Delhi

New Delhi

CC/113/2021

Ranjan Mazumdar - Complainant(s)

Versus

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

28 Oct 2022

ORDER

 

 

   DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.113/2021            

IN THE MATTER OF:

Ranjan Mazumdar

S/o. Shri Rabindra Nath Mazumdar

R/o, C/o. Xtreme Defence Security,

Inc P.O Box No. 261098, BM 01,

FZS1, Jebel Ali Free Zone, Dubai, UAE

Through GPA Holder.

Ajay Mittal                                                                    

          Also at:

          308, Shivsagar Industrial Estate,

          Goregaon East, Mumbai-400063                           … Complainant

 

VERSUS

 

M/s Ansal Hi-Tech Township Limited

Through its Managing Director,

Having its office presently at;

115, Ansal Bhawan, 16.K.G Marg,

New Delhi-110001....Opposite Party

 

 

Quorum:

 

Ms.PoonamChaudhry, President

Shri Bariq Ahmad, Member

Ms. Adarsh Nain, Member

 

                                                                                                                             Date Of Institution:-08.07.2021                                                                                                                                                                         Date of Order   : -    28.10.2022

ORDER

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 34 of the Consumer Protection Act, 2019 (in brief referred as CP Act) alleging deficiency of service by opposite party (in short OP).
2. The facts of the case in brief are that complainant is a consumer as defined in the Consumer Protection Act. It is alleged that the complainant has authorized Ajat Mittal vide duly registered power of attorney to file and pursue the complaint. It is also alleged that on the assurances of OP complainant booked an apartment in the project of OP Fairway Apartments Greater Noida, UP. The complainant was allotted a flat/apartment No. 1049 having super area of 135.55 sq. Mtr (1459.06 sq. ft.) located in tower no. H on the 10^th Floor, in above project, namely  Fairway Apartments-1 forming part of Megapolis Greater Noida in UP. A Builder Buyer agreement was executed between the parties on 11.06.2009 in respect of  the said flat. Clause No. 4.1.a of the agreement provided that Developer/Ansal Hi-Tech proposed to hand over the possession of the apartment within 42 months from the date of the agreement. It is alleged that the building is still not ready despite the fact that possession was to be handed over on 31.03.2013.
3. It is further alleged the complainant has made the payment of Rs. 22,85,725/- (Rupees Twenty Two Lakh Eight Five Thousand Seven Hundred Twenty Five) to OP till date as evident from the receipts Annexure B. The complainant requested OP repeatedly for delivery of possession but no response was given by OP. The complaint thus served legal notice dated   06.06.2018 upon OP. It is also alleged that as per Cl 4.5 of the agreement in case of default, the OP is liable to refund the amount with simple interest @ 10% p.a. and compensation @ Rs. 15/- per sq. Ft.  of the super area for every six months or its fraction for period of the delay beyond 42 months.
4. It is prayed that OP be directed to refund a sum of Rs. 22,85,725/- (Rupees Twenty Two Lakh Eighty Five Thousand Seven Hundred Twenty Five) with simple interest @ 18% p.a. alongwith pendent lite and future interest at the same rate or rate at which this Commission deems fit.
5. Notice of the complaint was issued to OP who entered appearance but did not file written statement. The defence of OP was stuck off vide order dated 06.05.2022.
6. Complainant filed his evidence by affidavit.
7. We have heard Ld. counsel for parties and perused the record.
8. It was submitted on behalf of complainant that complainant had paid an amount of Rs. 22,85,725/- (Rupees Twenty Two Lakh Eighty Five Thousand Seven Hundred Twenty Five) to OP for which OP issued receipts (Annexure B Colly). It was also contented that as per agreement dated 11.06.2009 (Annexure A) executed between the parties the total sale price of the unit was Rs. 26,35,650 /- (Rupees Twenty Six Lakh Thirty Five Thousand Six Hundred Fifty) against which the complainant paid Rs. 22,85,725/- (Rupees Twenty Two Lakh Eighty Five Thousand Seven Hundred Twenty Five). It was also submitted that copy of ledger of OP acknowledging payments Annexure C.
9. It remains unrebutted that possession of the flat has not been given by OP despite payments made by complainant during period 2009 to 2017. The fact that complainant booked a flat in the project of OP is proved from the evidence of complainant and material on record. The complainant has relied upon the agreement and receipt of payment of Rs. 22,85,725/- (Rupees Twenty Two Lakh Eighty Five Thousand Seven Hundred Twenty Five) and copy of ledger annexure C, acknowledging payments by OP.
10. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid 90% of the cost of the flat i.e. Rs. 22,85,725/- (Rupees Twenty Two Lakh Eighty Five Thousand Seven Hundred Twenty Five) to the OP but OP failed to hand over the property even after lapse of 12 years from the date of payment. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was also argued that the opposite party was under contractual obligation to hand over possession of the property within 42 months as per clause 4.1.a of the agreement but it failed to do so. As regard deficiency in services, Hon;ble Supreme Court has heldin ArifurRahman 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.
11. It was also held by Hon’ble Supreme Court in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 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.
12. After giving our careful thought to the arguments advanced by Ld. Counsels for  parties, we are of the view that admittedly, there is inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
13. It is to be noted Section 2 (47) of the Consumer Protection Act, 2019, 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.
14. 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 as the services of OP were deficient, the complainant was justified in claiming refund of the amount deposited by him with compensation.

15. We are further of the view that the cause of action being the continuing one as the amount advanced by complainant was not refunded neither possession of the flat was handed over to him, the complaint is within the period of limitation.
16.  In view of the unrebutted testimony of the complaint we hold OP guilty of deficiency in services. We accordingly direct OP/M/s Ansal Hi-Tech Township Limited to refund the amount Rs. 22,85,725/- (Rupees Twenty Two Lakh Eighty Five Thousand Seven Hundred Twenty Five) to the complainant along with interest @ 9% p.a. from the date of 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% for the delayed period. We also award Rs. 25,000/- (Rupees Twenty Five Thousand) as compensation and Rs. 10,000/- (Ten Thousand Only) as cost on litigation.

A Copy of this order be sent to both parties free of cost by post.

Orders be also sent to www.confonet.nic.in and Pronounced in open Forum on 28.10.2022. 

 File be consigned to record room.  

 

 

(POONAM CHAUDHRY)

President

 

        (BARIQ AHMAD)                                                                         (ADARSH NAIN) 

            MEMBER                                                                                            MEMBER