Section 2(b)(ii) and Section 12(1)(b) of the Consumer Protection Act, 1986 (for short "the Act"), has been filed by Ansal API Megapolis Buyer's Association: a voluntary Consumer Association registered under The Societies Registration Act, 1860, having Registration No. S/1350/2015 along with 13 individual Complainants being Allottees/Plot buyers in the project "Megapolis Green Hi-Tech Township" (for short "the Project"), launched by the sole Opposite Party, namely, Ansal Hi-Tech Townships Ltd. (for short, "the Developer") in Bulandshahar, adjoining Greater Noida, UP.
According to the Complainants, since all the Complainants have booked their respective Plots in the same Project of the Opposite Party; entered into identical Plot Buyers' Agreement (hereinafter referred to as the Agreement) with them and the issues regarding delay in handing over possession, are identical and resultantly almost same reliefs have been prayed for by all the Complainants; the Complaint is proposed to have been filed in a representative capacity under the aforesaid provision.
The Complainants have sought to place reliance on Order dated 28.08.2015 passed by this Commission in CC No. 120 of 2015, wherein it has been held that the Complainant, being a Society registered under the Societies Registration Act, 1860, consists of apartment buyers, is therefore a recognized Consumer Association and since the Reliefs claimed are of the same nature and against the same Person, such an Association is competent to file a Complaint. Against the said order dated 28.08.2015, the Builder had approached the Hon'ble Supreme Court by way of Civil Appeal No.8423 of 2015 and the Hon'ble Supreme Court vide its Order dated 16.10.2015 was pleased to dismiss the said Appeal thereby upholding the Order this Commission.
Brief facts as narrated in the Complaint are that the Opposite Party Developer, who is engaged in the business of construction and real estate, had launched "Megapolis Green Hi-Tech Township" (for short "the Project") in Bulandshahar, adjoining Greater Noida, UP. Allured by the representations and assurances given by the Developer that necessary approvals for the Project have been arranged, the Complainants booked their respective Plots in the Project in the year 2008. At the time of booking of the Plots, the Complainants were informed about the world class facilities in the said Project. The said Project was supposed to be spread over an area of 2504 acres. Thus the Complainants chose the plot of different sizes at different locations as per their budget and made the booking accordingly. At the time of booking they were never shown the Plot Buyer's Agreement (for short, "Agreement"), which contains different clauses altogether and the same was given to them after a considerable lapse of time and that too for their signatures at the blank space available on each page. There was no mention of any date of handing over possession in the Agreement but at the time of booking the Developer committed to handover the possession of the plots in 3 years from the date of booking. It is further averred that most of the clauses of the Buyer's Agreement prepared by the Opposite Party were one-sided and the Complainants were compelled to sign the agreement along with its unfair and unreasonable clauses; and in the event if any Complainant raised objection to any such unfair clause, then they were threatened with cancellation of their allotment and the earnest money paid by that person being forfeited, therefore, the buyers were forced to sign the agreement under compulsion.
The details of the Complainants showing date of Agreement, Plot number allotted, Amount Paid and Total cost of the Plot is as follows:
