Delhi

New Delhi

CC/118/2021

KAMAL GUPTA - Complainant(s)

Versus

ANSAL HI-TECH TOWNSHIPS LTD. - Opp.Party(s)

SHANKAR & ASSOCIATES

18 Jan 2023

ORDER

 

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.118/2021                                    

In the matter of:

 

Mr. Kamal Gupta,

S/o Mr. Ram Kumar Gupta,

R/0 Complainant-9/96, Sector-7, Rohini, Delhi-110085

Through GPA Holder Mr. Ram Kumar Gupta,

R/o Complainant-9/96, Sector-7 Rohini, Delhi-110085                                                      ....COMPLAINANT

 

Versus

 

Ansal Hi-Tech Township Ltd.

Through its Managing Director and Directors,

115, Ansal Bhawan, 16 K. G. Marg,

New Delhi – 110001.                                                                                              …..OPPOSITE PARTY

 

Quorum:

 

Ms. Poonam Chaudhry, President

Mr. Bariq Ahmad, Member

Mr. Shekhar Chandra, Member

                                                                                                                                    Date of Institution:14.07.2021                                                                                                                                                                          Date of Order      : 18.01.2023

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under section 34 and 35 of the Consumer Protection Act, 2019 (in short CP Act) against Opposite Party (in short OP) alleging deficiency of service. The brief facts as set out by the complainant are that the Opposite Party is a construction company developer had represented to the Complainant that it was developing/constructing a Green hi-tech township, located adjoining Greater Noida, Uttar Pradesh, in the name and style of project “Sushant Megapolis Project”. The Opposite Party has its Registered Office at, 115, Ansal Bhawan, 16 K.G. Marg, New Delhi – 110001.  The complaint has been filed by attorney of the complaint. The Opposite Party invited applications for allotment of plots in the above township. The Opposite Party through numerous advertisements and hoardings in leading newspapers and made false representations and assurances about the facilities, amenities and features of the Project.
2. The Complainant who was looking for an office space in the Delhi-NCR region, at an affordable price and found the project to be a suitable option for her professional requirements.  It is further stated that the Complainant believing such representations and assurances of Opposite Party, applied for allotment of a commercial unit and made payment of booking amount of Rs.1,00,000/- (Rupees One Lakh) by cheque which was duly acknowledged by the Opposite Party, for allotment of a commercial unit bearing No.GF54, Sushant Square-3A in Sushant Megapolils, adjoining Greater Noida, on the Ground Floor, admeasuring approximately 345.59 Sq. ft.
3. Thereafter, on 07.04.2014 Opposite Party issued an Allotment Letter for the Unit in the Project against the Application of the Complainant for a total sale consideration of Rs.21,20,442.70/- (Rupees Twenty One Lakh Twenty Thousand Four Hundred Forty Two and Seventy Paisa) under a Time-Linked Payment Plan.
4. On 26.05.2015, the Opposite Party sent a copy of the Buyer’s Agreement/Terms of Arrangement to the complainant for execution which with arbitrary terms and conditions tilted in favour of the opposite party. The timeline for handing over possession was unilaterally modified by the Opposite Party in Clause 4(b) of the Terms of Arrangement to 24 months from the date of sanction of building plans.
5. The Complainant made timely payments to the Opposite Party, total sum of Rs.20,09,195/- (Rupees Twenty Lakh Nine Thousand One Hundred Ninety Five) has been paid by the Complainant to the Opposite Party which is 95% of the total price of the Unit and as reflected in the receipts and Statement of Account issued by the Opposite Party in this regard.
6. It is alleged that a  conjoint reading of Clause 15 of the Application Form and Brochure/Brief of the Project dated 22.01.2013 clearly show that although the possession timelines were not expressly given in the terms of allotment and were sought to be kept vague, amounting not only to an Unfair Trade Practice and Deficiency in service, the possession was to be delivered in 36 months from the application for allotment of the Unit, which expired on 31.03.2017. However, the possession has still not been offered. There is no laying of roads, access service roads, construction on site, utilities, etc. There has been serious breach of trust on part of the Opposite Party in so far as it has not been completed construction of the Project even now and not adhered to the timelines as promised to the Complainant.
7. The Complainant and other allottee who had been duped by the misrepresentations and unfair trade practices of the Opposite Party filed a complaint of cheating, forgery and fraud against the Opposite Party with the Economic Offence Wing, Mandir Marg, New Delhi on 11.09.2019.  It is also alleged that there was no response from the Opposite Party and the Complainant was also not allowed to enter the Project site to see the status or meet with officers of the Opposite Party, the Complainant was left with no option but to file a criminal complaint for cheating, bearing No.1295-GC/R/SHOP with the Police Station at Barakhamba Road, New Delhi on 30.10.2019. A notice was issued to the Complainant by the Police Station, Barakhamba Road but no action has been taken against the erring Opposite Party till date.
