Delhi

New Delhi

CC/771/2015

Suraj Prakash - Complainant(s)

Versus

M/s Ansal HOusing & Consturction Ltd - Opp.Party(s)

20 Feb 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC-771/2015

IN THE MATTER OF:

 

Sh. Suraj Prakash

S/o Late Bhiku Ram,

R/o RZ-90, Gali No. 2,

Vaishali Colony, Palam Road,

Dabri, New Delhi.                                                                            ...Complainant

VERSUS

 

M/s Ansal Housing & Construction Ltd.

Through Managing Director,

15, UGF, Indra Prakash,

21 Barakhamba Road,

New Delhi – 110001.                                                              ...Respondents

 

Quorum:

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad, Member

Shri Shekhar Chandra, Member

 

                                                                                                                                 Date of Institution       : 16.11.2015                                                   Date of Order             : 20.02.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

 

1. The present complaint has been filed under section 12 read with 14(d) of the Consumer Protection Act, 1986  (in short CP Act) alleging deficiency of services by opposite party (in short OP).

2. Briefly stated the facts of the case are that complainant being allured by advertisement of OP regarding Plots at Ansal Town, Muzzaffar Nagar, Meerut, Uttar Pradesh and believing the assurances that the said township is in green area and pollution free, decided to buy a plot from the respondent.
3. It is also alleged that on 28^th September 2012, Complainant booked a plot No. 585 at Ansal Town, Muzzaffar Nagar, Meerut, Uttar Pradesh in his name and the name of Co-Owner Pawan Kumar Tiwari his Grandson. The complainant made  payment of Rs. 1,39,615/- (Rupees One Lack Thirty Nine Six Hundred Fifteen only).
4. It is further alleged that as per "Time linked payment" the complainant made complete payment in 18 installment of Rs.27,925/-. The complainant also paid of Rs.25,000/- on account of club membership, and external charges development charges, The respondents had issued a statement of payments made by the complainant.
5. It is further stated that complainant was asked to pay maintenance charges of Rs.41,668.81 and Rs.13,634.20 interest free security deposit to the nominated agency M/S Sunrise Estate Management (SEMS) and to sign maintenance agreement and provide NOC from SEMS. The complainant was shocked to receive the said demand for payments by the respondents without giving possession of the plot. The complainant thus decided to visit the site to see the progress of the project.
6. That on visiting the site to utter surprise to complainant, it was found that plot in question was smoke pollution area and no development was found at the site. It is also alleged that respondent demanded a sum of Rs.55,844.93 (Rupees Fifty Five Thousand Eight Hundred Forty Four and Paisa Ninety Three only) on account of interest free security, maintenance charges, construction charges. It is alleged that the complainant requested OP to cancel the provisional allotment. The respondent assured the complainant that the 20% amount of the basic shall be deducted, complainant gave his consent. It is alleged complainant had paid Rs.6,42,228.67 (Rupees Six Lack Forty Two Thousand Two Hundred Twenty Eight and Paisa Sixty Seven only) out of hard earned money. It is further alleged complainant has not made any further payment as the complainant has already requested the respondent to cancel the allotment of plot and refund the amount.
7. It is also alleged that on 27.01.2015 complainant received a reminder to pay further sum of Rs.1,37,318.73/- (Rupees One Lack Thirty Seven Thousand Three Hundred Eighteen and Seventy Three Paisa only). On 28^th February 2015 complainant sent his request to Respondent to cancel his provisional allotment and refund the paid amount at the earliest as complainant was facing great financial hardships being a pensioner.
8. It is further stated again Complainant received reminder dated 13^th March 2015 calling upon him to pay Rs.1,41,803 (Rupees One Lack Fourty One Thousand Eight Hundred Three only) including interest of Rs. 20,256/- (Rupees Twenty Thousand Two Hundred Fifty Six only). The said demand was illegal and arbitrarily as complainant had already made requests to cancel his provisionally allotted plot and to refund his payment. Complainant thus sent a Legal Notice.
9. It is alleged this Commission has jurisdiction to entertain present complaint.
10. It is prayed that OP be directed to refund a sum of Rs. 6,49,235.00/- (Rupees Six Lakh Forty Nine Thousand Two Hundred Thirty Five) with interest @ 24% and also to pay Rs.2,00,000 ( Rupees Two Lacs only) towards the compensation for mental agony and harassment faced by the complainant and cost of litigation.
11. Notice of the complaint was issued to OP, who entered appearance and filed written statement taking preliminary objection that complaint is a gross abuse of the process of law. It was also alleged that there was no cause of action for filing the complaint. It was alleged that the complainant had made the investment in the proposed Project for commercial gain as such the complainant is not the consumer as defined under the Consumer Protection Act.
12. It was also alleged that this Forum does not have territorial jurisdiction to try and adjudicate the complaint as the property in question is situated at Muzaffar Nagar, Uttar Pradesh whereas the present complaint has been filed in this Forum.
13. It was further stated the complaint is bad for non-joinder of necessary party, as the unit/property in question was booked by the complainant along with Sh. Pawan Kumar Tiwari. Being the co-allottee with the complainant he was a necessary party. However the complainant did not implead him. It was denied that the respondent have been deficient in rendering the services towards the complainant.
14. It was also alleged that the complaint raises certain intricate questions of facts and law which can be determined only after leading detailed evidence and cross- examination of the parties as such this Forum does not have the jurisdiction to try and adjudicate the same as it follows summary procedure for trial of complaints.
15. It was also alleged that one of the condition of the allotment letter was to make timely payment however the complainant failed to comply with the said condition.  The complainant paid Rs.1,39,615/- as an advance towards booking of the plot on 28.09.2012 which was adjusted at the time of the booking.  However, the complainant did not make the timely payment. The clause 14 of the allotment letter relied upon by OP is as under:

  “Timely payment of the installment is the essence of the terms of application and allotment letter. If payment of installment is not received within the stipulated period give in the opted payment plan and/or in the event of breach of any of the terms and conditions of this allotment letter or those of the application by the allottee(s) or the allotment can be cancelled at the sole discretion of the developer and 20% of the basic sale price of residential plot, which constitute the earnest money, shall stand forfeited and the balance amount, if any, will be refunded without any interest on receiving the original documents from the allottee and after compliance of necessary formalities ” 

It was stated that the respondent, as a goodwill gesture, did not cancel the unit but granted numerous opportunities to pay the outstanding amount with interest. It was prayed that complaint be dismissed.

16. The complainant filed rejoinder reiterating therein the averments made in the complaint and controverting all the allegation made in the written statement. Both parties thereafter filed their evidence by way of affidavit.
17. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
18. The fact that complainant booked a plot in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the brochure of OP EX CW2/1,  payment plan EX CW1/A, receipt of booking EX CW 1/B. The statement of account of payment issued by OP EX CW1/D. Application for cancellation of allotment and refund EX CW1/E Bills issued by Surnrise Estate Management Service/the maintenance agency.
19. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid the entire amount of the cost of the flat i.e. Rs.6,49,235.00/- (Rupees Six Lakh Forty Nine Thousand Two Hundred Thirty Five) to the OP but when complainant visited the site he found that it was smoke polluted area and there was no development at the site. It was further submitted that despite the request of complainant the provisional allotment was not cancelled. 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.
20. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 by Hon’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.
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.
23. We are of the view that the cause of action is a continuing one as the amount advanced by complainants was not refunded neither possession of the flat was handed over to him, the complaint is thus within the period of limitation. We accordingly reject the contention of OP that complaint.
24. As regards the contention of OP that complainant is not a consumer, as defined in the Consumer Protection Act, it is to be noted that a mere allegation has been made in the WS by OP, in this regard no evidence was brought on record to prove  that Complainant booked the plot for business in real estate. 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.” Thus as no evidence was brought on record by OP to prove the said contention we are of the view that the same is without any merit.
25. As regards the contention of OP that complainant ought to have filed a civil suit as matter involves complicated question/facts which require detailed evidence and cross examination. In this regard to be noted that the remedy provided under the Consumer Protection Act are additional remedies apart from the other remedies including those provided by special statues. The availability of alternative remedy is no bar in entertaining a complaint under the Consumer Protection Act as held by Hon’ble Supreme Court in Civil Appeal No. 3581-3590-20 M/s Imperia Structures Limited Vs. Anil Patni and Anr.
26. We are also of the view that the contention of OP that this Forum doesnot have territorial jurisdiction to try the complaint is without merits, as Section 11 of the Consumer Protection Act, 1986, which relates to Jurisdiction of the District Forum provides as under:

“Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs). A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-

1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain, or
2. Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part, arises.

   

 

As the OP works for gain within the territorial jurisdiction of this Forum, this Forum has territorial jurisdiction to try the complaint.

 

27. 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.6,49,235.00/- (Rupees Six Lakh Forty Nine Thousand Two Hundred Thirty Five) to the complainant with interest @ 9% p.a. from the date of each deposit, within 4 weeks from the date of receipt of the order, failing which OP will be liable to pay interest @ 15% p.a. till realization. We also award Rs.1,00,000/- (Rupees One Lakh) as compensation to the complainant for mental agony and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation.

A copy of this order be sent/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                                                                                                             Shekhar Chandra

   (Member)                                                                                                                    (Member)