Delhi

New Delhi

CC/229/2011

S.L. Nandwani - Complainant(s)

Versus

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

13 Apr 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

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

 

CC/229/2011

IN THE MATTER OF:

MRS. S.L. NANDWANI,

E-204, SECTOR-I, SUNCITY,

SARDAR PATEL RING ROAD,

BOPAL, AHEMDABAD

GUJRAT                                                                                     COMPLAINANT

VERSUS

M/s ANSAL PROPERTIES AND INFRASTRUCTURE LTD.

115, ANSAL BHAWAN,

16, KASTURBA GANDHI MARG,

NEW DELHI 110001                                                                   OPPOSITY PARTY                                                   

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                             Dated of Institution :04.03.2011

                                                                             Date of Order         :13.04.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under section 12 of the Consumer Protection Act. 1986 (in short CPA). Briefly stated the facts of the case are that on representations of the agent of the respondent the Complainant booked a residential plot in the scheme of OP No. 1 named as Sushant City, Panipat through the agent of respondent M/s M.K. Properties and submitted an advance registration form dated 21.12.2004 along with a cheque for a sum of Rs. 2,50,000/- which was 20% of the cost of plot. A receipt dated 27.12.2004 was issued to the Complainant.
2. It is further alleged that the Advance Registration Form contained various terms and conditions of the allotment in the above project. As per the offer the allotment was to be made by the Respondent within six months from the date of registration and the advance paid by the Complainant was to be adjusted against the booking amount payable to the Respondent. the Complainant was entitled to an interest at the rate of 10% per annum in case the offer was made after the expiry of 6 months from the date of Registration and payable up to date on the making the offer. There was a provision for the Complainant to withdraw the advance amount in case no allotment was made within a period of 12 months. The Complainant was also entitled to a discount of Rs.150/- per Sq. Mts. (PSM) on the list price declared the Respondent the Addressee No. 1 on the day of the offer of allotment.
3. It is alleged that after a period of 16 months from Registration the Complainant received a communication dated 27th March 2006, from the Respondent, titled as "Allotment of Residential Plots". Vide this letter a Plot No. F 2697 measuring 200 Sq. Mts. (239 Sq Yards), was allotted to the Complainant at basic rate of Rs.6950/- Per Sq. Yds. contrary to promised, assured price of Rs. 4000/-Per Sq. Mts. The prices were arbitrarily hiked up steeply without any reason or notice to the Complainant. More over the letter of allotment did not give any credit of interest payable at a rate of 10% per annum as per Clause C of the Registration Form.
4. It is also alleged that the Respondent did not, till the date of filling of the Complaint, communicate to the Complainant in writing about any payment plan or mode of payment or the approximate date of handing over the possession. The agent/representative of the Respondent, had assured the Complainant that the fully developed Plots will be handed over within a year or so and payment terms will be communicated to the Complainant within a week after the Cheque issued by the Complainant is cleared by the bankers.
5. It is also alleged the Complainant received a letter dated 20th July 2006 demanding EDC besides part of the price of Plot. The Complainant also received another notice dated 30th September 2006 mentioning about a payment plan which was never communicated to the Complainant.
6. It is also stated that the Complainant wrote to the Respondent on 9th October 2006 communicating a concern for hiking up the prices. The Complainant also requested OP to take payment in three installments.
7. It is also alleged that the payment received by the Respondent on 21st Dec 2004 has been accounted for in their books on 20th April 2006 without showing payment of interest. All entries are case of fudging of accounts, mishandling and fleecing the consumers including the Complainant. These entries, reveal debits made without any basis as well as without any communications sent to the Complainant.
8. It is alleged that the Complainant received, the Plot Buyers Agreement dated 22nd Nov 2006, which contained unilateral and oppressive clauses and for the first time the Complainant came to know the words EDC was as `External Development Charges'.
9. The Complainant received an unsigned letter dated 17th July 2010 demanding a sum of Rs. 8,13,280. The Complainant got a Legal Notice dated 1st November 2010 served on the Respondent.  
10. It is further alleged that the Complainant is a consumer within the definition of the Consumer Protection Act.
11. It is stated that the Cause of Action arose first on 21st Dec 2004 when the Complainant on the promises and assurances of the Respondent applied for a plot, and then on various subsequent dates when the Complainant paid various amounts and then on various dates when the Complainant sent written and verbal communications and on 1st November 2010 when Complainant sent a Legal Notice to OP.
