State Consumer Disputes Redressal Commission
Gaurav Bhardwaj vs Ansal Housing Ltd. & Ors. on 13 July, 2023
C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 18.07.2022
Date of hearing: 01.05.2023
Date of Decision: 13.07.2023
COMPLAINT CASE NO.- 107/2022
IN THE MATTER OF
MR. GAURAV BHARDWAJ,
R/O 678 CHIRAG DELHI,
NEW DELHI - 110091.
(Through: Mr. Mohit Bhardwaj &
Mr. Karan Jain, Advocate)
...Complainant
VERSUS
ANSAL HOUSING LTD AND ORS,
REGD. OFFICE 606,
6HT FLOOR, INDRA PRAKASH, 21,
BARAKHAMBA ROAD,
NEW DELHI - 110001.
(Through: Vikas Tiwari, Mr.
Kumar Deepraj & Mr. Vidit Agarwal,
Advocates)
...Opposite parties
ALLOWED PAGE 1 OF 13
C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Mohit Bhardwaj, counsel for the complainant.
Mr. Vidit Agarwal, counsel for the OP.
PER: HON'BL JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the complainant before this commission alleging deficiency of service and unfair trade practice by the Opposite Parties and has prayed the following reliefs:
a) Direct the Opposite parties to take immediate steps for handing over the physical possession of the Flat I-804, Ansal Heights Sector 86 Gurugram to the Complainant complete in all respectsand in conformity with the terms and conditions of the Allotment letter and as per quality standards promised and execute all necessary documents in respect of the said apartment in favour of the Complainant;
b) Direct the Opposite parties to pay interest@24% from June 2017 till the actual date of physical possession to the complainant;
c) Direct the Opposite parties to pay delayed penalty @Rs 5 per sq. ft. per month from June 2017 till the actual date of physical possession along with interest @24% pa. till date of actual payment of penalty;
d) Direct the Opposite Parties to refund Rs 3,00,000/- along with interest @ 24% p.a. illegally charged on account of providing covered parking;
e) Direct the opposite parties to remove Escalation cost of Rs 306,152/-( Rupees Three Lakhs Six Thousand One Hundred and Fifty Two Rupees only), reduce exorbitant ALLOWED PAGE 2 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023 cost chargeable on account of External Electrification, electric meter etc.
f) Direct the Opposite parties to pay compensation of Rs.3,00,000/- (Rupees Three lakhs Only) to the complainant for mental agony, harassment, discomfort and undue hardships caused to the complainant as a result of above acts and omissions on the part of the opposite parties;
g) Direct he Opposite parties to pay a sum of Rs 2,00,000-
(Rupees Two Lakhs Only) to the Complainant as a whole, towards the litigation costs;
h) Pass such other and further order(s)/directions(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the present complaint.
2. Brief facts necessary for the adjudication of the present complaint are as follows: On 04.01.2012, the Complainant booked a flat bearing no. 804 on the 8th floor in Tower-1 with the Opposite Parties in the project 'Ansal Height 86' situated at Sector-86, Gurgaon, Haryana, for a total consideration of Rs. 49,91,218/-. Thereafter, a flat buyer's agreement was executed between the parties on 5.03.2013. As per clause 31 of the agreement dated 05.03.2013, the Opposite Parties were to hand over the possession of the said flat within 42 months from the date of execution of the agreement or within 42 months from the date of obtaining all the required sanctions and necessary approvals. However, the Opposite Parties failed to hand over the possession of the flat within the stipulated period mentioned in the said agreement. Moreover, after the delay of the stipulated period of 42 months, the Opposite Parties offered the possession of the said flat but with an illegal demand of Rs. 3,06,152/- on account of escalation. The Complainant immediately visited the registered office of the Opposite Parties to resolve the issue regarding the illegal escalation cost, additional charges for covered parking and ALLOWED PAGE 3 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023 compensation for the delay in handing over the possession of the said flat. However, the Opposite Parties failed to provide any satisfactory response The Complainant over the time had paid a sum of Rs. 54,98,741/- to the Opposite Parties as and when demanded by it. The Complainant also sent a legal notice dated 28.09.2021 to the Opposite Parties asking for possession of the said flat along with delayed compensation but was of no avail.
3. The Opposite Parties have contested the present case and has raised preliminary objections as to the maintainability of the complaint case. The counsel of the Opposite Parties submitted that the complainant is not consumer under the Consumer Protection Act, 2019 as the complainant invested the money to earn profit, which amounts to commercial purpose. He further submitted that the delay in handing over the possession of said flat was due to force majeure circumstances, which were beyond the control of the Opposite Party due to demonetization, Hon'ble Punjab & Haryana High Court, wherein ground water extraction in reign of Haryana was banned and Hon'ble National Green tribunal also directed to stop construction in Delhi NCR to prevent emission etc. He also submitted the Complainant defaulted in making payment timely.
