JUDGMENT PRONOUNCED ON: 28.08.2020 COMPLAINT NO. 87/2018 IN THE MATTER OF

1. MRS. SOSAMMA MATHEW

2. MR. MATHEW P.M ... COMPLAINANTS VERSUS M/S ANSAL HI-TECH TOWNSHIPS LTD. ...OP CORAM: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT) HONBLE SH. ANIL SRIVASTAVA, (MEMBER) Present: Mr. Alex Joseph, Advocate, Counsel for Complainant. Mr. Rakesh Bhardwaj, Advocate, Counsel for OP. PER: HONBLE DR. JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT JUDGMENT [Via Video Conferencing]

1. Brief facts of the case are that the complainant applied for the allotment of a flat in SUSHANT MEGAPOLIS at Bulandshahr, Uttar Pradesh after coming to know about the launch of the project on the basis of publication made by the OP. A payment plan was proposed by the OP which was accepted by the complainant and the total agreed amount between the CC 87/2018 Page 2 of 13 parties was Rs. 24,35,000/-. In accordance with the payment plan the complainant made the payments and an Agreement/Letter of Allotment dated 10.12.2012 was executed by the respondent in favour of the complainant wherein a residential apartment bearing no. M50406, 4th Floor, Block/Tower no. 5 admeasuring 1050 sq. ft. was allotted to the complainant.

2. The complainant obtained loan of Rs. 17,00,000/- from Indiabulls Housing Finance Limited at an interest rate of 10.15% p.a.

3. Pursuant to the payment schedule as inculcated in the Agreement/Letter of Allotment, the complainant made timely payments to the OP and a total payment of Rs. 9,71,200/- was made by the complainant to the OP.

4. The present complaint was filed as the complainant failed to hand over the possession of the flat to the complainant within

42 months from the date of sanction of the layout plan and even after the expiry of the grace period of 90 days. In addition to that, the OP intentionally did not disclose the fact that at the time when the flat was being booked by the complainant, there was a restraint order passed by the National Green Tribunal against the OP. Consequently, due to the aforesaid developments the present complaint was filed by the complainant with the following prayer clause: A. To pay the cost of the apartment i.e. Rs. 24,35,000/- (Rupees Twenty Four Lakhs Thirty Five Thousand Only) to the complainants towards compensation for heavy financial loss, mental trauma/agony and such other economical loss suffered due to the deficient acts and deceptive services rendered by the Opposite Parties or; CC 87/2018 Page 3 of 13 B. To pay double amount of the payment already made by the complainants with interest @ 12% from the date of deposit till the payment as compensation to the complainants; C. To pay Costs of this complaint, and D. To pass such further or other order as this Honble Forum/Commission may deem fit and proper in the circumstances of the case and thus render justice.

3. The case was first listed on 21.02.2018, wherein the notice of the present complaint was issued to the OP. Pursuant to the notice issued, Mr. Robin Raju, Advocate filed the Memo of Appearance before this commission on behalf of the OP on 30.08.2018 and was directed to file its written statement. On the failure of the OP to file its Written Statement within the stipulated time period as provided in the Consumer Protection Act, 1986, the OP was proceeded ex-parte on 11.03.2019, and liberty was granted to file written submissions, if any, before the next date of hearing.

4. On the next date of hearing i.e. 05.09.2019, Mr. Rakesh Bhardwaj filed his Vakalatnama on behalf of the OP. Moreso, on the same date, counsel for the complainant filed the evidence by way of affidavit along with the written submissions on behalf of the complainant and the case was re-listed for final arguments on 20.03.2020.

