State Consumer Disputes Redressal Commission
Hans Raj Aggarwal vs M/S Adel Landmarks Limited & Anr. on 4 January, 2018
Daily Order IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments :04.01.2018 Date of Decision :08.01.2018 Complaint No.43/2017 IN THE MATTER OF: Shri H.R. Aggarwal, S/o.Late Shri A.N. Aggarwal, R/o. House No.20, Ground Floor, Near Laxmi Narayan Mandir, Malka Ganj, Delhi-110007. ......Complainant Versus 1. M/s. Adel Landmarks Ltd., (Formerly known as Era Landmarks Ltd.) Registered Office: B-292, Chandra Kanta Complex, Shop No.8, Near Meto Pillar No.161, New Ashok Nagar, New Delhi-110096. Also at: M/s. Adel Landmarks Ltd., (formerly known as Era Landmarks Ltd.), Head Office: B-24, Sector-3, Nodia-201301. India. .....Opposite Party No.1 2. Headway Buildcon Pvt. Ltd., (as subsidiary of Adel Landmarks Ltd.) Regd. Office : B-292, Chandra Kanta Complex, Shop No.8, Near Metro Pillar No.161, New Ashok Nagar, New Delhi-110096. Also at : Headway Buildcon Pvt. Ltd. (a subsidiary of Adel Landmarks Ltd.) Head Office: B-24, Sector-3, Noida-201301. ....Opposite Party No.2 3. Mr. Arvind Kumar Birla, Director, Adel Landmarks Ltd. 254, Second Floor, AGCR Enclave, Delhi-110092. Regd. Office : B-292, Chandra Kanta Complex, Shop No.8, Near Metro Pillar No.161, New Ashok Nagar, New Delhi-110096. ....Opposite Party No.3 4. Mr. Sumit Bharana, Director, Adel Landmarks Ltd., C-146, 1st Floor, Sarvodua Enclave, New Delhi-110017. Also at: B-292, Chandra Kanta Complex, Shop No.8, Near Metro Pillar No.161, New Ashok Nagar, New Delhi-110096 .....Opposite Party No.4 5. Mr. Pravindra Kumar, Director, Adel Landmarks Ltd., C-146, 1st Floor, Sarvodya Enclave, New Delhi-110017. Also at: B-292, Chandra Kanta Complex, Shop No.8, Near Metro Pillar No.161, New Ashok Nagar, New Delhi-110096 ....Opposite Party No.5 6. Mr. Sandeep, Director, Adel Landmarks Ltd., B-292, Chandra Kanta Complex, Shop No.8, Near Metro Pillar No.161, New Ashok Nagar, New Delhi-110096 .....Opposite Party No.6 HON'BLE SH. O.P.GUPTA, MEMBER(JUDICIAL) HON'BLE SH. ANIL SRIVASTAVA, MEMBER 1. Whether reporters of local newspaper be allowed to see the judgment? Yes/No 2. To be referred to the reporter or not? Yes/No Present: Shri Manak Ahluwalia, Counsel for the complainant. None for the Opposite Parties. PER : SHRI ANIL SRIVASTAVA, MEMBER JUDGEMENT
Shri Hans Raj Aggarwal, resident of Delhi, has filed this complaint before this Commission (for short complainant) under Section 17 of the Consumer Protection Act 1986 (the Act) against M/s. Adel Landmarks Ltd & Ors, hereinafter referred to as OPs, alleging deficiency of service on the part of the OP in not completing the project within the agreed time despite he having deposited an amount of Rs.22,91,980/- out of the total sale consideration of Rs.45,70,000/- and praying for the relief as under:-
a) Allow the instant complaint; b) Direct the OPs to pay to the complainant an amount of INR 22,91,980/- (Rupees twenty two lacs ninety one thousand nine hundred and eighty) alongwith interest @18% per annum from the date of payment by the complainant of the relevant installment till the date of actual payment by the OPs and c) Direct the OPs to pay to the complainant an amount of INR 2,29,266/- (Rupees two lacs twenty nine thousand two hundred and sixty six) towards the liquidated damages for delayed possession (commencing as on July 2015 till December 2016) and further till the date of actual payment to the complainant as stipulated in Clause 10.2 of the Buyer Agreement alongwith interst; d) Direct the OPs to pay INR 2,70,000/- towards the lease rent that the complainant could have fetched by leasing out the Unit (calculated as INR 15,000/- per month from July 2015 till December 2016); e) Direct the OPs to pay damages and compensation @Rs.5 lacs (Rupees Five lacs) to the complainant on account of mental agony, unnecessary harassment, deficiency in service, deceptive, restrictive and unfair trade practices of the OPs; f) Direct the OPs to pay cost of litigation of Rs.55,000/- Rupees fifty five thousand only); and g) Pass such other and further order/ orders as may be deemed fit under the present facts and circumstances of the case.
Facts of the case necessary for the adjudication of the complaint are these.
