RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 191 OF 2017
Abdul Bari Khan
S/o Sri Md. Maqsood Khan
R/o House No.95M/9H
Chakia, Nai Abadi
Allahabad (U.P.
… Complainant
Versus
- M/s.Ansal Properties and Infrastructure Ltd.
First Floor, Y.M.C.A. Campus
13, Rana Pratap Marg
Through its Authorized Signatory
O2.Managing Director
M/s. Ansal Properties and Infrastructure Ltd.
115, Ansal Bhawan, 16 Kasturba Gandhi Marg
New Delhi
....Opposite Parties
BEFORE:
HON’BLE MR. JUSTICE A. H. KHAN, PRESIDENT
For the Complainant : Sri Vikas Agrawal, Advocate.
For the Opposite Party : Sri Anurag Singh, Advocate.
Dated : 28-09-2017
JUDGMENT
PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
This is a complaint filed under Section-17 of the Consumer Protection Act 1986 by complainant Abdul Bari Khan against opposite parties M/s. Ansal Properties and Infrastructure Limited and Managing Director, M/s. Ansal Properties and Infrastructure Limited with following prayers:-
“WHREFORE, it is most respectfully prayed that this Hon’ble Commission may graciously be pleased:
- To direct the opposite parties to refund the deposited amount of Rs.9,25,860/- (Rupees Nine Lakh Twenty Five Thousand Eight
Hundred Sixty Only alongwith interest @ 18% from the date of deposit to actual date of payment.
- To direct the opposite parties to pay a sum of Rs.2,00,000/- as
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the compensation in respect of the deficiency in services as well as Unfair Trade Practice and mental agony committed by the opposite parties.
- To direct the opposite parties to pay the cost of the case quantified as Rs.50,000/-.
- Any other direction which is deems fit may also allow in the interest of justice.”
In complaint it has been contended by the complainant that he approached opposite parties for purchase of a two BHK flat of 997 square feet area in ‘Bliss Delight Scheme’ of opposite parties and a Flat Buyer Letter of Agreement dated 25-11-2013 was executed between them for total basic sale price of Rs.29,91,000/- and Plan-B of payment/Interest Free Instalment Plan (Construction Linked Plan) was opted by complainant.
It has been further contended by complainant that the employees of opposite parties informed him that the project has been approved by L.D.A. Therefore as per demand/payment plan he paid Rs.9,25,860/- to the opposite parties in seven instalments from 21-10-2013 to 20-09-2O14.
It has been contended by the complainant in complaint that as per Clause-22 of Flat Buyer Letter of Agreement dated 25-11-2013 the opposite parties promised to offer possession of flat to allottee within 36 months from the date of sanction of plan and as per agreement necessary approvals were already given by L.D.A. As such, opposite parties were bound to give possession of flat up till November, 2016. But opposite parties did not start construction upto September, 2016 and employees of the opposite parties informed the complainant through Email dated 28-09-2016 that the project shall be started by March, 2017 whereupon the complainant made certain queries through Email letter dated 22-10-2016 but the opposite parties did not reply.
It has been contended by the complainant in complaint that he gave two options to opposite parties through Email letter dated 20-04-2017 either to allot any other flat in Shushant City or to refund deposited amount with interest at the rate of 18% per annum. But vide letter dated
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20-04-2017 opposite parties have offered refund of deposited amount with interest at the rate of 10% per annum.
It has been contended by the complainant that the construction of project has yet not been started whereas stipulated period for delivery of possession has lapsed in November, 2016. The money of complainant has been blocked and complainant is unable to invest money for purchasing another property. As such, feeling aggrieved the complainant has filed complaint.
Opposite parties have filed joint written statement wherein it has been contended that the complainant has invested money in real estate business for earning profit. He is not a consumer as defined in Section 2(1)(d) of the Consumer Protection Act 1986. As such, complaint is not maintainable under the Act.
It has been further contended in written statement that the flat buyer letter of agreement has been executed on 25-11-2O13 and statutory period of 42 months is over on 25-05-2017 as per agreement. Opposite parties have applied for necessary approval from L.D.A. and are pursuing the same but approval of L.D.A. is still pending.
In written statement it has been contended that complainant is defaulter. He has never paid his dues within time. He is liable to pay interest on delayed payment.
In written statement it has been admitted that complainant has deposited Rs.9,25,860/- and opposite parties have offered through letter dated 20-04-2017 to refund money deposited by complainant with interest at the rate of 10% per annum.
Both parties have filed affidavits alongwith annexures.
I have heard learned Counsel for the parties and gone through records.
Indisputably the complainant has booked residential flat in project of opposite parties which is yet to be constructed. Indisputably the complainant has deposited Rs.9,25,860/- with opposite parties in pursuance of booking of said flat. Considering these undisputed facts it is wrong to say that the complainant is not a consumer as defined in Section
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2(1) (d) of the Consumer Protection Act 1986. Complaint is absolutely maintainable under the Act.
Indisputably stipulated period of 42 months, as per flat buyer letter of agreement, for delivery of possession is over. Indisputably opposite parties have offered to refund Rs.9,25,860/- to the complainant with interest at the rate of 10% per annum. But the complainant is claiming interest at the rate of 18% per annum. As such, point for determination in this complaint is rate of interest.
In view of pleadings of the parties it is an admitted fact that booking of flat has been done in year 2013 and flat buyer letter of agreement has been executed by parties on 25-11-2013. Admittedly complainant has paid Rs.9,25,860/- to the opposite parties till 20-09-2014. Still the flat has not been constructed for want of approval of L.D.A. Without obtaining approval of L.D.A. for construction, offer of sale of flat is undoubtedly an unfair trade practice and by adopting this unfair trade practice opposite parties have induced complainant to deposit money and the money deposited by complainant has been utilized by the opposite parties for their personal benefits.
The complainant has booked flat in year 2013 and has paid Rs.9,25,860/- till September, 2014. Still the complainant is unable to get possession of flat and the construction of flat is not expected in near future. The present market price has gone up and the complainant shall have to face present price for purchasing another flat. As such, I am of the view that complainant is entitled to be compensated by way of higher rate of interest.
Keeping in view the judgment of Hon’ble Apex Court rendered in the case of K A Nagamani V/s Housing Commissioner III (2016) CPJ 16 (SC) I am of the view that the amount deposited by complainant should be refunded with interest at the rate of 18% per annum.
In view of above, complaint is allowed and opposite parties are directed to refund Rs.9,25,860/- deposited by the complainant with interest at the rate of 18% per annum from the date of deposit till date of actual payment within two months from the date of judgment. The
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opposite parties are further directed to pay Rs.5,000/- as cost of the case to the complainant.
In case of default the complainant shall be at liberty to get compliance of this judgment and order in accordance with provisions provided in Sections 25 and 27 of the Consumer Protection Act 1986.
Let copy of this order be made available to the parties within 15 days positively as per rules.
( JUSTICE A H KHAN )
PRESIDENT
