Delhi

New Delhi

CC/176/2020

Danvir Singh - Complainant(s)

Versus

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

26 Apr 2023

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.176/2020

IN THE MATTER OF:

 

SH. DANVIR SINGH

S/O MR. UDAY SINGH

R/O E-240, STREET NO.7

EAST VINOD NAGAR,

NEW DELHI-110091                                                   ....COMPLAINANT

 

                                      VERSUS

 

ANSAL HI-TECH TOWNSHIP LIMITED.

CIN:U45200DL2006PLC155229

THROUGH ITS MANAGING DIRECTOR

HAVING ITS REGISTERED OFFICE AT:-

115, ANSAL BHAWAN, 16, K.G. MARG,

NEW DELHI-110001                                                ....OPPOSITE PARTY

 

Quorum:

 

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

Sh. Shekhar Chandra, Member

 

                                                                                                                        Date of Institution:- 10.12.2020                                                                                                                                                                            Date of Order   : -   26.04.2023.

  

  

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

1. The present complainant has been filed under Section 35 (1) of Consumer Protection Act 2019, (in short CP Act) against the Opposite Party (in short OP) alleging deficiency of services.   
2. Briefly stated the facts of the case that the complainant is an allottee of a residential apartment in the group housing complex of the OP namely "FAIRWAY APARTMENTS-I" Hi-Tech Township 'MEGAPOLIS at Greater Noida. The apartment was booked for residential purpose as such the complainant falls within definition of 'Consumer and within the scope of the Consumer Protection Act, 2019.
3. It is further stated the possession of the said plot was to be handed over by 11.02.2014. However, the opposite party miserably failed to complete the project and deliver the possession of the apartment within the promised time period and till date no offer of possession of the apartment has been made to the complainant.
4. It is also alleged that OP/Ansal Hi-Tech Township Limited is the builder/developer and is a company duly incorporated and registered under the provisions of the Companies Act, 1956 having its registered office at 115 Ansal Bhawan, 16, K.G. Marg, New Delhi-110001. The Opposite Party is engaged in the business of housing construction.
5. It is alleged that the Housing & Urban Planning Department, Government of Uttar Pradesh keeping in view the mandates of the National and State Housing Policies, announced a Hi-Tech Township Policy issued and subsequently issued relevant Govt. Orders and Policy circulars to be known as "Hi-Tech Township Policy" to promote and facilitate private sector participation in the development of Hi-Tech Townships with world class infrastructure and for which it invited proposals for development of Hi- Tech Township in the State of U.P. accordingly, the High Power Committee constituted by the Government of Uttar Pradesh selected M/s Uttam Steel & Associates (Consortium/Developer company) for development of Hi-Tech Township at Greater Noida. Developer company was developing Hi-Tech Township in the name of "MEGAPOLIS.
6. The Consortium members formed a SPV with the name of and title of Ansal Hi-Tech Townships Limited (Developer/SPV) and conferred upon the Developer/SPV the powers of its execution, marketing and sale in strict compliances with the Hi-Tech Township Policy of the Govt. of UP clause 5(iii) of Hi-Tech Township Policy 2007 issued vide G.O. No. 3872/ 8-1-07-34 Misc/03 dated 17.09.2007 and under such arrangement the project is being executed, marketed and sold by the said Developer/SPV.

 

7.  A MOU was executed between the Bulandshahar Development Authority (the Nodal Agency) and the said Consortium/Developer company for development of Hi-Tech Township in Gautam Budh Nagar (Dadri) on 13.12.2006. OP promoted the said project with extensive and aggressive print and electronic media advertisements and through various agents and sale representatives.

 

8.  The complainant was looking for a residential apartment in the Delhi NCR, the representatives of the OP approached her and informed of its, its brand value, its vast experience.
9.  The complainant was impressed with the highlights of the project and inquired about the approvals and sanctions from competent authorities for the project. The representatives assured the complainant that the OP had obtained all the other requisite sanctions and approvals from the competent authorities for starting constructions at the project site and that the Building Plans have also been approved by the competent authorities and the construction at the project site shall start soon and the possession will be delivered within next 3 years.
10.  On 11.08.2010, the complainant made an application for allotment of a residential apartment in "FAIRWAY APARTMENTS - I" at MEGAPOLIS Hi- Tech Township of the OP. The complainant also paid a sum of Rs. 95,000/- via cheque no. 196553 dated 11.08.2010 drawn on Oriental Bank of Commerce towards advance charges for booking.
11.  That the complainant opted for construction linked /Installment plan for payment of total consideration under which the under which the OP was supposed to demand installments on start of a particular construction stage. The payment plan opted by the complainant was confirmed by the OP.