The complainant led by the advertisements of the OP regarding their upcoming project at Gurgaon in Section 103, namely, Cosmo City, intended to purchase a flat in that project and as a consequence thereof Buyer Agreement was executed between him and the OPs on 27.12.2011. In furtherance thereof a unit bearing number CSM/103/B-0402 in Tower B on the further floor of the `Cosmo City' project admeasuring super area of 1828 sq. ft. was allotted to the complainant @Rs.2500/- per sq ft. Total sale consideration was Rs.45,70,000/- which did not include other charges, namely, EDC, IDC, preferential location charges, covered parking, power back as contemplated in clause 3.2 of the Buyer Agreement. Payments have been made by the complainant as per the agreement on the dates and the amount as indicated below:-
S.No. Date of Receipt Payment amount (in INR) 1 12.12.2010 5,00,000/-2
02.02.2011 1,63,000/-
311.05.2011 1,87,000/-
417.09.2011 2,12,500/-
524.10.2011 1,09,420/-
614.12.2013 6,48,940/-
726.03.2014 4,66,409/-
8. 12.04.2014 4,711/-
Total 22,91,980/-
As per the clause 10.1 of the agreement executed on 27.12.2011 the physical possession of the flat allotted to the complainant was to be handed over within three years from the date of execution of the agreement with a grace period of six months which means, on or before 27.06.2015 (including the grace period). Clause 10.1 of the agreement is reproduced below:
10.1 It is understood and agreed between the parties that based on present plans and estimates and subject to all just exceptions, the Developer contemplates to give/ offer possession of unit to allottee(s) within 36 months from the date of execution of the buyer agreement (with a grace period of 6 months). The said delivery date is subject to force majeure events or governmental action/ inaction or due to failure of allottee (s) to pay in time the price of the said unit along with other charges and dues in accordance with the schedule of payments or any other activity of allottee(s) deterrent to the progress of the complex/ project/ residential colony.
The complainant sought a clarification from the OP vide his letter dated 26.03.2014 the time by which the project would be complete and he would be handed over the possession of the flat but he got no response. On his visit to the site the complainant found that the construction of the project of the Tower he had applied has not even commenced. Finding no response a legal notice was issued to the OP on 24.11.2016 requiring the OP either to hand over the possession or, in the alternate, refund the amount deposited by him with interest. But even the legal notice so issued elicited no response.
Accordingly the complainant has filed this complaint for the redressal of his grievances. OPs were noticed but since the written statement was not filed within the staturtory period, their right to file the same was closed vide proceedings recorded on 11.05.2017. The complainant has however filed the evidence and written arguments reiterating what was submitted on the complaint.
The matter was listed before us for final hearing on 04.01.2018 when the ld. Counsel for the complainant appeared and advanced his arguments. No one was present on behalf of the OPs. We have perused the records of the case and have given a careful consideration to the matter.
The complainant has alleged deficiency on the part of the OP since construction of the project did not even commence on the date and in the absence of any rebuttal from the OPs, they having been ordered to be proceeded exparte, the allegation of the complainant regarding deficiency of service stands established.
It is a trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade practice as defined, in section 21 (r )(ii) of the Act, as well. (See : Lucknow Development Authority vs. M.K. Gupta - (1994) 1 SCC 243.
Having arrived at the said conclusion, the core question for consideration is as to how the complainants are to be compensated for the monetary loss, mental and physical harassment they have suffered at the hands of OP on account of non-delivery of the allotted unit.
The provisions of the Act enable a consumer to claim and empower the commission/ Forum to redress any injustice done to a consumer. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The word compensation is of very wide connotation. It may constitute actual loss or expected loss and may extend the compensation for physical, mental or even emotional suffering, insult or injury or loss. Therefore, for the purpose of determining the amount of compensation the commission/ Forum must determine the extent of sufferance by the consumer due to action or inaction on the part of the OP. IN Ghaziabad Development Authority vs. Balbir Singh - (2004) 5 SCC 65, while observing that the power and duty to award compensation does not mean that irrespective of facts of the case, compensation can be awarded in all matters on a uniform basis, the Hon'ble Supreme Court gave certain instances and indicated the factors, which could be kept in view while determining adequate compensation. One of the illustrations given in the said decision was between the cases, where possession of a booked/ allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon'ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/ plot. He is not only deprived of the flat/ plot, he has been deprived of the benefit of escalation of the price of the flat/ plot. Additionally, in our view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc., if it happens to be a plot of land, like in the present case."
The NCDRC in Surender Kumar Tyagi vs. Jagat Nursing Home reported in IV (2010) CPJ 199 has held that compensation has to reasonable and not in anyway to enrich the consumer.
Their Lordship in the Supreme Court in the matter of Balram Prasad (Dr) Advance Medical Care and Research Institute Ltd., Dr. Baidyanath Haldar, Dr. Kunal Saha an others and reported in IV (2013) CPJ 1SC it have laid down the principle for just compensation, basing it on restitution integram i.e. claimant must receive sum of the money which would put him in same position as he would have been if he had not sustained the wrong.
Having regard to the discussion done we are of the considered view the complaint deserves to be allowed. The Hon'ble Supreme Court of India in the matter of Kusum Agarwal & Anr. Vs. Harsha Associates Pvt. Ltd., reported in IV (2017) CPJ 9 (SC) observing deficiency on the part of the OP, have ordered for the refund of the amount paid with 18% interest.
Keeping in view the facts and circumstances of the case we direct the OPs to refund the amount paid by the complainant with interest at the rate of 9% from the date of deposit till the date of realization. The refund as ordered be paid by the OP within a period two months from the date of receipt of this order.
Ordered accordingly.
Copy of the order may be forwarded to the parties to the case free of cost as statutorily required.
File be consigned to records.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER (JUDICIAL)