Delhi

New Delhi

CC/566/2017

Dharmendra Singh Tomar - Complainant(s)

Versus

M/S. Ansal Hi-Tech Township Ltd. - Opp.Party(s)

25 Feb 2022

ORDER

 

CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC. 566/2017                              

In the matter of:

 

  Sh. Dharmendra Singh Tomar

  S/o Sh. Jagpat Singh Tomar,

  R/o: RZ-D-55, Pratap Garden,

  Near Bindapur, Uttam Nagar,

  New Delhi-110059                                             ……..COMPLAINANT

 

Versus

 

  Ansal Hi-Tech Townships Ltd.

            (Through its Managing Director)

            Having Regd. Office at:

  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 : 12.12.2017                                                                       Date of Order            : 25.02.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complaint has been filed under Section 11 and 12 of the Consumer Protection Act, 1986 (in short CP Act). Briefly stated the facts of the case are that the opposite party (in short OP) is a Limited Company, incorporated under the Companies Act, 1956 and is engaged in the business of Housing Development, Builders, Construction, Collaboration, Real Estate and Properties etc. It is further stated that in the year 2011/2012, the OP advertised through newspapers and otherwise, the launch of a residential Project named as ‘MEGAPOLIS’ for the Residential Plots in Greater Noida, near Dadri, in Uttar Pradesh. The representatives of the OP told the complainant that the their company was offering the plots in the above upcoming township project at a discounted rate as a pre-launch offer. OP assured its timely possession on or before may end, 2014. The, opposite party through its agents and representatives had approached the complainant and claimed to have acquired vast land on the leasehold in Greater Noida and also claimed to have obtained clear title and all requisite licenses, sanctions, approvals and permissions from DTCP and also NOC from Forest pollution Control/ Environmental Department and represented that the project was going to begin and develop very soon.
2. It is further averted on the basis of the representations made by the representatives of the OP Company the complainant applied and booked a plot in the project of OP on 04.02.2012, by submitting an application form. The complainant was allotted plot no. 125 in sector 10-B in the Sushant Megapolis adjoining Greater Noida.
3. It is also stated that the complainant paid Rs. 74,158/- ( Seventy Four Thousand One Hundred Fifty Eight Only) to OP on 15.03.2012  at the time of booking and thereafter a Plot Allottee Agreement was executed between the parties. It is further stated that complainant also paid Rs. 1,36,331/- ( One Lakh Thirty Six Thousand Three Hundred Thirty One Only) on 25.05.2012, thereafter Rs. 2,78,314/- (Two Lakh Seventy Eight Thousand Three Hundred Fourteen Only). The complainant thus paid Rs. 4,88,803/- (Four Lakh Eighty Eight Thousand Eight Hundred Three Only) to OP(which was 35% cost of the plot). Complainant was allotted plot no. 125 in Sector 10-B. It is also stated that OP however failed to carry out the development of the project till the filing of complaint and neither offered possession. It is further stated that in fact no land has been allotted to the OP for the project.
4. It is also alleged that complainant has always been willing and ready to pay balance payment, but on the condition that the copies of title documents, license approval be supplied to him. It is also stated when the complainant visited the site, and he was surprised to see that there was no demarcation of the project at the site and no work had started for development of the project.
5. It is also stated the OP has utilized the hard earned money of complainant for personal gain, illegal monetary benefit. The complainant sent a legal notice to the OP but no reply was given by the OP. Thereafter a reminder legal notice was also sent to OP, but despite service of the two legal notices, OP did not offer to refund the amount taken from complainant neither possession of the allotted land/plot was given.
6. It is alleged that the OP was deficient in providing service to complainant, and has indulged in unfair trade practices. It is prayed that the OP be directed to refund Rs. 4,88,803/- (Four Lakh Eighty Eight Lakh Eight Hundred Three Only) to complainant with interest at the rate of 18% p.a. w.e.f. 10.03.2013 and Rs. 4,00,000/- (Four Lakhs Only) towards compensation and harassment with interest at the rate of 18% p.a. and cost of the litigation.
7. It is also stated that the cause of action is a continuing one as OP has failed to refund the amount taken from complainant nor handed over possession of the plot. This Forum has territorial jurisdiction as OP has its registered office within its jurisdiction.
