Delhi

New Delhi

CC/212/2021

Harvinder Singh Sahota - Complainant(s)

Versus

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

20 Apr 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

DISTT.NEW DELHI, M-BLOCK, VIKAS BHAWAN, NEW DELHI-110002.

 

CC/212/2021

 

IN THE MATTER OF:

 

MR. HARVINDER SINGH SAHOTA

S/O SH. PREM SINGH SAHOTA

 

 

MRS. JASWINDER KAUR SAHOTA

W/O HARVINDER SINGH SAHOTA

 

BOTH R/O 18 BALLYCASEY COURT,

SHANNON, LIMERICK, IRELAND V14 VN36

 

THROUGH ITS SPA HOLDER

JOGINDER SINGH

S/O SH. SADHU SINGH

R/O TOWER NO. 14, HOUSE NO. 902,

SUNSHINE COUNTY, RAI,

DIST. SONIPAT, HARYANA 131029                                              COMPLAINANT

VERSUS

M/s ANSAL PROPERTIES AND INFRASTRUCTURE LTD.

(THROUGH ITS MANAGING DIRECTOR/AR)

115, ANSAL BHAWAN,

KASTURBA GANDHI MARG,

NEW DELHI 110001                                                                   OPPOSITY PARTY                                                   

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                             Dated of Institution :22.10.2021

                                                                             Date of Order         :20.04.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under section 35 of the Consumer Protection Act. 2019 (in short CPA). Briefly stated the facts of the case 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 & Infrastructure Ltd.
2. It is further alleged that in the year November 2011, the Respondent induced the complainants at their Delhi Office/Registered Office about the group housing colony/Township which was being developed by the Respondent in the name and style of Green Escape Apartments at Sonipat, Haryana to buy a flat in the above-said Project.
3. It is further stated that 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 taken by the Respondent from the concerned government departments. Thus, upon the representation and assurances of respondent, the complainants deposited an amount of Rs.1,60,000/- on dated 05.11.2011 towards advance booking of a residential flat in its above-mentioned project for Unit No.0102 Green Escape, Tower no.15, Unit Type — Apartment Unit -3 B/R, Area - 1717 Sq.Ft, Basic Area Price - 30,82,015. The total cost of project as informed to the complainants by the Respondent, was Rs. 41,86,365/- which included basic area price of 30,82,015/-. On receiving advance booking amount of Rs. 1,60,000/-, the Respondent issued an Allotment letter bearing unit no. 0102- 15-0304 to the complainants.
4. Thereafter, an agreement was executed on 04.04.2012 between the Respondent/Opposite Party and the complainants in their joint name. The said agreement dated 04.04.2012 was duly signed by the authorized person acting on behalf of the Respondent as well as by the complainants.
5. It is also alleged that the complainants have made all the payments towards the purchase of the above-mentioned Flat as and when demanded by the Respondent and an amount of Rs. 20,23,825/- had already been paid by the complainants to the Respondent against the total sum of Rs. Rs. 41,86,365/-. It is also alleged that as and when ever requests were raised by the Respondent for payments, the complainants made the payments. It is also alleged that a copy of the Ledger Account was issued by the Opposite Party which also amounts to admission of the amount paid.
6. It is alleged that since the Respondent has failed to deliver the possession of the above mentioned unit within the stipulated time, the Respondent is also liable for damages which is assessed at Rs. 10,00,000/-.
7. It is further stated that after 2016, the Respondent has not raised any demand for money, although the Respondent has acknowledged the fact of receipt of payment by issuing regular statement of account and thus, the intention of not completing the project as well as for illegally retaining the amount paid by the complainant is evident.
8. It is alleged that the complainants are also entitled to interest @ 12 % per annum which is the prevailing rate of interest. It is stated that the complainants have been frequently interacting with the office of OP telephonically as well as through its SPA Holder but no satisfactory response was received as to when the possession of the said Flat would be handed over by the Respondent to the complainants.
9. It is also alleged that as per Clause 5 of the Agreement, the possession 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 04.04.2016. However more than 9 years have elapsed from the date of agreement but the respondent has miserably failed to complete the above-mentioned project, the complainants are thus no more interested in the above mentioned Flat.
10. The Complainant therefore seeks refund of the amount paid due to inordinate delay caused by the Respondent in offering possession of the Flat. It is also alleged that the act of OP amounts to deficiency in services, hence, the respondent is liable to pay compensation of Rs. 10,00,000/- towards the mental agony and torture caused to the complainants.
11. It is alleged that the complainants sent legal notice dated 01.09.2021 to the Respondent claiming the refund of the amount, which was duly served on the OP but the Respondent neither bothered to make a payment nor sent any reply to the same.
12. It is further alleged that since the Complainants have availed the services of the Respondent for the purpose of buying a constructed flat, the complainant is a "Consumer" under Section 2(7) of the Consumer Protection Act. It is also stated 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.
13.  It is stated that the cause of action for filing the present complaint arose on 01.09.2021 when the complainants issued a legal notice to the respondent for the refund of the amount paid by the complainant till date. The cause of action further arose when the legal notice was received by the Respondent. It thereafter arose when despite service; the legal notice was not replied by the respondent. The cause of Action is still continuing and subsisting as the Respondent has not refunded the amount and has illegally withheld the amount so paid by the complainants.
14. It is alleged that the Respondent works for gain at his registered Office i.e. 115, Ansal Bhawan, Kasturba Garidhi Marg, New Delhi-110001 which is within the territorial Jurisdiction of this Commission hence this Commission has jurisdiction.
15. It is also alleged that since the Principal amount claimed by the complainants in the present complaint is less than 1 crore, hence this commission has the pecuniary jurisdiction to try, and adjudicate and entertain the present complaint.
16. It is prayed that OP be directed to refund the amount of Rs. 20,23,825/- along interest @ 12% p.a. from the date of first payment till realization and damages of Rs. 10,00,000/- towards mental harassment and mental agony and 1,00,000/- towards litigation charges.
17. Notice of the complaint was issued to the OP which was duly served on 08.11.2021. Inspite of service OP did not file his written statement within the statutory period as provided under the CP Act 2019. In view thereof, the right of OP to file written statement was closed vide order dated 03.02.2022.
18. Evidence by way of affidavit was filed by the Complainants.
19. We have heard the counsel for the parties and perused through the material on record.
20. From the unrebutted testimony of the Complainant filed by affidavit it has been proved that the Complainants had booked a flat in the project of OP. It has also proved from the evidence and documents that Complainant made the Payment of Rs. 20,23,825/- to the OP.
21. It was contended on the behalf of the complainant that OP was deficient in providing services as it failed to hand over the possession of the flat within the period stipulated in the agreement dated 04.04.2012. It was also submitted that complainant had paid Rs. 20,23,825/- as against the total sum of Rs. 41,86,365/- (Rupees Forty One Lakhs Eighty Six Thousand Three Hundred Sixty Five) to the OP which was the cost of the flat, but OP failed to deliver the possession within the stipulated time of 42 months with extended period of 6 months as provided in the agreement. It was also argued that the OP failed to comply with the terms of the agreement as possession was not given even after 9 years i.e. the filing of the complaint. 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.
22. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 byHon’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.
23. 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.
24. 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.

