Delhi

New Delhi

CC/117/2021

VINITA SINHA - Complainant(s)

Versus

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

SHANKAR & ASSOCIATES

18 Jan 2023

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC/117/2021

IN THE MATTER OF:

 

Vinita Sinha

D-214, Jal Vayu Towers,

Sector-56, Gurgaon (Haryana)                                            ….Complainant

VERSUS

 

Ansal Hi-Tech Township Ltd.

115, Ansal Bhawan,

16 K. G. Marg,

New Delhi – 110001.                                                           ....Opposite Party

Quorum:

 

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad, Member

Shri Shekhar Chandra, Member

 

                                                                                                                            Date of Institution:- 14.07.2021                                                                                                                                                                       Date of Order          :-  18.01.2023

 

ORDER

 

Shekhar Chandra, Member

 

1. The present complaint has been filed under section 34 and 35 of the Consumer Protection Act, 2019. The brief facts as set out by the complainant are that the Opposite Party 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 Opposite Party has been impleaded herein through its Managing Director and all other Directors who are involved in the day to day functioning and management of affairs of the Company.  Further, it is submitted that as per the Application Form, an entity by the name ‘Uttam Steel & Associates’ was selected by Government of Uttar Pradesh for development of the Project comprising of built-up floors, flats, plots, bungalows, apartments, commercial units, school/educational institutions, health center, club corporate park, etc. in Greater Noida. The Consortium members formed an SPV under the name & style of ‘Ansal Hi-Tech Township Ltd.’. Thereafter, the Opposite Party invited applications inter-alia for allotment of plots in the proposed township. The Opposite Party through numerous advertisements and hoardings in leading newspapers made false representations and assurances about the facilities, amenities and features of the Project in order to lure gullible consumers into parting with their hard-earned money and lifelong savings to invest in the Project of the Opposite Party with a malafide intention to dupe them and divert funds and to a project which is never going to be delivered.
2. As alleged that the representatives the Opposite Party visited and informed the Complainant regarding the development of the Project, portraying a very lucrative and rosy picture to the Complainant for providing commercial units at an affordable price to the Complainant, with facilities as proposed to be provided in the project by Opposite Party.
3. The Complainant who was looking for an office space in the Delhi-NCR region, at an affordable price in order to able to purchase the same, from their own life-long savings, without taking any loans from any financial institutions, on the several persuasions, daily telephonic calls and repeated visits made by the representatives of Opposite Party to the residence of the Complainant, found the project to be a suitable option for her professional requirements as explained above.  It is stated that the Complainant was attracted by the marketing agents of Opposite Party who presented a bright and rosy picture of the Project and the amenities proposed to be provided therein and also boasted about timely delivery of the Project to her. 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.1,25,000/- (Rupees One Lac Twenty Five Thousand only) by cheque which was duly acknowledged by the Opposite Party, for allotment of a commercial unit bearing No.GF20, Sushant Square-3A in Sushant Megapolils, adjoining Greater Nodia, on the Ground Floor, admeasuring approximately 345.59 Sq. ft. in the said Project of the Opposite Party.
4. Vide letter dated 22.07.2011, the Opposite Party informed its allottees including the Complainant that the Project in question was being constructed at an accelerating pace and pat of the Project was proposed to be handed over around Diwali, 2011. That the Opposite Party further mentioned that the then recent adverse publicity in the media with regard to ownership of land and agitation by farmers for the project and development works in and around the Project of the Opposite Party was not applicable to the Project of the Opposite Party and also assured to comply with their commitment to its allottees.
5. Thereafter, on 06.08.2011 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.15,29,234.71 under a Time-Linked Payment Plan.
6. Complainant states that surprisingly, no time frame for delivering possession of the Unit was incorporated in the terms of booking or allotment, however, the Complainant was verbally promised that the possession would be handed over within 36 months from the date of application for allotment. Under such promise and assurance from the Opposite Party, the Complainant booked the Unit.
