DEVENDER BANSAL Vs. ANSAL HOUSING & CONSTRUCTION LIMITED

JUDGEMENT

(1.) The present complaint has been filed by the complainant seeking refund of his deposited amount of Rs.85,88,775.00 along with interest @ 18% p.a. from the date of deposits till payment and also claimed a sum of Rs.5,00,000.00 towards mental agony and harassment along with other appropriate relief.

(2.) The case of the complainant is that opposite party in the year 2012 launched a Group Housing Scheme known as "Ansal Highland Park" in Sector 103, Gurgaon, Haryana. The project was widely advertised by the opposite party and on seeing the lucrative advertisement, the complainant approached the opposite party. It was projected to them that the apartment would be delivered within 48 months from the date of execution of the agreement. On this promise, the complainant applied for allotment of the apartment on 1/6/2012 and apartment no. Perth 0302 measuring 1762 sq. ft was allotted. He signed the Builder Buyer Agreement on 17/5/2013. The proposed date of possession was 17/5/2017. The total consideration of the apartment was Rs.88,81,936.00. The opposite party also provided the payment schedule and the complainant duly paid the instalments. The total amount paid by the complainant i.e. Rs.85,88,775.00 also included the payment towards service tax etc. It is submitted that complainant had been regularly visiting the site and found that no one was present at the site and the construction was not in progress. Despite taking considerable amount, the apartment was never constructed and the site was abandoned piece of land having only skeleton structure of semi constructed building. The construction was not completed and the promise of delivery of possession within 48 months was never fulfilled by the opposite party. The apartment was booked by the complainant with the intention of using it as home for their family and themselves. As per clause 37 of the Builder Buyer Agreement, the opposite party had promised to pay compensation @ Rs.5.00 per sq. ft. per month for the period of delay and it comes to Rs.1.4% p.a. rate of interest. It is submitted that this is disproportionate to the interest which the money which was deposited by the complainant with the opposite party would have fetched had it been kept in bank or otherwise. It is submitted that since opposite party had failed to deliver the possession of the subject property even after expiry of several years, it amounts to deficiency in service and they should be directed to refund their money and award other compensation as prayed for.

(3.) Notice of the complaint was sent to the opposite party. The opposite party had filed its written statement. In the written statement, several preliminary objections have been raised by the opposite party. It is contended that this Commission has no pecuniary jurisdiction. It is submitted that total basic price was inclusive of PLC, if any, and if we exclude EDC and IDC etc, said apartment was costing Rs.81,72,616.00 and, therefore, this Commission has no pecuniary jurisdiction. That the high rate of interest has been claimed with the intention to bring the case within the pecuniary jurisdiction of this Commission. It is further contended that complainant had booked the said apartment purely for commercial purpose. It is submitted that it was a sort of investment made by the complainant on the speculation of the price rise and it was for commercial gain. Complainant is, therefore, not a consumer within the meaning of Consumer Protection Act, 1986 (now repealed by Consumer Protection Act, 2019). It is further contended that as per clause 28 of the Flat Buyer Agreement, once the provisional allotment of the apartment is made, the complainant is not entitled for any refund. It is further submitted that as per clause 31 and 32 of the Apartment Buyer's Agreement, possession of the apartment was to be delivered within 48 months with 6 months grace period from the date of execution of the agreement or from the date of obtaining all the required sanctions and approval necessary for commencement of constructions, whichever is later. It is submitted that is subject to force majeure circumstances. It is submitted that no cause of action had arisen in favour of the complainant. Approval of the building plan was granted vide letter dtd. 16/4/2013 and the environmental clearance was given vide letter dtd. 15/10/2013. It is submitted that because of certain circumstances which were beyond the control of the opposite party that the delay had occurred and had it not been there, opposite party would have delivered the possession in time. It was submitted that there were orders of the Hon'ble High Court of Punjab and Haryana whereby extraction of ground water was banned in Gurgaon and vide orders of National Green Tribunal, mining of sand in Haryana and Rajasthan were banned. There was reservation agitation in Haryana, there were orders of National Green Tribunal to stop construction to prevent emission of dust in the Month of April 2015 and again in November 2016 and demonetization etc had adversely effected the progress of the project and caused delay. It is submitted that these circumstances were beyond the control of the opposite party. It is further submitted that from conjoint reading of clause 31 and 32 of the Agreement, opposite party is entitled to reasonable extension of time on the agreed date of delivery due to Force Majeure circumstances. It is further contended that payment plan was construction linked plan and no demands were raised by the opposite party until the stage of particular construction arrived. It is submitted that construction started in the month of May / June 2013 only. It is submitted that complainant anticipated slump in the real estate market and loss in their investment and, therefore, they had filed the present complaint. On these contentions, it is submitted that present complaint is liable to be dismissed.