ANSAL CROWN HEIGHTS ... v. ANSAL CROWN INFRABUI...

deposited amount with interest and compensation.

2. Since the facts involved in both the Complaints are similar except for minor variations in the Unit Numbers and their Sale Consideration, these Complaints are being disposed of by this Common Order. However, for the sake of convenience, the facts have been taken from the Consumer Complaint No. 86 of 2018.

3.

"(i) Direct the OP to hand over the possession of the aforesaid apartment complete in all respects to complainant immediately as per the Builder Buyers Agreement and execute all the necessary and required documents in respect of the said apartment in favor of the complainant along with a sum in the form of compensation at 24% per annum from the total amount paid from the committed date of possession till the actual possession of the apartment as compensation for the delay which amount to deficiency in service as well as compensate for the financial losses incurred viz. EMI interest loss, rent payment and inability to claim rebate in income tax on EMI interest year, amounting to Rs.5.00 lacs IT rebate on the principal amount.

or

(ii) In the alternative provide a ready to move in apartment immediately to each complainant which is of identical size and in similar locality and similar amenities along which sum in the form of compensation at 24% per annum from the total amount paid from the committed date of possession till the actual possession of the apartment as co compensation for the delay which amounts to deficiency in service as well as compensate for the financial losses incurred viz. EMI interest loss rent payment an inability to claim rebate in income tax on EMI interest every year, amounting to Rs. 5.00 lacs IT rebate on the principal amount or

(iii) In the alternative pay a minimum sum of money calculated at least @ Rs.6500/- per sq x super area of the flat calculated in column 13 of Annexure C (colly) for each buyer, to each complainant to enable the complainants to purchase another flat on their own along with a sum in the form of compensation at 24% per annum from the total amount paid from the committed date of possession till the actual date of payment of this compensation as compensation of r the delay which amounts to deficiency in service as well as compensate for the financial losses incurred viz. EMI interest loss, rent payment and inability to claim rebate in income tax on Emi interest every year, amounting to Rs.5,00 lacs IT rebate on the principal amount.

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or

(iv) direct the OP to return the total amount paidso far with interest @ 24% monthly compound interest per annum from the date of first payment made as the Opposite Party has misused the money paid by the complainant for its commercial purposes and complainants have also suffered financial losses. They have paid rent for their rented houses, paid interest on EMI and also suffered the loss of Income Tax rebate towards principal amount and the interest paid on EMI's

(v) direct the Opposite Party to pay adequate compensation to each of the members of the association towards damages for the physical and mental torture, agony, discomfort and undue hardships caused to the buyers and their families as a result t of the above acts of omission on the part of the Opposite Party, as this Hon'ble Commission may determine.

AND

(vi) direct the Opposite Party to pay a sum of Rs. 50,000/- to each of the flat buyer towards the cost of litigation.

AND

(vii) pass any other order or orders as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the case."

or

04. Upon notice, the Opposite Party Developer has filed its Written Version denying the contents of the Complaint and raising the Preliminary Objections that the parties are bound by the terms of the Agreement; time was not the essence of the contract and in terms of Clause 4 of the Agreement, an endeavor was to be made by the Developer to complete the Project in time.

05. On merits, it is contended that the delay in completion of the Project has occurred due to extra time taken by the Department of Town and Country Planning, Haryana in renewal of the license as a result of which there was no construction work between 2007 to 2016; the Building Plans were submitted for revalidation on 26.06.2015, however the same were revalided by the Directorate of Town and Country Planning, Haryana only on 26.06.2015 leading to further delay of 177 days in construction work; a dispute was arisen between the Developer and the Contractor, M/s. Asian Construction who were awarded construction work of Tower No.AC-9 and AC-10; the Contract with the said Contractor was terminated and another Contractor, M/s Pyare Lal Hari Singh Builders Pvt. Ltd. was given the construction work of Tower AC-7, AC-8 and AC-9; the construction work of Tower Nos. AC-1 to AC-4 was awarded to M/s. CRS Infra Project Ltd.; even later on the contract was terminated with M/s CRS Infra Project Limited due to slow pace of construction work; majority of the Allottees were defaulter in timely making the payment of the installment due which ultimately resulted in delay of completion of the

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Project; the construction work is going on in respect of 8 of the total 10 towers in the Project, however, construction of the remaining two towers has yet to be started as the same is lying unsold; the construction work of 4 of the 8 towers (i.e. Tower 7 to 10) is also complete and only the finishing of the interiors is going on and the possession thereof to be handed over on or before December, 2018.

