Delhi

New Delhi

CC/252/2021

Preeti Malhotra - Complainant(s)

Versus

M/S. Ansal Buildwell Ltd. - Opp.Party(s)

31 Oct 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.252/2021  

IN THE MATTER OF:

 

Ms. Preeti Malhotra

D/O  Mr. P.S. Malhotra

And Mr. Paras Malhotra, son of Mr. P.S. Malhotra

Earlier resident of House No. 1200, Lane No. 8, Green Enclave, Near,

Presently residing at Flat No. 205, Sector 55,

Chandra Societ Gurgaon-122011.

Through POA holder Mr. P.S. Malhotra                         ...COMPLAINANT

VERSUS

 

 

M/S Ansal Buildwell Limited

Through its Directors Gopal Ansal and Ritu Ansal

Having its registered office at

118, Upper First floor, Prakashdeep Building

7, Tolstoy Marg, New Delhi-110001                             ...OPPOSITE PARTY

 

Quorum:

 

Ms.Poonam Chaudhry, President

Shri Bariq Ahmad, Member

Ms.  Adarsh Nain, Member

                                                                Date of Institution:-         01.12.2021                                                                     Date of Order   : -31.10.2022

ORDER

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019 (In short CP Act) for deficiency in service by Opposite Party (in short OP). Briefly stated the facts of the case are that the complainants applied for allotment of a Villa in the proposed “Royale Villa Scheme at Ansal City, Amritsar) consisting of 2 floor Unit having plot area 166.11 sq. yards approximately with super area of 1041 sq. feet, for a total consideration of Rs.31,50,000/- (Rupees Thirty One Lakh Fifty Thousand) vide Royal Villa Agreement dated 25.02.2012.
2. It is further alleged that as per statement of account a sum of Rs. 28,30,000/- was paid to OP against the said house (No. A-162) @ Rs. 3,007.81 (Rupees Three Thousand Seven and Eight One Paise) per sq. feet (built up area 1056 sq. feet) and the consideration was increased to Rs. 31,76,250/- (Rupees Thirty One Lakh Seventy Six Thousand Two Hundred Fifty).
3. It is also alleged that the said amount stands acknowledged by OP in their ledger account dated 21.12.2020. The said payment was  made to the OP by August, 2015.
4. It is alleged that as per the building plans were not sanctioned by the authorities when the allotment was made in the name of complainants. The relevant extract is as under:-

“ The building plans are yet to be sanctioned by the authorities. The said prices are exclusive of certain other charges as mentioned therein”

5. The agreement for Royale Villa was executed on 25.02.2012 between OP and complainants. The project was to be completed within 3 years and the payment amounting to 90% of the sale price was made by complainants to OP in accordance with payment schedule. However, no possession/offer of possession was made in February, 2015 despite payment of Rs. 28,30,000/- (Rupees Twenty Eight Lakh Thirty Thousand), which stood acknowledged when the last installment was demanded at the time of offer of possession i.e. 21.12.2020 amounting to Rs. 6,93,000/- (Rupees Six Lakh Ninety Three Thousand) inclusive of registration fee and e-stamp charges.
6. It is also alleged that complainants have sent mails on 29.04.2020, prior to issuance of offer of possession to the OP mentioning that since more than 8 years have gone by complainants are no more interested in taking possession of House/Villa in question and are claiming refund of amount with interest, the OP did not refund the amount paid prior to issuance of offer of possession. And according to complainants even as on date of possession that the building is not complete in all respects.
7. It is also alleged that  as per Agreement/allotment letter (covenant 17) OP have mentioned that “any delay in payment will make the House buyer liable for interest @ 24% per annum”. Thus, the same analogy is to be applied in the case of complainants as covenants have to be reciprocal and OP are liable to refund the outstanding amount of Rs. 28,30,000/- (Rupees Twenty Eight Lakh Thirty Thousand) with interest @ 24% p.a. for 9 years from the dates of respective payment i.e.

