Delhi

New Delhi

CC/729/2015

Samir Gulati - Complainant(s)

Versus

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

18 Feb 2022

ORDER

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.729/2015                                                      

In the matter of:

SAMIR GULATI

W/O LATE SH. SUBHASH CHANDER GULATI

R/O 68/5370, REGARPURA, KAROL BAGH,

NEW DELHI 110005                                                           ……..COMPLAINANT

 

Versus

 

ANSAL HOUSING & CONSTRUCTION LTD,

15, UGF, INDERPRAKASH, 21, BARAKHAMBA ROAD

NEW DELHI 110001                                                           ……..OPPOSITE PARTY

 

Quorum:

Ms. Poonam Chaudhry, President

            Sh Bariq Ahmad, Member

            Ms. Adarsh Nain, Member

                                                                                                Dated of Institution :02.11.2015

                                                                                                Date of Order           :18.02.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

Hearing through Video Conferencing.

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (in short CPA, 1986).The facts of the case in brief are that Complainant wanted to purchase the shop for the livelihood as such he contacted OP. The Complainant booked a shop on 04.10.1992 with OP and paid total amount of Rs. 68,400/- (Rupees Sixty Eight Thousand Four Hundred Only) as per the agreement. It is further stated that the market constructed by the OP is still not developed as such the Complainant demanded back his money. Complainant make several visits to the OP thereafter OP issued a cheque for the sum of Rs. 45,320/- (Rupees Forty Five Thousand and Three Hundred Twenty Only), whereas the Complainant had paid the OP Rs. 68,400/- (Rupees Sixty Eight Thousand Four Hundred Only). OP illegally deducted Rs. 23,080/- (Rupees Twenty Three Thousand and Eighty Only). It is stated that Complainant booked a shop in 1992 but till the filing of the complaint i.e, even after 23 years, the market has not been developed by OP.
2. It is further stated that the OP wrongfully retained the amount of the Complainant which amounts to unfair trade practice on part of OP. It is prayed that the OP be directed to refund the balance amount of Rs. 23,080/- (Rupees Twenty Three Thousand and Eighty Only) with interest @18% p.a. OP be also directed to pay compensation of Rs. 50,000/- (Rupees Fifty Thousand Only) and Rs. 25,000/- (Rupees Twenty Five Thousand Only) towards litigation expenses.
3. The OP contested the complaint, Written Statement was filed by the OP. OP admitted that fact that the Complainant has booked a shop in the project of OP and initially paid sum of Rs. 5,510/- (Rupees Five Thousand and Five Hundred Ten Only). It was further stated that the OP issued an allotment letter dated 16.04.1993, for allotment of shop no. 80(D) to the Complainant, the cost of the same was Rs. 55,000/- approximately. It was further stated that as per the allotment letter in case of the non-payment of installment, OP was entitled to cancel the allotment and forfeit 20% of the price of the flat. It was also stated that the respondent had on several occasions sent letters to the Complainant for payment of balance amount, Complainant after initially payment of Rs. 16,500/- (Rupees Sixteen Thousand and Five Hundred Only), discontinued payments and approached the OP and stated that due to financial constraints he was not in a position to make payment. It was further stated that Complainant had deposited Rs. 62,900/- (Rupees Sixty Two Thousand and Nine Hundred only) as opposed to a sum of Rs. 68,400/- (Rupees Sixty Eight Thousand and Four Hundred Only) as claimed by the Complainant. It was further stated that after 20 years complainant approached the OP and sought cancellation of the allotment since he was not in a position to pay the balance amount. That in the request of complainant, OP cancelled the allotment and forfeited 20% and refunded the balance amount of Rs. 45,320/- (Rupees Forty Five Thousand and Three Hundred Twenty Only). It was also stated that OP had misplaced the receipt of payment Rs. 5,000/- (Rupees Five Thousand Only) issued to the Complainant, as such respondent believed in good faith that the Complainant had paid Rs. 57,900/- (Rupees Fifty Seven Thousand and Nine Hundred Only) only and after deducting 20% of the unit OP refunded Rs. 45,320 (Rupees Forty Five Thousand and Three Hundred Twenty Only), It was also stated that there is no deficiency of service on part of the OP. OP was ready to give possession to the Complainant in 1995 itself but the Complainant did not pay the balance amount.
4. It was denied that the Complainant is a consumer within the definition of Consumer Protection Act, it was stated, complainant had booked a shop in question for investment purpose to make commercial gains, it was also denied that cause of action was a still continuing one. It was stated that complaint be dismissed.
5. In the rejoinder the averments made in the complaint were reaffirmed and whereas the averments in written statement were controverted.
6. Parties filed the evidence by affidavit. Complainant had relied upon the allotment letter. He also filed the copies of receipts of a sum of Rs. 68,400/- (Rupees Sixty Eight Thousand and Four Hundred only), paid to OP. On the other hand OP in its evidence relied upon the resolution of the board of Directors of the OP company appointing Ms. Aakritee Tiwari as the ARs, to file the affidavit, OP also relied upon the application form submitted by Complainant for allotment of shop in question, A letter of Complainant dated 23.07.1994, regarding the payment plan. A letter dated 26.07.1995 sent by OP to Complainant, stating they are in process of handing over the offer of possession and demanding the balance amount. The letter sent by Complainant to OP dated 06.08.2015 for surrender of the property in question as he could not arrange the bank loan for payment of balance amount.