06. For ready reference, the necessary details of name of allottee, unit number, date of execution of agreement and committed date of possession are given below:

CONSUMER COMPLAINT NO. 86 OF 2018

Date of BBA

Sl. Member Name/ Flat/ (Builder Buyer Date of Agreement Possession

No. Joint Holder Tower No. committed

4

5

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Mr. Manish Mittal, Ashish

45. T 3/1103 2 JUL 2011 2 JUL 2014 Mittal & Priyanka Garg

CONSUMER COMPLAINT NO. 2600 OF 2018

Date of BBA Date of

Member Name/Joint Holder Flat Tower No. (Builder Buyer Possession

Agreement committed

Mr. Subhach Taneja, Mrs.

1. Adarsh Taneja & Mr. Amit T 8/1701 13 NOV 2011 13 NOV 2014 Aggarwal

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2. Mr. Shallendra Mohan T 7/904 28 MAR 2011 28 MAR2014

3. Viabhav Kaul & Shveta Kaul T 3/1602 10 APR 2012 10 APR 2011 Mrs. Bhavna Verma & Mr.

4. T 4/602 3 AUG 2012 3 AUG 2015 Himanshu Khullar

5. Rashmi Bagai & Ranjan Mitra T 3/1003 28 APR 2011 28 APR 2014

6. Kabir Choudhary T 7/1801 2 JAN 2012 2 JAN 2015

7. Mehul Dhawan T 7/702 6 NAV 2012 6 NOV 2015 Amit Chandna, Mr. Abhishek

8. Chandna, Mrs. Neha Chandna & T 2/202 12 DEC 2012 12 DEC 2015 Pooja Chandna

Mr. Sanjay Sisodia & Arvind

9. T 7/1402 27 OCT 2010 27 OCT 2013 Sisodia

Mr. Anil Khosla & Mrs. Ruby

10. T 2/801 29 MAR 2012 29 MAR 2015 Malik

11. Sita Ram Malik & Amrit Malik T 3/1002 23 aug 2011 23 AUG 2014

12. Prem Gambhir & Lalita GambhirT 9/1003 5 MAR 2012 5 MAR 2012

13. Sanjy Sethi T 3/1502 26 APR2012 26 APR 2015 Pramjit Singh and Amrit

14. T 4/1102 17 JAN 2013 17 JAN 2016 Sachdeva

15 Suranjana Basu & Satyajit Basu T 4/1004 3 AUG 2012 3 AUG 2015

16. Vimkuda Consltants Pvt. Ltd T 4/704 14 AUG 2012 14 AUG 2015

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17. Bela Ratra T 4/1402 16 OCT 2012 16 OCT 2051 Dinesh Garg (GPA Holder of

18. T 4/1104 22 FB 2013 22 FEB 2016 Manish Garg)

19. Himanshu Oswal & NIdhi OswalT 4/502 22 FEB 2013 22 FEB 2016

20. Ritu Dayal & Shanta Dayal T 3/1104 13 APR 2011 13 APR 2014

7. 07. During the proceedings, , I.A 7871 of 2021 was filed for deletion of the name of Mr. Manish Garg (Sl.No.18 in the chart) as he has already filed an individual complaint. The application is allowed and his name is deleted from the memo of parties.

08. The Preliminary Objections raised by the Developer in its Written version as well as the defence taken by the Developer for delay in completion of the Project and handing over the possession of the allotted Flat to the Complainants has already been dealt with in detail by a Co-ordinate Bench of this Commission in the case of Deepak Verma Vs. M/s. Ansal Crown Infrabuild Pvt. Ltd. - (Consumer Complaint No. 748 of 2019 decided on 10.11.2021) which relates to the same Project, i.e. "Ansal Crown Heights" located at Sector 80, Faridabad, Haryana. While rejecting the contentions of the Learned Counsel for the Developer, it was held as under:-