4. The Complainant has filed the Rejoinder rebutting the written statement filed by the Opposite Parties. Both the parties have filed their Evidence by way of Affidavit in order to prove their averments on record.
5. The Complainant has filed its written argument, relying on the following judgment:
i. Manoj Kumar Sharma v. M/s Ansal Housing & Construction ltd. CC No. 514/2018 ALLOWED PAGE 4 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023 ii. Lucknow Development Authority V. M.K. Gupta (1994)1 SCC 243.
iii. Anila Jain v. Emaar MGF Land ltd. CC no. 2208/2017 iv. Experior developers pvt. ltd. V. Sushma Ashok Shiroor. v. M/s country Colonisers pvt. ltd. V. Harmit Singh Arora Ors.
vi. Arifur Rahman khan and ors v. DLF Sourthern Homes Pvt. Ltd. of the Complainant also on record.
6. We have perused the material available on record and heard the counsel for the parties.
7. The fact that the Complainant had booked a flat with the Opposite Parties is evident from the Flat Buyer Agreement dated 05.03.2013. Payment to the extent of Rs. 54,98,741/- by the Complainant to the Opposite Party is not disputed by the it.
8. Whether complainant fall in the category of 'consumer' under the consumer protection act, 2019?
9. The Opposite Party contended that the Complainant is not Consumer as defined under the Consumer Protection Act, 2019 as he invested the 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 ALLOWED PAGE 5 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023 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."
10. 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."
11. From the aforesaid dicta of the Hon'ble National Commission, it clear that the purchase of more than one house or plot by the buyer cannot be termed as commercial purpose. In a present case, separate flat has been purchased by the buyer for the individual use of his family members, therefore, we find no merit in the contention of the Opposite Part that the Complainant is not a consumer under the consumer protection act, 2019.
12. Further, it is for the Opposite Parties to prove that said flat 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 Complainant. In the present case, the Opposite Partiess has merely made a statement that the ALLOWED PAGE 6 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023 Complainant purchased the said apartment for commercial purpose but fail to provide any material which shows us that the Complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with view to make profit by sale of such flats. 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.
13. The Opposite Parties further contented that the delay in handing over the possession of said flat 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.
14. 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, therefore, this plea of Force Majeure is not a valid plea.
ALLOWED PAGE 7 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023
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."
ALLOWED PAGE 8 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023
15. 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:
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.
16. 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 ALLOWED PAGE 9 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023 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 Flat Buyer Agreement was executed way back in march 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 is deficient in providing its services to the Complainant?
19. Having discussed the preliminary objections raised on behalf of the Opposite Parties, the next issue which arises is whether the Opposite Parties is actually deficient in providing its services to the Complainant. 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 ALLOWED PAGE 10 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023 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 contractual obligation.
20. At this stage, we deem it appropriate to refer to clause 31 of the Flat Buyer agreement dated 05.03.2013 entered into by both the contesting parties. It reflects that the Opposite Parties was bound to hand over possession of the said flat within 42 months from the date of the said agreement. However, the Opposite Parties miserably failed to hand over the possession of the said flat with stipulated period. Therefore, it is clear that the Opposite Parties failed it contractual obligation. Also, it is evident from the receipt attached with the complaint that the Complainant had timely paid an amount of Rs. 54,98,741/- towards the towards the basic sale consideration of Rs. 49,91,218/-. As a result, we don't see any reason to believe that there was any default in making payment on the part of the Complainant. The new demand of the Opposite Parties on the amount of escalation is also not justified as there has been already inordinate delay in handing over the possession of the said flat.
ALLOWED PAGE 11 OF 13 C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023
21. Furthermore, it is evident from clause 1 of the flat buyer agreement dated 5.13.2013 that the provision for covered car parking was explicitly included in the total consideration amount of Rs.49,91,218/-. Therefore, it is clear that the cost for the covered car parking was already paid by the Complainant as per agreed terms and condition of the said agreement.
22. 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.
23. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Parties to deliver the physical & vacant possession of said flat (Complete in all respect) in the name of the Complainant within two months from the date of this judgment.
24. The Opposite Parties also directed to refund Rs. 3,00,000/- along with simple interest of 6%, from the date on which each payment was received by the Opposite Parties from the Complainant till the date of realization.
25. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Parties is directed:
A. To pay the penalty for delayed possession @ Rs. 5 per Sq. ft per month from the date on which possession of the said flat has to be given to the Complainant till the actual date of handing over possession of the said flat to the Complainant.
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C. NO. 107/2022 MR. GAURAV BHARDWAJ VS. ANSAL HOUSING LTD AND ORS. D.O.D.: 13.07.2023
B. Rs. 1,00,000/- as cost for mental agony and harassment
to the Complainant; and
C. The litigation cost to the extent of Rs. 50,000/-.
26. The Opposite Parties is further directed, not to raise any further demands from the Complainant with respect to the said flat.
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) (J.P. AGRAWAL) MEMBER (GENERAL) Pronounced On:
13.07.2023 ALLOWED PAGE 13 OF 13