S. No.
Name of the Allotee
Plot Buyer's Agreement
Plot Number/Sector
Amount Paid (In Rupees)
Total Cost of Property (in Rupees)
1
Sameer Aggarwal (C-2)
24.07.08
Plot No.45 (Sec.5) 31,46,532 69,92,294 2 Gajanan D. Bhobe & Kriti s. Haldipur (C-3) 29.08.08 Plot No.435 (Sec.5) 22,90,336 50,89,636 3 Suchant Aggarwal (C-4) 25.07.08 Plot No.155 (Sec.5) 16,06,450 32,63,040 4 Hitesh Kumar & Rekha Singh (C-5) 19.07.08 Plot No.448 (Sec.5) 20,90,000 32,16,000 5 Manasvi Sharma (C-6) 28.12.07 Plot No.145152 (Sec.4B) 47,70,211 42,70,211 6 Jatin Kumar (C-7) 15.11.08 Plot No.157 (Sec.5) 14,68,368 32,36,040 7 Sumeeta Bagga & Anmol Bagga (C-8) 16.10.10 Plot No.150 (Sec.5) 14,68,367 32,36,040 8 Kshitij Kumar Aggarwal (C-9) 15.07.08 Plot No.69 (Sec.3C) 12,72,857 27,02,197 9 Uttam Kumar (C-10) 16.07.08 Plot No.265 (Sec.5) 11,52,360 25,60,800 10 Kamal Narayan (C-11) 16.07.08 Plot No.264 (Sec.5) 11,52,360 25,60,800 11 Manju Setia (C-12) July, 2008 Plot No.407, (Sec.5) 11,69,820 25,89,481 12 Shreyans Jain (C-13) 18.08.08 Plot No.518 (Sec.5) 14,68,368 32,63,040 13 Anshu Kumari (C-14) 02.10.11 Plot No.85 Sec.2B) 12,11,000 30,00,000 Grand Total = 2,37,67,029 4,60,33,579 The Complainants allege that the Project has not been completed till date even after about 8 years from the date of the booking. The Opposite Party Developer has indulged in unfair trade practices by utilizing the money collected from the Complainants, for its personal gains and benefits and has further diverted the funds collected from the Complainants to its other projects. The Project has not even reached 50% completion stage, which clearly shows that the Opposite Party has no intention in developing/completing the Project.
The Complainants allege to have repeatedly, both orally as well as in writing enquired about the status of the Project and their plot from the Opposite Party. The Complainants wrote emails/letters to the Opposite Party expressing their concerns over the extent of enormous delay in completing the project and the delay in handing over the possession of their plots. The Opposite Party vide its reply dated 15.11.2008 admitted the delay is due to economic recession and vide its email dated 03.12.2010 assured to one of the Complainants that the offer of possession will start from the end of the year 2012, but till the date of filing of the Complaint, possession was not offered. Vide its letter dated 20.07.2011, the Opposite Party had informed the Complainants that the title of the Project is clear and free from litigation and furthermore that the project has not been affected in any manner by the farmer's agitation. The same was also advertised by the Opposite Party in leading newspapers at the time of launch of Project.
It was further averred that the Complainants have invested their lifetime savings on the basis of tall claims and promises made by Opposite Party and now the Complainants are left in a miserable financial loss since many of the Complainants took huge loans for payment towards the Plot and are paying EMIs with heavy interest to the banks and despite having made the payments to the Opposite Party towards the sale consideration, they are further forced to bear and pay heavy monthly rent for alternate accommodation.
It was also stated that as per clause 1.12 of the Agreement, an interest @ 18% p.a. was charged by the Opposite Party in case of any delay in payment of any installment by the Complainants. The Opposite Party has even charged interest @ 18% p.a. towards delayed payments by few of the Complainants. Whereas, the Opposite Party has been indulged in unfair/restrictive trade practices by not mentioning a compensation clause for delay in handing over possession to the Complainants in the said Agreement. The Opposite Party has exploited the Complainants by firstly taking their money and not completing the construction of the project within time. Therefore, the Opposite Party should also be held liable to pay pendente lite and future interest @ 18% p.a. to each of the Complainants, till the date of its realization, or such higher interest.
The Complainants have further submitted that they suffered loss of opportunity as the prices of the residential units have increased to more than 100 percent since the year 2007-2008 and today if the Complainants wish to purchase any other property of a similar size/specification, they would never be able to purchase the same at the prices which were prevailing at the time of booking the property in question.
It was also alleged that even after 8 years, the Project is not even close to completion, there are no laying of roads, access/service roads, facilities, clubs, no sign of rail over bridge etc. It was further alleged that the unexpected, unreasonable and inordinate delay in developing and constructing the project, and facilities and also the delay in handing over possession of the plot, clearly amounts to deficiency in services.
