Reserved
State Consumer Disputes Redressal Commission
U.P. Lucknow.
Complaint Case No.192 of 2016
Smt. Neelam Devi, aged about 37 years,
W/o Ramakant, presently residing at 568-Kha,
340-C, Geetapalli, Alambagh, Lucknow. …Complainant.
Versus
1- Ansal Properties & Infrastructure Ltd., situated
at 1st Floor, YMCA Campus, 13, Rana Pratap
Marg, Lucknow through its Branch Manager.
2- Ansal Properties & Infrastructure Ltd., Corporate
Office situated at 115, Ansal Bhawan, 16, K.G.
Marg, New Delhi through its Director/Chairman.
...Opposite parties.
Present:-
1- Hon’ble Sri Rajendra Singh, Presiding Member.
2- Hon’ble Sri Sushil Kumar, Member.
Sri Piyush Mani Tripathi, Advocate for complainant.
Sri M.G. Mishra, Advocate for the opposite parties.
Date: 19.4.2023
JUDGMENT
Per Sri Rajendra Singh, Member-In short, the brief facts of the complaint case are that, that the opposite parties, a limited company, is engaged in construction of plots with all basic civil amenities. Lucrative advertisement were made by the opposite parties to attract the consumers in the market in order to apply for the booking of residential flat in their scheme known as (Sushant Golf City Hi-Tech Township) in Lucknow. The opposite parties demonstrated themselves to be the best in construction activities. The complainant applied for a residential accommodation in the scheme and opposite parties assured that they had already purchased the land from the authority and it is in their possession. The development and demarcation of the plots are in full swing and the possession shall be given to the consumers within two years. The complainant also attracted by the features of the scheme and applied for allotment of a plot no. P-04/0176 having super area 162 square meters on 9.3.2013.
The opposite parties committed that the project shall be completed by the end of year 2014. The opposite parties assured that development work as well as construction in the entire scheme shall be done within stipulated period of time. The opposite parties insisted the consumers to execute the standard format of agreement dated 25.3.2013 containing terms and conditions which are best suited to the builders and are unilateral .No alteration or modification can be done by the consumers in this agreement. The total cost of the plot was Rs.42,08,646.00 and the payment was to be made in accordance with the development/construction which shall be carried out by the builder. It was specifically assured by the opposite parties that the requisite permission from all the concerned authorities to construct the plot has already been obtained by them. The opposite parties prepared a standard form of agreement and directed the complainant to put her signatures on the blank space, however this agreement is unilateral as stated hereinabove.
The complainant made the payment of the installments regularly and no fault has been committed. The opposite parties did not complete the development/construction of the plot within stipulated agreed period of time. It amounts to deficiency in service. The complainant visited the site where it was revealed that construction activities at the site was halted on which protest was lodged with the opposite parties who assured that the possession shall be delivered as agreed. The complainant was compelled by the builder to deposit the installments towards the plot. The complainant was threatened that penal interest shall be levied as well as cancellation of allotment shall be done in an eventuality of default. The complainant is a government employee and have limited means of livelihood and somehow she arranged the money by taking loan from her relatives and adding her life time investment in it, which is paid to the builder with a hope that she will have her dream home on the plot. However, the savings of the complainant is of no use to her since till this date she is living in a rented accommodation making monthly rent of Rs.15,000.00 and the opposite parties may be directed to pay this amount from January, 2015.
The opposite parties are in a most illegal and arbitrary manner enjoying hard earned money of the complainant. The opposite parties obtained a huge sum of money from the entire allottees of the scheme and instead of putting the same in the development of the plots/houses/apartments misappropriated the same. The opposite parties have committed serious deficiency in service by not delivering physical possession of the plot to the complainant in view of which the complainant is to incur irreparable loss and injury. The opposite parties are accountable for unfair trade practice since they have enjoyed and utilized the hard earned money of the complainant without providing the possession of the fully developed plot. Hence, the complainant prays for following reliefs:
i) Direct the opposite party to provide the physical possession of fully finished/developed plot no.P-04/0176 with all basic civil amenities having an area 162 square meters in an alternative to deliver the possession of an alternative plot of similar specification on old terms and conditions best suited to the complainant. The opposite party may forthwith directed to pay interest at the rate of 24% on the deposited amount with effect from the dates of respective deposits till the date of possession of the allotted plot or the alternative plot.
ii) Direct the opposite party to pay loss of rent @ Rs.15,000.00 suffered in view of the delay committed by the opposite party in providing the physical possession of the allotted plot.
iii) Direct the opposite party to pay a sum of Rs.5,00,000.00 as damages for committing deficiency in service.
iv) Direct the opposite party to pay a sum of Rs.5,00,000.00 as compensation occasioned by the complainant.
v) Direct the opposite party to pay the difference in the cost of escalation which shall be incurred at the time of execution of the registered sale deed.
vi) Direct the opposite party to pay appropriate punitive/ exemplary damages on account of mental agony, harassment an trauma under went by the complainant.
vii) Allow the complaint and direct the opposite party to pay a sum of Rs.50,000.00 towards cost of the case.
viii) Any other order which this Hon’ble State Commission may deem fit and proper in the circumstances of the case may also be passed.
The opposite parties presented their written statement stating that only this much is admitted that the complainant had booked a plot of land no.P-04/0176 areas 162 sq. meters. As per terms and conditions of the said Hi Tech Township policy, the opposite parties have been permitted to submit DPR plan for sanction from the Nodal Agency i.e. Lucknow Development Authority after purchase of 25% of the land of the project and after sanction of DPR to book the plots and other units. After acquiring more 75% land for the said project, the State of Uttar Pradesh extended its co-operation to acquire the rest of un-procured land for the project.
