IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

Date of Hearing:04.12.2019

Date of decision:19.12.2019

Complaint No.307/2011

IN THE MATTER OF

1. MR. TARUN AGGARWAL,

2. MR. AASHEESH GARG,
3. MR. PANKAJ RATRA

All R/o K-K-102, Kavi Nagar,

Ghaziabad, (U.P.)-201002 ….Complainant

VERSUS

M/S ANSAL PROPERTIES & INDUSTRIES LTD.,

115-Ansal Bhawan,
16, K.G. Marg,
New Delhi-110001 ....Opposite Party

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes

Present: Sh. Subrat Deb, Counsel for the complainant

None for the OPs. However they were granted time till
16.12.219 to advance their argument and to make their
submissions.
No one appeared on behalf of OP even during the extended
time.

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 ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1. This complaint under Section 17 of the Consumer Protection Act

1986, the Act, filed in this Commission by Mr. Tarun Aggarwal and
others, resident of Ghaziabad, Uttar Pradesh, for short complainants,
against M/s Ansal Properties & Industries Ltd., New Delhi, hereinafter
referred to as OPs, alleging deficiency of service on the part of OPs they
not having handed over the possession of the shop booked by them for
their livelihood by self employment and provisionally allotted to them
despite the period as agreed to having elapsed and despite substantial
payment as demanded having been paid and praying for relief as under:-

a. Direct the respondent to execute the documents of title

for the Shop No. SFF 13, Ansal Plaza, Greater Noida, in
favour of the complainants, and also to handover the
possession of the said to the complainants.
b. Direct the respondent to pay a sum of Rs. 10,00,000/- to
the complainants for the loss/damages suffered by the
complainants for the delay in handing over the
possession of the said the Shop No. SFF 13, Ansal Plaza,
Greater Noida by the respondent to the complainants
and also the failure of the respondent to execute the
documents of title in favour of the complainants of the
said shop.
c. Direct the respondent to pay a sum of Rs. 5,00,000/- to
the complainants for the mental agony and trauma
suffered by the complainants for the illegal, deficient,
unfair and restrictive practices adopted by the
respondent.
d. Direct the respondent to pay a sum of Rs. 1,00,000/-to
the complainant for the expenses incurred by the
complainants in pursuing the matter with the
respondent over the period of time.
e. Direct the respondent to pay a sum of Rs. 50,000/- to the
complainants towards the legal expenses incurred by
the complainants.
f. Direct the respondent pay the aforesaid amounts
mentioned in prayer (2) to (5) along with interest @ 18%
per annum.
g. Declare the practices being adopted by the respondent
as illegal, deficient and unfair, and direct the

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 respondent to cease and desist from adopting such
practices in the future.
h. Pass such other and further orders as this Hon’ble
Forum may consider fit and proper.

2. Facts of the case necessary for the adjudication of the complaint

are these.
3. On the representations of the OPs through various
advertisements, the complainants for their personal use preferred an
application for provisional allotment of 537 sq. ft. of super area on the
first floor of the said shopping mall at a total consideration of Rs.
13,42,500/- calculated @ Rs. 2,500/- per sq. ft. The said application of the
complainants was accepted by the OPs, and the complainants were
provisionally allotted a Unit bearing No. SFF 13 in the said Ansal Plaza
in Greater Noida, the possession of which was agreed to be handed over
within three years of the issuance of the said provisional allotment.
Provisional allotment was also issued on 30.07.2002. The complainants
made further payment on the demand having been made by the OPs.
4. On the first floor of the shopping mall having been completed, the
OPs vide their letter dated 02.08.2006 brought home to the complainant
that owing to the change in the plans, the location of the shop allotted to
them has been changed from SFF 13 to FF 120. The relevant extract of
the letter so issued are as under:-

We wish to inform you that our plans have undergone

certain changes to achieve the International Level of
shopping and cater to ever increasing demand of such
malls. The final allocation of your shop and area are
mentioned below:-
 Old Shop No. allotted : SFF-13
 New Shop No. allotted : FF-120
 Old Area of the Shop : 537 sq. ft.
 New/Final Area of the Shop : 604 sq. ft.

