Delhi

New Delhi

CC/264/2019

MR. TILAK RAM - Complainant(s)

Versus

M/S. ANSAL LANDMARK TOWNSHIPS PVT. 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.264/2019

IN THE MATTER OF:

 

Tilak Ram

R/o 378, Karkardooma Village, Delhi – 110092.                    .....Complainant

 

VERSUS

 

Ansal Landmark Township Pvt. Ltd.

210, Ansal Plaza,

16, Kasturba Gandhi Marg,

New Delhi – 110001.

 

Also at:

11^th Floor, Narain Manzil,

23, Barakhamba Road,

New Delhi – 110001.                                                                ...Respondent

Quorum:

 

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad, Member

Shri Shekhar Chandra, Member

 

                                                                                                                                   Date of Institution:- 17.10.2019                                                                                                                                                                         Date of Order         :-12.01.2023

 

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 the Opposite Party (in short OP) alleging deficiency of service.
2. Briefly stated the facts of the case are that the complainant was desirous of purchasing a residential accommodation. The complainant came to know through advertisement that the opposite party was engaged in business of real estate and had floated a project, namely ‘Aquapolis- EWS/ LIG’ 2 BHK Flats in project namely “International Township at Dundahera, Ghaziabad, UP.
3. The complainant approached the opposite party and booked a 2 BHK Flat measuring 440 sq. ft. bearing Unit No.LIG/HFF/03, Aquapolis- EWS/ LIG in the aforesaid project and paid Rs.37,400/- (Rupees Thirty Seven Thousand Four Hundred) as Booking Amount on 15.01.20211, for which a receipt was duly issued by the opposite party.  The total Sale consideration of the aforesaid Flat was Rs.7,48,000/-.
4. It is also alleged that vide its letter S.T. No. AAECA8892PST001 dated 04.03.2011, the opposite party conveyed to the complainant that Unit No. LIG/HFF/03, Aquapolis- EWS/LIG had been allotted to the complainant in the aforesaid project, and the opposite party raised a further demand of Rs.1,54,415.24, (Rupees One Lakh Fifty Four Thousand Four Hundred Fifteen and Twenty Four Paisa) which was paid by the complainant on 31.03.2011.
5. It is also alleged that Buyer Agreement dated 03.05.2012 was executed between the parties and all the payments were made by the complainant to the opposite party on time.  It is further alleged that the opposite party not only collected Basic Price of the unit, but also amounts towards Service Tax and Interest. Inspite of having received almost the entire payment, the opposite party failed to hand over possession to the complainant within the stipulated time.
6. It is stated that upon enquiry by the complainant, it has transpired that even the construction of the Block wherein the Flat of the complainant is located, had not been started. 
7. It is alleged that the negligent acts and conduct of the opposite party amount to ‘deficiency in service’ and ‘unfair trade practice’, which has caused grave mental pain, agony, harassment and financial hardship/loss to the complainant.  Thus, the opposite party is liable to pay compensation.
8. It is further stated that upon repeated reminders and follow-up, the opposite party refunded to the complainant an amount of Rs.50,000/- (Rupees Fifty Thousand) on 03.08.2018 and Rs.50,000/- (Rupees Fifty Thousand) on 29.01.2019 by way of bank transfers; however, an amount of Rs.6,23,525.19 (Rupees Six Lakh Twenty Three Thousand Five Hundred Twenty Five and Nineteen Paisa) out of the principal amount is still lying with the opposite party, which the opposite party has failed to refund to the complainant despite repeated requests and reminders.
9. The opposite party and its directors/Authorised Representative and all other persons engaged in the day to day working of the opposite party deliberately and dishonestly misrepresented to the complainant and induced the complainant to the invest in its project. 
10.  It is also alleged that the complainant got issued a legal notice dated 23.09.2019 through his counsel calling upon the opposite party to refund the balance amount of Rs.6,23,525.19 (Rupees Six Lacs Twenty Three Thousand Five Hundred Twenty Five and Nineteen Paisa only), received by the opposite party from the complainant with interest @18% per annum and compensation amount of Rs.3,00,000/- for harassment, mental agony, hardship, financial damages/loss, loss of opportunity caused to the complainant for deficiency in service and malafide trade practice.  However, the opposite party neither replied to the notice nor refunded the amount to the complainant. 
11. It is prayed that opposite party be directed to refund Rs.6,23,525.19 (Rupees Six Lakh Twenty Three Thousand Five Hundred Twenty Five and Nineteen Paisa) to the complainant with interest @ 18% from date of receipt.
12. It is further prayed compensation of Rs.3,00,000/- (Rupees Three Lakh) be also awarded to complainant against the opposite party towards deficiency in service, unfair trade practice, harassment, mental agony, financial damages/loss and loss of opportunity caused to the complainant and litigation expenses of Rs.50,000/- (Rupees Fifty Thousand).
13. Notice of the complaint was served on the OP, OP entered appearance but did not file its written statement. The defence of OP was stuck off vide order dated 11.07.2022.
14. Complainant filed his evidence by affidavit reiterating therein the averments made in the complaint. Complainant relied upon the Prospectus cum application form dated 12.01.2011. The buyer agreement, the copies of receipts of payments.
15. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
16. From the unrebutted evidence of complainant, it has been proved that complainant booked a flat in the project of OP.
17. 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.6,23,525.19 (Rupees Six Lakh Twenty Three Thousand Five Hundred Twenty Five and Nineteen Paisa) against the total sale consideration of Rs. 7,48,000/- (Rupees Seven Lakh Forty Eight Thousand) and Allotment letter was issued by OP, but OP failed to deliver the property even till filing of the complaint. 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.
18. 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.
19. 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.
20. 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.
21. 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.

22. 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.
23. We thus, hold that OP/Ansal Landmark Township Ltd. was guilty of deficiency in services. We accordingly direct OP/Ansal Landmark Township Ltd. to refund the amount Rs.6,23,525.19 (Rupees Six Lakh Twenty Three Thousand Five Hundred Twenty Five and Nineteen Paisa) to the complainant along with interest @ 9% p.a. from the date of each 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 @ 15% p.a. for the period of delay. We also award Rs. 1,00,000/- (One Lakh) as compensation for mental agony and Rs. 25,000/- (Rupees Twenty Five Thousand) as cost of litigation

A copy of this order be provided/sent 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)