Delhi

New Delhi

CC/891/2014

Shashi Garg - Complainant(s)

Versus

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

27 Feb 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-891/2014

IN THE MATTER OF:

Smt. Shashi Garg

W/o Shri S. K. Garg,

R/o H. No.244, Khaddarwala,

Satyaprui, Opp. ‘Deep Furniture’,

Muzaffar Nagar, U.P.                                                       ...Complainant

VERSUS

 

Ansal Housing & Construction Ltd.

(An ISO 9001:2008 Company)

Registered & Head Office :

15, UGF, ‘Indra Praksh’,

21-Barakhamba Road,

New Delhi – 110001.                                                            ...Respondent

 

Quorum:

Ms. Poonam Chaudhry, President

Shri. Shekhar Chandra, Member

                                                                Date of Institution: 28.11.2014

Date of Order      : 27.02.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 (in short CP Act) against Opposite party (in short OP) alleging deficiency of services.
2. Briefly stated the facts of the case are that the respondent, Ansal Housing & Construction Company Ltd. company launched a scheme to construct the township namely Ansal Town at Bhopa Road, Muzaffar Nagar, U.P. in the year 2010. It is alleged the respondent invited the people for purchasing the plots in above township. That the complainant being convinced by the assurances of representatives of OP entered into an agreement with the respondent on 03.08.2010. That vide agreement above, the respondent allotted a plot unit no. 1043 with the area 204.52 sq. yd. @ Rs.3400/- per sq. yd. to the complainant in the proposed township vide agreement dated 03.08.2010.
3. The basic price of the said plot was Rs.6,95,368.01 (Rupees Six Lakh Ninety Five Thousand Three Hundred Sixty Eight and One Paisa) with the special discount of Rs.10,939.34 (Rupees Ten Thousand Nine Hundred Thirty Nine and Thirty Four Paisa). At the time of agreement, it was disclosed by the respondent that the land on which the said township has been proposed belongs to one, M/s Tiruptai Biotech Ltd. having its registered office at D-14, Preet Vihar, New Delhi and the Memorandum of Understanding (in short MOU) has been executed between the respondent and the said title holder, M/s Tirupati.
4. The respondent provided a site-map/plan under the heading ‘LEGEND’ to all the Allottee (s) showing location of the plots etc. Inter-alia, mentioning about the facilities inside the township. The complainant/Allottee paid Rs.7,14,723/- (Rupees Seven Lakh Fourteen Thousand Seven Hundred Twenty Three) in total (Rs.6,48,000/- for the plot Rs.25,000/- for club membership Rs.41,723/- EDC) so and when demanded by the respondent.
5. It is alleged the respondent vide letter dated 07.07.2014 asked the complainant to pay the balance amount i.e. Rs.36,428.67 (Rupees Thirty Six Thousand Four Hundred Twenty Eight and Sixty Seven Paisa) within 30 days from the date of receipt the said letter, Rs.72,764.88 (Rupees Seventy Two Thousand Seven Hundred Sixty Four and Eighty Eight Paisa) in the name of allied charges and Rs.7,257.69 (Rupees Seven Thousand Two Hundred Fifty Seven and Sixty Nine Paisa) in the name of interest on account of delay in deposit the  amount. It is alleged that delay was not on the part of the complainant as the cheque (s) were given to the representative of the company on time. Besides  Rs.46,878.85 (Rupees Forty Six Thousand Eight Hundred Seventy Eight and Eighty Five Paisa) were also demanded by the respondent company in the name of maintenance agency.
6. The complainant has visited the site of the township and found that there is no facilities viz. water, electricity and other basic requirements were available so that any Allottee may construct the house and live therein. However, as a mere formality a water–tank and electric poles have been erected but with no electricity or water etc. That the plots whereupon the houses are to be built are full of pits and long bushes.
7. The respondent vide letter dated 07.07.2014 expressed his opinion to hand over the possession vide letter dated 21.07.2014 asked the respondent to clarify if the respondent had got a registered sale-deed from the said M/s Tirupati or not. Besides it, the complainant asked what facilities as assured to the allottee (s) have been fulfilled so far.
8. The respondent did not reply to the letter above therefore, the complainant vide notice dated 19.08.2014 asked the respondent to refund the total amount deposited by the complainant towards the plot as there were no necessary facilities for constructing the house and living there.
9. It is alleged the respondent again vide letter dated 20.08.2014 asked for the balance amount towards the plot 4 years has been passed but till the date there is no basic facilities like water and electricity etc. available in the township.