5. The complainants not happy with the change since depriving

them of the locational advantage inasmuch as the shop allotted to them
originally was at the entrance of the mall whereas the proposed shop
was on the first floor on the back side of the mall, causing loss to them
from the point of marketability, took up the matter with the OPs for
restoring their original allotment but OPs taking the plea that this was

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 done keeping in view the revised development policy of NOIDA authority
did not accede to the request made by the complainants. However details
regarding the revised development policy were never furnished by the
OPs despite serious insistence of the complainants.
6. The complainants made several attempts to persuade the OPs to
restore their original allotment of shop but the entire efforts done by
them in this behalf proved an exercise in futility and as a consequence
thereof they did not pay the additional demand for payment raised by
the OPs. The OPs on their part did not hand over the possession of the
shop originally allotted.
7. The complainants have alleged that this act on the part of the
OPs amounts to unfair trade practice. OPs are deficient in the discharge
of their obligation. This led to filing of the complaint before this
Commission for the redressal of their grievances.
8. OPs were noticed and in response thereto they have filed reply
resisting the complaint both on technical ground as also on merit stating
that the complaint is not maintainable on three grounds, namely,

a. the complaint is hit by misjoinder of parties as the

dealer through whom the application was preferred
though a necessary party, has not been impleaded as a
party;
b. the complainant is not a consumer within the meaning
of Section 2(1)(d) of the Act and thus not entitled to
raise a consumer dispute; and
c. this Commission based at Delhi does not enjoy the
territorial jurisdiction, the project being at Greater
Noida.

On merit their defence is that the change in the allotment of the shop is
owing to the fact that there was revision in the development policy by
the NOIDA authority. Even otherwise in terms of clause 4 of the
application form the OPs were within their competence to effect the
changes. The said clause posits as under:-

“4. The company shall have the right to effect

suitable and necessary alterations in layout plan, if and
when necessary, which may involve all or any of the
changes, namely change in the position of unit, change in
its number, dimensions, height, size, area, layout or change
of entire scheme.”

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 The OP had further informed the complainants that the commercial
shop provisionally allotment to them was subject to changes effected by
change in layout plan of the Ansal Plaza Mall. In this regard, relevant
clause 2 of the Allotment letter is reproduced herein below for
convenience:-

“2. Under normal circumstances any change in the

location and the area of the unit herein allotted will be
avoided or minimized and all out efforts will be made to
adhere to the particular space allotted. However, if on
account of any governmental actions or for any reasons
within or beyond the control of developers, any change in
the location of the unit and/or change in the area of the unit
is necessitated, the developer shall have the right to re-
locate the unit to any other space within the shopping mall
complex and/or change the area of the unit, the same will
be intimated to the allottee forthwith. In case of any
reduction/increase in area arising out of the above
circumstances, the consideration amount will be revised
accordingly.”

9. The complainant has filed thereafter rejoinder rebutting the

contentions raised in the reply and reiterating the averments contained
in the complaint. Evidence by way of affidavit has also been filed by both
the parties in support of their pleadings. Written submissions are also
on record.
10. This matter was listed before this Commission for final hearing on
04.12.2019 when the counsel for the complainant appeared and
advanced his arguments pressing for allotment of the shop originally
allotted or in the alternate for the refund of the deposited amount with
such interest as this Commission may like to order in the facts and
circumstances of the case. His arguments stood concluded. No one
appeared on behalf of the OPs despite the last opportunity having been
afforded to them. OPs were granted time to conclude their arguments on
or before 16.12.2019 but again despite that no one appeared on their
behalf. In these circumstances I proceed to adjudicate this complaint
based on the available material on record, moreso where the complaint
pertains to the year 2011.
11. I have perused the records of the case and given a careful
consideration to the subject matter. Short question for adjudication in
this complaint is whether the OPs changing the location of the shop from

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 ground floor to first floor without the explicit consent of the complainant
and secondly whether the OPs not handing over the possession of the
shop within the time as agreed to have been deficient in rendering
service to the complainant.
12. I may in the first instance deal with the objections and resistances
of the OP. Their first objection that the complaint is not maintainable
owing to misjoinder of parties inasmuch as the dealer through whom the
application was preferred though a necessary party, has not been
impleaded as a party cannot sustain since no relief as against the dealer
has been prayed for and accordingly the objection to this effect is
overruled. Their second objection is that the complainant is not a
consumer, relying on the provisions of Section 2(1)(d) of the Act. At this
stage I may advert to the provisions of Section 2(1)(d) of the Act. The
said provision to the provisions of Section 2(1)(d) of the Act posits as
under:-

