Delhi

New Delhi

CC/135/2021

Joginder Singh & Anr. - Complainant(s)

Versus

M/S. Ansal Properties and Infrastructure Ltd. - Opp.Party(s)

04 Nov 2022

ORDER

 

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.135/2021                               

In the matter of:

 

1.             Joginder Singh

S/o Sh. Sadhu Singh

Mr. Satvir Sharma

2.             Smt. Harmit Kaur

W/o Sh. Joginder Singh

Both R/o Tower No.-14, House No.-902,

Dist. Sonipat, Haryana-131029                                                      ……..COMPLAINANT

 

Versus

 

M/s Ansal Properties and Infrastructure Limited,

(Through its Managing Director/AR)

115, Ansal Bhawan,

Kasturba Gandhi Marg,

New Delhi-110001                                                                  …..OPPOSITE PARTIES

Quorum:

           Ms. Poonam Chaudhry, President

          Shri. Bariq Ahmad, Member

          Ms. Adarsh Nain, Member

                                                                                                                      Date of Institution: 28.07.2021                                                                                                                                                                           Date of Order     :  04.11.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint filed by complainants under section 35 of the Consumer Protection Act, 2019, herewith after referred to as CP Act, against the Opposite party (in short ‘OP’) for deficiency of services. Briefly stated the facts of the case in brief are that the Respondent is a company registered under the Companies Act, 1956 and is engaged in the business of sale, marketing and developing of Group Housing Residential Colony under the name and style of “Ansal Properties and Infrastructure Ltd.” having its registered office at 115, Ansal Bhawan, Kasturba Gandhi Marg, New Delhi-110001.
2. It is alleged that in November 2011 the respondent projected a rosy picture of the above-said project and assured the complainants that the above-mentioned project would be having world class facilities with modern and update technologies. The complainant was also assured by the respondent that all necessary approvals had been assured by the respondent that all necessary approvals had been taken by the respondent from the concerned Government departments. The complainants on the assurances  and inducement of OP deposited an amount of Rs. 2,00,000/- (Rupees Two Lakh) with OP on 24.11.2011 towards advance booking of a residential flat in its above-mentioned project bearing Unit No.-0102 Green Escape, Tower no.-39. Unit type-Apartment Unit-4 B/R, Area-2259 SFT, Basic Area Price-38,40,300/-. The total cost of unit was Rs. 49,60,375/- (Rupees Forty Nine Lakh Sixty Thousand Three Hundred Seventy Five). Respondent issued  an allotment letter bearing unit no.-0102-39-0302 to the complainants after receiving the booking amount.
3. Thereafter, an agreement dated 14.02.2012 was executed between the parties. The said agreement was duly signed by an authorized person acting on behalf of the respondent as well as by the complainant.
4. It is also alleged that complainants have made  the payments as and when demanded by OP. The Complainants have deposited Rs. 31,45,333.42/- (Rupees Thirty One Lakh Forty Five Thousand Three Hundred Thirty Three Forty Two Paise) against total cost of the unite i.e. Rs. 49,60,375/- (Rupees Forty Nine Lakh Sixty Thousand Three Hundred Seventy Five)
5. It is also stated the respondent charged interest on late payment from the complainants and the complainants paid an additional mount of Rs. 2,06,139.46/- (Rupees Two Lakh Six Thousand One Hundred Thirty Nine Forty Six Paise) as interest @ 20 percent which was duly acknowledged by the respondent vide letter dated 24.06.2014. The respondent had charged high rate of interest with intention of extorting the hard earned money of the complainants upon false assurances.
6. It is also alleged the respondent have failed to deliver the possession of the flat within the stipulated time, the complainants were thus forced to purchase some other flat in Sunshine County, Rai, Sonipat which is also one of the project of respondent, for which the complainants had taken a loan of Rs. 30,00,000/- (Rupees Thirty Lakh) in May 2018 from a nationalized Bank @ 8.80 percent. It is stated the complainants have suffered mental agony and thus, the respondent is also liable for damages of Rs. 10,00,000/- (Rupees Ten Lakh).
7. It is also alleged that as per Clause 5 of the Agreement, the possession of the above-mentioned flat was to be handed over to the complainants by the respondent after completing the construction within 42 months, with extended period of six months from the date of execution of agreement i.e. up to 14.02.2016. However more than 9 years have elapsed now from the date of agreement but respondent has miserably failed to complete the above-mentioned project. It is further stated as there has been an inordinate delay in handing over the possession, the complainants are no more interested in the above mentioned flat of the respondent.
8. It is also stated the complainants are entitled to interest @ 12% per annum which is the prevailing rate of interest on commercial market standards which otherwise on lower side than what the respondent charged on the late payment.