" The Complaint was resisted by the Opposite Party Developer by filing its Written Statement in which the Opposite Party Developer took preliminary objection that the Complaint is not maintainable as the terms of the Agreement are binding on both the Complainants and the Opposite Party and therefore, this does not give any rise to any cause of action entitling the Complainants to file the purported Complaint; the Project is registered under RERA, 2016 and therefore, in terms of RERA, this Commission is barred from entertaining the present Complaint and since the sale price of the Flat was below ₹1.00 crores, this Commission lacks pecuniary jurisdiction to entertain the present Complaint and the Complainants is habitual defaulter in making payments. On merits, it was stated that the delay in completion of Project occurred due to delay on the part of the Directorate of Town & Country Planning Haryana in renewing the license of the Opposite Party and the Construction work was affected on account of the contractor appointed by the Developer having not completed the construction in time and thereafter having created hindrance in completion of the Project by another contractor. It is also alleged that out of ten towers, construction work is going on in eight towers and 95% work is completed in four towers whereas 70% work is complete in remaining towers. It is also alleged that during the intervening period, majority of the buyers defaulted in making payments

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in terms of their Agreement and a sum of ₹30 crores (Approx.) is outstanding from the flat buyers to the Developer, leading to a financial crunch. It is also alleged that as per the agreement between the parties, in the event of delay in construction, compensation quantified at Rs.5/- per sq.ft. per month for the period of delay was payable to the flat buyers, provided the delay can be attributed to the builder and no claim by way of damages or compensation is payable if the delay is on account of reasons beyond the control of the promoter. It was also submitted that the delay in construction is due to the reasons which were beyond the control of the Developer, therefore, there is no Deficiency in Service or Unfair Trade Practice on their part. They prayed that the Consumer Complaint be dismissed.

We have heard Mr. Saurabh Jain, learned Counsel for the Complainants, Mr. Rohit Gupta, learned Counsel appearing on behalf of the Opposite Party Developer and have given a thoughtful consideration to the various pleas raised by the learned Counsel for the Parties.

The contention of the learned Counsel for the Opposite Party Developer that the Complainants is bound by the terms of the Agreement and it did not give any rise to any cause of action to Complainants to file the present Complaint, we have gone through the various clauses of the Agreement. Clause 4 and 3 (b) (viii) (c) of the Agreement reads as under:-

"4. …….In case of delay in construction of the said Unit attributable to delay on the part of intending Developer/Seller, the Intending Developer / Seller would pay a penalty to the Unit Buyers @Rs.5/- per sq. ft. per month for the period of delay and likewise it would be applicable vice-versa…...

3(b)(viii) (c) In exceptional circumstances, the Owner/Promoter may, in its sole discretion condone the delay in payment, by charging interest at minimum rate of 24% per annum. In the event of the Owner/Promoter waiving the right of forfeiture and accepting interest/ other compensation on that account, no right whatsoever would accrue to any other defaulting Flat Buyer."

A bare perusal of above Clauses makes it clear that as per Clause 4 of the Flat Buyer

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Agreement, in case of delay the Opposite Party Developer is liable to pay ₹5/- per sq. ft. per month for the period of delay in offering of possession, whereas in terms of Clause 3(b)(viii)c, in case of late payment, the Complainants/Buyer is liable to pay interest @24% p.a. This shows that the terms of the Agreement are wholly one-sided and unfair. Therefore, the Complainants cannot be made bound to the terms of the Agreement, which is one-sided and unfair in the light of the recent Judgment of the Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, II (2019) CPJ 34 (SC), wherein the Apex Court has observed as follows:-

"6.7. A terms of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.

7. In view of the above discussion, we have no hesitation in holding that the terms of the Apartment Buyer's Agreement dated 08.05.2012 were wholly one-sided and unfair to the Respondent-Flat Purchaser. The Appellant-Builder cannot seek to bind the Respondent with such one-sided contractual terms."

