Delhi

New Delhi

CC/245/2018

PRAMOD KUMAR - Complainant(s)

Versus

ANSAL HI-TECH TOWNSHIP LIMITED. - Opp.Party(s)

18 Jul 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI, DISTT.NEW DELHI,

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

 

CC/245/2018

 

IN THE MATTER OF:

 

PRAMOD KUMAR S/O LATE MANGURAM

R/O CARE PAL FURNITURE MAIN KASBA ROAD

MURADNAGAR, TAHSIL MODINAGAR,

GHAZIABAD                                                                               COMPLAINANT

VERSUS

ANSAL HITECH TOWNSHIP LIMITED

SALES OFFICE SUSHANT MEGAPOLIS UGF 56

ANSAL PLAZA NEAR PARI CHOWK

GREATER NOIDA, UP

 

M/s ANSAL PROPERTIES AND INFRASTRUCTURE LTD.

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 :11.06.2018

                                                                             Date of Order         :18.07.2022

 

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under section 35 of the Consumer Protection Act. 1986 (in short CPA) against the OP alleging deficiency in services. Briefly stated the facts of the case are that Complainant booked a flat in the project of OP namely Sushant Megapolis Greater Noida, UP and paid Rs. 58,680/-(Rupees Fifty Eight Thousand six hundred eighty) and was allotted a unit bearing. E-32026.
2. It is alleged that since the Respondent has failed to deliver the possession of the above mentioned unit within the stipulated time. The OP be directed to refund the amount paid due to inordinate delay caused by the respondent in handing over possession of the flat in question. It is also alleged that the act of OP amounts to deficiency in services, hence, the respondent is liable to refund the amount of Rs. 58,680/- (Rupees Fifty Eight Thousand six hundred eighty) with interest and also to pay compensation.
3. It is alleged that the complainants sent legal notice dated 08.01.2016 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.
4. 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" as defined in 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.
5. It is prayed that OP be directed to refund the amount of Rs. 58,680/- along interest @ 18% p.a. from the date of first payment till realization and damages of Rs. 1,00,000/- towards mental harassment and mental agony.
6. Notice of the complaint was issued to the OP which was duly served on 09.11.2018. However, despite service, OP did not file his written statement within the statutory period. In view thereof, OP was proceeded exparte vide order dated 20.02.2019.
7. Evidence by way of affidavit was filed by the Complainants.
8. We have heard the counsel for the parties and perused through the material on record.
9. 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 filed by Complainant that Complainant made the Payment of Rs. 58,680/- (Rupees Fifty Eight Thousand six hundred eighty) to the OP.
10. 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 from the date of receipt of payment. It was also submitted that complainant had paid Rs.58,680/- /-(Rupees Fifty Eight Thousand six hundred eighty)/- to the OP, but OP failed to deliver the possession within the stipulated time. 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.
11. 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.
12. It is to be noted 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 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.
13. 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.

14. 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. We are also of the view that this Commission has territorial jurisdiction as the OP works for gain within the jurisdiction of this Commission.
15. Keeping in view the above judgment we direct OP to refund the entire amount of Rs. 58,680/-(Rupees Fifty Eight Thousand six hundred eighty) paid by Complainant along with interest @ 18% p.a. from the date of first payment received by OP till realization. Interest of 18% pa in view of the judgment of Hon’ble National Commission passed in the matter Poonam Vashist vs. Parsvnath Developers Ltd. in CC/1229/2015 date of decision 11.04.2022. In case the amount is not refunded within 3 months OP will be liable to pay interest @ 24% p.a. from the date of receipt of first payment by OP till actual realization of the amount.
16. In addition OP is directed to pay to the Complainant  and Rs. 50,000/- as litigation cost to the Complainant.
17. 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