1. Rs. 3,15,000/- (Rupees Three Lakh Fifteen Thousand) acknowledged on 27.02.2012 (10%).
2. Rs. 3,15,000/- (Rupees Three Lakh Fifteen Thousand) acknowledged on 27.04.2012 (10%).
3. RS. 22,00,000/- (Rupees Twenty Two Lakh) acknowledged on 19.08.2015 (70%).

8. It is stated that since there is a default on the part of OP no amount is liable to be deducted and complainants are entitled for full amount i.e. Rs. 28,30,000/- (Rupees Twenty Eight Lakh Thirty Thousand) principal amount and interest @ 24 % p.a. It is also alleged that the township has not been developed properly as mentioned in sanctioned plans.
9. It is alleged that a legal notice dated 13.08.2021 was issued by the complainants to the OP to immediately refund the amount of Rs. 28,30,000/- (Rupees Twenty Eight Lakh Thirty Thousand) and further Rs. 46.00 lakhs of total amount of Rs. 74,30,000/- (Rupees Seventy Four Lakh Thirty Thousand) within 30 days of receipt of the notice. However, despite receipt of the notice no compliance has been made by the OP.
10. It is also alleged that most of the clauses in the allotment letter were/are one sided on which OP compelled and took the complainants signatures.  It is stated the present complaint is being filed by complainant through their father/POA holder Shri. P.S. Malhotra.
11. That OP have caused a wrongly loss to complainants and wrongful gain to OP.  It is prayed that OP be directed to refund the amount of Rs. 28,30,000/- (Rupees Twenty Eight Lakh Thirty Thousand) with interest @ 24% p.a. for 9 years from the dates of respective payment i.e.

4. Rs. 3,15,000/- (Rupees Three Lakh Fifteen Thousand) acknowledged on 27.02.2012 (10%).
5. Rs. 3,15,000/- (Rupees Three Lakh Fifteen Thousand) anknowledged on 27.04.2012 (10%).
6. RS. 22,00,000/- (Rupees Twenty Two Lakh) acknowledged on 19.08.2015 (70%).

12.  Notice of the complaint was served on OP who entered appearance and filed written statement contesting the case stating inter alia that there is no cause of action for filing of the present complaint.
13. It was also alleged that this Commission does not have territorial jurisdiction to entertain and to determine the present complaint for the reason that the claims made in the present complaint are in respect of immovable property situated in Amritsar, State of Punjab.
14. It is further alleged that the complainants are defaulters and failed to make the agreed payments to the opposite party and therefore, are liable to also pay interest on the delayed payments.
15. It was also alleged that the possession of the property in question has already been offered to the complainants vide letter dated 21.12.2020. to take possession but the complainants failed to do so.
16. It was denied that complainant were consumers or there was Any deficiency of services by OP.
17. It is denied by the OP that there was any default on part of the OP and complainants are entitled for full amount Rs. 28,30,000/- (Rupees Twenty Eight Lakh Thirty Thousand) principal amount and interest @ 24% p.a. It was denied that as on date the township has not been developed or that the statutory compliances are not there as alleged or there is no occupancy certificate.
18. Complainants thereafter filed rejoinder reiterating therein the averments made in the complaint.
19. Both parties filed their evidence by affidavit to prove their averments.
20. We have heard the Ld. Counsels for parties and perused the record.
21. The fact that complainants booked a unit in the project of OP is not in dispute from the evidence on record. OP did not controverted the fact that complainants had paid Rs. 28,30,000/- (Rupees Twenty Eight Lakh Thirty Thousand) the receipts of payments issued by OP and the statement of account issued by OP Annexure P2.
22. As regards the contentions of the OP that this court has no territorial jurisdiction, it is to be noted that office of OP falls within the jurisdiction of this Commission, section 34(2) of the CP Act which relates to jurisdiction of the District Commission provides as under:-

“(2) (a) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,— (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain;, Thus we are of the view that the said contention of OP is without merits.

