Delhi

New Delhi

CC/163/2020

COL. (RETD) D.R. Semwal - Complainant(s)

Versus

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

13 Jan 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.163/2020        

IN THE MATTER OF:

1. Col. (Retd.) D.R. Semwal,

           S/o Late Sh. Daya Ram

2. Smt. Namrata Semwal

W/o Col. (Retd.) D.R. Semwal

Both R/o H.No. 1 M/104, AWHO,

Gurjinder Vihar, Sector-CHI 1,

Pocket 5, Greater Noida, U.P.                                                                                                      ....COMPLAINANT

 

                                      VERSUS

 

M/s Ansal Hi-Tech Townships Limited,

Through its Managing Director,

Having its Regd. Office At 115, Ansal Bhawan,

Kasturba Gandhi Marg, New Delhi-110001.

Also At

56, UGF, Ansal Plaza,

Plot No. 1/C, Institutional Area,

Near Parichowk, Greater Noida,

Uttar Pradesh-201308                                                                                                 ....OPPOSITE PARTY

 

Quorum:

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad, Member

                                                                                                                                       Date of Institution:-25.11.2020                                                                                                                                                                         Date of Order   : -   13.01.2023

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under Section 34/35 of the Consumer Protection Act, 2019 (in short CP act) against Opposite Party (in short OP) alleging deficiency of service. Briefly stated the facts of the case are that the complainant no.-1 is a retired Senior Indian Army Officer and complainant no.-2 is his wife. The complainants are senior citizens.
2. It is further stated that the respondent is a company incorporated under Indian Companies Act. It is also stated that the respondent/opposite party had given wide publicity in the leading newspaper  regarding development of township in the name of “Sushant Megapolis Green High-Tech Township” adjoining Greater Noida having luxurious villas. It is also alleged that an authorized representative of the respondent company had approached the complainants and lured them to invest their money in the abovesaid project.
3. It is also alleged the complainants moved applications dated 07.02.2012 in their joint names for booking of a floor bearing Unit No. 115 FF, Pocket 2B, Sector/Complex Name Freesia Terraces of residential category for the total price of Rs. 35,06,366/- (Rupees Thirty Five Lakh Six Thousand Three Hundred Sixty Six Only) and paid an amount of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand Only) through cheque no. 213319 drawn on Syndicate Bank, Delhi Cantt., New Delhi dated 07.02.2012. Respondent company issued a receipt no. 15340 dated 08.02.2012 for the same. It is further alleged that on 08.02.2012 an agreement was executed between the parties.
4. It is also stated that complainants had booked the abovementioned floor for their residence in their old age after the retirement on the assurance that the possession will be handed over within 3 years from the date of booking.
5. It is also alleged that the OP vide its letter dated 06.11.2012 asked the complainants to pay an amount of Rs. 14,425.42/- (Rupees Fourteen Thousand Four Hundred Twenty Five and Forty Two Paisa) as an interest for delay in payment. It is also stated that there was no delay on the part of the complainants but the complainants made the payment of the abovesaid amount vide cheque no. 559826 dated 24.11.2012 and the OP issued acknowledged the said amount vide receipt no. 25150 dated 29.11.2012.
6. It is further alleged that in July 2013 and again February, 2014, September 14, August 15 the complainants visited the project site and found that no construction activities had started in Sector 2B where the complainant booked their floor and the site was totally abandoned.
7. It is alleged that the complainants had made the payment of 30% as demanded by OP. That the OP is enjoying the money of complainants since 06.06.2012. The respondents entangled the entire retirement funds of complainants in the delusive project, which is nowhere in existence till now.
8. It is also alleged that as the respondent/opposite party failed to give possession of the floor in question, it is liable to pay entire deposited amount alongwith interest @18% p.a. from 06.06.2012 with damages for causing mental agony and pain to the complainants who are responsible senior citizen of India.
9. It is also alleged that as the respondent was contractually bound to give possession of the property by the year 2015 from the date of execution of the Apartment buyer agreement. The period for completion of the project provided in the agreement has expired which is a breach of the terms and conditions of the agreement. It is further stated that time was the essence of the contract but respondent miserably failed to adhere the time schedule provided for completion of the project.
10. It is further stated that complainants had suffered huge losses as they were forced to pay rent to the tune of Rs. 40,000/- (Rupees Forty Thousand) p.m. because of failure of OP to handover the possession of the floor by OP.
11. It is also alleged OP had tried to play tricks upon the complainants by offering alternative flats in some other projects at much higher cost which the complainants neither required nor could afford.
12. It is alleged that the complainants have not filed any other complaint case in any court, tribunal or Commission except the present case before this Hon’ble Commission and the Hon’ble Commission is having the jurisdiction over the subject matter of the present case. Hence, the present complaint.
13. It is prayed that to direct the respondents/opposite party to pay the entire deposited amount of Rs. 10,84,426/- (Rupees Ten Lakh Eighty Four Thousand Four Hundred Twenty Six) along with interest of 18% p.a. from 06.06.2012 till the date which comes to Rs. 15,84,000/- (Rupees Fifteen Lakh Eighty Four Thousand)
14. OP be also directed to pay damages w,e,f, November, 2015 for rent paid by complainants for 5 years which comes to Rs. 24,00,000/- (Rupees Twenty Four Lakh).
15. Opposite party be also directed to pay damages of Rs. 2,50,000/- (Rupees Two Lakh Fifty Thousand each to the complainants for causing harassment, mental agony and pain for not handing over the timely possession of the booked independent floor which comes to Rs. 5,00,000/- (Rupees Five Lakh) and litigation expenses of Rs. 1,50,000/- (Rupees One Lakh Fifty Thousand).
16. Notice of the complaint was issued to OP, OP entered appearance and filed written statement/reply opposing the complaint on various grounds inter alia that this Commission does not have territorial jurisdiction as the property in question is situated in Greater Noida, UP. It was also stated that complainant has filed a false claim. It was further alleged that complaint is not maintainable as there exists an arbitration clause in the agreement.
17. It was also stated that the project was delayed due to force majeure which is clause 29 of the agreement according to which date of possession may get extended, as it authorizes the OP to suspend the development of project during the pendency of force majeure. It was further stated that complaint is not maintainable as complainant is not a consumer within the definition of Consumer Protection Act as they had made the investment for earning monetary benefits.
18. It was denied that there was any deficiency of service on part of OP. it is also stated that OP was ready to offer allotment of alternate plot in the same township. It is prayed that the complaint be dismissed.
19. The complainant filed rejoinder reiterating therein the averments made in the complaint and controverting all the allegations made in the written statement. Both parties thereafter filed their evidence by way of affidavit and also written submissions.
20. We have heard the Ld. Counsel for Parties and perused the evidence and material on record as well as their written arguments.
21. The fact that complainant booked a flat/floor in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the flat buyer agreement and receipt of payment Rs. 10,84,426/- (Rupees Ten Lakh Eighty Four Thousand Four Hundred Twenty Six). The receipt of the above amount has not been denied by OP.
22. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was further submitted that complainant had paid 30% of the cost of the floor/flat i.e. Rs. 10,84,426/- (Rupees Ten Lakh Eighty Four Thousand Four Hundred Twenty Six) but OP failed to deliver the property even after more than 10 years from the date of the agreement i.e. 08.02.2012. It is alleged that OP failed to hand over possession of the floor/flat even till on the filing of the complaint. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was further stated that as per the builder buyer agreement a period of 42 months was stipulated as the period for delivery of possession. 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.
23. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243byHon’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.
24. On the other hand it was submitted on behalf of the OP that the complaint was not maintainable in view of clause 30 of allotment letter which provides that any dispute between parties will be referred to arbitration. In this regard it is to be noted that it was held by Hon’ble Supreme Court in M/s Emaar MGF Land Limited Vs. Aftaab Singh (Review Petition © No. 2629-2630 of 2018 in Civil Appeal No. 23512-23513 of 2017) if a consumer dispute arises from an agreement which has an arbitration clause, the consumer forum will be appropriate forum for hearing the dispute.  The said contention of OP is thus rejected.
25. The next contention of the OP was that the delay was due to force majeure, in this regard 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 or due to force majeure.
26. It is also pertinent to note that 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 as the services of OP were deficient, the complainant was justified in claiming refund of the amount deposited by him with compensation.