Thus the Complainants are left with no other recourse but to file the present Consumer Complaint before this Commission with the following reliefs:-
"(a) Grant refund of a sum of ₹2,37,67,029/- to the Complainants towards principal amount paid by them, together with compensation in the form of interest at the rate of 18% per annum along with pendente lite and future interest at the same rate or such higher rate of interest which this Hon'ble Commission may deem fit in the interest of justice, from the date of making payments till the date of actual realization of the payment;
(b) Grant a sum of Rs.5 lakhs to each of the Complainants towards mental agony and damages, due to the arbitrary acts of the opposite party as detailed above in the complaint;
(c) Grant cost of Litigation to each of the Complainants;and (d) Any other order, relief or direction which this Hon'ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the Complainants and against the Opposite Party."
Upon notice, the Opposite Party has filed its reply to the Complaint. It is, inter-alia, contended that the present Complaint is not maintainable as in the Agreement executed between the Parties there is Arbitration Clause according to which, all or any disputes arising out of or touching upon or in relation to the terms of the Agreement including its interpretation and validity and the respective rights and obligations of the parties have to be settled amicably by mutual discussion failing which the disputes have to be settled through arbitration. It was also stated that the Complaint is not maintainable as on two occasions the Complainants have pleaded that they are investors and have invested their funds and one of the Complainants has purchased two plots, therefore, it is a commercial transaction and does not fall under the category of 'Consumer'.
It was further stated that the OP Developer never committed that the possession and sale of the Plot would be completed within 3 years as mala-fidely alleged in the Complaint. In fact, the 3 year period where spoken refers to the time period within which the allottees had to complete their respective construction after receiving possession of the plots.
It was further stated that the demarcated land could not be purchased due to events which are beyond the control of the Opposite Party, such as agitation by farmers wherein all efforts were made by the Opposite Party to resolve issue by seeking help from the High Court of Judicature of Allahabad and District Administration, further time was consumed in taking assistance from the government authorities in order to complete legal obligations and therefore, in view of the prevailing force majeure circumstances, the Opposite Party is not liable to refund or pay compensation to the Complainants.
Conclusively, Opposite Party has denied the contentions as raised in the Complaint in toto. The Opposite Party has thus prayed that the Consumer Complaint be dismissed.
We have heard Mr. Anil Shrivastav, learned Counsel appearing on behalf of the Complainants, Mr. Rakesh Kumar, learned Counsel appearing on behalf of the Opposite Party Developer, perused the material available on record and have given our thoughtful consideration to the arguments advanced before us.
As far as the contention of the learned Counsel for the Opposite Party Developer regarding Arbitration Clause is concerned, we find it a fit case to place reliance on the Judgment passed by the Hon'ble Supreme Court in M/S Emaar MGF Land Limited vs. Aftab Singh - I (2019) CPJ 5 (SC), in which the Hon'ble supreme Court has laid down the law that an Arbitration clause in the Agreement does not bar the jurisdiction of the Consumer Fora to entertain the Complaint. Hence, the objection raised by the Learned Counsel for the Opposite Party that the clause of Arbitration bars this Commission from entertaining the Complaint is unsustainable.
The contention of the learned Counsel for the Opposite Party Developer that the Complainants are not 'Consumers' and that the subject plots were booked for investment purpose is completely unsustainable in the light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in which the principle laid down is that the onus of establishing that the Complainants were 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 the Opposite Party Developer, which in the instant case the Opposite Party Developer had failed to discharge by filing any documentary evidence to establish their case. The allegation of the Opposite Party is based on its assumptions. Therefore, we are of the considered view that the Complainants are 'Consumers' as defined under Section 2 (1)(d) of the Act.