10. It is prayed that OP be directed the respondent to pay the deposited amount, Rs.7,14,723/- (Rupees Seven Lakh Fourteen Thousand Seven Hundred Twenty Three) back to the complainant with interest @24% per annum from the date of deposit till its realization and compensation Rs.1 Lakh on account of harassment and Rs.50,000/- (Rupees Fifty Thousand) for legal and misc. expenses.
11. Notice of the complaint was issued to OP, OP entered appearance and filed reply opposing the complaint on various grounds inter alia that it is an abuse of the process of law and has been filed with the sole purpose of harassing and pressurizing the Respondent. Complaint is devoid of any cause of action.  
12. It was alleged that the complainant had made the investment in the Project for commercial gain as such the Complainant is as such not the consumer as defined under the CP Act. Complaint is also not maintainable in as much as it lacks cause of action and/or grievance qua the Respondent.
13. It was also alleged that the complainant has not suffered any mental or physical or financial loss or inconvenience due to any act or omission of the Respondent.
14. It was also alleged that this Forum does not have territorial jurisdiction to try and adjudicate the present as the property in question is situated at Muzaffarnagar, Uttar Pradesh. It was also alleged that Hon’ble Forum does not have the pecuniary jurisdiction.
15. It was denied that the respondent had been deficient in rendering the services towards the Complainant.
16. It was also alleged that the complaint raises certain intricate questions of facts and law and which can be determined only after leading detailed technical evidence and cross-examination of the parties and cannot be adjudicated in a summary procedure by this Commission.
17. It was alleged that complainant was required to make payment as per the terms of the agreement but complainant had wrongly withheld the payment and breached the terms and conditions of the agreement. It was denied that basic facilities were not available in the township. It was prayed that complaint be dismissed.
18. The complainant filed rejoinder reiterating therein the averments made in the complaint and controverting all the allegation made in the written statement. Both parties thereafter filed their evidence by way of affidavit and also written submissions.
19. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
20. An application moved by complainant for taking on record additional evidence was allowed vide order dated 08.02.2013.
21. The fact that complainant booked a flat in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the agreement dated 03.08.2010. The copies of receipt of the above amount issued by OP have been also filed by complainant. The receipts are not controverted by OP.
22. 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  Rs.7,14,723/- (Rupees Seven Lakh Fourteen Thousand Seven Hundred Twenty Three) to the OP but OP failed to deliver the flat even after more than 10 years of agreement. The flat was booked in the year 2010 and unit was allotted. As regard deficiency in services, Hon’ble Supreme Court has held in 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.
23. 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.
24. After giving our careful thought to the arguments advanced by Ld. Counsels for parties, we are of the view that admittedly, there was inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
25. 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.
26. 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.

27. 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.
28. As regards the contention of OP that complaint is not maintainable, the complainant ought to have filed a civil suit as he is seeking recovery of money. In this regard to be noted that the remedy provided under the Consumer Protection Act are additional remedies apart from the other remedies including those provided by special statues. The availability of alternative remedy is no bar in entertaining a complaint under the Consumer Protection Act as held by Hon’ble Supreme Court in Civil Appeal No. 3581-3590-20 M/s Imperia Structures Limited Vs. Anil Patni and Anr.
29. As regards the next 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 Housing and Construction Ltd. guilty of deficiency in services. We accordingly direct OP/Ansal Housing and Construction Ltd. to refund the amount Rs.7,14,723/- (Rupees Seven Lakh Fourteen Thousand Seven Hundred Twenty Three)  to the complainant along with interest @ 9% p.a. from the date of deposit, 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/- (Rupees One Lakh) as compensation to the complainant for mental agony and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation

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)

                                                                          

 

 

 

Shekhar Chandra

                                                                                                (Member)