7. The Complainant herein vide Email dated 03.09.2011 requested for change of payment plan to interest free 36 installments (EMI) plan.  The Opposite Party accepted the said request and converted the payment plan accordingly and confirmed the same vide Email dated 04.09.2011.  The Complainant, in terms of the Allotment and Payment Schedule agreed to between the parties, made timely payments to the Opposite Party from her own and her husband’s hard-earned money and life-savings. That till date, a total sum of Rs.15,31,598/- (Rupees Fifteen Lakh Thirty One Thousand Five Hundred Ninety Eight) has been paid by the Complainant to the Opposite Party which amounts to more than 100% of the demanded price of the Unit and the same is reflected in the receipts and Statement of Account issued by the Opposite Party in this respect, according to which an amount of Rs.37,832.43 (Rupees Thirty Seven Thousand Eight Hundred Thirty Two and Forty Three Paisa) is admittedly refundable to the Complainant. The last payment was made on 22.05.2014, as per the Statement of Account issued by the Opposite Party.
8. On 22.01.2013 the Opposite Party issued a Brochure/Brief of the Project detailing out therein, the specifications, floor plan, completion schedule, features and amenities, price list, payment plan, penalty for late taking over etc., to all its allottees including the Complainant. According to the terms of the Application Form, Allotment Letter and Brochure, issued by the Opposite Party to the Complainant, the Opposite Party was to take payments in 36 months from date of application and once the entire payment was made by the Complainant within this period of 36 months, the possession of the Unit was to be delivered.   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, but also misrepresentation to the gullible Complainant, the possession was to be delivered in 36 months from the application for allotment of the Unit, which expired on 08.06.2014. However, the possession has still not been offered. There is no laying of roads, access service roads, construction on site, utilities, etc. This clearly evidences that from the inception of the Project the intent of the Opposite Party was malafide and to divert funds being collected from Complainants for their own unjust enrichment, to the prejudice and detriment of the allottees. 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.
9. The Complainant alongwith other similar situated allottees, who had also 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.
10. It was alleged that the terms of application for allotment were one sided in favour of OP. It is further submitted by the complainant that till date there has been no response from the side of the Opposite Party and no progress related to the handing over the possession of the said Unit. 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 apparent that no construction took place till date and there is no likelihood of completion of the Unit and possession thereof being offered anytime in the near future.
11. On presentation of this complaint, on 2^nd August, 2021 notice was issued to the opposite party for 7^th February, 2022. The  opposite party was served on 31^st August, 2021. However, none appeared nor written statement filed. On 5^th May, 2022, the opposite party was proceeded exparte and its defence was stuck off. The matter was, accordingly set down for ex-parte evidence of the complainant.  
12. Counsel for both the parties have been heard.
13. In view of the unrebutted testimony of complainant, it has been proved that complainant booked a flat in the project of OP. It is to be noted the complainant had relied upon the application for allotment and allotment letter dated 02.04.2012 and copies of payment receipts of  Rs.15,31,598/- (Rupees Fifteen Lakh Thirty One Thousand Five Hundred Ninety Eight only).
14. 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 98% of the cost of the unit/flat i.e. Rs.15,31,598/- (Rupees Fifteen Lakh Thirty One Thousand Five Hundred Ninety Eight only) but OP failed to deliver the property even after more than 10 years of the agreement. It was also argued that according to clause 30 of the Builder-Buyer Agreement, possession was to be given within 36 months from the date of agreement or 36 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 36 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.
15. 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.
16. 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.
17. 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.
18. 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.

19. 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 flat was handed over to him, the complaint is within the period of limitation.
20. 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.15,31,598/- (Rupees Fifteen Lakh Thirty One Thousand Five Hundred Ninety Eight only) to the complainant along with interest @ 9% p.a. from the date of respective deposit within a period of 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 12% p.a. till realization. We also award Rs. 1,00,000/-  (Rupees One Lakh) as compensation for mental agony and Rs. 50,000/- (Rupees Fifty Thousand) as cost of litigation

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)