The Opposite Party Developer contended that due to farmers' agitation delay occurred in completing the Project. It is not disputed that at the time of booking of the Plots in the Project, through various newspapers, the Developer advertised that the land is free from all sorts of litigation and vide letter dated 20.07.2011 the Opposite Party Developer also re-assured and re-affirmed that they have purchased the lands on market rates with the consent of the land owners and farmers and there is no dispute on the lands in Project and the Project is not affected by the recent rulings given by the Hon'ble Allahabad High Court as well as by Hon'ble Supreme Court of India. Now at this stage, the Opposite Party Developer cannot take advantage of lame excuse that the due to farmer's agitation the Project could not be developed within stipulated period. It appears from a perusal of the Agreement executed between the parties that the Project proposed to be developed by the OP was a large Project spread over more than 2500 acres of land and that the bulk of the land was purchased by the OP directly from the farmers. There could be some patches of land in between which required acquisition by the State Government in case the OP was not able to purchase them directly from the land owners. The OP having advertised the project and having executed the agreements for development and sale of plots, it was for them to purchase those small patches of land from the land owners at a negotiated price even if they had to pay a price higher than the price they were willing to pay. Alternative, it was for them to ensure that those parcels of land were compulsorily acquired by the Government. In any case, there is no evidence on record to prove that the residential plots allotted by the OP could not have been developed on the land which the OP had directly purchased from the land owners. Therefore, it cannot be said that the non-acquisition of such small parcels of land had delayed the project.
Even if the plea taken by the OP with respect to non-acquisition of those small parcels of land is accepted on its face value, the allottees cannot be made to suffer for the inability of the OP to acquire those land parcels. They having made substantial payment to the OP and having waited for many years, cannot be compelled to wait for an indefinite period till the OP is able to complete the project and is able to offer possession of the allotted plots to them. This is more so when the sale of the plots started way back in the year 2008 and twelve years have since expired but it is not known whether the OP will at all be able to complete the development work and if so, when the said development work would be completed. The delay in completion of the Project by the Developer cannot be justified on such bald allegation without substantiating the same by hard evidence. We do not find any force in the defence taken by the Developer.
Though no specific time period for completing the development and offering possession to the allottees was indicated in the Agreement, that would not entitle the OP Developer to prolong the development work to an indefinite period. In such a case, the development work must necessarily be completed within a reasonable time period. As far as the development of plots is concerned, such a work does not require as much time as required for construction of group housing flats in multistoried buildings. At best, the development work of the plots, even on a large scale, must be completed within a period of three years from the approval of the lay-out plans. In this case, the lay-out plans had been approved even before the Agreements with the OP were executed. It is not in dispute that the Complainants were allotted the Plots in the year 2008 and till date Development of all the Plots is not completed. Keeping in view the Judgment passed by this Commission in Emmar MGF Land Ltd. & Ors. vs. Amit Puri [II (2015) CPJ 568 NC], wherein it was laid down that after the promised date of delivery, it is the discretion of the Complainant whether he wants to accept the offer of possession, if any, or seek refund of the amounts paid with reasonable interest, it is held that it is well within the Complainant's right to reject the offer of alternate plot and seek for refund of the principal amount with interest and compensation as the development work of the allotted Plots is not completed by the OP Developer. We are of the view that the Complainants cannot be made to wait indefinitely for the delivery of possession and the act of the Opposite Party in relying on Farmers' agitation while retaining the amounts deposited by the Complainants, is not only an act of Deficiency of Service but also amounts to Unfair Trade Practice.
We find it a fit case to place reliance on the Judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, in which the Hon'ble Apex Court has observed as hereunder:
.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified"
In the instant case also the Complainants cannot be made to wait indefinitely for possession of the Plots, as the development of the plots is not completed. Therefore, we are of the considered view that the Complainants are entitled for refund of the principal amount with reasonable interest, which we quantify @9% p.a. from the date of respective date of deposit till the date of actual refund. Consequently, the Opposite Party Developer is directed to refund the amount deposited by each of the Complainants alongwith interest @9% p.a. from the date of respective date of deposit till the date of actual refund within 6 weeks from the date of passing of this Order failing which the rate of interest will increase from 9% to 12% p.a. With the aforesaid directions, the Consumer Complaint stands disposed off. However, there shall be no Order as to costs. The pending application, if any, also stands disposed off.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER