Delhi

New Delhi

CC/141/2021

Bina Rani - Complainant(s)

Versus

M/S. Ansal Hi-Tech Township Ltd. - Opp.Party(s)

13 Mar 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI (NEW DELHI), 'M' BLOCK, ITFLOOR, VIKAS BHAWAN, L.P.ESTATE, NEW DELHI-110002.

 

Case No.CC-141/2021

 

IN THE MATTER OF:

 

Bina Rani

W/o Sh. Pradeep Kumar,

R/o A-73, Saraswati Vihar, Delhi - 110034.

 

...Complainant

VERSUS

 

M/s Ansal Hi-Tech Township Ltd.

(Ansal API)

Through its Director/Principal Officer,

115, Ansal Bhawan,

16, Kasturba Gandhi Marg, New Delhi - 110001.

 

Also at:

56, UGF, Asnal Plaza,

1/C, Institutional Area,

Near Pari Chowk,

 Greater Noida, UP-201308.

... Respondent

 

Quorum:

Ms. Poonam Chaudhry, President

Shri Shekhar Chandra, Member

Date of Institution : 09.08.2021

Date of Order : 13.03.2023

 

ORDER

 

SHEKHAR CHANDRA, MEMBER

 

The present complaint has been filed under section 35 of the Consumer Protection Act, 1986. Briefly stated the facts of the case are as under:

