Delhi

New Delhi

CC/155/2020

Omkar Chadha - Complainant(s)

Versus

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

12 Jan 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.155/2020

IN THE MATTER OF:

Omkar Chadha

S/o Rajinder Krishan

R/o 1-39, Jangpura Extension,

New Delhi-110014

Phone No.: +91-9560105656

Email:

VERSUS

Ansal Housing Limited

(Formerly known as Ansal Housing & Constructions Ltd.)

Through its Directors

Having its registered office at:

606, 6th Floor, Indra Prakash 21,

Barakhamba Road, New Delhi-110001

Also at:

Ansal Plaza Mall, 2nd Floor, Sector -1,

Vaishali, Ghaziabad - 201010

Phone: +91-0120-3854000, +91-11-23317466

Email: sect@ansals.com, ahcl@ansals.com                 …OPPOSITE PARTY

Quorum:

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad, Member

Shri Shekhar Chandra, Member

                                                                                                                       Date of Institution:- 13.11.2020                                                                                                                                                                           Date of Order   :-     12.01.2023

ORDER

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under section 34 of the Consumer Protection Act, 2019 (in short CP Act) against Opposite Party (in short OP). Briefly stated the facts of the case are that on assurances of OP Complainant booked a unit in the project of the OP, believing that OP will deliver the possession of the unit on time. It is further alleged that the Complainant made  booking in the aforesaid project on 20.01.2012 and paid an amount of Rs. 5,43,996/- (Rupees Five Lakh Forty Three Thousand Nine Hundred Ninety Six Only) towards the said booking. A Flat Buyer Agreement was executed between the parties on 02.04.2012.
2. It is further alleged that till date the Complainant has paid an amount of Rs. 64,59,474/- (Rupees Sixty Four Lakh Fifty Nine Thousand  Four Hundred Seventy Four Only) against the total consideration of Rs. 65,41,210/- (Rupees Sixty-Five Lakh Forty-One Thousand Two Hundred and Ten Only) but till date neither any possession has been offered nor any intimation on possession of the apartment has been given to the Complainant. The development of the project is at snail-pace in spite of the booking made way back in 2012.
3. It is also stated that as per the clause 30 of the agreement the OP was to deliver the possession to the Complainant within a period of 36 months from the date of Agreement or within 36 months from the date of obtaining all the sanctions and approval necessary for commencement of construction, whichever was later. It is also alleged that Opposite Party never disclosed to the Complainant as to when they received the relevant sanctions but it was represented at the time of booking by the agents of the Opposite Party that they had all the required licenses/ sanctions from the concerned departments. Thus, in such a situation, the date of possession is to be calculated from the date of execution of the Flat Buyer's Agreement and OP was bound to hand over the possession by 02.04.2015. It is alleged that the OP has miserably failed to do so. It is alleged that clause 30 of the agreement provides as follows:

"30. The Developer shall offer possession of the Unit any time, within a period of 36 months from the date of execution of Agreement or within 36 months from the date of obtaining all the required sanctions and approval necessary for commencement of construction, whichever is later subject to timely payment of all the dues by Buyer and subject to force-majeure circumstances as described in clause 31. Further, there shall be a grace period of 6 months allowed to the Developer over and above the period of 36 months as above in offering the possession of the Unit."

4. It is further alleged that the Complainant had till date deposited amount of Rs. 64,59,474/- (Rupees Sixty Four Lakh Fifty Nine Thousand Four Hundred Seventy Four Only) which is more than 98% of the sale consideration of the but OP failed to give possession within the period stipulated in the agreement.  It is also alleged that the Complainant on various occasions have even contacted the Opposite Party and made enquiry about the status of the project and date of delivery but to no avail. It is also alleged deficiency of services committed by the opposite party has caused tremendous mental agony and harassment to the complainant. Thus, the Complainant is seeking compensation on account of financial as well as mental hardships borne by him because of the acts of the Opposite Party.
5. It is prayed that the Opposite Party be directed to refund the amount of Rs. 64,59,474/- (Rupees Sixty Four Lakh Fifty Nine Thousand Four Hundred Seventy Four) to complainant along with an interest @ 18% p.a. from the date of deposit till its actual realization. OP be also directed to pay compensation of Rs. 7,00,000/- (Rupees Seven Lakh) for the mental and financial harassment faced by the Complainants till date and litigation expenses of Rs.5,00,000/- (Rupees Five Lakh).
6. Notice of the complaint was issued to OP. OP entered appearance however did not filed written statement within the statutory period as such defence of OP was stuck of vide order dated 05.09.2022. Complainants filed their evidence by affidavits reiterating therein the averments made in the complaint.
7. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
8. From the unrebutted evidence of complainant, it has been proved that complainant booked a flat in the project of OP. The complainant had relied upon the flat buyer agreement dated 02.04.2012 and copies of payment receipts of  Rs. 64,59,474/- (Rupees Sixty Four Lakh Fifty Nine Thousand Four Hundred Seventy Four).
9. 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 about 98% of the cost of the unit/flat i.e. Rs. 64,59,474/- (Rupees Sixty Four Lakh Fifty Nine Thousand Four Hundred Seventy Four) but OP failed to deliver the property even after more than 10 years of the agreement. It was also argued that according to clause 30 of the Builder-Buyer Agreement, possession was to be given within 36 months from the date of agreement or 36 months from the date of obtaining sanction. But OP never disclosed when they obtained the sanctions. The OP represented at the time of booking that they had all the required sanction/licenses  from the concerned departments. Thus the date of possession is to be calculated from the date of execution of the agreement. It was also argued that the opposite party was thus under contractual obligation to construct the property within 36 months from the date of agreement but it failed to do so. 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.
10. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 by Hon’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.
11. 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.
12. 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.
13. 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.

14. 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.
15. We thus, hold that OP/Ansal Housing Ltd. was guilty of deficiency in services. We accordingly direct OP/Ansal Housing Ltd. to refund the amount Rs. 64,59,474/- (Rupees Sixty Four Lakh Fifty Nine Thousand Four Hundred Seventy Four) 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% p.a. for the delayed period. We also award Rs. 1,00,000/- (One Lakh) as compensation for mental agony and Rs. 50,000/- (Rupees Fifty Thousand) as cost of litigation

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                                                SHEKHAR CHANDRA

(Member)                                                                     ( Member)