Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Complaint No. 527/2017

Mrs. Rekha Devi w/o Ajay Veer Singh,

R/o 115, Gayatri Shakti Peeth Patel Puram,

Near Gwari Railway Crossing, Gomti Nagar,

Lucknow-226010 (U.P.)                            ….Complainant

Ansal Properties & Infrastructure Ltd.,

Office at Ground Floor, Y.M.C.A. Campus,

13, Rana Pratap Marg, Lucknow through

Managing Director.                                   …Opp. Party

Present:-

1- Hon’ble Sri Rajendra  Singh, Presiding Member.

2- Hon’ble Sri Vikas Saxena, Member.

Sri Sanjay Kumar Verma, Advocate for the Complainant.

None for the Opp Party.

Date  1.9.2022

JUDGMENT

Per Sri Vikas Saxena, Member: This complaint has instituted this complaint with prayers to provide physical possession of the plot number P - 02 - 003 in sector P, Pocket 2 of area 595 a square metres in alternative the refund of entire deposited amount with 12% interest from the dates of respective deposits along with other reliefs of damages.

          As per the complaint the opposite party are a Company incorporated under the Indian Companies Act, who are developing a Group Housing Project in the name of "Ansal Properties and Infrastructure Ltd" the township known as "Sushant Golf City". The opposite party invited applications for allotment of plots through an advertisement, which ensured the possession of plots within three years. The complainant applied for a plot and the opposite party allotted him plot number P - 02 - 003 in Sector P, pocket 2 of The

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Sushant Golf City and an allotment letter dated 24 - 06 - 2011 was issued by the opposite party in favour of the complainant. The complainant has said that she has deposited Rs. 37, 18, 280. 00 (Rs. 37 lakh 18,280 only) till the date of filing the complaint. It is asserted by the complainant that after passing of six years from the date of allotment the opposite party did not give possession of the said plot and on her visit to the site the complainant came to know that the plot is not developed in near future. The complainant the complainant served the opposite party a legal notice but despite that the opposite party failed to give possession of the said plot, resultantly, this complaint was filed with the aforesaid reliefs.

          The complaint was filed on date 20 - 12 - 2017 and notice was served upon opposite party and a representation letter (Vaqalatnama) of Shri Saket Shrivastava, Advocate was filed on date 06 - 03 - 2018 but no written statement was submitted even after getting many opportunities. Therefore, the opportunity to file objections/written - statement was closed by the order of The Commission. Thereafter, neither any advocate nor any representative appeared on behalf of the opposite party, consequently the case was heard ex parte. On date 29 - 07 - 2022 only advocate on behalf of the complainant appeared and his arguments were heard ex - party. After leaving the council and an perusal of the material on record our findings on the complaint are as following:-

          The complainant has produced plot buyers agreement entered into between "Ansal Properties and Infrastructure Ltd" and the complainant dated 17 July 2011, where in the agreement of plot number P – 02 – 0003 measuring five

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ninety-five square metres was made out. The rate of the plot was 10883. square metres the complainant has confirmed by way of her affidavit that costs Rs. 64, 75, 742/–. This is also confirmed by the complainant through her affidavit that she dispersed Rs. 37, 18, 280. 00/– till the date of filing this complaint. All these factors are not rebutted or confronted by the opposite party as neither it submitted any written statement nor any affidavit in reply, therefore, the fact submitted by the complainant can be taken un-controverted and true. There is no reason or occasion to disbelieve these facts. The disbursement of aforesaid sum of money is corroborated by the copies of receipts annexed with the complaint, which are appears to be issued by the opposite party "Ansal properties and infrastructure Ltd". This fact has been also confirmed by the complainant by means of her affidavit that the opposite party assured her to give the possession of the plot in question within three years. It is also mentioned in the "Plot Buyers Agreement" dated 17. 07. 2011 that as soon as full payment would be received, the opposite party shall forthwith give the possession of the plot in question. It is also apparent from the record that the opposite party did not give any offer of possession indicating there in that the remaining amount of money to be paid by the Complainant and as instalments towards cost of the plot in question and it is ready to give possession of the plot. This is also confirmed by the complainant that an inspection she found that the site of the war is not ready for giving possession to any buyer for that matter and in particular to the Complainant. This fact has not been controverted by the opposite party therefore, this can also be taken as true.

