Delhi

New Delhi

CC/172/2021

Deepak goyal - Complainant(s)

Versus

M/S. Ansal Housing ltd. - Opp.Party(s)

02 Aug 2022

ORDER

 

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.172/2021                               

                      In the matter of:

 

Deepak Goyal S/o Sh. R.D. Goyal

R/o B-106, Bhrigu Apartments,

Plot No.-4 Sector-9, Dwarka,

New Delhi……..COMPLAINANT

 

Versus

 

1.       M/s Ansal Housing Ltd.

               Corporate office-606, 6^th Floor, IndraPrakash,

               21, Barakhamba Road, New Delhi-110001

              Through its director/authorized signatory

2.     M/s Ansal Hi-Tech Township Ltd.

             Half Basement No.-1, 15, Sandhya Deep Building

             Community Centre, East of Kailash

              New Delhi-110001

            Through its Director/authorized signatory                                                 ….. OPPOSITE PARTY

           Quorum:

          Ms.PoonamChaudhry, President

          Shri Bariq Ahmad, Member

           

                                                                                                                              Date of institution:  07.09.2021                                                                                                                                                                             Date of Order      :02.08.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019 in short (CP Act) by complainant against opposite parties (in short OP) alleging deficiency of services.

 

2. Briefly stated the facts of the case are that the OPs are real estate builder and promoters, engaged in the business of real estate, OP no.-1 is the parent company of the OP no.-2. It is further stated that on assurances of the OPs the complainant booked an shop/office space being unit No. GF-14, ad-measuring 350 sq. ft. (approx.) in 514-SUSHANT SQUARE 3A  in Greater Noida, U.P. and paid a total amount of Rs. 15,64,504/- (Fifteen Lakh Sixty Five Thousand Five Hundred Four only). The booking was a provisional allotment, which was subject to final allotment and execution of MOU, Builder Buyer’s Agreement.
3. It is further alleged that there is no construction activities on site, only an incomplete structure is standing and complainant came to know from various public sector banks that project in question was not approved by banks and competent authorities.
4. It is also alleged in the month of September,2020 complainant sent a letter to the OP to refund money but in vain. Thereafter the complainant sent a legal notice dated 10.08.2021 to the OP-1 which has been duly served, however, OP did not reply to the same.
5. It is stated that cause of action is still subsisting and continuing as neither the amount has been refunded by the OP nor the office space, as promised was  allotted so far, hence, the complainant seeks refund of his money along with 18% interest from the day/year of payment to the OP till its actual realization.
6. It is prayed OP No. 1 and 2 be directed to refund the amount of Rs. 15,65,504/- along with an interest @ 18% p.a. to be compounded quarterly from June-2011 till actual realization along with an amount of Rs. 10,00,000/- (Ten Lakhs) as compensation towards causing mental and physical agony, harassment, pain, deficiency of services and unfair trade practices and Rs. 1,50,000/- towards the costs of this forced litigation.
7. OP-1 and 2 were served on 10.11.2021, however none appeared for OP 1 and 2 despite service as such OP No. 1 and 2 were proceeded ex-parte vide order dated 09.03.2022.
8. The Complainant filed his evidence by affidavit reiterating therein the contents of the complaint. Complainant relied upon the payment receipts of Rs. 15,65,504/- (Rupees Fifteen Lakhs Sixty Five Thousand Five Hundred Four Only) (CW 1/1, Colly) issued by OP No. 2 copy of statement of account supplied by OP CW1/2 copy of a letter sent by complainant to OP CW1/3 to pay the balance amount. The legal notice sent to the OP CW1/4 with postal receipts.
9. We have heard the counsel for the complainant and perused through the material on record as well as the written arguments filed by complainant.
10. From the unrebutted testimony of the Complainant and the documents on record, it has been proved that the Complainant had booked a shop/office space in the project of OP. It has also proved from the evidence that Complainant made Payment of Rs. 15,65,504/- (Rupees Fifteen Lakhs Sixty Five Thousand Five Hundred Four Only) to the OPs.
11. It was contended on the behalf of the complainant that OP was deficient in providing services. It was also submitted that complainant was ready to pay the balance amount as evident from Exhibit CW1/3 but OP failed to deliver the possession of shop in question even till on the filing of the complaint. It was further contended that the prolonged delay in construction and handing over possession amounts to deficiency in service. It is to be noted that the payments were made by complainant to OP from year 2011. 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.
12. It is also to be noted that it was held in the case 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.
13. After giving our careful thought to the arguments advanced by Ld. Counsel for  complainant, we are of the view that admittedly, there is inordinate delay in handing over the possession of the shop in question by OP to complainant which amounts to deficiency in service.
14. 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.
15.  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.
16. 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 is justified in claiming refund of the amount deposited by him with compensation.

17. 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 shop in question was handed over to him, the complaint is within the period of limitation. We are of the view that complainant is a consumer, as defined in the Consumer Protection Act, 2019.
18. We thus, hold that OPs 1 and 2 was guilty of deficiency in services. Ld. counsel for complainant has prayed for awarding interest @ 18% per annum in support of the said contention, he has placed reliance on a decision of Hon’ble National Commission in Consumer Case No. 1229/2015 titled Poonam Vasisht Vs. Parsavnath Developers Ltd. decided on 11.04.2022. We accordingly direct OP No.-1 and 2 to refund the amount Rs. 15,65,504/- (Rupees Fifteen Lakhs Sixty Five Thousand Five Hundred Four Only) to the complainant along with interest @ 18% p.a. from the date of deposit of amount till realization within a period of 4 weeks from the date of receipt of order. In case of delay in the payment of amount beyond 4 weeks OP-1 and 2 will be liable to pay interest @ 24% p.a. till realization.
19.  A copy of this order be 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