Delhi

New Delhi

CC/475/2016

Arun Pathania - Complainant(s)

Versus

M/s PACL India Ltd - Opp.Party(s)

25 Mar 2022

ORDER

 

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.475/2016                                                      

In the matter of:

 

            MS. ARUNA PATHANIA

W/o Sh. Naresh Singh Pathania

R/o F-93, Preet Vihar,

Delhi 110092                                                                        ……..COMPLAINANT

 

Versus

 

M/S PACL INDIA LTD.

CORPORATE OFFICE AT

7^TH FLOOR, GOPAL DASS BHAWAN,

28^TH BARAKHAMBA ROAD,

NEW DELHI 110001

 

REGD. OFFICE AT

22, 3^RD FLOOR, ANBER TOWER,

SANSAR CHAND ROAD,

RAJASTHAN JAIPUR -302004                                        ……..OPPOSITE PARTY

 

Quorum:

Ms. Poonam Chaudhry, President

            Shri. Bariq Ahmad, Member

            Ms. Adarsh Nain, Member

                                                                                                Dated of Institution :01.08.2016

                                                                                                Date of Order           :25.03.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

Hearing through Video Conferencing.

1. The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 (in short CP Act.) against opposite party (in short OP). Briefly stated the facts of the case are that the Complainant booked a plot admeasuring 600 Sq. Yards in the scheme launched by the OP on 30.08.2008 vide serial no. AEO/B-3926334 bear ORC no. CZ14620140901054017 bearing reference No. 0146043065 for the consideration of Rs. 30,000/- which was to be paid in installment of Rs. 5,000/- till the year 2014. It is further stated that OP assured that if possession was not handed over then OP would pay Rs. 46,200/- to the Complainant in lieu of the plot. It is also stated that Complainant regularly paid the installments of Rs. 5,000/- per year till the year 2014. The Last installment was paid on 30.08.2014 but despite receiving the entire consideration amount OP failed to hand over possession of the plot in question. It is further stated that Complainant requested OP several times to either hand over the possession or pay Rs. 46,200/- but OP failed to do so.
2. It is further alleged that the Complainant thereafter sent a legal notice to the OP which was duly served on OP. OP sent a false reply to the said notice dated 15.04.2016, stating that they would repay full amount with interest, as OP intended to pay the amount but could not do so due to freezing of its account by the CBI. It is further stated that act of OP amounts to unfair trade practice.
3.  It is further stated that this forum has jurisdiction to entertain and adjudicate the present complaint. It is prayed that OP be directed to allot the plot or refund Rs. 46,200/- with interest to the Complainant, and also pay compensation of Rs. 40,000/- as litigation charges.
4. Notice of the complaint issued to the OP, OP failed to appear despite service and was proceeded to ex-parte vide order dated 06.03.2017. Complainant filed evidence by affidavit reiterating therein the contents of the complaint. The Complainant relied upon the registration letter issued by OP, the legal notice dated 07.04.2015, the reply to the notice sent by OP dated 15.04.2015.
5. We have heard the Ld. Counsel for the Complainant and perused the record.
6. It has been proved from the evidence led by Complainant and documents filed that Complainant had booked a plot in the project of OP, the registration letter, issued by OP, shows that the Complainant was registered for allotment of a plot. It is the case of the Complainant that Complainant had paid the total consideration but OP neither handed over the possession of the plot nor refund the amount paid by the Complainant. It was also contended on the behalf of the complainant that OP was deficient in providing its services. As regard deficiency in services, Hon;ble Supreme Court has heldin 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.
7. It is to be noted that it was 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. A 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.
8. OP failed to appear despite service, and was proceeded exparte. In view of the unrebutted testimony of Complainant, we are of the view that admittedly, there was an inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
9. It is to be noted Section 2(1)(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.
10. 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 we are of the view as the services of OP were deficient, the complainant was justified in claiming refund of the amount deposited by him with compensation.

11. We are further of the view that the cause of action is a continuing one as the amount deposited by complainant was not refunded neither possession of the flat was handed over to him. The complaint is thus within the period of limitation.
12. We thus, hold that OP was guilty of deficiency in services and unfair trade practices. We also find that Complainant was not at fault for the delay which occurred in the completion of project. We further hold that there are no reasons to justify the delay in completion of the project. We accordingly direct OP/Parsavnath Developers to refund the amount Rs. 46,200/- (Rupees Forty Six Thousand Two Hundred Only) to the complainant along with interest @ 9% p.a. from the date of deposit of amount till realization within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP is directed to pay interest @ 12% p.a. for the delayed period. We also award Rs. 10,000/- (Ten Thousand Only) as cost on litigation
13. 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)                                                                           (ADARSH NAIN)           

          MEMBER                                                                                             MEMBER