Chandigarh

DF-I

CC/652/2022

Suman Bobal - Complainant(s)

Versus

Ansal Properties & Infrastructure Ltd. - Opp.Party(s)

Arun Kumar

19 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/652/2022
Date of Institution	:	04/07/2022
Date of Decision	:	19/07/2024

 

Suman Bobal Wife of Sh.Som Nath Bobal, Resident of House No.M-77, 1^st Floor, Vikaspuri, West Delhi, New Delhi-110018 Presently Residing at House No.5398/1, Modern Housing Complex, Manimajra, Chandigarh.

...Complainant

VERSUS

 

1.  Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi-110001 through its Director/Managing Director/Authorized Signatory.

2.  Anoop Sethi, Managing Director, Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi- 110001.

3. Pranav Ansal, Director, Ansal Properties & Infrastructure Ltd., 115, Ansal Bhawan, 16 K.G. Marg, New Delhi-110001. (Complaint against OP No.3 dismissed being not pressed vide order dated 29.04.2024).

4.  Star Facilities Management Ltd., 1110, Ansal Bhawan, 16 K.G. Marg, New Delhi-110001 through its Director/ Managing Director/Authorized Signatory.

5. Gaurav Seth, Director, Star Facilities Management Ltd., 1110, Ansal Bhawan, 16.K.G. Marg, New Delhi-110001.

 

....Opposite Parties

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                      

ARGUED BY	:	Sh.Varun Bhardwaj, Advocate for Complainant.
	:	Sh.Prateek Garg, Advocate for OP No.1 & 2.
	:	Complaint against OP No.3 dismissed being not pressed vide order dated 29.04.2024.
	:	OP No.4 & 5 ex-parte.

 