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 of the flat was handed over to him, the complaint is within the period of limitation.
28. As regards the objection taken by OP that complainant is not a consumer within the meaning of Consumer Protection Act. We are of the view that no evidence was brought on record by OP to show 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.
29. Ld. Counsel for complainant has placed reliance on a decision of Hon’ble National Commission in case titled Shradha Anand and 22 others. Vs. Ansal Hi-Tech Township Ltd. decided on 22 November, 2021, relating to the same project wherein it was held as under:

The admitted facts of the case are that the complainants booked flats in the project “Megapolis” promoted and launched by the Opposite Party, for which various amounts were paid by different complainants to the OP. As per the Buyer’s Agreement executed between the complainants and the Opposite Party, a period of 42 months was stipulated as the period of execution and delivery of the flats was promised within 42 months. As this period was to be reckoned from the date of the Agreement, it was different for the individual allottees/Complainants herein. However, it was much before the date of filing of this complaint. 

“In CC no. 1951 of 2016- Bhrigu Kaushik and 14 others vs. Ansal Hi-Tech Township pertaining to a similar project in which the OP is a party, this Commission had taken the view that “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.” The facts in this case are similar and therefore, warrant similar redressal.”

30. Thus in view of the above decision of Hon’ble NCDRC, we thus, hold that OP/Ansal Hi-Tech Township Ltd. guilty of deficiency in services. We direct OP/Ansal Hi-Tech Township Ltd. to refund the amount Rs. 10,84,426/- (Rupees Ten Lakh Eighty Four Thousand Four Hundred Twenty Six) to the complainant along with interest @ 8% p.a. from the date of each deposit 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 litigation cost of Rs. 50,000/- (Fifty Thousand).

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

(Member)