“Consumer means any person who.-

I. Buy any goods for a consideration which has been

paid or promised of partly paid and partly promised, or
under any system of deferred payment and includes any
user of such goods other than the person who buys such
goods for consideration paid or promised or partly paid or
partly promised, or under any system of deferred
payment, when such use is made with the approval of
such person, but does not include a person who obtains
such goods for resale or for any commercial purpose; or
II. [hires or avails of] any services of a consideration
which has been paid or promised or partly paid and
partly promised, or under any system of deferred
payment and includes any beneficiary of such services
other than the person who [hires or avails of] the services
for consideration paid or promised, or partly paid and
partly promised, or under any system of deferred
payment, when such services are availed of with the
approval of the first mentioned person [but does not
include person who avails of such services for any
commercial purpose];

{Explanation- For the purpose of this clause,” commercial

purpose” does not include use by person of goods bought
and used by him and services availed by him exclusively

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 for the purpose of earning his livelihood by means of self
employment.

On a careful perusal of the provision of the Act it is evident that

whenever there exists an element of commercial activity, one would be
outside the ambit and scope of the said provision in which case one is not
entitled to raise a consumer dispute since not a consumer. But exception
is carved out to the effect that the commercial activity if meant for
livelihood by self employment, one would be a consumer in which case
one would be entitled to raise a consumer dispute as contemplated under
Section 2(1)(e) of the Act. If that be the case the objection of the OP to
this effect is also overruled. There lies no rub. Their third objection to
the effect that this Commission does not enjoy the territorial jurisdiction
to hear and to dispose of the case, the project being at Greater Noida is
also not sustainable since the provision of Section 17(2) of the Act
mandates that the place where the OP resides or carries on business is
material for the purpose which in the given case happens to be Delhi
and thus there exists no cloud from the point of territorial jurisdiction of
this Commission. The argument is bereft of merit.
13. Now coming to the objection of the OPs on the merit of the case,
the only defence to change the location is the revision in the
development policy of the NOIDA authority. However nothing has been
clearly indicated either in the reply or in the evidence filed about the
extent the revision done in the development policy would account for the
alteration proposed. In these circumstances I am unable to appreciate
the reason for the change done. As per the agreement done the
complainant was allotted the shop in the SFF and that has to be
maintained. It is settled law that the terms and conditions of a
documents is binding upon the parties, relying on Bharti Knitting
Company vs. DHL Worldwide Express Courier Division of Airfreight
Ltd. (1996) 4 SCC 704.
14. The complainant made several efforts to persuade the OPs to stick
to the original allotment. But the OPs instead of touching the heart of
the problem, just skirted it. The complainant had applied for a business
place. Instalments were paid. It transpires that the construction work
was not complete. Infact it did not start the construction for a
considerable time. Time limit was prescribed for handing over the
possession. It is an admitted fact that possession of the shop was not
ready on the date the possession was agreed to be handed over.

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15. The fact that the possession of the shop has not been handed over
though the agreed period is over, is undisputed. The factum about the
change of shop by the OPs without the consent of the complainant can
also not be disputed. Infact change of plot without the consent amounts
to deficiency of service as per the ruling of the Hon’ble NCDRC in the
matter of Mohit Bindal vs. Haryana Urban Development Authority
decided on 28.05.2013 in FA/173/2008 as reported in
MANU/CF/0382/2013. Having bestowed my consideration to the facts at
hand, I am of the opinion that the complaint deserves to be accepted, the
possession of the shop not having been delivered within the time as
agreed to.
16. Having arrived at the said conclusion, the point for consideration
is as to how the Complainants are to be compensated for the monetary
loss, mental and physical harassment he has suffered at the hands of
OPs on account of non-delivery of the allotted flat.
17. The provisions of the Act enable a consumer to claim and
empower the Commission/Forum to redress any injustice done to a
consumer. 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 word compensation is of very wide
connotation. It may constitute actual loss or expected loss and may
extend the compensation for physical, mental or even emotional
suffering, insult or injury or loss. Therefore, for the purpose of
determining the amount of compensation, the Commission/Forum must
determine the extent of sufferance by the consumer due to action or
inaction on the part of the Opposite Party. In Ghaziabad Development
Authority Vs. Balbir Singh - (2004) 5 SCC 65, while observing that the
power and duty to award compensation does not mean that irrespective
of facts of the case, compensation can be awarded in all matters on a
uniform basis, the Hon'ble Supreme Court gave certain instances and
indicated the factors, which could be kept in view while determining
adequate compensation. One of the illustrations given in the said
decision was between the cases, where possession of a booked/allotted
property was directed to be delivered and the cases where only monies
paid as sale consideration, are directed to be refunded. The Hon'ble
Court observed, in this behalf, that in cases where possession is directed
to be delivered to the Complainant, the compensation for harassment
will necessarily have to be less because in a way that party is being
compensated by increase in the value of the property he is getting. But

