Delhi

New Delhi

CC/13/2022

Vikas Agarwal - Complainant(s)

Versus

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

28 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-13/2022

 

IN THE MATTER OF:

VikasAgarwal

Son of Late Shri Vijay Kumar Agarwal

R/o D-10, Green Park Extension

New Delhi-110016.

                                                      ...Complainant

VERSUS

 

Ansal Housing and Construction Ltd.

15 UGF, Indraprakash,

21, Barakhamba Road,

New Delhi-110017                                                              ...Opposite Party

 

Quorum:

Ms. Poonam Chaudhry, President

Shri Shekhar Chandra, Member

 

                                                                    Date of Institution: 03.02.2022                             Date of Order      : 28.02.2023

 

ORDER

 

Poonam Chaudhry, President

 

1. The present complaint has been filed under Section 34(i) of the Consumer Protection Act, 2019 (in short CP Act) against Opposite Party (in short OP).
2. Briefly stated the facts of the case are that complainants are aggrieved by the deficient services and unfair trade practices on the part of the developer, Ansal Housing and Construction Ltd. It is alleged the opposite party is a private limited company, registered under the provisions of the Companies Act, 1956 having its registered office at 15 UGF, Indraprakash, 21, Barakhamba Road, New Delhi-110017.
3. It is also alleged that the complainant was allotted a villa No. V-025 of area 5000 sq. ft. @2995 per sq. ft. in the project namely Ansal Heights located in sector-92, Gurgaon, Haryana-122505.
4. The opposite party assured the complainant that the building plans and the floor plans have been prepared on the basis of the guidelines issued by competent authorities and all essential requirements have been complied with, on the assurances of OP the complainant booked a villa in the project by paying a booking amount of Rs.14,37,600/- (Rupees Fourteen Lakh Thirty Seven Thousand Six Hundred Only). The opposite party issued a letter dated 11.05.2012, informing the complainant that the construction of the project would commence within 30 days.
5. The OP sent a Builder Buyer Agreement dated 05.07.2012. The complainant also received allotment letter dated 12.12.2012. The basic sale price of the unit was Rs.1,47,76,000/- (Rupees One Crore Forty Seven Lakhs Seventy Six Thousand Only). The complainant made payments of installments, in terms of the construction linked payment plan from time to time.
6. It is alleged that as per Clause 9 of the said Agreement, the opposite party was under an obligation to complete the project and handover the possession of the said Unit within 36 (Thirty Six) months from the date of execution of the said Agreement  05.07.2012, which culminated on 05.07.2015.
7. The opposite party had told the complainant that the opposite party shall be solely responsible for taking all necessary approvals required to build the said project and shall obtain necessary sanctions and approvals for the sanction plans as prescribed under law. That complainant had made a total payment of Rs.44,23,855/- (Rupees Forty Four Lakh Twenty Three Thousand Eight Hundred Fifty Five Only) in terms of the construction linked plan. The complainant visited the site of the project as well as the office of the opposite party several times in order to ascertain the progress of the project, however in vain as the project was progressing very slowly and remained stalled for long periods.
8. The complainant visited to the office of the opposite party several times and was repeatedly assured by the opposite party that the construction of the project shall commence soon. That the complainant informed the opposite party, that he shall not be paying any future installments till the time the construction of the unit allotted to him commences. The complainant also told the OP that he had opted for a construction linked payment plan and since the construction had not commenced, therefore he would not be paying any further installments.
9. It is alleged that due to delay in construction of the project and also the arbitrary demands for payment, the complainant on 07.07.2020 issued a legal notice through its counsel to the opposite party demanding refund of total amount of Rs.44,23,855/- (Rupees Forty Four Lakh Twenty Three Thousand Eight Hundred Fifty Five Only) paid by the complainant.
10.  A reply dated 04.08.2020 was received from OP stating that delay in the project was caused due to force major circumstances and orders of the Hon’ble National Green Tribunal on April 2015 and November 2016 pertaining to the sand mining, water excavation and pollution. The opposite party also made false averments that they had deducted 20% of the basic amount as earnest money and has refund the balance amount of Rs.15,48,665/- (Rupees Fifteen Lakh Forty Eight Thousand Six Hundred Sixty Five only).
11.  It is alleged that the complainant has never received any payment from the opposite party with regard to cancellation of the unit. The cancellation of the said unit is invalid as the opposite party failed to perform its part of the obligations as per the terms of the Agreement. The alleged cancellation letter is stated to be issued on 16.09.2016, which is after the date of the promised possession of the unit therefore OP could not invoke cancellation clause and take benefit of its own wrong. The acts of the opposite party amount to deficiency of services, unfair trade practices and restrictive trade practices. The cause of action first arose on 05.07.2015 and is a continuing as the opposite party neither hand over the possession of the unit nor refunded the installments paid by the complainant alongwith the interest. It is alleged that the opposite party is also liable to pay, compensation for mental agony, harassment, caused to the complainant, as inordinate delay was caused on the part of the opposite party, the complainant has suffered mental agony which cannot be appropriately compensated by any amount.
12. It is also alleged that this Commission has the jurisdiction to try the complaint under Section 34(i) of the Consumer Protection Act. Therefore, the complainant has not instituted any proceedings under the Consumer Protection Act or before any other Court or Forum with respect to the subject matter of this complaint.
13. It is prayed that OP be directed to refund the entire amount received from complainant i.e. Rs.44,23,855/- (Rupees Forty Four Lakh Twenty Three Thousand Eight Hundred Fifty Five Only) with interest @18% p.a. from the date of payment of each amount. OP also be directed to pay a sum of Rs.25,00,000/- (Rupees Twenty Five Lakh Only) for mental agony and harassment and towards cost of litigation to the complainant.
