Delhi

New Delhi

CC/322/2016

Vandana Parikh - Complainant(s)

Versus

Ansal Housing & Construction Ltd. - Opp.Party(s)

03 Aug 2018

ORDER

 

 

                        CONSUMER DISPUTES REDRESSAL FORUM-VI

                      (DISTT. NEW DELHI),

                    ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

                                                                        NEW DELHI-110001

 

 

Case No. 322/2016                                                                                                Dated:

In the matter of:

 

1.              Ms. Vandana Parikh,

W/o Sh. Sanjay Parikh,

R/o M-113, Saket,

New Delhi-110017.

 

            2.         Mr. Sanjay Parikh,

                        S/o Sh. S.B. Parikh,

R/o M-113, Saket,

New Delhi-110017.

                                                                                                       …… Complainant

                      

 

Versus

 

 

1.               Ansal Housing & Construction Ltd.

Through its Director,

15, UGF, Indra Prokash, 21, Barakhamba Road,

New Delhi-110001

 

……. Opposite party

 

 

 

 

 

 

ORDER

                        H.M. VYAS, MEMBER

The complaint has been filed under section 12 of the Consumer Protection Act 1986 stating that OP gave advertisements with descriptions about the launched project namely ‘ Ansal Town’ at Muzaffarnagar showing the location in a vicinity of educational institutions / hospitals and being surrounded by greenery. The complainant contacted the broker Bhavishya Estates of the OP being impressed by the advertisements etc.  The broker gave him the brochure of the project.  It is alleged that the advertisement of the OP exists at the OP’s web site namely www.ansals.com.residentail/ansaltown-muzaffarnagar/download brochure.asp?links=htp8.

 The complainant believing the representations of the OP’s project applied for allotment of a freehold residential plot of 170 sq. Mtrs. with preferential location.  The plot cost of Rs. 7,34,000/- was agreed to be payable as per ‘Time Linked Plan’ by the complainant.  On payment of Booking amount of Rs. 51,000/- the OP issued the allotment letter of plot no. 491 measuring 471 sq. Mtrs. with net price of Rs. 7,26,046.01 P.  The complainant paid in 30 monthly instalments of Rs.21,781/-.  On 07/07/14, the OP made offer of possession which was subject to clearing outstanding dues and acknowledged the receipt of Rs. 6,97,004.78 P. 

The complainant thereafter paid a sum of Rs. 1,01,807. 03P towards electrification, water/sewer connection charges etc.  The total amount paid by the complainant comes to Rs. 8,65,533. 89 P.  In the month of June, 2015 the complainant visited the project regarding development of the project/ amenities &  fulfilment of the promises as per their advertisement/brochure.  The complainant was appalled to see that the location of the project is in the midst of the polluting industries emitting smoke and was not as per the advertisement/brochure of the OP Developer.  Even  moving on the approach road was extremely difficult as the same was blocked by parked heavy vehicles.

  The complainant pursued the matter with the OP in this regard but instead, received a letter dated 06/02/16 regarding execution of sale deed and possession. Another demand of Rs. 38,590/- from Sunrise Estate Management Services was also received against watch & ward charges. It is stated that the text of the complainant’s legal notice has been replied wherein there is no denial on behalf of the OP except taking shelter of clause B of the allotment letter. It is stated that the signatures of the complainant were taken in advance on the documents but the OP signed the documents at a later stage. Alleging deficiency in services and unfair trade practice following prayer is made:-

1. “Pass an order directing the OP to cancel the allotment and refund the total amount of Rs. 8,65,533.89/- with interest @ 24% per annum from 13/11/2015 till date of payment to the complainants;
2. Pass an order directing to opposite party to pay towards damages and compensation Rs. 1,00,000/- (Rupees Three Lakhs Only) to the complainants for financial loss, mental and physical harassment caused to complainants;
3. Award exemplary damage and compensation to the complainants;
4. Award the cost incurred towards the legal expenses, by the complainants, including the present proceedings;
5. Pass an order/orders as the Hon’ble Consumer Forum may deem fit in the circumstances of the case.”

 

The OP contested the complaint and filed written statement / version denying all allegations made against it.  It is stated that there is no cause of action nor the complainant is a consumer. The complainant made payments since 2010 and also made payment even after issue of the offer of possession.  The complainant has alleged and disputed the development by other authorities surrounding the project is unsustainable.  It is stated that the complainant has not disclosed anything adverse about the development of this project within its boundaries nor any deficiency in service regarding the allotted plot is alleged.  Alleging the complainant to be an investor and purchased the plot only for the sake of investment it is stated that the project of the OP has all the amenities as per its commitment.  The complainant has not whispered a word about any deficiency within the project or the allotted plot as such the complaint without cause of action is not maintainable & deserves dismissal.

