Shradha Anand & 22 Ors vs Ansal Hi Tech Township Ltd

Subhash Chandra, Member

The complaint is filed by the applicant and 22 others jointly in respect of flats booked by them in the project 'Megapolis Green Hi Tech Township' located in Bulandshahar (near Bodaki), adjoining Greater Noida, UP, in 2007. Buyer's Agreement was signed subsequently, ranging from 2 months to 1 year from the date of booking, in respect of individual Complainants. As per clause 4.1 of the Agreement, possession of the flats was to be handed over within 42 months from the date of signing the agreement. However, as the project had not been completed as on the date of filing the complaint, the Complainants have approached this Commission for relief.

It is submitted by the Complainants that a joint complaint has been filed as it involves common issues/ grievances with a similar relief being sought. It is averred that the Opposite Party - M/s Ansal Hi Tech Technologies Ltd., was guilty of unfair trade practices and deficiency in service as after putting out advertisements promising flats in a modern township, it had collected deposits but failed to execute the project despite a commitment in the Buyer's Agreement to do so in 42 months and providing various assurances. The delay is alleged to be willful and inordinate and despite the OP's letter dated 22.07.2011 informing that the project was free from any land title related issues or farmers agitation. As the project has not been completed even after 10 years of its launch and, in the case of complainant no.1 who booked the flat on 25.11.2009, possession has not been provided by 24.05.2013 the stipulated date of possession, the complainants are before this Commission with the following prayer:

(a) Direct the Opposite Party to refund to the allottees/ buyers, the entire amounts paid by the allotteees/ buyers to be Opposite Party towards their flat, along with compensation in the form of interest at the rate of 18% per annum from the date of making payments till the date of actual realization, along with pendent lite and future interest at the same rate or such higher rate of interest which this Hon'ble Commission may deem fit in the interest of justice;

(b) Grant a sum of Rs.5.00 lakhs to each of the allottee towards mental agony and damages, due to the arbitrary acts of the opposite part as detailed above in the complaint;

(c) Grant cost of litigation to each of the allottees.

The complaint was filed under Section 12 (1) ( c) of the Consumer Protection Act, 1986. A total of 30 impleadment applications have been taken on record. The complainant has filed affidavit in evidence and written submissions. However, the opposite party has not filed either affidavit in evidence or written submissions. Its request to treat the affidavit recorded in the order dated 10.04.2018 as written reply was disallowed on 06.08.2020 as it was opposed by the learned counsel for the Complainant. As per this affidavit the OP has submitted that 11 allottees have settled the matter with it. However, a plain reading of this document reveals that what is being termed as a 'settlement' by the Opposite Party is actually an offer to provide alternate flats in another tower. Further, it is not stated whether the allottees who have been offered this option have accepted it. Lastly, the names of these 11 allottees are not found in the list of the complainants before us. This document, though taken on record, therefore, has no relevance to the present case.

The admitted facts of the case are that the Complainants booked flats in the project 'Megapolis' promoted and launched by the Opposite Party, for which various amounts were paid by different complainants to the OP. As per the Buyer's Agreement executed between the complainants and the Opposite Party, a period of 42 months was stipulated as the period of execution and delivery of the flats was promised within 42 months. As this period was to be reckoned from the date of the Agreement, it was different for the individual allottees/ Complainants herein. However, it was much before the date of filing of this complaint. It is also apparent from the communication of the OP to the Complainants, vide letter dated 22.07.2011, that the project was not getting delayed on account of any land related matter or agitation by farmers. Therefore, it is clearly a case of deficiency of service in inordinate delay in handing over the possession and also of unfair trade practice in not adhering to the terms of the agreement executed with the Complainants. Despite several opportunities the OP has neither submitted its written statement nor provided any other evidence or affidavit.

We have perused the records. Written arguments have been filed by the Complainant but not by the learned counsel for the Opposite Party. Final arguments are therefore, considered as having been heard.

The Hon'ble Apex Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, - II (2019) CPJ 34 (SC), 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.

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."

Entitlement of the Consumer to cancellation and to refund cannot wait indefinitely. This Commission in Ankur Goswami vs Supertec Ltd., (CC no. 936 of 2016) and Others has held as under:

"..............in the event of default on the part of the complainant in making timely payment of the installments, the OP was entitled to cancel the allotment itself and forfeit part of the money paid by the complainant as per the terms of the allotment. That having not been done, the OP cannot, at this stage, deny refund of the amount paid to it by the Complainant on account of the aforesaid alleged delay".

Inordinate delay in handing over possession is writ large in this case. Therefore, the OP is liable to repay the amounts paid by the Complainants with a reasonable rate of interest.

In CC no. 1951 of 2016 - Bhrigu Kaushik and 14 Ors vs Ansal Hi Tech Township pertaining to a similar project in which the OP is a party, this Commission had taken the view that " allottees of residential plot in the project namely 'Sushant Megapolis' cannot be made to wait indefinitely for the possession of the plots allotted to them and they are entitled to refund of the amount which they paid to the OP along with appropriate compensation etc." The facts in this case are similar and therefore, warrant similar redressal.

Since it is a covered case, covered by the order of Bhrigu Kaushik (Supra) , while accepting the complaint, we issue following directions as were given in the covered case:

The OP shall refund the amounts collected from the respective Complainants in full along with simple interest @ 8% per annum from the respective dates of deposits;

OP shall also pay litigation cost of Rs.50,000/- collectively;

This order shall be complied with within three months from the date of receipt.