Delhi

New Delhi

CC/525/2015

Arti Suden - Complainant(s)

Versus

M/s Ansal Hi Tech Town Ship LTD - Opp.Party(s)

25 Mar 2022

ORDER

 

CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

                                       Case No.CC. 525/2015                              

In the matter of:

 

   Arti Suden

   Wife of Shri Pushpinder Suden

   R/o B-1/29, Vasant Vihar,

   New Delhi-110057                                            ……..COMPLAINANT

 

Versus

 

            M/s Ansal Hi-Tech Township Limited

            115, AnsalBhawan

             16, Kasturba Gandhi Marg

             New Delhi-110001                                  ……..OPPOSITE PARTIES

Quorum:

 

         Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad, Member

          Ms.  Adarsh Nain, Member

                                                                                                                                        Dated of Institution : 14.08.2015                                                                                                                                                                      Date of Order            : 25.03.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The Complainant has filed the present complaint under section 12 of the Consumer protection Act, 1986, as amended upto date (in short CP Act.) against the opposite party (in short OP) alleging deficiency in services. The facts of the case in brief are that on the basis of the representation of opposite party, complainant’s son initially booked a residential apartment in the project of OP i.e Fairway Apartments-I in the Township Megapolis in Greater Noida.
2. It is further alleged that initial payment and booking was done by complainant’s son Rahul Suden, and he had paid Rs. 45,000/- a receipt for which was issued by OP in name of complainant’s son Rahul Suden. Thereafter, since the payments were to be made by complainant, the booking was transferred in the name of complainant. The Complainant thereafter made a further payment of Rs. 45,000/- a receipt for which was also issued.
3. It is also alleged that as per the agreement of sale dated 11.04.2009 entered into between the parties apartment No. 0205 in Block A at 2^nd Floor admeasuring 90 sq. meters was allotted to the Complainant for a total sale consideration of Rs. 8,84,802.82 (Rupees Eight Lakhs Eighty Four Thousand Eight Hundred Two and Eighty Two Paise).
4. It is further alleged that on the representation of OP that it would hand over possession in 42 months, the complainant had made further payment as per the demands raised by opposite party. The complainant thus deposited the entire sale consideration, against a confirmed allotment, but OP failed to hand over possession of the apartment to the complainant. Opposite party even failed to intimate to the complainant about the status of allotment and misappropriated the money of the complainant.
5. It is stated as per the agreement, opposite party was required to hand over possession within a period of 42 month. But when the complainant visited the office of OP in September, 2013 and inquired about the status of the project, she was shocked to learn that no construction had started in the tower in which the confirmed allotment had been made in her favour way back in 2009. The complainant thereafter immediately on 2^nd September, 2013 wrote a letter to opposite party seeking refund of the money with interest. The said communication was received by opposite party, however no amount was refunded by opposite party. It is further alleged  that the complainant was thereafter constrained to hand over another communication dated 10^th October, 2013 to Opposite Party, which was also duly received, requesting opposite party to refund the entire amount of Rs. 8,82,992/-(Rupees Eight Lakh Eighty Two Thousand Nine Hundred Ninety Two) with interest. However, opposite party company and its directors with the view to cheat complainant misappropriated the money of complainant and enjoyed the interest thereon. It is alleged that opposite party and its directors and officers are responsible for the fraud played upon the Complainant. The acts of OP amounts to unfair trade practices.
6. It is also alleged that complainant was constrained to send a legal notice dated 24^th July 2015 to the opposite party. However despite the receipt of the same, the opposite party did not repay the amount or even reply to the same. The act of opposite party amounts to unfair trade practices which have caused grave loss and injury to the complainant.

It is prayed that OP be directed to refund Rs. 8,82,992/- (Rupees Eight Lakhs Eighty Two Thousand Nine Hundred Ninety Two) the sale consideration of residential flat with interest @ 24% p.a. from the date of deposite of payment till date of realization of the amount, and Rs. 5 lakhs be awarded towards liquidated damages for the loss, undue hardships caused to be complainants by the unfair trade practices adopted by the opposite party.

7. OP contested the claim, Written Statement was filed taking preliminary objection that complaint is bad for non-joinder of the parties. It was further stated that the complaint is barred by the limitation as allotment agreement is of the year 2009, Section 24(A) of the CP Act. 1986 provides that the period of limitation for filing of complaint is two years from the date of cause of action. It was also stated that the Complainant made the payment after the lapse of due dates. It was further stated that the para 4.1 of the agreement relates to time of handing over possession and Para 4.1B is on exception to the said clause, it provides that the  allotment is subject to Force Majeure clause of the agreement. It was further stated that the project was delayed due to unlawful activities and hindrances in the area which occurred from time to time till year 2016.
8. It was also stated that Complainant had no cause of action. The complaint was not maintainable as there was an arbitration clause in the agreement. On merits it was denied that OP had taken entire sale consideration from the Complainant. It was also denied that the booking was transferred in the name of Complainant. It was also stated that only 20% payment was received from the Complainant. It was denied that the OP was required to hand over the possession within 42 months of the agreement. It was prayed that the complaint be dismissed.
9. Rejoinder was filed by Complainant, reiterating therein the contents made in the complaint and denying all the allegation made in the Written Statement.
10. The Complainant thereafter filed its evidence by way of affidavit reiterating therein the contents of the complaint. The Complainant relied upon the receipts of payment, letter sent to OP to refund the amount and legal notice. OP did not file its evidence despite several opportunities being granted. None appeared for OP on the DOH of 22.01.2018, 29.10.2018, OP was thus proceeded exparte vide order dated 29.10.2018.
11. We have heard the Ld. Counsels for Complainant and perused the record, OP did not lead evidence in support of its above contentions. The testimony of Complainant has gone unrebutted. It was contended on the behalf of the complainant that OP was deficient in providing its services. 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.
12. It 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.
13. It is to be noted that it is the case of the Complainant that she paid the entire sale consideration and the clause 4.1.a of the agreement provided that the possession was to be handed over within 42 months from the date of agreement. After giving our careful thought to the arguments advanced by Ld. Counsel for Complainant, we are of the view that admittedly, there was inordinate delay in handing over the possession of the apartment in question to Complainant which amounts to deficiency in service as such Complainant was entitled to seeks refund of the amount paid. It is also to be noted that the application moved by OP under section 8 of the arbitration Act was dismissed.
14. It is pertinent to note 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.
15. 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 justifiedin claiming refund of the amount deposited by him with compensation.

16. We are further of the view that the cause of action is the continuing one as the amount advanced by complainant was not refunded neither possession of the apartment was handed over to her the complaint is thus within the period of limitation.
17. We thus, hold that OP was guilty of deficiency in services and this acts amounted to unfair trade practices. We also find that Complainant was not at fault for the delay which occurred in the completion of project. We further hold that there are no reasons to justify the delay in completion of the project. We accordingly direct OP/M/s Ansal Hi Tech Township Limited to refund the amount Rs. 8,84,802.82/- (Rupees Eight Lakhs Eighty Four Thousand Eight Hundred Two and Eighty Two Paise) to the complainant along with interest @ 9% p.a. from the date of deposit of amount 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
18. 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