Delhi

New Delhi

CC/149/2012

Seema Rani Jain - Complainant(s)

Versus

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

24 Apr 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-149/2012

IN THE MATTER OF:

Seema Rani Jain

R/o 136-A, Ahinsa Vihar Society,

Sector-9, Rohini, Delhi – 110085.                                                              

...Complainant

Versus

 

M/s Ansal Properties & Infrastructure Ltd.

115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi – 110001.                                         

…Opposite Party

Quorum:

 

Ms. Poonam Chaudhry, President

Sh. Shekhar Chandra, Member

                                                  Date of Institution:14.02.2012

 Date of Order     : 24.04.2023

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under the Consumer Protection Act, 1986 (in short CP Act) against Opposite Party (in short OP) alleging deficiency of services.
2. Briefly stated facts of the case are that the complainant had booked a plot  in the project of OP, Sushant City measuring 300 Sq. Yd. @ Rs.4950- per sq. yd.  to be developed by OP. Complainant paid Rs.3,70,012/- (Rupees Three Lakh Seventy Thousand Twelve) to the company/OP till date.
3. It is alleged that the complainant observed that the company had some problems in the allotment of land for the project from the concerned authorities.  The project was getting delayed without any development of land or infrastructure facility. The company was not giving any satisfactory reason for the delay in allotment of plot/land to the complainant.
4. It is further alleged complainant had no other alternative but to stop payment of further installments. It is also stated that OP asked complainant  to make payment of installments with heavy interest of about 20% on late payment without giving any assurance as to when the plot was likely to be handed over and allotted. The complainant was not in  a position to make payment for installments due to financial crises. Complainant requested OP not to levy high interest to the tune of 20%, but no response was received from their end. OP asked complainant to make payment of Rs.11,10,409/- (Rupees Eleven Lakh Ten thousand Four Hundred Nine) with 20% interest vide their letter dated 20.10.2010.
5. The complainant had made several requests in writing and verbally to waive of the interest so that balance payment of plot could be made. But OP neither waived off interest nor refunded the initial money paid with interest. It is also alleged that the respondent may be directed to handover  possession of the plot by taking balance payment without any interest.

                                                                                                      

6. Notice of the complaint was issued to OP. OP entered appearance and filed reply contesting the complaint on various grounds inter alia that complaint is not  maintainable in law nor on facts. It was also alleged that the Complainant has failed to bring the case under the ambit of Consumer Protection Act and as such the Complainant is not entitled to any relief as claimed.
7. It was also alleged that complaint is an abuse of the process of law as there was no deficiency of service on part of the respondent.  It was further stated that the complainant made the advance payment of Rs 3 Lacs (Three Lakhs only) drawn on the South Indian Bank Ltd vide cheque No. 707425 and 015203 against which the complainant was issued a receipt vide receipt no. 419250 dated 26.11.2005.

 

8. It was also alleged that the development of the project was in accordance with the construction linked plan but the complainant was at fault for not paying installment after 2007.
9. The respondent had sent reminder letters, call notices and was finally OP cancelled allotment vide cancellation letter dated 31.03.2011. It was prayed that complaint be dismissed.
10. Both parties thereafter filed their evidence by affidavits.
11. We have heard the Ld. Counsel for parties and perused the evidence and material on record.
12. It was contended on the behalf of the complainant that OP was deficient in providing services as complainant paid Rs.3,70,012/- (Rupees Three Lakh Seventy Thousand Twelve) to the OP but OP failed to deliver the possession of flat even till the filing of complaint. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was also stated that plot was booked in the year 2005. OP thereafter asked for payment of installment with interest @ 20% on late payment without any assurance as to when the possession of plot would be handed over. It was also stated that respondent did not execute the agreement. It was also contended that OP asked complainant to pay Rs.9,61,161/- (Rupees Nine Lakh Sixty One Thousand One Hundred Sixty One) vide letter dated 05.07.2010 or else the amount deposited would be forfeited. 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. In the instant case no agreement was executed or supplied to complainant.
13. It is also pertinent to note that 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.
14. It is to be noted Section 2 (47) of the CP 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. The demand of balance payment by OP without execution of agreement amounts to unfair trade practice. It was contended on behalf of OP that allotment letter and agreement were sent to complainant vide letter dated 25.04.2008, and 02.09.2008. However no postal receipt filed in support of said contention, hence the same is rejected.
15. An application of OP for dismissal of the complaint on the ground that sale of plot simplicitor is not covered  under the Consumer Protection Act was dismissed vide order dated 05.02.2019.
16. 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 her, the complaint is within the period of limitation.
17. We accordingly hold OP/M/s Ansal Properties and Infrastructure Limited guilty of deficiency of service and direct OP/Ansal Properties and Infrastructure Ltd. to refund the amount of Rs.3,70,012/- (Rupees Three Lakh Seventy Thousand Twelve) with interest @ 9% p.a. from the date of each deposit, within 4 weeks from the date of receipt of the order, failing which OP will be liable to pay interest @ 15% p.a. till realization. We also award Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) as compensation for mental agony and Rs.25,000/- (Rupees Twenty Five thousand) as cost of the litigation.

A copy of this order be provided/sent 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)

                                                                    

 

                                      Shekhar Chandra

                                                                                           (Member)