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 in cases where monies are being simply refunded, then the party is
suffering a loss inasmuch as he had deposited the money in the hope of
getting a flat/plot. He is not only deprived of the flat/plot, he has been
deprived of the benefit of escalation of the price of the flat/plot.
Additionally, in my view, in such a situation, he also suffers substantial
monetary loss on account of payment of interest on the loans raised;
depreciation in the money value and escalation in the cost of
construction etc.
18. The orders passed by the Hon’ble Apex Court in the matter of
Ghaziabad Development Authority versus Balbir singh were reiterated
in the matter of K.A. Nagamani vs. Karnataka Housing Board, Civil
Appeal Nos. 6730-31 of 2012 decided on 19.09.2012.
19. Possession of the shop originally allotted to the complainant
seems not possible at this stage. Hence there can be no direction for
handing over possession. The Commission can consider passing orders
regarding refund of the deposited amount though no prayer to this effect
has been made, relying on the judgment of the Hon’ble NCDRC in the
matter of Parsvnath Exotica Ghaziabad Residents Association vs.
Parsvnath Buildwell Pvt. Ltd. & Anr, CC-461/2015 decided on
06.05.2016, holding that in the absence of any specific prayer, it is
always open to grant a relief which is justified and warranted in the
facts and circumstances of the case.
20. From the above it is apparent that this Commission can pass
orders regarding the refund of the amount deposited to the company by
the complainants, notwithstanding the fact whether there is any prayer
to this effect.
21. Besides, their Lordships in Apex Court in the matter of Fortune
Infrastructure and Anr versus Trevor D’lima and ors as reported in
II[2018] CPJ 1 (SC) are pleased to hold as under:

Person cannot be made to wait indefinitely for possession of

flats allotted to them. They are entitled to seek refund of
amount paid by them, alongwith compensation.

22. The Hon’ble NCDRC in the matter of Parasvnath Buildwell Pvt.

Ltd. and Anr versus Varun Dev, as reported in II[2018] CPJ 212 (NC) is
pleased to direct as under:

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 “Flat booked was never constructed. Allottee cannot be
made to wait indefinitely for possession. They are entitled
for refund. Refund allowed with 12% interest.

The Hon’ble NCDRC has taken similar view in the following

matters also, namely,

a. Emaar MGF Land Ltd. and Anr versus Amit Puri-

II[2015] CPJ 568 (NC)
b. Parasvnath Exotica Residents Association versus
Parasavnath Developers Ltd. and ors-IV[2016] CPJ 328
(NC).

23. The Hon’ble NCDRC in the matter of Anil Raj and ors versus
Unitech Ltd. and ors in CC-346/2013 decided on 02.05.2016 as reported
in MANU/CF/0105/2016 is pleased to observe as under:-

“The word compensation is of very wide connotation. It may

constitute actual loss or expected loss and may extend the
compensation for physical mental or even emotional
suffering, insult or injury or loss. Therefore for the purpose
of determining the amount of compensation, the
commission/forum must determine the extent of sufferance
by the consumer due to action or inaction on the part of the
OPs”.

24. Having regard to the discussion done and the legal position
explained I am of the view that the ends of justice would be met if a
direction is issued to the OPs in this complaint to refund the deposited
amount with simple interest at the rate of 8% within a period of two
months from the date of receipt of the copy of the order, failing which the
complainant would be free to initiate the proceedings against the OPs
under Section 25 and 27 of the Act.
25. Ordered accordingly.
26. A copy of this order be forwarded to the parties to the case free of
cost as statutorily required.
27. File be consigned to records.

(Anil Srivastava)
Member
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