As regards the next contention of the Ld. Counsel for the OP that jurisdiction of this Commission is barred as the agreement/arrangement dated 25.02.2012 provides that any dispute arising out of the agreement shall be referred Arbitration. In this regard it is pertinent to be noted, the existence of arbitration clause would not bar the proceedings before this forum.

23. In this regard it has been held by in Hon’ble Supreme Court in Skypay Couriers Limited V. Tata Chemicals Limited IV (2000) SLT 494, Trans Mediterranean Airways V. Universal Exports IV (2011) CPJ 13 (SC) & National Seeds Corporation Ltd. V. M. Madhusudhan Reddy, 2012 (1) CPC 190. The provision of this Consumer Protection Act are in addition to and not in derogation to the other Acts or law or prevailing in India. Even if there exists an arbitration clause in an agreement and a complaint is made by the Complainant in relation to a deficiency of service then the existence of an arbitration clause would not bar the proceedings before this Forum.
24. In M/s. National seeds Corporation Ltd. v. M. Madhusudhan Reddy : 2012(2) SCC 506: 2012 () AIR (SC) 1160: 2012(1) Scale 367 the Honourable Supreme Court has made the following observations:

“29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy or arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. V. N.K. Modi (supra), the 2-judge Bench interpreted that section and held as under:.

As regards the contention of the OP that the delay in the project was due to force majeure, it is to be noted that no evidence was led by OP in support of the said contention. that the delay was due to non-availability of the contractual labor and due to force majeure including compliance of new rules regulations, notifications by Government authority.

25.  It is to be noted, as per terms agreement possession was to be handed over within 3 years from the date of execution of this agreement; however OP failed to do so. The OP stated in its written statement that in the last quarter in 2021 possession of flat was offered but the specific date regarding the same has not been mentioned anywhere in the written statement. The Complainant stated that OP had assured that the project would be completed within 3 years from the date of booking but miserably failed to do so and misappropriated the money deposited by the Complainants. Thus when possession of property is not delivered within the stipulated period, the delay so caused is deficiency in services. As regards the contentions of OP that the complaint is not maintainable and has been filed by the Complainants for monetary benefit. It is to be noted no evidence was brought on record to show that complaints booked a flat for monetary benefit.
26. 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.”
27. We are further of the view that the cause of action being the continuing one as the amount advanced by Complainants was not refunded neither possession the plot was handed over to them, the complaint is within the period of limitation. It is also pertinent to note that complainant sent a legal notice to the OP dated 13.08.2021 but no reply to the same was given by OP. OP denied the receipt of the notice. However, Complainants have filed the postal receipts. Thus as the OP has not denied its address in the postal receipts. The presumptions of service of the same arises.
28. Thus we are of the view that there has been delay in handing over the possession of the plot to complainants. It is the case of complainants that he has waited for more than ten years for the allotment of the plot. 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. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.

29. We thus, hold that OP is guilty of deficiency in services. We accordingly direct OP M/s. Ansal Buildwell Ltd. to refund the amount Rs.28,30,000/-(Rupees Twenty Eight Lakh Thirty Thousand) to the complainant with interest @ 12% p.a. from the date of deposit till realization.
30. We also direct OP to pay a sum of Rs. 50,000/- (Rupees Fifty Thousand) as compensation towards harassment, mental agony and pain and further amount of Rs.10,000/- (Rupees Ten Thousand Only) as cost of litigation. The order be complied within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks the OP is directed to pay interest @18% p.a. for the delayed period.

A copy of the order be uploaded on the confonet website (www.confonet.nic.in)  and also supplied to all the parties/ Ld. Counsel  free of cost. File be consigned to record room.

Announced in Open Commission on 31.10.2022.

 

(Poonam Chaudhry)

President

 

 (Bariq Ahmad)                                                                              (Adarsh Nain)

 Member                                                                                                 Member