8. OP filed written statement contesting the complaint, stating inter alia that complainant is not a consumer within the definition of Consumer Protection Act, and he had booked the plot for investment purposes. It was also stated that due to slump in the real estate, complainant decided to wriggle out of the agreement after paying a fraction of the total consideration. It was further alleged that as per clause 1.7 of the plot buyer agreement OP is entitled to forfeit the 20% of basic sale earnest money in case allottee seeks cancellation. It was denied that false promises were made by the OP or that OP was deficient in providing services. It was also stated that the delay in handing possession was due to unexpected farmers agitation and force majeure. It was also denied that OP indulged in unfair trade practices or cheated the complainant. It was also stated that there was no breach of the terms of the agreement by OP. It was prayed that the complaint be dismissed.
9. Complainant thereafter filed rejoinder denying all the allegations made in the written statement and reiterating the contents of the complaint. Both the parties thereafter filed their evidences by affidavit.
10. We have heard the Ld. Counsel for parties and perused the evidence and materials on the record.
11. It is an admitted fact that complainant booked a plot in the project of OP the same is evident from the documents and evidence led by parties. In this regard the complainant relied upon the booking form, the receipts of payments made to OP, Plot Allottee agreement, legal notice and reminder notice sent to OP.
12. It was contended on behalf of complainant that OP was deficient in providing services, Complainant paid a total sum of Rs. 4,88,803/- (Four Lakh Eighty Eight Thousand Eight Hundred Three) to the OP which was 30% of the cost of the plot but OP fail to deliver the possession of plot to the complainant even after more than 10 years of the agreement. It was stated that the Plot Allottee agreement dated 10.05.2012 provided the allotment would be made by 2014-2015, the assured time has expired in 2014-15. It was stated that complainant was ready and willing to make the payment but no offer for possession was made by OP neither OP demanded any amount after receiving Rs. 4,88,803/- (Four Lakh Eighty Eight Thousand Eight Hundred Three). It was also stated that no land was demarcated for the project which not only amounts to deficiency in services but also unfair trade practice.
13. 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 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.
15. On the other hand it was submitted on behalf of the OP that the delay in the project was due force majeure clause. It was also argued that the complainant has not been able to establish any deficiency of service or consumer dispute as contemplated under the Consumer Protection Act, 2019 which could be attributable to the respondent; therefore, the Complaint is liable to be dismissed.
16. As regards the contention of the OP that the delay was due to force majeure, in this regard it is to be noted that no evidence was led by OP in support of the said contention that the delay was due to non-availability of building material, electric power delay in giving clearance by Government authority/ statutory bodies.
17. After giving our careful thought to the arguments advanced by Ld. Counsels for parties, we are of the view that admittedly, there is inordinate delay in handing over the possession of the plot in question which amounts to deficiency in service. In this regard it is to be noted that OP did not deny the averments made in the complaint that possession was to be handed over by 2014.
18. It is also to be noted 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.
19. It is also pertinent to note Hon’ble Supreme Court held in the case titled 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 along with compensation.

20. We are further of the view that the cause of action being the continuing one as the amount paid by complainant was not refunded neither possession of the flat was handed over to him, the complaint is thus within the period of limitation.
21. As regards the contention of OP that complainant is not a consumer, as defined in the Consumer Protection Act, 2019, it is to be noted that a mere allegation has been made 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.
22. In this regard it has been filed in by Hon’ble Supreme Court in Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, that:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit.” Thus as no evidence was brought on record by OP to prove the said contention we are of the view that the same is without any merit.
23. It is also pertinent to note that complainant sent a legal notice to the OP. A reminder legal notice was also sent the postal receipt of the same has been filed. However no reply to the same was given by OP. OP admitted the receipt of legal notices, OP also admitted in its Written Statement that there was delay in the completion of project. In our view OP was thus not entitled to forfeit the earnest money as the site for development of project was not demarcated. The complainant was not informed of land demarcation development of project.
24. We thus, hold that OP guilty of deficiency in services. 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 to refund the amount Rs. 4,88,803/- (Rupees Four Lakhs Eighty Eight Thousand Eight Hundred Three 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. 20,000/- (Twenty Thousand Only) as cost on litigation
25. 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 Ahmed)

                                                                                                Member