Delhi

New Delhi

CC/293/2018

SH, RAM KUMAR - Complainant(s)

Versus

M/S. ANSAL HI-TECH TOWNSHIPS LTD. - Opp.Party(s)

16 May 2023

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002

Case No.CC-293/2018

IN THE MATTER OF:

Sh. Ram Kumar

S/o Sh. Jai Bhagwan

R/o D-45, Phase-l,

Street No. 9/11, Najafgarh, Delhi.

......Complainant

Versus

 

M/s Ansal Hi-Tech Townships Ltd.,

through its Directors/Managing Directors,

having its registered office at

115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi-110001

 

…..Opposite Party

 

Quorum:

Ms. Poonam Chaudhry, President

Mr. Bariq Ahmad, Member

Mr. Shekhar Chandra, Member

                                                          Date of Institution:27.07.2018

 Date of Order     : 16.05.2023

 

ORDER

 

SHEKHAR CHANDRA, MEMBER

1. The present complaint has been filed under section 12(A) of the Consumer  Protection  Act, 1986 (in short CP Act) against OP (in short OP) alleging deficiency of services.
2. Briefly stated facts of the case are that Plot No. 156 in Sector-10B, admeasuring 72 sq. mtrs., in Sushant Megapolis, adjoining Greater Noida, District Gautam Budh Nagar, U.P., was initially booked by one Sh. Rakesh Naithani s/o Sh. N.P. Naithani after payment of booking amount and the said Plot was allotted in his name by OP against Basic Sale Price of Rs. 16,45,600.32. Thereafter the OP, agreed to sell the said Plot to the said Sh. Rakesh Naithani and executed Plot Allottee(s) Agreement dated 06.06.2014 in this regard. The said Sh. Rakesh Naithani made payment of Rs. 1,64,556/- to the OP as per payment schedule mentioned in the said Plot Allottee(s) Agreement dated 06.06.2014. Thereafter the said Sh. Rakesh Naithani transferred its rights in the booking and allotment of the said Plot in favour of Complainant after obtaining permission from the OP and the name of the Complainant was entered/mutated in the records of the OP in respect of the said Plot. Consequently the said Plot Allottee (s) Agreement dated 06.06.2014 was endorsed by the OP in favour of the Complainant. Remaining amount was to be paid as per payment schedule mentioned in the said Plot Allottee (s) Agreement dated 06.06.2014 which was also construction linked plan.
3. It is submitted that the Complainant never delayed in payment of any of the installments to OP. Till date an amount of Rs.5,75,946.00 has been paid to OP in respect of the said Plot as per demands raised by it and there is no default or outstanding amount by the Complainant towards OP.
4. It is furthr submitted by the complainant that OP was required to handover possession of the said Plot in a fully developed condition i.e. after development of all common area and facilities e.g. STP, internal roads, sewer etc., provision of plots for Economically Weaker Sections etc. (these conditions are required to be mandatorily fulfilled at the time of grant Occupation Certificate by DTP) to the Complainant within reasonable period of time from the date of execution of the said Plot Allottee (s) Agreement dated 06.06.2014.
5. The Complainant further pleads that the OP is liable to compensate the consumer for delay and abandoning the project at the rate of 18% p.a. on the amounts paid this being the rate at which you charged interest from consumers in case of any delay in payment. The OP has miserably failed to fulfill its part of commitment in handing over possession the subject Plot in fully developed condition to the Complainant and have rather abandoned the project. It is further submitted that even after receipt of entire payment as per demands raised by OP it has not taken any steps for development of project in question. When the Complainant asked the OP to provide the timelines for handing over physical possession of the said Plot but the OP failed to provide any concrete timelines. Even after lapse of more than 47 months from the date of execution of Plot Allottee (s) Agreement dated 06.06.2014 the OP has no clue about the time when possession of the said Plot in fully developed condition will be delivered to the Complainant and it appears that the OP has abandoned the present project. The OP has failed to fulfill the contract of handing over physical possession of the subject Plot alongwith other mandatory common facilities within the stipulated period as agreed in Builder Buyer's Agreement and the contract between OP and the Complainant has frustrated.
6. Thus, it  is submitted by the complainant that it is evident that the OP has adopted unfair trade practices and deficiency in services qua the Complainant for which OP is liable. As OP has failed to comply and execute the terms and conditions of the said contract and has failed to deliver physical possession of the said Plot to the Complainant; has rather abandoned the project in question. Consequently as per provisions of Real Estate Regulatory Act (RERA) and various pronouncements of Hon'ble Supreme Court of India and National Consumer Disputes Redressal Commission the Complainant is entitled for refund of the entire amount deposited by him alongwith interest @18% p.a. from date of deposit of the said amount with the OP till its receipt.  As the OP failed to deliver plots and stalled the said project causing mental and physical harassment and the financial damages to the Complainant, the complainant sent a Legal Notice dated 06.01.2018 to the OP demanding it to refund the amount already deposited by the Complainants with interest. However the OP despite service of the said Legal Notice failed to comply with the said Legal Notice.
7. When Complainants asked the OP to provide the timelines for handing over physical possession of the said plot it failed to provide any concrete timelines. Even after lapse of more than 47 months from the date of execution of Plot Allottee Agreement the OP has no clue about the time when possession of the said Plot in fully developed condition will be delivered to the Complainant. The Complainant cannot wait endlessly for delivery of the said Plot. OP has failed to fulfill the contract of handing over physical possession of the subject Plot alongwith other mandatory common facilities within the stipulated period as agreed in Builder Buyer's Agreement and the contract between OP and the Complainant has frustrated.
8. The complainant further alleges that from acts, commissions and omissions, of the OP it has been revealed that with malafide intention of not completing the project from very beginning, the OP has swallowed huge money collected from public at large. Hence, the OP has committed offences of cheating and fraud. The OP also committed unfair trade practices and deficiency in services. OP is liable for paying damages and losses to the Complainant for breach of contract and for causing great hardship and mental harassment to the Complainants, as per terms of the said Buyer's Agreement.
9. It is crystal clear from the above conduct of OP that the approach adopted by OP is unfair and unjustifiable with malafide intention. The conduct of OP also comes within the definition of "deficiency in service" and "Unfair Trade Practice" as defined under CP Act. The OP did not respond to the legal notice sent by the Complainant.
10. It is further submitted that due to its unfair and unethical business practices, the OP has caused lot of mental tension and harassment to the Complainants. The OP has forced the Complainants to initiate the present legal proceedings which could have been easily avoided had the OP adopted a fair and ethical business approach. The OP therefore is liable to compensate the Complainants for such mental tension/harassment and also for the expenses incurred by the complainants in the present litigation.
11. It is also submitted that the Complainants are "Consumer" as defined under section 2 (D) of the CP Act and are entitled to invoke the jurisdiction of this Commission. The complainant states that this Commission is having the requisite jurisdiction to entertain and adjudicate upon the present complaint as the office of OP is situated within the territorial jurisdiction of this Commission. It is also submitted that the present complaint is being filed within the period of limitation. The cause of action for filing the present complaint arose when the OP has failed to complete the project in question and has abandoned the said project. It further arose on 01.12.2017 when the Complainant came to know that the OP has abandoned the said project. It further arose on 01.05.2017 when the Complainant sent Legal Notice to the OP to refund the amount with interest which has been already deposited by the Complainants to the OP but the OP even not replied to the said Legal Notice. The cause of action is still subsisting and continuing.
12. Thus the present complaint with the prayers that a direction be issued to the OP to refund the amount already deposited i.e. Rs. 5,75,946.00 alongwith interest @18% p.a. from date of deposit alongwith further interest @18% p.a. from 01.07.2018 till actual realization. He has also prayed to award  compensation of Rs. 2,00,000/-  for causing mental agony with cost of present proceedings.
13. Notice on this complaint was issued to the OP for 30^th October, 2018. None appeared for the OP despite of service. It was ordered that the OP may file its written statement within the statutory period and the matter was listed for rejoinder and evidene for 15^th April, 2019. On 15^th April, 2019, OP did not appear and proceeded exparte. The said order of 15^th April, 2019 is reproduced below:
14.  

