Delhi

New Delhi

CC/77/2015

Navneet Kumar - Complainant(s)

Versus

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

27 May 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

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

 

CC/77/2015

 

IN THE MATTER OF:

 

Mr. Navneet Kumar

S/o Sh. Ram Ratan Singh

Presently residing at:-

B-149, Second Floor, Flat No. 1

Shalimar Garden Extension-II,

Sahibabad, Ghaziabad, UP-201005                                              COMPLAINANT

VERSUS

 

1. M/s Ansal Hi-Tech Township Limited

           Office at:-

          115, Ansal Bhawan, 16 K.G. Marg,

         New Delhi 110001

       Through its Director

2. India World Technologies Private Limited (India Homes)

          Office at:-

          Lane No. 3, Westend Marg, Saidullajab,

          Saket, New Delhi 110030OPPOSITY PARTY

Quorum:

           Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                             Dated of Institution :03.02.2015

                                                                             Date of Order         :27.05.2022

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 CP Act.)(as amended upto date), against opposite party No.1 and 2 (in short OP). Briefly stated the facts of the case are that the OP No.1 is a company incorporated under the Companies Act, 1956, and is working as developers and developing group housing complex and apartments by the name of “FAIRWAY APPARTMENT” in Hi Tech Township “MEGAPOLIS”. It is further stated that OP-2 is also a registered company and working as property booking and in service of real estate.
2. It is further stated that OP No. 2 is engaged in property services in real estate. The Complainant booked one residential apartment bearing No. 0184, First Floor, Tower F-1 (Fairway Apartment), Sushant Megapolis, Ansal API admeasuring 1255 Sq. Ft. It is further alleged that Complainant paid Rs. 2,85,926/- (Rupees Two Lacs Eighty Five Thousand Nine Hundred and Twenty Six Only), to OP-1 vide cheque as booking amount. The apartment was booked with OP-1 through OP-2. It is further stated that OP-1 provisionally allotted apartment 0184, First Floor in the Fairway Apartment. It is also stated that the OP-1 sent a buyer agreement in standard format to the Complainant for signatures. The Complainant found it to be one sided and sent objections to OP-1 through email and the agreement was returned to OP-1 without complainant’s signature.
3. It is alleged that as Complainant found that the buyer agreement to be one sided Complainant requested opposite parties to refund the booking amount, OP-1 agreed to return the amount, but failed to do so.
4. It is also stated that thereafter a legal notice was sent to the opposite parties by registered post which was duly served on opposite parties but they did not file any reply or refund the amount. It is further alleged that conduct of OP No.1 and 2 amounts to deficiency in service, the acts and conducts of OP No. 1 and 2 also amount to cheating, fraud.
5. It is also stated that the Complainant is a consumer as per the Consumer Protection Act. This forum has jurisdiction to adjudicate the present complaint as the office of OP No. 1 is situated within its jurisdiction. It is prayed the OP No.1 and 2 be directed to refund the sum of Rs. 2,85,926/- with interest @ 18% p.a.  and also pay 2,00,000/- as damages.
6. OP No. 1 opposed the complaint written statement was filed taking preliminary objection that the complaint was barred by limitation as the application for allotment is dated 02.09.2012. It was also stated that complaint has no cause of action and is trying to wriggle out the contractual obligations. It was also stated that OP-1 was not guilty of deficiency in service nor OP No. 1 indulged in unfair trade practice. On merits it was stated that OP-1 allotted a unit to Complainant through OP-2. Payment was deposited by Complainant for which receipt was issued. It was also alleged that Complainant was aware that apartment allotment agreement was to be signed within 30 days of dispatch of same as agreed between the parties but Complainant failed to do so. It was denied that agreement was one sided. It was further stated that OP-1 was not liable to refund any amount. It was also stated that legal notice served on the OP was arbitrary. It was prayed that the complaint be dismissed.
7. The Complainant thereafter filed rejoinder denying all the allegations made in the Written Statement of OP No. 1 and reiterating the averments made in the complaint.
8. Complainant filed his evidence by affidavit. OP-1 did not file its evidence despite sufficient opportunities being granted. Thus vide order dated 04.03.2022 opportunity of OP to file its evidence was closed.
9. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
10. During the course of final arguments counsel for the Complainant stated that the name of OP No. 2 be deleted from the array of parties as the main grievance of Complainant is against OP No. 1. OP No. 2 is unserved till date. The name of OP No. 2 is accordingly deleted from the array of parties.
11. The fact that complainant booked a flat in the project of OP No. 1 is an admitted fact as evident from the evidence of the Complainant and OP No. 1. The complainant relied upon the apartment allottee agreement and receipt of payment of Rs. 2,85,926/-(Rupees Two Lakhs Eighty Five Thousand Nine Hundred Twenty Six Only), issued by OP No. 1. The receipt is not controverted by OP No. 1. Copies of legal notice and its postal receipt were also filed.
12. It was contended on the behalf of the complainant that OP No. 1 was deficient in providing its services. It was also submitted that complainant had paid Rs. 2,85,926/-(Rupees Two Lakhs Eighty Five Thousand Nine Hundred Twenty Six Only) to the OP No. 1 but OP No. 1 failed to deliver possession of the apartment within 42 months from the date of the agreement dated 27.10.2012. As regard deficiency in services, Hon;ble Supreme Court has heldin ArifurRahman 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.
13. 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.
14. On the other hand it was submitted on behalf of the OP that the complaint was barred by limitation as the application for allotment was dated 02.09.2012 but Complainant was filed on 27.02.2015. We are of the view that the said contention is without merits. It is to be noted that Section 24 (A) of the CP Act, 1986, provides that the period of limitation for filing complaint is two years from the date on which cause of action has arisen. The complaint has been filed on 27.02.2015. We are of the view that the cause of action being the continuing one as the amount advanced by Complainant was not refunded neither the possession of the apartment was handed over to the Complainant within the period provided on the agreement, the complaint is within the period of limitation. It is also pertinent to note that complainant sent a legal notice to the OP dated 02.04.2013 but no reply to the same was given by OP No. 1.
15. Thus, we are of the view that admittedly, there is inordinate delay in handing over the possession of the flat in question which amounts to deficiency in service.
16. It is 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.
17. 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.

18. As regards the contention of OP that complainant is not a consumer, as defined in the Consumer Protection Act , it is to be noted that a mere allegation has been made in the WS by OP, in this regard no evidence was brought on record to prove the said contention. We are thus of the view that the same is without merits. As regards the contention of OP that complaint is not maintainable, as there is no cause of action. We are of the view that the same is also without merit, as no evidence was led by OP No. 1 to prove the same.
19. We thus, hold that OP No.1 was guilty of deficiency in services. We accordingly direct OP No. 1 to refund Rs. 2,85,926/-(Rupees Two Lakhs Eighty Five Thousand Nine Hundred Twenty Six Only) to the complainant along with interest @18% 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 @ 24% p.a. for the delayed period. We also award Rs. 50,000/- (Fifty Thousand) as cost on litigation
20. 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