Delhi

New Delhi

CC/464/2017

Arun Kumar Sahood - Complainant(s)

Versus

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

22 Nov 2022

ORDER

 

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.464/2017                               

In the matter of:

 

Shri Arun Kumar Sahoo

S/o Shri Barendra Nath Sahoo

R/o OE-103, EWS OAK Wood Estate

DLF, Phase-II, Gurugram, Haryana-122002.                 ……..COMPLAINANT

 

Versus

 

M/s Ansal Housing and Construction Ltd.

Through its Directors

Regd. Office at:

15 UGF, Indra Prakash

21, Barakhamba Road, New Delhi-110001.                 …..OPPOSITE PARTY

 

Quorum:

Ms. Poonam Chaudhry, President

Shri. Bariq Ahmad, Member

 

                                                                                                       Date of Institution: 10.10.2017                                                                                                                                                                            Date of Order     : 22.11.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as CP Act), alleging deficiency of services by opposite party (in short OP). Briefly stated the facts of the case are that the complainant had booked a commercial unit in the Project of Opposite Party (in short OP) “Ansal Galleria” at Ansal Tower, Kamal, Haryana and paid a sum of Rs. 31,000/- (Rupees Thirty One Thousand) vide cheque No. 503162 on 23.06.2009. The said amount was duly acknowledged by the opposite party. It is further alleged the said unit was initially agreed to be purchased for a total sum of Rs. 2,97,000/- (Rupees Two Lakh Ninety Seven Thousand) to be paid in 29 installments of Rs. 8910/- (Rupees Eight Thousand Nine Hundred Ten) and other charges and the shop/unit was agreed to be handed over in December, 2011. The said unit was initially, numbered as FF-046.
2. It is further alleged that all the time of booking, the opposite party had assured to handover the said unit, within a period of 36 months from the date of booking and further assured to receive the amount in installments. It is stated the complainant kept on making regular payment of installments, however, the opposite party failed to carry out the constructions on time as such, the complainant delayed some payments as no construction activity was found at the time. It is also stated the opposite party intentionally with malafide intentions kept on levying exorbitant rate of interest to the tune of 24% per annum, without assigning any valid reason.
3. It is also alleged that in the year 2013, the opposite party on its own, without written consent of the complainant, changed the unit from FF-046 to SF-286 and also enhanced the rate to Rs. 5,47,350/- (Rupees Five Lakh Forty Seven Thousand Three Hundred Fifty). The opposite party did not send any details or information about the construction of the shop/office to the complainant but demanded 18 months installment at the increased amount and few installment to be paid at @ Rs. 24,293.24/- (Rupees Twenty Four Thousand Two Hundred Ninety Three and Twenty Four). It is alleged under duress and compulsion, the complainant agreed to pay the said amount.
4. It is further alleged despite after lapse of more than 8 years from the letter date of allotment dated 25.07.2009, the construction was not been completed however the opposite party is demanding a further sum of Rs. 4,51,845/- (Rupees Four Lakh Fifty One Thousand Eight Hundred Forty Five). The complainant had already paid a sum of Rs. 5,65,206/- (Rupees Five Lakh Sixty Five Hundred Two Hundred Six) including the amount levied towards interest, penalties and other heads, which has been acknowledged by the opposite party.
5. It is further alleged the said shop/unit was booked by the complainant for running a business to earn his livelihood, the same was never meant for any investment. The delay in handing over the possession has caused mental pain and agony to the complainant, as he has not been able to start any of business.
6. It is further alleged that the complainant sent a legal notice dated 01.09.2017 through courier to the OP calling upon the OP to refund the amount of rs. 5,65,206/- (Rupees Five Lakh Sixty Five Thousand Two Hundred Six) with interest @ 24% per annum from the date of payment till realization. The complainant also claimed the charges of legal notice of Rs. 11,000/- (Rupees Eleven Thousand). The said legal notice was duly served upon the opposite party, but the opposite party did not comply with the said notice.
7. It is prayed that OP be directed to refund the amount of Rs. 5,65,206/- (Rupees Five Lakh Sixty Five Thousand Two Hundred Six) with interest @ 24% p.a. from the date of  payment till realization and be also directed to pay Rs. 3,00,000/- (Rupees Three Lakh) as compensation for Mental pain and agony and Rs. 25,000/- (Rupees Twenty Five Thousand) as cost of the litigation.
8. Notice of the complaint was issued to OP. OP entered appearance and filed written statement opposing the complaint on various grounds inter alia that the complaint was not maintainable as complainant booked the unit to earn profit as such was not a consumer. It was also alleged that there was no cause of action in as much as the offer of possession was given by the opposite party vide letter bearing No. 413 dated 06.10.2016. By way of the said letter the opposite party requested the complainant to clear all outstanding dues of the unit within 30 days of the date of the said letter. The complainant deliberately failed and neglected to clear the outstanding dues. The opposite party had vide numerous communications called upon the complainant to clear the outstanding dues along with interest, however the complainant failed to do so opposite party. It was alleged that the complainant defaulted in payment and taking possession.
9. It was also alleged that in terms of clause 19 of the letter of allotment the complainant had acquiesced to the factum of revision of layout plan of the project, change of number of the unit, change of area of the unit in case the layout plan was modified. It was denied by the OP that there was any default on part of the OP. it was prayed that complaint be dismissed.
10. Complainants thereafter filed rejoinder reiterating therein the averments made in the complaint and denying all the allegations made in the Reply/written statement. Both parties filed their evidence by affidavits to prove their averments.
11. We have heard the Ld. Counsels for parties and perused the record.
12. The fact that complainants booked a unit in the project of OP is not in dispute from the evidence of parties on record. OP did not controverted the fact that complainants had paid Rs. 5,65,206/- (Rupees Five Lakh Sixty Five Thousand Two Hundred Six).
13. As we regards the contentions of OP that the complaint was not maintainable and as complainant was not  a consumer as he had booked the unit for earning profit by letting it out. It is to be noted no evidence was brought on record to show that complaints booked the unit for monetary benefit.
14. In this regard it has been filed in by Hon’ble Supreme Court in Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, that:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit.”
15. It was also argued on behalf of OP that the complainant has not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, which could be attributable to the respondent, therefore, the Complaint is liable to be dismissed.
16. It was contended by counsel for complainant that at the time of booking, the OP assured that possession would be handed over within 36 months from the date of booking in or around December 2011.
17. We are of the view that there has been delay in handing over the possession of the unit to complainant. It is the case of complainant that the possession was not handed over even till filing of the complaint. As regard the delay caused by developer in allotment/handing over possession, Hon’ble Apex Court has held in Kolkatta West International City Pvt. Ltd. Vs. Devasis Rudra, II(2019) CPJ 29 SC, as under:

“It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29.March, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.

18. It was contended on the behalf of the complainant that OP was deficient in providing services. It was also submitted that complainant had paid Rs. 5,65,206/- (Rupees Five Lakh Sixty Five Thousand Two Hundred Six) to the OP but OP failed to hand over the property even till the filing of complaint. It was also argued that the opposite party was under contractual obligation to constructs the property within 36 months from the date of booking, but it failed to do so. As regard deficiency in services, Hon’ble Supreme Court has held in Arifur Rahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
19. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243byHon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
20. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view that admittedly, there is inordinate delay in handing over the possession of the unit in question which amounts to deficiency in service.
21. It is to be noted Section 2 (r) of the Consumer Protection Act, 1986, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice” and includes any of the practices enumerated therein. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
22. It is also pertinent to note Hon’ble Supreme Court also 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.

Thus as the services of OP were deficient, complainant was justified in claiming refund of the amount deposited by him with compensation.

23. We are further of the view that the cause of action being the continuing one as the amount advanced by complainant was not refunded neither possession of the unit was handed over to him, the complaint is within the period of limitation.
24. As regards the contention of OP that complaint is not maintainable as the complainant was a defaulter in payments and taking possession, it is to be noted that OP did not file any documents to show that construction of project was complete. It is to be noted OP did not deny para 7 of the complaint and gave evasive reply to the same.
25. We thus, hold that OP/ M/s Ansal Housing and Construction Ltd. guilty of deficiency in services. We accordingly direct OP/M/s Ansal Housing and Construction Ltd. to refund the amount Rs. 5,65,206/- (Rupees Five Lakh Sixty Five Thousand Two Hundred Six) to the complainant along with interest @ 12% p.a. from the date of deposit till realization within a period of 4 weeks from the date of receipt of order failing which OP will be liable to pay interest @ 18% p.a. for the delayed period. We also award Rs. 1,00,000/- (Rupees One Lakh Only) as compensation for mental agony and Rs. 50,000/- (Rupees Twenty Five Thousand) as cost of litigation

A copy of this order be provided to all 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)

 Member