So far as the plea that the Project is registered under RERA, 2016 and therefore, in terms of RERA, this Commission is barred from entertaining the present Complaint is concerned, we place reliance upon a recent Judgment delivered by Hon'ble Supreme Court in "M/s Imperia Structures Ltd. v. Anil Patni and Anr." (2020) 10 SCC 783 wherein it has been held that the remedies under the Consumer Protection Act were in addition to the remedies available under special statutes. The absence of a bar under Section 79 of the RERA Act to the initiation of proceedings before a fora which is not a civil court, read with Section 88 of the RERA Act makes the position clear. Section 18 of the RERA Act specifies that the remedies are " without prejudice to any other remedy available. In M/s. Imperia Structures Ltd. (supra), Hon'ble Supreme Court observed as under:

"31. Proviso to Section 71(1) of the RERA Act entitles a complainant who had initiated proceedings under the CP Act before the RERA Act came into force, to withdraw the proceedings under the CP Act with the permission of the Forum or Commission and file an appropriate application before the adjudicating officer under the RERA Act. The proviso thus gives a right or an option to the complainant concerned but does not statutorily force him to withdraw such

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complaint nor do the provisions of the RERA Act create any mechanism for transfer of such pending proceedings to authorities under the RERA Act. As against that the mandate in Section 12(4) of the CP Act to the contrary is quite significant.

32. Again, insofar as cases where such proceedings under the CP Act are initiated after the provisions of the RERA Act came into force, there is nothing in the RERA Act which bars such initiation. The absence of bar under Section 79 to the initiation of proceedings before a fora which cannot be called a civil court and express saving under Section 88 of the RERA Act, make the position quite clear. Further, Section 18 itself specifies that the remedy under the said section is "without prejudice to any other remedy available. Thus, the parliamentary intent is clear that a choice or discretion is given to the allottee whether he wishes to initiate appropriate proceedings under the CP Act or file an application under the RERA Act. So far as the pecuniary jurisdiction is concerned, in terms of Section 21 of the Consumer Protection Act, this Commission possesses the requisite pecuniary jurisdiction where the value of the goods or services as the case may be and the compensation claimed exceeds Rs.1 Crore. As held by a three Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, the value of the services in such a case would mean the sale amount agreed to be paid by the flat buyer to the developer, which has been held to lay down the law correctly on the issue relating to pecuniary jurisdiction and the sale consideration which was agreed between the Parties for buying the goods or hiring or availing the services is relevant for determination of pecuniary jurisdiction in cases of refund also by a larger Bench of 5 Members of this Commission in "CC No. 1703 of 2018, Renu Singh vs. Experion Developers Private Limited" and other connected matters" decided on 26.10.2021. In the present case, the agreed sale consideration was Rs.56,49,765/-. If even a part of the compensation claimed by the complainants is added to the said sale consideration, the aggregate would be much above Rs.1 Crore. Therefore, it would be difficult to say that this Commission does not possess the requisite pecuniary jurisdiction.

As far as the plea that the Complainant is habitual defaulter in making payments and as such the present Complaint is not maintainable, is concerned, we observe that there was remedy available with the Developer either to charge penal interest on delayed payment or cancel the allotment of the Complainants and refund the amount deposited by the Complainants but it neither cancelled the allotment nor refunded the amount deposited by the Complainants.Now, at this stage the Developer cannot take this plea, which is an afterthought.

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So far as the plea of delay on the part of the Directorate of Town & Country Planning Haryana in renewing the license of the Developer is concerned, the Developer knew well in advance the expiry date of licence, they ought to have completed all the formalities and had applied for its renewal well in time. It was Developer's duty and responsibility and the Complainants cannot be penalized for that. Therefore, the alleged delay in the renewal of the licence does not justify the delay in completion of the construction. As far as the delay on account of the contractor appointed by the Opposite Party Developer having not completed the construction in time is concerned, that would hardly be relevant from the point of view of the Complainants. If the contractor appointed by the Opposite Party Developer had delayed the construction, they can take such action as may be open to it in law against the said contractor including the recovery of damages from him but, the Complainants/Allottee is not at all concerned with the delay on the part of the private contractor appointed by the Developer.

As far as the alleged delay on the part of other flat buyers in making payment is concerned, If flat buyers were in default, it was for the Opposite Party Developer to take such action as was open to it in terms of the Contract it had executed with them including cancellation of their allotments and sale of the flats allotted to such defaulting buyers in the market and to arrange finance from alternative sources in the meanwhile.

09. The similar view has been taken by this Commission in the cases of Suresh Chandra Vs. M/s. Ansal Crown Infrabuild Pvt. Ltd. - Consumer Complaint No. 2170 of 2017 decided on 11.11.21 and Mrs. Kamal Girotra and Anr. Vs. M/s. Ansal Crown Infrabuild Pvt. Ltd. - Consumer Complaint No. 1053 of 2019 decided on 28.12.2021 which also relate to the same Project i.e. "Ansal Crown Heights" situated at Sector 80, Faridabad, Haryana.