5. However, due to the lockdown imposed by the Government of India in order to curb the spread of the ongoing Covid-19 pandemic, the case could not be taken up for hearing on 20.03.2020 and after some adjournments, was finally listed for arguments on 25.08.2020. During the course of arguments on 25.08.2020, the counsel for the OP submitted that he did not wish to file written submissions. CC 87/2018 Page 4 of 13

6. As is evident, the OP was proceeded ex-parte and the evidence brought forth by the complainant went unrebutted. The facts of the present case clearly reflect that the OP failed to handover the possession till the filing of Complainant. Moreso, the possession was to be handed over way back in 2016. In addition to the aforesaid, despite the constant visits of the complainant, the OP did not pay heed to their grievances or amicably settle the disputes arising. Also, the non-disclosure of the restraint order passed by the Honble National Green Tribunal also raises a question on the bonafides of the OP. It is clear that the execution of the contract was not possible and the OP should have restrained from entering into the contract with the complainant. Moreover, it has been well settled that the complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which he has spent in order to purchase the flat in question (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442). From the aforesaid discussion, there remains no iota of doubt that the OP was deficient in providing its services to the complainant.

7. Having discussed the liability of the OP in the preceding paragraphs, the question to be determined is how the complainant is to be compensated for the deficiency of the OP. At this juncture, we deem it appropriate to refer to the legal position as it stands today in terms of the compensation payable for the deficient services of a builder/OP. In Ghaziabad Development Authority vs. Balbir Singh reported at AIR 2004 SC 2141, the Honble Supreme Court while discussing the duty of the commission to compensate for the oppressive acts of the OPs has held as under: CC 87/2018 Page 5 of 13 Thus the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen. The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enables a consumer to claim and empower the Commission to redress any injustice done. 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 Commission/Forum must determine that such sufferance is due to mala fide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law. It acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the office/public servant. No authority can arrogate to itself the power to act in a manner which is arbitrary. Matters which require immediate attention should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or CC 87/2018 Page 6 of 13 oppression, then after recording a finding it must direct the authority to pay compensation and then also direct recovery from those found responsible for such unpardonable behavior.

8. In Bangalore Development Authority vs. Syndicate Bank reported at AIR 2007 SC 2198, the Honble Apex Court has consolidated the principles regulating the granting of relief to a consumer and has held as under:

10. Where a Development Authority forms layouts and allots plots/flats (or houses) by inviting applications, the following general principles regulate the granting of relief to a consumer (applicant for allotment) who complains of delay in delivery or non- delivery and seeks redressal under the Consumer Protection Act, 1986 ('Act' for short) - [vide : Lucknow Development Authority v. M.K Gupta . AIR 1994 SC

787 , Ghaziabad Development Authority v. Balbir Singh AIR 2004 SC 2141 , and Haryana Development Authority v. Darsh Kumar (2005) 9 SCC 449 , as also Ghaziabad Development Authority v. Union of India (2000) 6 SCC 113 ]: (a) Where the development authority having received the full price, does not deliver possession of the allotted plot/flat/house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case. (b) Where no time is stipulated for performance of the contract (that is for delivery), or where time is not the essence of the contract and the buyer does not issue a notice making time the essence by fixing CC 87/2018 Page 7 of 13 a reasonable time for performance, if the buyer, instead of rescinding the contract on the ground of non-performance, accepts the belated performance in terms of the contract, there is no question of any breach or payment of damages under the general law governing contracts. However, if some statute steps in and creates any statutory obligations on the part of the development authority in the contractual field, the matter will be governed by the provisions of that statute. (c) Where an alternative site is offered or delivered (at the agreed price) in view of its inability to deliver the earlier allotted plot/flat/house, or where the delay in delivering possession of the allotted plot/flat/house is for justifiable reasons, ordinarily the allottee will not be entitled to any interest or compensation. This is because the buyer has the benefit of appreciation in value. (d) Though the relationship between Development Authority and an applicant for allotment is that of a seller and buyer, and therefore governed by law of contracts, (which does not recognise mental agony and suffering as a head of damages for breach), compensation can be awarded to the consumer under the head of mental agony and suffering, by applying the principle of Administrative Law, where the seller being a statutory authority acts negligently, arbitrarily or capriciously. (e) Where an alternative plot/flat/house is allotted and delivered, not at the original agreed price, but by charging current market rate which is much higher, the allottee will be entitled to interest at a reasonable rate on the amount paid towards the earlier allotment, from the date of deposit to date of delivery of the alternative plot/flat/house. In addition, he may be entitled to compensation also, determined with reference to the facts of the case, if CC 87/2018 Page 8 of 13 there are no justifiable reasons for non-delivery of the first allotted plot/flat/house. (f) Where the plot/flat/house has been allotted at a tentative or provisional price, subject to final determination of price on completion of the project (that is acquisition proceedings and development activities), the Development Authority will be entitled to revise or increase the price. But where the allotment is at a fixed price, and a higher price or extra payments are illegally or unjustifiably demanded and collected, the allottee will be entitled to refund of such excess with such interest, as may be determined with reference to the facts of the case. (g) Where full payment is made and possession is delivered, but title deed is not executed without any justifiable cause, the allottee may be awarded compensation, for harassment and mental agony, in addition to appropriate direction for execution and delivery of title deed. (h) Where the allotment relates to a flat/house and construction is incomplete or not in accordance with the agreed specifications, when it is delivered, the allottee will be entitled to compensation equivalent to the cost of completing the building or rectifying the defects.