1. As per the narration of the Complainant, in and around in the year 2010-11, the Opposite Party had launched one housing project in the name and style of "Sushant Megapolis Aasra and Bharosa", at Sushant Megapolis, Adjacent Greater Noida, UP. At the launch of said project, the Opposite Party had made tall claims. It was further represented that the said housing scheme has been further approved by the Bulandshahr Development Authority, for development of Hi-tech township, under Hi-Tech township policy.
2. In the year 2011, the Opposite Party through their representative/executive had approached the complainant and had represented that the above said project is of high standard and also assured for timely completion of the project. Besides, other assurances given by the Opposite Party and their executive further boasted about the Opposite Party that the Opposite Party has won astounding accolades & appreciation because of astute decision making, tremendous commitment to set higher standards in all its venture and an impeccable foresight of their group. The executive of the Opposite Party further just to allure complainant boasted that the company had won the number of awards. The Opposite Party's representative had further represented that the project will be completed and the possession of the flat shall be handed over to complainant within a period of 36 months from the date of booking of the flat.
3. Since the complainant was in the need of one residential accommodation for herself and her family, and as such, acting upon the Opposite Party's assurances and promises made to the complainant through its executive, the complainant booked one LIG flat with Opposite Party, at its New Delhi office, under the above said housing schemes, vide application dated 15.07.2011 and as per the demand of the Opposite Party, paid a sum of Rs.50,000/- through DD dated 14.07.2011 payable at New Delhi, as booking amount. The total cost of the flat was Rs.10,30,000/-.
4. That the Opposite Party, allotted one LIG Flat No. L0101F, Bharosa, A-2, Sushant Megapolis, Dadri, in favour of the complainant, vide allotment letter/agreement dated 19.07.2011.
5. That thereafter, as per the demand made by the Opposite Party, the complainant made further payments i.e. Rs.98,000/- on 20.09.2011, Rs.49,000/- on 14.10.2011, Rs.23,000/- on 15.11.2011 and Rs.78,680/- on 10.10.2014 and as such had paid a sum of Rs.2,98,680/-.
6. It is submitted by the Complainant that the two sons of complainant namely Sh. Paarth Parashar R/o A-73, Saraswati Vihar, Delhi – 110034 and Sh. Deepak Sharma, Delhi, had also applied and booked one LG Flat each, with the Opposite Party under the above said housing scheme of the Opposite Party.
7. On 28th January, 2012, the Opposite Party had allotted one LIG Flat No. L2301T, Bharosa, A-2, Sushant Megapolis, Dadri, in favour of one of the sons of the complainant namely Mr. Paarth Parashar. It is further relevant to mention herein that the above said son of complainant had deposited a total sum of Rs.1,75,000/- with the Opposite Party towards said flat, as per the demands raised by the Opposite Party.
8. On 28th January, 2012, the Opposite Party had also allotted one LIG Flat No, L2401T, Bharosa, A-2, Sushant Megaplis, Dadri in favour of other son of the complainant namely Sh. Deepak Sharma, who had deposited a sum of Rs.1,75,000/- with the Opposite Party towards the said flat allotted to him, as per the demands raised by the Opposite Party.
9. The Opposite Party was not in a position to handover the possession of flats within the promised period of three years, therefore both the above said sons of complainant namely Sh. Paarth Parashar and Sh. Deepak Sharma, had surrendered their above said flats allotted to them as mentioned above and the said flats allotted to them, were cancelled against their names. Further, as per communication dated 24th June, 2015 made by complainant and her both the sons, the total amount of Rs.3,50,000/- (Rs. 1,75,000/- each), paid by both the sons of complainant, namely Sh. Paarth Parashar and Sh. Deepak Sharma was adjusted by the Opposite Party towards the payments of the LIG Flat allotted to complainant, i.e. LIG Flat no. L0101F, Bharosa, A-2, Sushant Megapolis, Dadri.
10. Thus, as such the complainant had paid a total sum of Rs.6,48,680/- towards her LIG Flat no. L0101F, Bharosa, A-2, Sushant Megapolis, Dadri, which comes to more than 60% of the total cost.
11. The Complainant further submits that as per the representation and the clause mentioned in the allotment letter cum agreement, the flat was to be handed over to the allottee within 36 months from the date of booking of flat. However, the Opposite Party failed to handover the possession of the flat to complainant. The complainant had been regularly corresponding with the Opposite Party with regard to construction and development of the flats and asking the time when the possession of the flat was/is to be handed over to complainant.
12. The Complainant had no option, therefore, on 2^nd February, 2017 requested the Opposite Party to refund the amount, deposited. The complainant also deposited the original receipts of payments with the Opposite Party to facilitate quick refund of money.
13. However, the Opposite Party did not refund the above said amount to complainant. On the contra, the Opposite Party, vide mail dated 23.08.2017 asked the complainant to collect the original payment receipts deposited by complainant with the Opposite Party. Thereafter, the complainant had also visited the offices of the Opposite Party at Delhi as well as Greater Noida, several times, however, the Opposite Party neither handed over the original payment receipts, nor refunded the amount. Instead the Opposite Party always assured the complainant that the possession of the flat shall be handed over to the complainant soon. However, the said assurances of the Opposite Party proved to be false, in as much as the Opposite Party failed to hand over the possession of the flat to the complainant. The Complainant submits that all the original payment receipts are in possession and custody of the Opposite Party.
14. The Complainant urges that the conduct of Opposite Party clearly shows that the Opposite Party is not in a position to hand over the possession of flat to complainant as promised by it. Further, as per the clauses mentioned in the booklet/brochure and allotment agreement, if the Opposite Party fails to hand over the possession of the flat to the complainant, the Opposite Party is liable to refund to complainant the whole payment deposited by complainant with the Opposite Party, without any deduction.
15. The complainant had sent to the Opposite Party, several communications, including the communications dated 02.02.2017, 15.06.2017, 21.06.2017, 14.06.2020, 19.06.2020, 12.08.2020, 01.03.2021, not only this complainant had several times visited the offices of the Opposite Party at Delhi and at Greater Noida and requested the Opposite Party to either refund the amount of Rs.6,48,680/- to the complainant or to handover the possession of flat to complainant, however, the Opposite Party, neither handed over the possession of flat to the complainant nor refunded the amount of Rs.6,48,680/- to the complainant. 
16. The Complainant states that neither any demand for money was raised nor the flat was cancelled by the Opposite Party till date. The Complainant further states that the Opposite Party has not only breached the terms of the contract and backed out from its representations and assurances but has cheated complainant by fraudulently inducing complainant to part with her money. In fact, the Opposite Party had adopted the modus operandi to induce the people like complainant to part with her money by making false representations and assurances thereby created great inconvenience, hardship and mental agony to the Complainant.
17. Left with no option, the Complainant got issued a legal notice dated 24.06.2021, thereby requiring the Opposite Party to make the payment of aforesaid amount of Rs.6,48,680/- to the complainant with interest @ 18% p.a., along with compensation to the tune of Rs.5,00,000/-.  However, despite receipt of the notice, the Opposite Party neither complied nor replied to the said notice dated 24.06.2021.
18. Thus the present Complaint with the prayers that a direction be issued to the Opposite Party refund a sum of Rs.6,48,680/- deposited by the complainant with the Opposite Party with a further direction to pay to complainant a sum of Rs.4,57,320/- as interest amount for the period w.e.f. 01.09.2017 to 31.07.2021 with pendentlite and future interest @ 18% till its realization. The Complainant has also prayed for a direction to the Opposite Party to pay to the complainant a sum of Rs.5,00,000/- as compensation for the mental torture and harassment suffered by the complainant.
19. Notice of this Complaint was issued to the Opposite Party on 20^th  September, 2021. The Opposite Party was served on 4^th January, 2022. Since the written statement was not filed within the statutory period, the defence of the Opposite Party was struck off on 24^th May, 2022. Evidence has been filed by the Complainant with supporting documents.
20. We have heard the parties and gone through the records of the case. The learned counsel for the Complainant submits that in an identical matter relating to the same project to which the present case in hand relates, the Hon'ble National Commission, on 22^nd  October, 2020 in Consumer Case No. 1952 of 2016 titled 'Bhrigu Kaushik & 14 Ors. Vs. M/s Ansal Hi-Tech Township Ltd., has held in favour of the consumer. The relevant portion of the said judgment are reproduced below:-