10. For the aforesaid reasons, we find no justification for the abnormal delay in completion of the construction and delivery of possession of the allotted Flats/Apartments to the Members of the Complainant Association. The admitted position is that even as on today, the Opposite Party Developer has not completed the construction of the Flats/Apartments allotted to the Allottees and is not in a position to offer its possession to them. Therefore, the Complainants cannot be made to wait indefinitely for the possession of the allotted Flats/Apartments and are entitled to seek refund of the amount paid by them to the Developer alongwith appropriate compensation as has been held by the Hon'ble Apex Court in the cases of Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan & Connected Matter - Civil Appeal No. 12238 of 2018 decided on 02.04.2019 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra - Civil Appeal No. 3182 of 2019 decided on 25.03.2019.

11. At this juncture, Learned Counsel appearing for the Opposite Party Developer vigorously urged that the construction work at the site is in full swing, "fire NOC" has been obtained for Tower 7, 8 and 9 and the Project is likely to be Completed by June 2022. He also submitted that the Opposite Party Developer is also ready to pay the delayed compensation as agreed upon by both the parties and if a direction is given by this Hon'ble Commission for refund of the deposited amount to the Members of the Complainant Association, it will badly affect the Project and the interest of the other Allottees who are hoping a shelter over their head for a long period. He further submitted that as per Court Order dated 04.10.2021, a meeting on 06.10.2021 and again on 17.10.2021 was held and both the parties have agreed for the

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compensation to be calculated @6.5% p.a. for the period commencing from the date of agreed completion till the final committed date of possession. However, at the last moment, the Complainant Association did not sign the settlement as they were insisting upon "interim compensation". In view of this, it is suggested on behalf of the Complainant Association that instead of refund, the most of the Members of the Complainant Association are open to take possession of the Allotted Flats/Apartments as long as the Opposite Party Developer pays the delayed compensation due to date at the rate as decided by this Hon'ble Commission, within a period of 45 days and continue to pay compensation at that rate every month till possession is finally offered.

12. Having given our thoughtful consideration to the aforesaid proposition and the fact that the main prayer of the Members of the Complainant Association is a direction to the Opposite Party Developer to complete the Project in terms of the Agreement and to hand over the possession with delayed compensation and in alternative to refund the deposited amount with reasonable interest, we dispose of both the Consumer Complaints in the following manner:-

(i) Both the Complaints are partly allowed;

(ii) The Opposite Party Developer shall complete the Project in all respects in terms of Agreement and hand over the possession of allotted Flats/Apartments to the Members of the Association along with necessary documents including occupation certificate; The Opposite Party Developer shall pay delay compensation in the form of interest @9% p.a. on the amount deposited by the Members of the Complainant Association from the committed date of possession till the actual date of offer of possession;

(iv) The Opposite Party Developer shall work out the Compensation till the date of passing of this order, after making adjustment of the outstanding charges payable by the Members of the Complainant Association in terms of the agreement/payment schedule and make the payment of the balance compensation amount, if any, to the Complainants within eight weeks from today. However, if any, balance amount is to be paid by the Members of the Complainant Association as per above calculation, the same shall be paid by them within the same period.

(v) The delay compensation from the date of passing of this order till the actual date of offer of possession shall be calculated at the time of final payment after adjusting the outstanding amount, if any, payable by the Members of the Complainant Association in terms of payment Schedule opted by them or in terms of Agreement.

(v) The Opposite Party shall pay ₹25,000/- as the cost of litigation at the time of final calculation to all the Members of the Complainant Association. or

(vi) If the Members of the Complainant Association are not interested to wait any more for taking possession of the allotted Apartment and they want refund of the their deposited amount, the Opposite Party Developer shall refund the entire deposited amount along with interest @9% .p.a. from the respective date of deposit till payment, within a period of six weeks from today failing which the amount shall carry interest @12% p.a. for the said period. The Allottees shall also be entitled for a sum of

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₹25,000/- as costs.

(vii) The pending Applications, if any, also stand disposed off.

......................J

R.K. AGRAWAL

PRESIDENT

......................

BINOY KUMAR

MEMBER

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