Delhi

East Delhi

CC/11/2016

VISHALMALIK - Complainant(s)

Versus

ANSAL HOUSING - Opp.Party(s)

05 Nov 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 11/16

 

Shri Vishal Malik

S/o Late Shri Rajesh Malik

R/o B-14, Meerut Road Industrial Area

Present residing at RDC-40, Rajnagar

Ghaziabad                                                                 ….Complainant

Vs.    

 

M/s. Ansal Housing & Construction Ltd.

Through its Managing Director

15, U.G.F., Indira Prakash Building

21, Barakhambha Road, New Delhi                                …Opponent

 

 

Date of Institution: 08.01.2016

Judgement Reserved on: 05.11.2019

Judgement Passed on: 08.11.2019

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

 

JUDGEMENT

           This complaint has been filed by Shri Vishal Malik against M/s. Ansal Housing & Construction Ltd. through its Managing Director (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.        The facts in brief are that the complainant is a totally visually impaired (blind) person.  Father of the complainant booked a commercial shop measuring 70 sq. ft. with OP in their project SUMANGLAM at          Raj Nagar Distt. Centre, Rajnagar, Ghaziabad, bearing no. UGF-70 (AE) in the year 1992 for a sum of Rs. 1,25,000/-, to enable for self-employment to his visually challenged son.  Following payments were made by the complainant:

S.No.	Amount (in Rs.)	Receipt No.	Date
	12,500/-	9097	29.09.1992
	12,500/-	24634	12.12.1992
	12,500/-	17677	13.07.1993
	10,000/-	29081	24.04.1995

   

It was stated that construction of the project ‘Sumanglam” was discontinued and there was no demand raised by OP for the remaining amount.  Later on, the complainant came to know that most of the shops were allotted to the allottees.  The complainant approached to OP to hand over the possession of shop no. UGF-70 AE after accepting the balance payment.   He made written representations to OP on 22.08.2013 and 23.11.2015 which remained unanswered. 

Legal notice dated 08.12.2015 was sent to OP which was neither replied nor complied.  Hence, the complainant has prayed for directions to OP to handover the possession of the shop no. UGF(AE) 70 by accepting the balance payment of Rs. 77,500/-; compensation of Rs. 2,00,000/- for deficiency in service and legal expenses.   

3.        In reply, M/s. Ansal Housing & Construction Limited (OP) they have taken various pleas such as the complaint is time barred as the last payment was made on 24.04.1995 and letter was written on 22.08.2013 after 18 years, but the complaint was filed on 08.01.2016, after a period of 21 years; no cause of action had arisen within the territorial jurisdiction of this forum; booking of the flat was made by Mr. Rajesh Kumar Malik and he did not make any nomination in favour of the complainant.  Accordingly, before claiming his right in the booking, Mr. Vishal Malik was required to furnish a ‘Succession Certificate’ in his favour. 

It was also stated that right from the beginning, there was delay in making payment as per schedule.  As a goodwill gesture, OP did not impose any interest on the complainant.  After various call notices and reminders and waiting for almost two years for payment of outstanding dues against the booking, OP was compelled to cancel the booking and issued the cancellation letter to the complainant on 15.04.1995.  Through cancellation letter, the complainant was requested to surrender all original receipts to process the refund after applicable deductions, but the complainant failed to do so.  Other facts have also been denied.

4.        Complainant have filed rejoinder to the WS of OP, wherein he has controverted the pleas taken in the WS and reasserted his pleas.

5.        In support of its case, the complainant have examined himself.  He has deposed on affidavit.  He has narrated the facts which have been stated in the complaint. 

           In defence, OP have examined Shri Chandan Singh, AR of OP, who have also deposed on affidavit.   He has also narrated the facts which have been stated in the WS.  He has got exhibited copy of board resolution dated 31.05.2010 (RW-1/1), copy of application form (RW-1/2), reminder and call letters dated 07.09.1992, 25.11.1992, 08.12.1992, 28.01.1993, 25.03.1993, 27.04.1993, 24.05.1993, 25.08.1993, 30.09.1993, 25.11.1993 and 28.03.1994 (RW-1/3 colly) and copy of letter dated 15.04.1995 (RW-1/4).  