(i) The quantum of compensation to be awarded, if it is to be awarded, will depend on the facts of each case, nature of harassment, the period of harassment and the nature of arbitrary or capricious or negligent action of the authority which led to such harassment. (j) While deciding whether the allottee is entitled to any relief and in moulding the relief, the following among other relevant factors should be considered: CC 87/2018 Page 9 of 13

(i) whether the layout is developed on 'no profit no loss' basis, or with commercial or profit motive; (ii) whether there is any assurance or commitment in regard to date of delivery of possession; (iii) whether there were any justifiable reasons for the delay or failure to deliver possession; (iv) whether the complainant has alleged and proved that there has been any negligence, shortcoming or inadequacy on the part of the developing authority or its officials in the performance of the functions or obligations in regard to delivery; and (v) whether the allottee has been subjected to avoidable harassment and mental agony.

9. The Honble Supreme Court in Civil Appeal No. 6239 of 2019 titled as Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt Ltd. decided on 24.08.2020, the Apex Court has held as follows:

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 CC 87/2018 Page 10 of 13 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. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice. Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain.

10. Returning to the facts of the present case, it is not in dispute that an amount of Rs. Rs. 9,71,200/- was paid by the complainant towards price of the said plot. The said amount has been utilized by the opposite parties, for their own benefits and on the other hand, the complainant was not provided anything in return of the said amount paid. The circumstances clearly show that the opposite parties made CC 87/2018 Page 11 of 13 false statement of facts about the goods and services i.e. allotment of the flat in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. As has been discussed in the preceding paragraphs, the compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of building the flats and not for any other purpose. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession. To get the relief, the complainant had to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. In addition to that the complainant is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him on account of the betrayal by the opposite parties in shattering their hope of getting the flat by waiting for all this period. In these circumstances, the complainant deserves suitable compensation.

11. Keeping in view the principles as discussed above, we direct the OP to refund the entire amount paid by the complainant CC 87/2018 Page 12 of 13

i.e. Rs. 9,71,200/- along with interest as per the following arrangement: A. An interest @ 10% p.a. being the agreed rate of interest as per clause 4.5 of the Agreement/Letter of Allotment calculated from 11.09.2012 (the first payment received by the OP) till 30.09.2016 (the date till which the OP was to handover the possession of the flat inclusive of the grace period of 90 days as per clause 4.1 of the Agreement/Letter of Allotment); B. An interest @ 10.15% p.a. (being the rate of interest payable on the Loan taken by the complainant) from 01.10.2016 till 28.08.2020 being the date of the present judgment; C. The rate of interest as payable as per aforesaid clause (A) and (B) is subject to the condition that the OP pays the entire amount on or before 24.12.2020; D. However, in case the OP fails to refund the amount as per the aforesaid clause (A) and (B) on or before 24.12.2020, the entire amount is to be refunded with an interest @ 12% p.a. calculated from 16.09.2012 till the actual realization of the amount.

12. In addition to the aforesaid and taking into consideration the facts of the present case, the OP is directed to pay a sum of A. Rs. 2,50,000/- as cost for mental agony and harassment to the complainants; and B. The litigation cost to the extent of Rs. 50,000/-. CC 87/2018 Page 13 of 13

13. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

14. File be consigned to record room along with a copy of this Judgment. (DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On: 28.08.2020