"For the reasons stated herein above, I hold that the allottees of residential plot in the project namely Sushant Megapolis' cannot be made to wait indefinitely for the possession of the plots allotted to them and they are entitled to refund of the amount which they paid to the OP alongwith appropriate compensation etc."

21. While disposing of the consumer complaints, the Hon'ble National Commission directed to the following effect:-

"The complaint is disposed of with the following directions:

1.  The order passed in this complaint is limited to such allottees of residential plots in the project namely "Sushant Megaplis who do not want to wait anymore for possession of the residential plots allotted to them by the OP and want refund of the amount paid by them to the OP alongwith appropriate compensation etc.
2.  The OP shall refund the entire principal amount received from the allottees referred in direction (i) above to the concerned allottees alongwith compensation in the form of simple interest @8% per annum from the date of such payment till the date of refund. The OP shall pay a sum of Rs. 50,000/- as cost of Litigation to the complainants collectively.
3. The payment in terms of this order shall be made within three months from today

22. The law laid down by the Hon'ble Supreme Court of India in Devasis Rudra has further been followed by the Hon'ble National Commission in Sunny Ahuja Vs. Raheja Developers Ltd.' decided on 3rd January, 2022 in (CC No. 180/2020). The relevant portion of the judgment of the Hon'ble Supreme Court is reproduced below:-

"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 29.3.2016. This was nearly seven years after the extended date for handing over of possession prescribed by the agreement. A buyer can only be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable.

There is no completion certificate. Therefore, the delay is inordinate and the consumer cannot be expected to wait indefinitely.

The present complainant cannot be denied the relief of refund and compensation in the light of the settled position."

23. Further, in another leading judgment the Hon'ble Supreme Court of India in Experion Developers Pvt. Ltd. VS. Sushma Ashok Shiroor, 2022 LIVE LAW (SC) 352 (C.A.6044 OF 2029 decided on 7 April, 2022- paragraph -15) has held as under:-

"We may hasten to clarify that the power to direct refund the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts. Under Section 14 of the Consumer Protection Act, if the Commission is satisfied....that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to return to the complainant the price or as the case may be, the charges paid by the complainant. 'Deficiency is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service.

A consumer invoking the jurisdiction of the Commission can seek such relief as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. A consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without an alternative prayer, the commission will recognize such a right and grant it.”

24. In view of the law laid down as above, this Commission directs the Opposite Party to refund the amount of Rs. 6,48,680/- deposited by the Complainant with the Opposite Party as far back as in the 2011 with interest @ 9% per annum from the date of deposit till realization. The Complainant shall be entitled to a compensation of Rs. 75,000/- and further litigation expenses of Rs.50,000/-. The above directions be complied with by the Opposite Party within six weeks failing which the Complainant shall be entitled to interest at the enhanced rate of 12% per annum.

 

A copy of order be sent to all the parties free of cost. The order be also uploaded in the website of the Commission (www.confonet.nic.in).

 

File be consigned to the record room along with a copy of the order.

 

 

 

 

(Poonam Chaudhry)

President

 

 

(Shekhar Chandra)

Member