 

12.  As per the Clause 4.1.a of the Allottee (s) Arrangement, the possession of the apartment was to be delivered within 42 months from the date of signing of the Apartment Allottee(s) Arrangement. The OP was also entitled to a grace period of 90 days after expiry of 42 months for applying and obtaining Occupation Certificate and completing other formalities.
13.  However OP miserably failed to complete the apartment and deliver possession to the complainant within the promised time period of 11.02.2014. The OP also failed to apprise the complainant about the progress at the site. From date of booking till Dec 2015, the complainant paid a total sum of Rs. 19,46,700.16/- (Rupees Nineteen Lakhs Forty Six Thousand Seven Hundred and Sixteen Paise only) for the apartment to the OP.
14.  It was stated that as the project is not completed even after 12 years from date of launch, the complainant did not wish to proceed with the allotment and endlessly for the possession of the apartment and wanted refund of the entire amount paid to the OP.
15. It was alleged the terms of the contract were one sided. The arbitrariness and unfairness of the agreement can be seen from the Clauses 1.14. On that, in case of delay in payment, the OP was entitled to cancel the allotment or charge interest @18% p.a. on delayed payment. On the other hand in case of delay in offering possession, the complainant was not entitled for any compensation.

 

16.  It was also alleged the cause of action to file the present complaint first arose when OP failed to offer the possession of the apartment by the scheduled time of 11.02.2014. The cause of action further arose on all such dates when the complainant contacted OP for refund of money. The cause of action is continuing as the OP has failed to offer legal physical possession of the unit complete in all aspects or in the alternative to refund the money to the complainant.  
17. It is prayed that OP be directed to refund Rs.19,46,700.16/- (Rupees Nineteen Lakhs Forty Six Thousand Seven Hundred and Sixteen Paise only) along with interest @ 18% p.a. from the respective date of payment till realization and also pay a sum of Rs.5,00,000/- (Rupees Five Lakhs only) towards compensation for mental agony and harassment and Rs.1,00,000/- (Rupees One Lakh only) as litigation expenses. Opposite party be also directed to pay to the complainant a sum of Rs.5,00,000/- (Rs. Five Lakhs only) as compensation for loss of opportunity and time.
18. Notice of the complaint was issued to OP, OP entered appearance and filed written statement taking preliminary objections that this Commission  did not have jurisdiction to entertain this complaint as subject-matter of transaction pertains to a Plot lies in Greater Noida, Uttar Pradesh under the jurisdiction of Ld. Bullandshahar Development Authority (BDA), as such the dispute is beyond the territorial jurisdiction of this Commission. It was also alleged that there is a covenant in Application or Allotment Letter, according to which  "Any Dispute or legal proceeding arising out of this transaction shall be subject to jurisdiction of the Courts where property under subject to sale is situated."
19. It was alleged that the complaint is not maintainable in view of Clause 33 of the Application of Allotment Letter. It was also alleged that complaint is also not maintainable being premature and contrary to terms of the Arrangement. The complainants have failed to understand and comprehend that in the event of a force majeure as defined in Clause 25 of the Arrangement, the date of possession may get extended and shall not be deemed to be deficiency on part of OP. Force majeure has been described in Clause 25 as non availability of labour, slow down, civil commotion or any other reason beyond reasonable control or anticipation of the OP. It was also alleged that OP was not deficient in providing services. It was also alleged that complainant is not entitled to seek refund and OP is ready to offer alternate plot in the same township. It was prayed that complaint be dismissed.
20. 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 affidavits and written submissions.
21. We have heard the Ld. Counsel for Parties and perused the evidence and material on record as well as their written arguments.
22. The fact that complainant booked an apartment in the project of OP is an admitted case as evident from the evidence led by parties. The complainant has relied upon the Allotment arrangement dated 11.08.2010, the copy of statement of account issued by OP acknowledging the payment.
23. 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 Rs.19,46,700.16/- (Rupees Nineteen Lakh Forty Six Thousand Seven Hundred and Sixteen Paisa) but OP failed to deliver the property within the stipulated time as agreed in the allotment agreement dated 11.08.2010. It was further contended that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was further stated that as per the allottees arrangement, possession was to delivered within 42 months from the date of execution of allottee arrangement. As regards 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 flat to purchaser within the contractually stipulated time frame, amounts to deficiency.
24. 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.
25. On the other hand it was submitted on behalf of the OP that the complaint was not maintainable in view of clause 33 of the 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 (c) 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.
26. 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.
27. 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.

28. 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.
29. 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.
30. 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.19,46,700.16/- (Rupees Nineteen Lakh Forty Six Thousand Seven Hundred and Sixteen Paisa) 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, failing which OP will be liable 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                                                                                                                                      Shekhar Chandra

  (Member)                                                                                                                                                 (Member)