9. It is alleged the complainants sent legal notice dated 08.06.2021 to the respondent claiming the refund of the amount with interest but the respondent neither made payment nor sent any reply to the same.
10. It is also alleged the complainants are consumers as defined under section 2(7) of the CP Act. as they have availed the services of the respondent for the purpose of buying a constructed flat. The services rendered by the opposite party are covered under the definition of Services and since there has been inordinate delay in handing over the possession of the flat by the respondent, it amount to deficiency of services as defined under the Consumer Protection Act. It is alleged that as the project of respondent is not completed and as such, the present complaint is filed for refunding the amount paid.
11. It is further alleged the respondent works for gain at his registered office i.e. 115, Ansal Bhawan, Kasturba Gandhi Marg, New Delhi-110001 which is within the territorial jurisdiction of this Commission. The principal amount claimed by the complainants in the present complaint is less than 1 crore, as such this Commission has the pecuniary jurisdiction to try, adjudicate and entertain the present complaint.
12. It is prayed that OP be directed to refund the amount of Rs. 33,60,482.88/- (Rupees Thirty Three Lakh Sixty Thousand Four Hundred Eighty Two Eighty Eight Paise) paid to the respondent with interest @ 12% p.a. from the date of first payment i.e. 24.11.2011 till its actual realization and  OP be also directed to pay Rs. 10,00,000/- (Rupees Ten Lakh) as damages for mental harassment and torture and Rs. 1,00,000/- (Rupees One Lakh) as cost of the litigation.
13. Notice of the complaint was issued to OP. OP was served on 07.10.2021, however as none had appeared for OP despite service. OP was proceeded exparte vide order dated 11.04.2022.
14. Complainants thereafter filed their evidence by affidavits reiterating therein the averments made in the complaint.
15. We have heard the Ld. Counsels for parties and perused the evidence and material on record carefully.
16. From the unrebutted testimony of complainant and the documents filed by complainant, it has been proved that complainants booked a flat in the project of OP. The complainants have filed a copy of the flat buyer agreement and copy of receipts issued by OP acknowledging payment  of Rs. 33,60,482.88/- (Rupees Thirty Three Lakh Sixty Thousand Four Hundred Eighty Two and Eighty Eight Paise) made by complainant.
17. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant has paid Rs. 33,60,482.88/- (Rupees Thirty Three lakh Sixty Thousand Four Hundred Eighty Two and Eighty Eight Paise) against the total cost of flat of Rs. 49,60,375/- (Rupees Forty Nine Lakh Sixty Thousand Three Hundred Seventy Five) to the OP but OP failed to deliver the possession of flat even till the filing of complaint It was also argued that according to the Builder-Buyer Agreement, the possession was to be handed over within 42 months from the date but OP failed to  hand over possession of the flat within the stipulated period and even till filing of complaint. It was further submitted on behalf of complainant that the prolonged delay in completion of construction and handing over possession amounts to deficiency in service. It was also argued by Ld. counsel for complainant that the opposite party was under contractual obligation to constructs the property within 42 months with extended period of 6 months from the date of agreement. It was also argued that the OP thus failed to comply with  the terms of the agreement. It is to be noted that 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.
18. It is also pertinent to note that 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.
19. 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.
20. 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.
21. We are of the view that there was inordinate delay in handing over the possession of the flat in question to the complainants by OP which amounts to deficiency in service.

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 complainants was not refunded neither possession of the flat in question was handed over to them, the complaint is within the period of limitation.
23. We accordingly hold OP guilty of deficiency of services and directed OP M/s Ansal Properties and Infrastructure Ltd. to refund the amount of Rs. 33,60,482.88/- (Rupees Thirty Three lakh Sixty Thousand Four Hundred Eighty Two and Eighty Eight Paise) deposited by complainant with interest @ 9% p.a. from the date of deposit till realization within 4 weeks of the date of receipt of the order, failing which OP will be liable to pay interest @ 12% p.a. till realization. In addition we also award Rs. 50,000/- (Rupees Fifty Thousand) as compensation for mental agony and Rs. 10,000/- (Rupees Ten Thousand) as cost of litigation.

A copy of this order be provided to all the 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)                                                            (ADARSH NAIN)   

  Member                                                                            Member