Delhi

New Delhi

CC/729/2011

Shiv Dayal Verma - 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/729/2011

IN THE MATTER OF:

MR. SHIV DAYAL VERMA

HOUSE NO. 32 ROAD NO. 18

PUNJABI BAGH EAST,

NEW DELHI 110026                                                                             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 :08.07.2011

                                                                             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 named Sushant City, Kundli Haryana through the agent of respondent M/s M.K. Properties and submitted an advance registration form dated 20.01.2005 along with a cheque for a sum of Rs. 7,20,000/-. A receipt dated 31.01.2005 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 3 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.
3. It is alleged that after a period of 65 months from Registration the Complainant received a communication dated 07th May 2010, from the Respondent, titled as "Offer of Allotment of Plots". Vide this letter a Plot No. E 4280 measuring 200 Sq. Mts. (239 Sq Yards), was allotted to the Complainant at rate of Rs.6950/- Per Sq. Yds. 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. The letter of allotment required the Complainant to pay Rs. 1,76,250/-

 

4. It is also stated that the respondent thereafter vide letter dated 6th September 2010 demanded Rs. 1,49,500/- and thereafter again a demand letter was received for Rs. 1,49,500/-.
5. It is also alleged that Complainant has thus total paid Rs. 15,56,000/- to OP as against the sum of Rs. 14,93,750/- payable to OP for the plot in question which is more than the amount due.
6. The Complainant got a Legal Notice dated 30^th October 2010 served on the Respondent but no reply was received. The Complainant received a reminder dated 15.01.2011. The OP sent a cancellation notice requiring the Complainant to pay Rs. 2,24,250/- with a  threat to cancel the allotment. The Complainant thereafter got another legal notice served on the respondent.
7. It is further alleged that the Complainant is a consumer within the definition of the Consumer Protection Act. The acts of OP amount to deficiency in service.
8. It is stated that the Cause of Action arose first on 20th January 2005 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 the Complainant sent a Legal Notice to OP.
9. It is further 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. 15 Lakhs. It is also alleged that the acts of Respondent amount not only to deficient of services but also unfair trade practices. It is prayed that the OP be directed to refund the amount paid by Complainant with interest as promised on 20^th January 2005 and also pay compensation. The OP be directed to withdraw the letter of cancellation of allotment.
10. OP contested the case reply was filed, stating that OP had allotted plot No. E-4280 in Sushant City, to the Complainant. The Complainant was required to make payment of plot in accordance with the time linked plan but the Complainant failed to make the payment on time and defaulted in payment therefore OP cancelled the allotment. It was further stated that the allegations regarding arbitrary increase in price are false. 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 Complainant had paid Rs. 15,56,000/- as alleged. It is alleged that Complainant had paid only 11,96,000/-. It was also denied that there was no deficiency in service on behalf of OP or OP indulges in unfair trade practice. It was prayed that the Complainant is liable to be dismissed.
11. 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.
12. 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. E 4280 in the Project Sushant City, Kundli Hayrana, to the Complainant.
13. It was contended on the behalf of the complainant that OP was deficient in providing its services as Complainant had made payment total of Rs. 15,56,000/- was paid by Complainant to OP but OP failed to give possession within the 6 months of the date of registration. It was also contended that as per the terms of the advance registration form allotment was to be made within 6 months from the date of registration. However, OP failed to do so. 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.
14. 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.
15. On the other hand it was submitted on behalf of the OP that the complainant was aware of the payment plan. The payment of timely installments was the essence of the contract. It was alleged that despite repeated reminders Complainant defaulted in payment as such OP was compelled to cancel the allotment. It was alleged that Complainant was unable to establish any deficiency of service.
16. 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.
17. 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.
18. 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.

19. 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.
20. We thus, hold that OP was guilty of deficiency in services. We accordingly direct OP to refund the amount Rs.15,56,000/- (Rupees Fifteen Lakhs Fifty Six Thousand Only) to the complainant along 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 is directed to pay interest @ 12% p.a. for the delayed period. We also award Rs. 10,000/- (Ten Thousand Only) as cost on litigation
21. 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