25. 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. We are also of the view that this Commission has territorial jurisdiction as the OP works for gain within the jurisdiction of this Commission.
26. Ld. Counsel for the Complainant has placed reliance on a judgment of Hon’ble State Commission passed in a similar case titled Ravinder Kaur & Another, vs. Ansal Properties and Infrastructure Ltd. wherein it was held as under:- “it is clear that amount deposited by Complainants in the present matter has been utilized by OP for his own benefits, and on the other hand Complainant were not provided anything in return. The circumstances clearly shows that the OP made false statement of facts about the goods and services i.e. allotment of the flat in a stipulated period and ultimate delivery of possession. The act and conduct of the OP is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. As has been discussed in the preceding paragraphs, the compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. To get the relief, the complainants had to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainants, are also required to be taken into consideration for awarding compensation. In addition to that the complainants are also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by them on account of the betrayal by the OP in shattering their hope of getting the flat by waiting for all this period. In these circumstances, the complainant deserves suitable compensation.” We direct the OP to refund entire amount paid by the complainants along with interest, interest @ 7% p.a. calculated from (the first payment received by the OP) till the date of order (both the dates being inclusive), In case OP fails to refund the amount within 3 months, an interest @ 7.5 % p.a. calculated from the date of first payment till the actual realization.
27. Keeping in view the above judgment we direct OP to refund the entire amount of Rs. 20,23,825/- paid by Complainant along with interest @ 7% p.a. from the date of first payment received by OP till the date of order. In case the amount is not refunded within 3 months OP will be liable to pay interest @ 7.5% p.a. from the date of receipt of first payment by OP till actual realization of the amount.
28. In addition OP is directed to pay a sum of Rs. 2,50,000/- as damages for mental harassment caused to the Complainant  and Rs. 50,000/- as litigation cost to the Complainant.
29. 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)                                                                           (ADARSH NAIN)          

         MEMBER                                                                                             MEMBER