12. It is alleged that this forum has jurisdiction as the respondent resides and works within the jurisdiction of this Forum and the claim of the Complainant is valued at Rs. 10 Lakhs. It is alleged that the acts of Respondent amounts to deficient of services as well as unfair trade practices. It is prayed that the OP be directed to refund the amount paid by Complainant and also pay compensation.
13. OP contested the case reply was filed taking preliminary objections that the complaint is not maintainable as Complainant is not a consumer as defined in CP Act. Neither the allotment of plot falls in the deficiency of service as defined in the CP Act. It was also alleged that this forum did not have territorial jurisdiction as cause of action arose in Panipat. It was further stated that the Complainant is barred by limitation. It was further stated that OP had allotted plot No. F 2697 in Sushant City, to the Complainant. Complainant was required to make payment of plot in accordance with the development linked plan but the Complainant failed to make the payment on time. It was further stated that the allegations regarding arbitrary increase in price are false. It was also stated that OP was ready to handover the plot in question but Complainant avoided to take possession. It was further stated that Complainant is liable to pay External Development Charges but Complainant avoided in making the payments of the same. It was denied that plot buyer agreement was unilateral or oppressive. It was also denied that there was no deficiency in service on behalf of OP or OP indulges in unfair trade practice. It is stated that the Complainant is liable to be dismissed.
14. Complainant thereafter filed the rejoinder reiterating therein the contents of the complaint and denying all the allegations made in the Written Statement. Both the parties filed their evidence by affidavit.
15. We have heard the Ld. Counsel for parties and perused the record, the fact that Complainant booked a flat with OP is not in dispute from the evidence on record. It is also an admitted fact that OP allotted plot no.F2697 in Sushant City Panipat to the Complainant vide allotment letter dated 27.03.2006.
16. It was contended on the behalf of the complainant that OP was deficient in providing its services, complainant had paid Rs. 7,25,936/- to OP but OP failed to handover possession within the period as promised in the form of registration. It was also argued that the OP thus failed to comply with the terms of the registration. 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.
17. 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.
18. On the other hand it was submitted on behalf of the OP that the complainant was aware of the payment plan. The payment of installments timely was the essence of the contract. It is also alleged that Consumer dispute as contemplated under the Consumer Protection Act, which could not be attributable to the respondent, therefore, the Complaint is liable to be dismissed. It was alleged that despite repeated reminders Complainant failed to make the payment of installments on time, Complainant was unable to establish any deficiency of service.
19. After giving our careful thought to the arguments advanced by Ld. Counsels for parties, we are of the view that admittedly, there was inordinate delay in handing over the possession of the plot in question to Complainant by OP which amounts to deficiency in service.
20. Further, It was also contended on behalf of OP that Complainant was intimated vide letter dated 07.02.2009 that plot was ready for possession. As regards the said contention, It is to be noted that postal receipts of the letter have not been filed, thus it has not been proved that OP had sent any such intimation to Complainant.
21. It is also pertinent to note that Section 2 (r) of the Consumer Protection Act, 1986, 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 complainant was not refunded neither possession of the flat was handed over to him, the complaint is within the period of limitation.
24. As regard the contention of OP that complainant is not a consumer, as defined in the Consumer Protection Act, 1986, it is to be noted that a mere allegation has been made in this regard in the WS by OP, no evidence was brought on record to prove the said contention. We are thus of the view that the same is without merits.
25. We are also of the view that the contention of OP that this forum does not have territorial jurisdiction is without merits, In view of the section 11 of the CP Act 1986 which provides that:-

11. Jurisdiction of the District forum-(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed .

1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain,

26. We thus, hold that OP was guilty of deficiency in services. We accordingly direct OP to refund the amount Rs. 7,25,936- (Rupees Seven Lakhs Twenty Fifty Thousand Nine Hundred Thirty Six) to the complainant with interest @ 9% p.a. from the date of deposit till realization within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP will be liable to pay interest @ 12% p.a. for the delayed period. We also award Rs. 10,000/- (Ten Thousand Only) as cost on litigation
27. 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