14. Notice of the complaint was issued to OP, OP entered appearance and filed reply opposing the complaint taking objection that this Commission does not have jurisdiction as complainant has no cause of action. It was further stated that there was no deficiency of service on part of OP.
15. It was also alleged that the disputes relating to contractual obligation can only be dealt by Civil Court as such the present complaint ought to be dismissed. It was further alleged that the terms of the agreement including the terms relating to compensation are binding on both parties and it is settled law, as held by the Hon’ble Supreme Court in the case titled Bharti Knitting Co. Vs. DHld-Wide Courier-(1996) 4 SCC 704, that a person who signs a document containing certain contractual terms is bound by such contractual terms.
16.  It was further alleged that Section 39(1)(d) of the Consumer Protection Act specifically provides that compensation can only be granted in a case where there is a specific allegation with proof of negligence. In the absence of any such specific allegation of negligence and material in support thereof, no order can be made for compensation or direction for making any payment. It was also stated that the present complaint raises various triable issues, which cannot be adjudicated by this Hon’ble Commission in a summary trial.
17. It was also stated that the present complaint raises several issues alleging inducement, coercion and fraud against the respondent. It is submitted that these issues cannot be decided by way of the present complaint in a summary proceedings and requires extensive evidence to be led by both the parties, examination and cross examination of witnesses for proper adjudication. Therefore, the disputes raised in the present complaint are beyond the purview of Consumer Protection Act and can only be adjudicated by a civil court. The present complaint therefore deserves to be dismissed on this short ground alone.
18. It was submitted that as per Clause No. 29 of the agreement, the possession was handed over either from the date of signing of agreement or from the date of obtaining of sanction approvals whichever is later subject to payment of all dues. The respondent had refunded the amount paid by the complainant but he had not encashed the same. The unit has been sold to another customer due to non-payment of dues by the complainant, letters dated 16.02.2016, and 30.06.2016 were sent to complainant by the respondent. The complainant did not respond, and as such, the allotment was cancelled and a refund cheque dated 19.09.2016 of Rs.15,48,655/- (Rupees Fifteen Lakh Forty Eight Thousand Six Hundred Fifty Five only) drawn on UCO band was sent to him by the respondent.
19. The complainant has filed the present complaint after 06 years of the cancellation. That the present complaint is barred by limitation under Section 69 of the Consumer Protection Act and the same is liable to be dismissed on this sole ground as there is no continuous cause of action for filing the present complaint. It is further submitted that no cause of action accrued in favour of the complainant and against the respondent.
20. That the complainant is not a consumer, he had made investment to earn profit, the transaction was a commercial transaction. It was prayed that complaint be dismissed.
21. 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.
22. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
23. The fact that complainant booked a Villa in the project of OP is an admitted case as evident from the evidence of the parties. The complainant relied upon the flat buyer agreement dated 05.07.2012.
24. 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.44,23,855/- (Rupees Forty Four Lakh Twenty Three Thousand Eight Hundred Fifty Five only) to the OP but OP failed to deliver the property within 36 months from the date of execution of the Agreement i.e. 05.07.2022.  It was also argued that according to clause 9 of the Builder-Buyer Agreement, the possession was to be handed over within 36 months from the date of execution of the Agreement but OP failed to do so. 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 the possession within 36 months from the date of agreement. 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.
25. It was also held in 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.
26.  On the other hand, it was agreed on behalf of Opposite Party that the complainant has not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, which could be attributable to the respondent, therefore, the Complaint is liable to be dismissed.
27. The contention of the OP was that the delay was due to force majeure, in this regard it is to be noted that no evidence was led by OP in support of the said contention that the delay was due to non-availability of the contractual labor or due to force majeure or compliance of any rules regulations, notification of Government authority.
28.  It is to be noted that 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.
29. It is also pertinent to note that 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.
30. 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 property was handed over to him, the complaint is within the period of limitation.
31. As regards the contention of OP that complainant is not a consumer, as defined in the Consumer Protection Act, 2019, it is to be noted that a mere allegation has been made in the written statement by OP, in this regard no evidence was brought on record to prove the said contention. We are thus of the view that the same is without merits.
32. As regards the 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.
33. 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.
34. As regards the contention of Opposite Party that it refunded the amount paid by the complainant and the unit had been sold to some other customers. It is to be noted that as per the agreement, the possession was to be handed over within 36 months from the date of execution of the agreement, which was not done as such the submissions of Opposite Party that it had refunded the amount paid by the complainant is without merits as the delay in completion of project was on part of Opposite Party.
35. We thus, hold that OP/Ansal Housing and Construction Limited guilty of deficiency of services. We accordingly direct OP/Ansal Housing and Construction Limited to refund the amount Rs.44,23,855/- (Rupees Forty Four Lakh Twenty Three Thousand Eight Hundred Fifty Five only) to the complainant with interest @ 9% p.a. from the date of such deposit, within 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 18% p.a. till realization. We also award Rs.1,00,000/- (Rupees One Lakh only) as compensation to the complainant for mental agony and Rs.50,000/- (Rupees Fifty Thousand only) 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

 

      

 

   Shekhar Chandra

        Member