6.        We have heard Ld. Counsel for the parties and have perused the material placed on record.  It has been argued on behalf of M/s. Ansal Housing & Construction Ltd. (OP) that the complaint was time barred as it has been filed after 21 years; no cause of action had arisen within the territorial jurisdiction of this Forum; booking was made by father of the complainant who did not make any nomination in favour of the complainant. 

On the other hand, Ld. Counsel for the complainant have argued that the complaint was not time barred as it was a continuing cause of action.  He has further argued that jurisdiction of this Forum was made out as all the forums were competent to decide the matter.  He has also stated that complainant was entitled to file the complaint as he was an LR of his father Shri Rajesh Kumar Malik, deceased.  He has further argued that there was no delay in making the payment.

To appreciate the arguments of Ld. Counsel for the parties, a look has to be made to the testimony of the complainant and Shri Chandan Singh, AR of M/s. Ansal Housing & Construction Ltd. (OP).  If the documents placed on record are perused, it is noticed that complainant have made the total payment of Rs. 47,500/-.  The plea taken on behalf of M/s. Ansal Housing & Construction Ltd. (OP) that complainant did not make the payment and his booking was cancelled cannot be accepted as from the documents placed on record, it is noticed that M/s. Ansal Housing & Construction Ltd. (OP) have cancelled the booking on 15.04.1995 and have accepted the payment on 24.04.1995.  It means that by accepting the payment even after cancellation, the right of the complainant to continue with the booking was restored.  This letter of cancellation seems to be to make out the case against the complainant.  Thus, the fact remains that there was no cancellation of booking which has been alleged by M/s. Ansal Housing & Construction Ltd. (OP).

With regard to the complaint being time barred, this plea of           M/s. Ansal Housing & Construction Ltd. (OP) cannot be accepted as in the case of not giving the possession within the stipulated period, the cause of action still continues.  It is a case of continuing cause of action. 

As far as territorial jurisdiction is concerned, it is evident that        M/s. Ansal Housing & Construction Ltd. (OP) have been based at 21, Barakhamba Road, New Delhi, as shown in the memo of parties.  No doubt, they have been based at Barakhamba Road, New Delhi, but the fact remains that competency of the court is not in dispute.  That being so, this argument of Ld. Counsel for M/s. Ansal Housing & Construction Ltd. (OP) also goes.

With regard to the booking made by father of the complainant and complainant not being competent to file the complaint, it is evident that the Act empowers LR of consumer to make the complaint and he falls within the definition of “complainant” under Section 2(b) of the Act.  This plea of Ld. Counsel for M/s. Ansal Housing & Construction Ltd. (OP) also goes.

Thus, from the evidence on record, it is evident that inspite of having made the payment by the complainant, the possession of the shop have not been given by M/s. Ansal Housing & Construction Ltd. (OP).  When the possession of the shop have not been given to the complainant by         M/s. Ansal Housing & Construction Ltd. (OP), certainly, there has been deficiency on their part and the complainant have suffered mental pain and sufferings.  

During the course of arguments, Counsel for complainant have stated that the complainant was only interested in refund of his amount.The fact that complainant have made a request for refund of the amount, it is ordered that complainant be refunded an amount of Rs. 47,500/- without any deduction with interest @ 6% p.a. from the date of filing the complaint i.e. 08.01.2016 till realisation.We further award compensation for a sum of Rs. 10,000/- on account of mental pain and suffering which includes the cost of litigation.The awarded amount be paid within a period of 60 days and if not paid, the amount of compensation of Rs. 10,000/- shall also carry 6% interest from the date of order.

Copy of the order be supplied to the parties as per rules.

           File be consigned to Record Room.

 

 

 

(DR. P.N. TIWARI)                                                           (SUKHDEV SINGH)

       Member                                                                             President