Delhi

New Delhi

CC/49/2022

Kulvinder Singh Sahota - Complainant(s)

Versus

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

28 Jul 2022

ORDER

 

 

CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.49/2022                                 

In the matter of:

 

1. Mr. Kulvinder Singh Sahota

S/o Sh. Prem Singh Sahota

2. Sh. Kartarji Singh Sahota

S/o Kulvinder Singh Sahota

3. Ms. Jaspreet Kaur Sahota,

D/o Kulvinder Singh Sahota

All R/o 17 Ballycasey Court,

Shannon, Co Clare, Irelend V14 DA33,

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

 

 

 

1 M/s Ansal Properties and Infrastructure Limited,

   Through its Directors/AR

2  Sh. Sushil Ansal

Chairman and Whole Time Director of M/s Ansal Properties and Infrastructure Limited

3  Sh. Pranav Ansal

Vice Chairman and Whole Time Director of M/s Ansal Properties and Infrastructure Limited

                              (1), (2) and (3) Having its Office At:

                115, Ansal Bhawan,

                16, Kasturba Gandhi Marg,

               New Delhi-110001                                                                              …..OPPOSITE PARTIES

Quorum:

          Ms.Poonam Chaudhry, President

          Shri Bariq Ahmad   , Member

          Ms. Nain Adarsh, Member

                                                          Date of Institution:28.02.2022

                                                          Date of Order:         28.07.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complainant has been filed under Section 35 of Consumer Protection Act, 2019 (in short CP Act) against the OP alleging deficiency of services. Briefly stated the facts of the case are that the Respondent No. 2 and 3 are the Whole Time Directors of the OP No.-1 Company who were in-charge and responsible for the conduct of affairs, of OP No.-1
2. It is further alleged that the present complaint is filed by the Special Power of Attorney holder Sh. Joginder Singh on behalf of the complainants. It is also stated that the complainants are not residing in India and are currently residing in Ireland.
3. It is also alleged that Sh. Kulvinder Singh Sahota and his Wife Smt. Paramjit Kaur jointly booked a residential Flat vide agreement dated 04.04.2012 in the project of OP/Respondent No.-1. That Smt. Paramjit Kaur died on 06.09.2019 leaving being three (3) Legal Heirs namely, Kulvinder Singh Sahota Husband, Kartarjit Singh Son and Jaspreet Kaur Daughter.
4. It is also alleged 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.” It is further alleged that in the year November 2011, the Respondent induced the complainants about the group housing colony/Township which was being developed by them in the name and style of Green Escape Apartments at Sonipat, Haryana to buy a flat in the above-said project. The Respondents 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 from the concerned government departments. On the assurance of the OP/respondents, the complainants deposited an amount of Rs. 1,60,000/- (Rupees One Lakh Sixty Thousand) on 05.12.2011 towards advance booking of a residential flat in its above-mentioned project bearing Unit No. 0102 Green Escape, Tower no. 15, Unit Type-Apartment Unit-3. The total cost of project as informed to the complainants by the Respondent, was Rs. 41,32,430/- (Rupees Forty One Lakh Thirty Two Thousand Four Hundred Thirty). Ater receiving the aforesaid advance booking amount for Rs. 1,60,000/- (Rupees One Lakh Sixty Thousand), the respondents issued an Allotment letter bearing unit no. 0102-15-0303 to the complainants. Thereafter an agreement was executed on 04.04.2012 between the Respondents and the complainants.
5. It is further alleged that the complainants have made all the payments towards the purchase of the above-mentioned Flat as and when demanded by the Respondents, so far an amount of Rs. 19,94,800.36/- (Rupees Nineteen Lakh Ninety Four Thousand Eight Hundred Thirty Six Paise) had been paid by the complainants to the Respondent against the total sum of Rs. 41,32,430/- (Rupees Forty One Lakh Thirty Two Thousand Four Hundred Thirty). The Opposite Party acknowledged the payment amount by entry in the ledger.
6. The Respondents however failed to deliver the possession of the unit within the stipulated time, as such the complainants have suffered mental peace and torture and thus, the Respondent is also liable for damages which is assessed at 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 agreement that was up to 04.04.2016. However more than 9 years have elapsed from the date of agreement but Respondent have failed to complete the above-mentioned project. The complainants are thus no more interested in the above mentioned Flat of the Respondents.
8. The complainants seek the refund of the amount paid to the Respondent. The complainants has made several requests to the Respondent to refund their hard earned money but the respondent flatly refused to refund the same.
9.  It is also alleged that the acts of OP amounts of deficiency in services of the Respondent.
10.  It is further alleged the complainants also sent legal notice dated 01.09.2021 to the Respondent claiming the refund of the amount, with  interest and damages but the Respondent neither bothered to make a payment nor sent any reply to the same.
11.  It is also stated the complainants have availed the services of the Respondent for the purpose of buying a constructed flat and handing over the possession of the Flat within the stipulated time, the complainant is a “consumer” under Section 2(7) of the Consumer Protection Act. 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. The present complaint is filed with the statutory period of limitation.
12.  The Respondents works for gain at his registered Office that is 115, Ansal Bhawan, Kasturba Gandhi Marg, New Delhi-110001 which is within the territorial jurisdiction of this Hon’ble Tribunal/Commission. The Principal amount claimed by the complainants in the present complaint is less than 50 Lacs, this Hon’ble Commission has the pecuniary jurisdiction to try, adjudicate and entertain the present complaint.
13. It is prayed that OPs be directed:

1. To refund the total amount of Rs. 19,94,800.36/- (Rupees Nineteen Lakh Ninety Four Thousand Eight Hundred Thirty Six Paise) paid to the Respondent by the complainants in the Respondent’s project viz. Green Escape Apartments; With interest @ 12% p.a. from the date of first payment till its actual realization; and also pay Rs. 10,00,000/- (Rupees Ten Lakh) as damages for mental harassment and torture caused to the complainants by the Respondent, and costs of the litigation to the tune of Rs. 1,00,000/- (Rupees One Lakh) ;

14. Notice of the complaint was issued to OP No.-1 to 3, they were duly served on 09.03.2022. However as none appeared for OP No.-1 to 3 despite service their defence was stuck off vide order dated 26.04.2022.
15. Complainants filed their evidence by affidavits reiterating therein the averments made in the complaint. Complainants have filed a copy of the SPA executed in favour of Joginder singh by complainants. A copy of death certificate of the Smt. Paramjit Kaur, the agreement dated 04.04.2012. a copy of ledger account issued by OP acknowldging payment of Rs. 19,94,800/- (Rupees Nineteen Lakh Ninety Four Thousand Eight Hundred). The legal notice and its postal receipts.
16. We have heard the Ld. Counsel for complainant and perused the evidence and material on record carefully.
17. From the unrebutted testimony of 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 ledger of account of OP acknowledging payment Rs. 19,94,800.36/- (Rupees Nineteen Lakh Ninety Four Thousand Eight Hundred Thirty Six Paise) made by complainant.
18. 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. 19,94,800.36/- (Rupees Nineteen Lakh Ninety Four Thousand Eight Hundred Thirty Six Paise) against the total cost of flat of Rs. 41,32,430 (Rupees Forty One Lakh Thirty Two Thousand Four Hundred Thirty) to the OP but OP failed to deliver the possession of flat till date/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 even till the filing of the complaint. 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 constructs the property within 42 months with extended period of 6 months from the date of agreement. It was also argued that the builder/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 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.
19. 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.
20. After giving our careful thought to the arguments advanced by. Counsel for  complainant and the written arguments filed on behalf of complainant, we are of the view that there is inordinate delay in handing over the possession of the flat in question to the complainants by OP which amounts to deficiency in service.
21. 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.
22. 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.

23. 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.
24.  Ld. counsel for OP during the arguments relied upon a decision of Hon’ble Supreme Court in case titled DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda 2019 SCC online SC 689 in support of his contention that award of interest or compensation under the act has to be just  and equitable comensurate with the loss.
25. In view of the above judgement we direct OP to refund the entire amount deposit by complainant i.e. Rs. 19,94,800.36/- (Rupees Ninteen Lakh Ninety Four Thousand Eight Hundred Thirty Six Paise) with interest @ 8% p.a. from the date of deposit till realization within 4, from the date of receipt of the order failing which OP will be liable to pay interest @ 12% p.a. till payment.

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