Present: Counsel for the complainant Shri Ashutosh

None for OP. Await till 2:00 PM

2.10 PM

Present: None for the OP despite service and repeated calls. OP is ordered to be proceeded with exparte. Come up for exparte evidence on 20/09/19.”        

 

After adducing evidence by the complainant, the matter was finally heard.

 

14. Thus, from the record, it is quite clear that there is no rebuttal to the allegations or submissions made by the complainant. We have perused the record and gone through the evidence and documents placed on record. Counsel for the opposite party has also been heard orally. The complainant has paid a sum of Rs. 5,75,966. A detail statement of payment has been given by the complainant in his complaint at pages 4 and 5. The complainant has been very sincere and prompt in meeting with the demands for payment raised by the OP from time to time and there is no default or outstanding amount as shown by the complainant. The agreement between the parties was executed on 6^th June, 2014 and it was expected from the OP to handover the possession of the said plot in a fully developed condition to the complainant within reasonable period of time from the date of execution of the said agreement. Inspite of service of legal notice and thereafter a notice from this Commission on the present complaint, the OP has not bothered to respond. This conduct of the OP shows that OP is not interested in honouring the agreeement and is enriching by keeping hard-earned money of the complainant. This Commission is, therefore, of the view that the OP has committed unfair practices and there is deficiency in services.
15. 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 3^rd 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.”

 

16. 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^th April, 2022- paragraph -15) has hld 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”.

17. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors. (2018) 5 SCC 442, the Hon’ble Apex Court has held that a 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, terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation. 
18. Lastly, the Hon’ble Supreme Court in ‘Lucknow Development Authority v. M.K. Gupta’  (1994) 1 SCC 243 wherein their Lordships have held 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. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.
19. In view of the facts of the case and the law laid down by the Hon’ble Apex Court as cited above, this Commission directs the OP to refund the amount of Rs.  5,75,946/- deposited by the complainant with the OP with interest @ 9% per annum from the date of deposit till realisation, within six weeks from the date of receipt of this order. The OP shall also pay a sum of Rs. 1,50,000/- as compensation to the complainant for causing mental agony and harassment. A sum of Rs. 25,000/- is awarded towards litigation expenses in favour of the complainant. In case the OP does not pay the amount as stipulated above, the complainant shall be entitled to interest at the enhanced rate of 15% per annum from the date of deposit till realisation.

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

 

 

[Bariq Ahmad]                                                                                                            [Shekhar Chandra]

    Member                                                                                                                         Member