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Judgment
The Complainant Association on behalf of its Members had filed two Consumer Complaint Nos. 86 of 2018 and 2600 of 2018 before this Commission seeking a direction to the Opposite Party, M/s. Ansal Crown Infrabuild India Pvt. Ltd. (hereinafter to be referred to as “the Developer”) to complete its Project, namely, “Ansal Crown Heights” at Sector 80, Faridabad, Haryana and hand over the possession of the Apartments booked by its Members along with delay compensation or in alternative to refund the deposited amount with interest and compensation as the Opposite Party Developer has miserably failed to deliver the possession of booked Apartments to the Members of the Complainant Association in terms of the Agreements executed between the parties. By Common Order dated 28.02.2022 both the Complaints were disposed of with the following observations:-
“ 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 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
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;
(iii) 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.
(vi) 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
(vii) 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 ₹25,000/- as costs.
(vii) The pending Applications, if any, also stand disposed off.
In terms of the Order, dated 28.02.2022 passed in both the Consumer Complaints, the Opposite Party Developer was under an obligation to work out the delayed compensation till the date of passing of the Order and to pay the same to the Members of the Complainant Association who are interested to take possession after adjustment of amount payable by them, within a period of eight weeks from the date of passing of the Order dated 28.02.2022. They were further directed to refund the deposited amount to the Members of the Complainant Association who are not interested to take possession of the allotted Apartments along with interest @9% p.a. from respective date of deposit till payment within a period of six weeks failing which the amount was to carry interest @12% p.a. for the same period.
Miscellaneous Application No. 135 of 2022 in Consumer Complaint No. 86 of 2018 and the Miscellaneous Application No. 136 of 2022 in Consumer Complaint No. 2600 of 2018 have been filed by the Opposite Party Developer with the following prayers:-
a) Pass an Order for clarification/modification of the judgment dated 28.02.2022 to the extent that the time line of 8 weeks and 6 weeks for compensation and refund to be extended at the time of delivery of possession to the present Complainants;
b) Pass any other Order(s) as this Hon’ble Commission may deem fit and necessary in the interest of justice.
The clarification/modification of the Order dated 28.02.2022 and extension of the time limit for compliance of the directions given therein, has been sought by the Opposite Party Developer on the following grounds:-
(i) The delayed compensation be directed to be paid to the Flat Buyers at the time of delivery of possession only since any outflow of funds at this stage would hamper the development of the Project;
(ii) The work at site is in full swing and the Opposite Party Developer is very keen to complete the Project. However, if the direction to refund the amount along with interest is complied with within a period of six weeks as directed, it shall cause further delay in completion of the Project which will be prejudiced to the interest of other Flat Buyers. Though the Opposite Party Developer has sufficient funds under the SWAMIH Fund to complete the entire Project and in fact have also obtained the sanction letter under SWAMIH Investment Fund for a sum of ₹47 Crores against development of the Project but they have to obtain NOCs from various Government Departments to confirm its bonafide endeavours to complete the Project latest by June 2023.
(iii) Timely delivery of the possession as directed vide Order dated 28.02.2022 demands regular cash flow and infusion of all resources available with them including the loan sanctioned under SWAMIH FUND. The Project will not be completed in time if the amount is refunded/compensation is released in terms of Order dated 28.02.2022 and, therefore, the said directions need clarification/modification to the extent that the time of making refund/compensation be extended at the time of handing over the possession of the Project.
We have heard the learned Counsel appearing for the parties at some length and also perused the Order dated 28.02.2022 as well as the grounds urged in the Miscellaneous Applications seeking extension of time to comply with the directions given by the Order dated 28.02.2022.
Having given our anxious consideration to the submissions made by the learned Counsel for the parties, we are of the considered view that no valid or cogent ground has been made out by the Opposite Party Developer for extension of time to comply with the directions given in the Order dated 28.02.2022. All the submissions made by the Opposite Party Developer in the Miscellaneous Applications are ambiguous and against the letter and spirit of the Order dated 28.02.2022. The same submissions were stressed upon by the Learned Counsel for the Developer at the time of final arguments of the case and were rejected after due consideration as extracted above.
The Opposite Party Developer after obtaining license from the Director, Town and Country Planning, Haryana in the year 2007 floated a Housing Scheme, namely, “Ansal Crown Heights” located at Village, Prahladpur, Sector 80, Faridabad, Haryana. The Members of the Complainant Association applied for purchase of Flats/Apartments in the said Project and after the allotment of the respective Flats/Apartments to them, the Builder Buyers’ Agreement (hereinafter to be referred to as “the Agreement”) were executed between the parties during the period from 7th March, 2010 to 10th June, 2013. In terms of Clause 4 of the Agreement, the Opposite Party Developer was under an obligation to complete the Project in question and to hand over the possession of the allotted Flats/Apartment, complete in all respect to the Members of the Complainant Association within a period of 36 months from the respective date of execution of the Agreement which means the possession was ought to be delivered to them by December, 2013 to June, 2016. But despite having received the hefty amount i.e about 85% to 96% of the total Sales Consideration from the Members of the Complainant Association, the Developer has completely failed to complete the construction work of the Project at time as promised in the Agreement. The Members of the Complainant Association had invested their hard earned money in the Project but still they are homeless till today because of inaction and deficiency in service on the part of the Developer. Moreover, the Project is still under construction and as stated in the Miscellaneous Applications, the Phase I of the Project is likely to be completed in June 2022 and Phase II in June 2023 and that too subject of force majeure conditions/pandemic outbreak etc. any in future. It is pity that for the last 6 to 9 years the Members of the Complainant Association are impatiently waiting for possession of their Apartments but they are still not in a position to state that when they will have their own house. Had the Opposite Party Developer delivered possession of the allotted Flats/Apartments within the time stipulated for this purpose in the Agreement, the Members of the Complainant Association would have been enjoying the use and possession of the Flats/Apartments booked by them. They have been deprived of the use of the Flats/Apartment on account of the default committed by the Opposite Party Developer. It can hardly be disputed that the deprivation of the user of a self-owned house amounts to a serious injury to the Flat Buyer who has booked the Flat/Apartment for the purpose of having a shelter over his head and, therefore, has either to live in a rented accommodation or an accommodation which is not suitable or convenient to him. Also, we need to appreciate the satisfaction and enjoyment one would have if he lives in a house of choice owned by him as against living in a rented accommodation or in an accommodation which is not owned by him or is not otherwise suitable or convenient to him. Under these circumstances, acceptance of any request of the Opposite Party Developer for clarification/modification of the Order dated 28.02.2022 to the extent to grant time for making refund/delayed compensation at the time of actual handing over possession of the Project, would certainly aggravate their pain and agony and it would be an injustice with them. In our view, no plausible ground has been made by the Opposite Party Developer in the Miscellaneous Applications to accede to their request to clarify/modify the Order dated 28.02.2022 and to extend the time limit for compliance of the directions given therein. Hence, both the Miscellaneous Applications are dismissed as devoid of any merit.