7. We have heard the Ld. Counsels for the parties, and perused the evidence and materials on record. The contentions of Complainant was that the ledger issued by OP shows that an amount Rs. 62,900/- (Rupees Sixty Two Thousand and Nine Hundred Only) was paid by the Complainant to OP till 07.10.1995, and a meager amount of Rs. 470/- (Rupees Four Hundred and Seventy Only) was the balance to be paid, but the OP had failed to develop the market and did not hand over  possession even after 20 years of allotment letter dated 16.04.1993. It was stated that the same amount to deficiency in service. It was also stated that the Complainant was a patient of cancer as such, he needed the amount and the mother of Complainant thus approached the OP seeking refund of amount. The mother of Complainant simply signed some blank document, letter dated 06.08.2015 on assurance given by OP that the amount will be refunded. The Complainant received a cheque of Rs. 45,320/- (Rupees Forty Five Thousand and Three Hundred and Twenty only). It was also stated that OP has falsely, alleged that they had issued possession letter on 26.07.1995. It was stated that the postal receipts of the said letter were not filed. It was also alleged that had the Complainant received the letter dated 26.07.1995, there was no reason for him not to pay the meager amount of Rs. 470/- (Rupees Four Hundred and Seventy only), which was the balance amount. It was also stated that there was no breach of condition on part of OP and the allotment letter clearly provides that in case of breach of conditions by Complainant, OP was entitled to forfeited 20% and cancel the allotment and refund the balance amount without interest.
8. After giving our careful thought to the submission. We are of the view that there was an inordinate delay in handing over possession of shop in question to Complainant which amounts to deficiency on part of OP.
9. We also find that OP failed to prove its version that the letter vide letter dated 26.07.1995 offer of possession was made to complainant as, postal receipts of said letter have not been filed. Thus the contention of OP that they had offered possession to Complainant, has not been proved.
10. It is also pertinent to note that the letter dated 06.08.2015, shows that refund of the amount was sought after about 23 years from the date of issuance of the allotment letter. As per the terms and contentions of the allotment letter, OP was entitled to deduct 20% of the price of flat and refund the remaining amount without interest in case Complainant failed to fulfill the terms and conditions of the allotment. It is to be noted no evidence has been lead by the OP to prove that there was breach of condition by the Complainant.
11. Complainant in support of his contentions, placed reliance upon the “United India Insurance Company Limited Vs. Ajmer Singh Cotton and General Mills & Others, [CA No. 535 of 1994 with CA no. 534 of 1994 and 723 of 1994] wherein it was held “sections 2(g) and 14 – The complaint file after accepting the amount of claim in full and final settlement – Mere execution of discharge voucher would not deprive the consumer for preferring claim with respect to deficiency in service or consequently benefit.”
12. It is also relevant to note that the letter dated 06.08.2015 was signed by mother of Complainant as as complainant was in due need of money for his treatment. We agree with contention of Ld. Counsel for the Complainant that the letter was got signed from mother of the Complainant on assurance made by OP to refund the amount due with interest.
13. Hon’ble Supreme Court  has 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
14. We are further of the view that the cause of action being the continuing one as the amount deposited by complainants had been not refunded neither possession of the flat/ shop was handed over to him, the complaint is within the period of limitation.
15. As regards the contention of OP that complainant is not a consumer, as defined in the Consumer Protection Act, 2019, as he booked 2 shops with respondent for commercial gains, in this regard it is to be noted that a mere allegation has been made in the WS by OP, no evidence was brought on record to prove the said contention. We are thus of the view the said contention same is without merits. The respondent did not show any reasonable ground for forfeited of 20% of the price of unit. Thus, in the absence of any evidence to show that there was any breach of condition of allotment letter by Complainant. The OP is not entitled to forfeit the same.
16. We thus, hold that OP was guilty of deficiency in services. We also held that Complainant was not at fault for the delay which occurred in the completion of project. We further hold that there are no reasons to justify the delay in completion of the project. We accordingly direct OP to refund the balance amount of Rs.23,080/- (Rupees Twenty Three Thousand Eighty Rupees only) to the complainant along with interest @ 9% p.a. from the date of deposit till realization within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP is directed to pay interest @ 12% p.a. for the delayed period. We also award Rs. 10,000/- (Rupees Ten Thousand Only) as cost on litigation

 

 

17. A copy of this order be 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)                                                                           (ADARSH NAIN)           

              Member                                                                                             Member