After first phase of 1765 acre land, the first extension of said Hi-Tech township has been granted to the opposite parties, as such, at the relevant time the area of Hi-Tech township was of 3530 acre, in which proposed plots were offered for sale by means of advertisement referred by the complainant. Since 75% land was to be procured by means of direct purchase, resumption of GS land and land vested in State, as well as, land acquisition process, as such, in the application form and agreement, it was provided that plot booked may be changed, the area of the plot may be varied and due to above reasons, specific date of delivery of possession was possible to be mentioned either in the application. The complainant after reading the terms and conditions, submitted application form dated 9.3.2013/15.3.2013. The complainant has annexed copy of application form only, but the terms and condition enclosed with the said application form has not been annexed deliberately to make out a false case against the opposite parties.
The complainant after reading and understanding the terms and conditions of the application form entered into an agreement dated 25.3.2013 in which, it is also provided that plot booked by the complainant and area thereof may be changed and specific date for delivery of possession is not mentioned as the land was to be procured through various sources. The contention of the complainant regarding not reading of terms and conditions of agreement are false and have been concocted for the purposes of filing complaint. She is claiming her rights under the said agreement but denying her obligation of false pretext of not reading the agreement, which apparently proves her malafides.
Amongst down payment plan and development linked plan, development linked plan was selected by the complainant for payment of sale consideration, according to which 40% amount was to be paid in 4 installments (10% each) towards cost of land and rest 60% amount was payable for development of land on different development phases. The development of plot was based on payments made by the purchasers, as such, it is specifically mentioned in the agreement that timely payment of installments is the essence of the contract and non-payment of installments is the essence of the contract and non-payment result in cancellation of booking and in lieu thereof, the purchaser has been protected against escalation of price beyond 15% of the price at the time of allotment. As per agreed terms and conditions of the said agreement dated 25.3.2013, in case three consecutive installments are not paid by the allottee ,allotment shall stand cancelled automatically. Since the complainant has not paid three consecutive installments, as such, her allotment stands cancelled.
The complainant has paid only 4 installments which are for cost of the land only but she did not pay any further installment for development of the land. The complainant has not fulfilled her obligation under the said agreement dated 25.3.2013. As such, agreement stands breached by her and she cannot claim any right under the said agreement.
The obligation of the opposite parties is based on timely payment of installments by the complainant, as such, complainant is responsible for delay in development of plot of land and there is no deficiency in service of the opposite parties. The claim of any amount by the complainant on alleged delay is not sustainable in law. The complainant has shown her residential address of this Hon’ble Commission and she stated herself to be a Government Employee, who is paid house rent allowance, which is not meant to be recovered from any person like opposite parties, as such, any claim of rent is illegal.
The complainant has paid 4 installments in the year 2013 and thereafter she has stopped payment of further amount on the pretext of alleged non-development of plot of land in question, as such, alleged cause of action had accrued in the year 2013 but the complaint has been filed in the year 2016 i.e. beyond the period of limitation of two years, as such, the complaint is time barred and the complaint is liable to be dismissed on this score alone.
The complainant has not fulfilled her obligation under the agreement dated 25.3.2013 to pay the installments timely, as such, allotment of plot in her favour stands cancelled and as a consequence, there was no obligation on the opposite party to develop plot of land without payment of installments for development of plot hence, complaint filed by her is not maintainable and she is not entitled for any relief and the complaint is liable to be dismissed with exemplary cost.
We have heard the ld. counsel for the complainant Sri Piyushmani Tripathi and ld. counsel for the opposite parties Sri M.G. Mishra. We have perused the evidence and documents filed by the complainant.
In this case a deed of settlement has been entered in August 2017 between the parties according to which the money deposited has been refunded as per schedule of refund amount present in the deed. Thereafter and application has been moved by the counsel of the complainant on 7 February 2020 stating that an amount of Rs.65,000/– has been illegally and arbitrary dated by the opposite parties and no certificate of TDS is provided to the complainant. In the case of Huda Vs Mukesh Kumar (2005) 9 SCC 497 the Hon’ble Supreme Court has held,
“we direct that Appellants shall now recalculate interest at the rate of 12% from date of each deposit till payment. As Appellants could not deliver possession they are not entitled to claim interest even on delayed payments. If Appellants have deducted TDS, they shall now repay that amount with interest thereon at 12% per annum from date it was so deducted till payment.”
So it is clear that if any amount has been detected as TDS, that amount with interest shall be repaid to the person from which it has been taken. On this very basis the opposite parties are liable to pay the TDS directed by them with interest from the date it was directed to the date of actual payment with interest at a rate of 12% per annum. Except this there is no dispute in the complaint case. So the complaint is liable be allowed partially as such.
ORDER
The complaint case is partially allowed only for refund of TDS deducted. The opposite parties are directed jointly and severally to refund the amount of TDS deducted by him from the amount of the complainant with interest at a rate of 12% per annum from the date of deduction within 60 days from the date of judgment of this complaint case otherwise the rate of instruction be 15% per annum till the date of its actual payment to the complainant.
If it is not paid within 60 days from the date of judgment of this complaint case, the complainant shall be entitled to present Execution proceedings before this court at the cost of the opposite parties.
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.
(SushilKumar) (Rajendra Singh)
Member Presiding Member
Judgment dated/typed signed by us and pronounced in the open court.
Consign to the Record-room.
(Sushil Kumar) (Rajendra Singh)
Member Presiding Member
Dated 19 .4.2023
JafRi, PA I
C-2