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   It appears from the record that of the passing of more than six years after execution of the "Plot Buyers Agreement" dated 17. 07. 2011 the opposite party has not offered the possession and the site of the plot in question is not ready for giving possession to the complainant till date. That in case of delivery of an immovable property the possession should be given within a reasonable time and is reasonable time has been assessed by the Honourable of Apex Court 3 years It is held by the Hon’ble Supreme Court in the case of Fortune Infrastructure & Anr. v. Trevor D’ Lima & Ors., II (2018) CPJ 1 (SC)=III (2018) SLT 556=(2018) 5 SCC 442 has clearly held that a person cannot be made to wait indefinitely for the possession of the flat allotted to him and he can seek refund alongwith compensation. The relevant para is reproduced as under:

“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the

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part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents / complainants is entitled to ?”

The Hon’ble Supreme Court in Bangalore Development Authority v. Syndicate Bank,  2007) 6 SCC 711 has held that if the possession is not delivered within specified time, allottee is entitled for refund. The order reads as under:

“10. …………………………………………………………………………

(a) Where the development authority having received the full price, does not deliver possession of the allotted plot/ flat/house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case.”

The complainant has sought reliefs of possession of plot in question and in alternative refund of the amount of money deposited by her to the opposite party. In the present circumstances of the case these reliefs can be granted to her as after disbursing approximately half of the agreed money, the right has been created in her favour for these reliefs.

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The complainant has also sought the relief of 12% interest per and on the amount she has the deposited on various dates to the opposite party. In case Ghaziabad Development Authority vs. Balbir Singh and others Reported in II (2004) CPJ page 12 (SC) it was held that the possession of a lot of property by the builder is not handed over to the buyer, higher rate of interest should be granted on the amount of money deposited by the consumer. On the other hand if, possession is granted to the consumer in that case, interest on lower rate can be granted on the money deposited by him from date of deposit till the date of actual possession. while considering the compensation to be awarded to the consumers in case of deficiency of service by a builder like the opposite party here in, it was held by the Honourable Apex Court as follows: –

“That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered that compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of propertiy he is getting.

It is further given by the honourable Court:

“That compensation cannot be uniform and can be best illustrated by considering cases there possession is being directed to be delivered and cases where only monies directed to be returned, there must

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be relationship between amount awarded and default/unjustifiable delay/harassment of the consumer. Principle of current rate of interest only applicable where proceedings are for recovery of debt or damages. Principles which govern grant of interest do not apply to grant of compensation.”

Keeping in view the aforesaid judgements Of Honourable Apex Court and Honourable NCDRC, this bench finds appropriate that 10% annual simple interest should be granted if the opposite party remains unable to give possession of the plot in question in the stipulated time . In case, the opposite party is successful in giving delivery of possession of the disputed plot to the complainant within the stipulated time, it should also give 7% interest on the some deposited by the complainant from the date of the deposit till date of possession. In this manner the complaint deserves to be allowed ex parte.

                                                ORDER

          The complaint is allowed. The opposite party is directed to hand over the possession of the plot in question within two months of this judgement to the Complainant and also give a sum of money at the rate of 7% per annum simple interest on the money deposited by the complainant from the date of deposit till the date of payment. In case the handing over possession is not materialised, the opposite party shall refund the entire money deposited by her along with an interest of 10% simple interest per annum from the date of deposit till date of actual payment. The opposite party shall also reimburse the Complainant the costs of the complaint Rs.10,000/–.

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The stenographer is requested to upload this order on the Website of this Commission today itself. 

          Certified copy of this judgment be provided to the parties as per rules.       

      (Vikas Saxena)               (Rajendra Singh)

        Member                  Presiding Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign the record.

       (Vikas Saxena)               (Rajendra Singh)

         Member                   Presiding Member

Jafri, PA II/tbv

Court 2