8. That the Complainant have been constantly reminding the Opposite Party, by way of telephonic calls enquiring about the possession date on multiple occasions, which the Opposite Party very conveniently ignored and not responded to. It is alleged that OP is guilty of deficiency of service and unfair trade practices. It is prayed that OP be directed to refund the entire amount of Rs.20,09,195/- (Rupees Twenty Lakh Nine Thousand One Hundred Ninety Five) as deposited by the complainant with the opposite party, alongwith interest @18% p.a. from the respective dates of deposit till payment (including pendent lite interest. It is also prayed that OP be directed to pay compensation of Rs.10,00,000/- (Rupees Ten Lakh) on account of deficiency in service, unfair trade practice as well as mental harassment and agony suffered by the complainant on account of the opposite parties and Rs.2,00,000/- (Rupees Two Lakh) towards litigation charges incurred by the complainant for instituting these proceedings to get redressal of their grievances.
9. Notice of complaint was issued to OP. OP entered appearance but did not file reply. The defence of OP stood stuck off vide order dated 25.05.2022. Complainant filed its evidence by affidavits reiterating therein the averments made in the complaint.
10. We have heard Ld. Counsel for parties and perused the record.
11.  In view of the unrebutted testimony of complainant, it has been proved that complainant booked a unit in the project of OP. The complainant has relied upon the allotment letter dated 07.04.2014, the agreement dated 26.05.2015 and copies of payment receipts of  Rs.20,09,195/- (Rupees Twenty Lakh Nine Thousand One Hundred Ninety Five) statement of account issued by OP. A copy of GPA has been filed.
12. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid about 95% of the cost of the unit but OP failed to deliver the possession even after more than 10 years of the agreement. It was also argued that according to clause 24 of the Builder-Buyer Agreement, possession was to be given within 24 months from the date of agreement or 24 months from the date of obtaining sanction. But OP never disclosed when they obtained the sanctions. The OP represented at the time of booking that they had all the required sanction/licenses  from the concerned departments. Thus the date of possession is to be calculated from the date of execution of the agreement. It was also argued that the opposite party was thus under contractual obligation to construct the property within 24 months from the date of agreement but it failed to do so. As regard deficiency in services, Hon’ble Supreme Court has heldin Arifur Rahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
13. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 by Hon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
14. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view that admittedly, there is inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
15. It is to be noted Section 2 (47) of the Consumer Protection Act, 2019, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice” and includes any of the practices enumerated therein. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
16. It is also pertinent to note Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.

Thus as the services of OP were deficient, the complainant was justified in claiming refund of the amount deposited by him with compensation.

17. We are further of the view that the cause of action being the continuing one as the amount advanced by complainant was not refunded neither possession of the unit was handed over to him, the complaint is within the period of limitation.
18. We thus, hold that OP/Ansal Hi-Tech Township was guilty of deficiency in services. We accordingly direct OP/Ansal Hi-Tech Township to refund the amount Rs.20,09,195/- (Rupees Twenty Lakh Nine Thousand One Hundred Ninety Five) to the complainant along with interest @ 9% p.a. from the date of each deposit. We also award Rs.1,00,000/-  (Rupees One Lakh) as compensation for mental agony and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation to be paid within a period of 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 15% p.a. till realization. A copy of this order be sent/provided to all the parties free of cost. The order be uploaded on the website of this Commission.

File be consigned to record room along with a copy of the order.

 

 

POONAM CHAUDHRY

(President)

              BARIQ AHMAD                                                                                                          SHEKHAR CHANDRA         

(Member)                                                                                                           (Member)