Per Surjeet kaur, Member

1.      Averments are that the complainant applied for Residential Plot measuring 397 sq. yards through application with the OP No.1 to 3 in their project at "Sushant Taj City Agra" and the complainant deposited a sum of Rs.1,90,321/-on 11.03.2008 (Ex.C-2 & C-3). 5. Thereafter, OP No.1 to 3 executed Plot Buyer's Agreement with the complainant on 26.04.2008 (Ex.C-4). The complainant deposited the remaining payments i.e., total amount of Rs.19,18,696/- to the OP No.1 to 3 (Ex.C-5 to Ex.C-18). The complainant approached the OPs and enquired with regard to handing over the possession of the above mentioned Plot, the OP No.1 to 3 instead of informing the actual date of handing over of the possession, at that time further demanded a sum of Rs.40,000/- towards maintenance charges and asked the complainant to deposit the same with OP No.4 & 5 and accordingly, the said amount was deposited by the complainant (Ex.C-19). The OP No.4 & 5 further demanded a sum of Rs.90,131/- from the complainant of advance CAM charges w.e.f. 01.02.2013 to 31.06.2018 and same was deposited by the complainant on 29.12.2015 (Ex.C-20 to Ex.C-21). The complainant visited the spot number times in year 2017, 2018 and 2020 and found that there was no development at the site as promised by the OP No.1 to 3 and they have not completed the project till date and it is a barren land without any amenities. Thereafter, in the month of June 2021 the OPs called the complainant in their office and told her that they are unable to complete the project where the complainant had booked the plot and they asked her to accept the plot in any other Ansal API project and the amount deposited by her will be adjusted towards the other plot or flat, to which the complainant agreed. The OPs also asked the complainant to deposit a sum of Rs.27,966/- towards electricity connection charges vide their demand notice dated 10.03.2022. The complainant again under good faith deposited a sum of Rs.27,966/- to the OP with a hope to get the plot complete in all respects (Ex.C-24). However, even till date no alternative plot/flat has been offered to the complainant by the OP No.1 to 3. Hence, is the present consumer complaint.
2.     OP No.1 to 3 contested the consumer complaint. However, Complaint against OP No.3 dismissed being not pressed vide order dated 29.04.2024. Therefore, reply on behalf of OP No.1 to 3 filed is treated as reply of OP No.1 & 2. The complainant is a permanent resident of New Delhi and the property which was purchased was in Agra. Therefore, making it clear, that the property was purchased for the purpose of investment only so that capital gain profit is made out from that property. Thus, makes it clear if any property is purchased for the purpose of investment, then the complainant or any person in this regard cannot be termed as a Consumer. It is further stated that time was not the essence of the contract. However, no assurance was given that possession will be delivered within 4-5 years from the date of execution of the agreement. The complainant always delayed the payment and for that, the OP issued reminders. The receipt placed on records is proof of those demands, which were not deposited on time. Denying all other allegations made in the complaint a prayer for dismissal of the complaint has been made.
3.     Notice of the complaint was sent to OP No.4 & 5 seeking their version of the case. However, nobody appeared on behalf of OP No.4 & 5 despite following proper procedure, therefore they were proceeded ex-parte on 16.05.2023.
4.     Rejoinder was filed and averments made in the consumer complaint were reiterated.
5.     Parties led evidence by way of affidavits and documents.
6.     We have heard the learned counsels for the parties and gone through the record of the case.
7.     Through the present complaint, complainant has prayed for the refund of the total amount paid to the tune of Rs.22,67,114/- which he has paid to the OPs from his hard earned money towards the sale consideration of the plot in question. The allegations of the complainant is that till date neither the possession of the originally allotted plot, nor any alternate plot in any other project the offer of which was duly agreed upon by the complainant has been given by the OPs. Harassed by the aforesaid actions of OPs, the complainant has filed the present consumer complaint.
8.     The stand taken by the OP No.1 & 2 is that complaint is beyond the territorial jurisdiction as well as beyond the limitation, hence needs to be dismissed.
9.     After going through the documents on record as well as by the affidavit of the complainant, it is abundantly, clear that the complainant is having rental accommodation at Chandigarh. The complainant has placed on record the rent deed to prove that she is residing at Chandigarh. Hence, the present case is well within the territorial jurisdiction of our Commission. Further, admittedly the complainant has deposited a sum amount of Rs.27,966/- on 20.04.2022. As per the demand of the OPs towards the electric yjhnjh charges. According to which the cause of action is still continuing and subsisting in favour of complainant and against the OP No.1 & 2.
10.     After going through the documents on record, it is an admitted fact that the OPs have received an amount of Rs.22,67,114/- from the complainant with effect from 11.03.2008 till 20.04.2022. The various receipts have been placed on record by the complainant with her complaint. It is the OP only, who executed the buyers agreement annexure C-4 on 26.04.2008, after receiving the required amount from the complainant but due to their inability to execute/handover the possession of the plot in question, the OPs offered some other property in their other project to which the complainant got agreed. Annexure C-20 is an email to prove the same. But as per the allegations of the complainant till date neither the original allotted plot nor the alternate plot has been given to the complainant despite receiving hefty amount out of hard earned money of the complainant by the OPs. It was for the OPs to be well planned & well organized to hand over the possession subsequent to the buyer’s agreement in certain specific time period. Even if the allotted plot could not be handed over by the OPs they must have fulfilled their promise for giving the alternate plot to the complainant, but admittedly the present position is otherwise.
11.     In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah & Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint.
12.     So far as the defence of the OPs that the case in hand is barred by limitation, when it has come on record that the OPs have failed to deliver lawful possession to the complainant after obtaining necessary completion certificate from the competent authority and further that OPs neither have delivered lawful possession of the fully developed plot to the complainant nor the amount deposited by her was refunded, therefore, there is continuing cause of action in favour of the complainant. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
13.     Significantly, OP No.4 & 5 did not appear to contest the claim of the complainant and preferred to proceed against ex-parte. This act of the OP No.4 & 5 draws an adverse inference against them. The non-appearance of the OP No.4 & 5 shows that they have nothing to say in their defence against the allegations made by the complainant. Therefore, the assertions of the complainant go unrebutted and uncontroverted.
14.     The act of OPs for non-providing proper services and keeping the hard earned money of the complainant with them for such a long time proves deficiency in services on their part and their indulgence in unfair trade practice.
15.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. The OP No.1, 2 & 4, 5 are, jointly & severally, directed as under:-

1. To refund amount of ₹22,67,114/- to the complainant alongwith interest @ 9% per annum (simple) from the date of deposit.
2. to pay an amount of ₹50,000/- to the complainant as compensation for causing mental agony and harassment to her.
3. to pay ₹10,000/- to the complainant as costs of litigation.

16.     Complaint against OP No.3 dismissed being not pressed vide order dated 29.04.2024.
17.     This order be complied with by the OP No.1, 2 & 4, 5 within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realization, over and above payment of ligation expenses.
18.     Pending miscellaneous application, if any, also stands disposed of.
19.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

			Sd/-
19/07/2024			[Pawanjit Singh]
Ls			President
			Sd/-
			[Surjeet Kaur]
			Member
			Sd/-
			[Suresh Kumar Sardana]
			Member