Both the parties have filed their respective evidence by way of affidavit supporting their averments & written argument. Oral arguments also addressed by the parties.

During arguments the Ld counsel for the complainant has drawn attention to the photographs of the township projected in the OP’s Brochure, and available on their web-site attached with the complaint especially at page 16, 18, 20, & 27 containing the luring projections of the peculiar qualitative green surroundings, pleasant for healthy & hygienic atmosphere.  It is mentioned thereon about the project that ‘IN THE LAP OF GREENERY’-(Page-16); ‘THE EMRALD GREEN SURROUNDING OF ANSAL TOWN MUZZAFFARNAGAR.....’(Page-18) ; SAY GOODBYE TO CONGESTION...’ (P-20) & the location plan at page 27.  It is argued by the Ld. Counsel for the complainant that the said plan indicated the connecting roads, petrol pump, police check post, marriage palace which are at least at a distance of 4/5 kilometres from the project.  Alleging unfair trade practice against the OP it is argued that the OP intentionally concealed & opted to skip showing the existing industries surrounding this project. Such an act of the OP of concealing the actual surroundings of the project by presenting distorted & inadequate information is clear adoption of unfair trade practice with mala-fide intention to deceive the complainant.  It is argued by the Ld counsel that not visiting the site till 2015 by the complainant does not change the factum of such deceitful projection about the project’s location. It is further stated that the complainant is not an investor and opted for the plot costing less than Rs. 8 lacs only to provide a healthy atmosphere to family with their meagre means & resources.  It is also argued that the OP though has denied the allegations but has not disputed the text in the brochure in its version filed.

The Ld. counsel for the OP has vehemently contested the complaint denying all the allegations.  It is argued that the complainant is not a consumer & has not complained of any deficiency concerning the allotted plot and it is inconceivable that the complainant has not seen the site for five years and continued making payments from time to time even after getting the offer of possession.  It shows that the complainant is only a commercial investor to enjoy fruits in future by selling at a higher price and due to slow down in the market the present complaint has been filed.  Arguing further it is stated that the complainant is disputing the development made by other Authorities surrounding the project and the same cannot be placed on the shoulders of the OP.  The filing of the complaint is an afterthought to harass the OP to extract money.  The documents filed by the complainant with the complaint have not been denied.  It is argued that the complaint is barred by limitation. 

We have given thoughtful consideration to the material placed before us and the oral arguments of the parties with relevant provisions of law.  There is no dispute so far as the text and photographs of the brochure is concerned. This is also admitted by the parties that the payment was made by the complainant against the allotted plot.  Thus the crux of the complaint rests on alleged unfair trade practice adopted by the OP by misrepresentations concerning the project’s location as surrounded by greens instead of industries.  A glance over the undisputed text of the brochure clearly shows that the project is in the lap of greenery.  The word ‘LAP’ denotes the surroundings and not the greenery within the boundaries of the project.  It is clear misrepresentation and by no stretch of imagination it can be perceived that the OP projected the actual location of the project.  The location plan does not show immediate surroundings but depicts important places up to 4/5 kilometre distance.

The objection of the OP that complainant is not a consumer does not merit in view of the allegations which are in sequel of allotment of plot.   So far the objection regarding limitation, we hold that the cause of action is of continuing nature and the complaint is within limitation.  Now coming to the issue of unfair trade practice, we are of the considered view and hold that the projection in the brochure that the project is in the lap of greenery and the shown green surroundings of the project are not as per the actual location of the project. The sheer denial of the truth on behalf of the OP stating that only the details of the greenery etc within the project finds place in the brochure does not conform to the record placed before us. Regarding the argument of the OP that it is inconceivable that the complainant did not visit the site for long five years we are of the opinion that such contentions do not and cannot absolve OP of its act of misrepresentation by providing inadequate information in the brochure about the actual location & surroundings of the project.  We therefore hold that such act of OP falls within the scope of unfair trade practice within the ambit of Consumer Protection Act, 1986.

In view of above discussions, the ends of justice shall meet by directing the OP to refund the amount paid by the complainant with simple interest @ 9 % p.m. from the date of filing of the complaint till the date of payment, beside litigation cost of Rs. 10,000/- while holding the OP to be guilty of adopting unfair trade practice. The OP shall comply the orders within 30 days from the date of receipt of this order.

Copy of the order may be forwarded to the parties to the case free of cost as statutorily required. 

Announced in open Forum on 03/08/2018.

The orders be uploaded on www.confonet.nic.in.

File be consigned to record room.

 

 

    (ARUN KUMAR ARYA)

                                      PRESIDENT

        (NIPUR CHANDNA)                                                                        (H M VYAS)

                                MEMBER                                                                                    MEMBER