Delhi

New Delhi

CC/604/2016

Satyendra Sahai - Complainant(s)

Versus

M/S. Ansal Housing & Construction Ltd. - Opp.Party(s)

12 Sep 2019

ORDER

 

 

                                            CONSUMER DISPUTES REDRESSAL FORUM-VI

                                                    (DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

                             NEW DELHI-110001

 

     Case No.C.C./1370/2008                                                      Dated:

                T.C./604/2016

                                                                                                     

           In the matter of:

         Sh. Satyendra Sahai

          S/o  Sh. B. S. Saxena

          R/o K.H. 103. Kavi Nagar

           Ghaziabad( U.P.)                                                                  …Complainant

 

Versus

 

Ansal Housing & Construction Ltd.

15- UGF, IndraPrakash ,

21, Barakhamba Road,

New Delhi - 110001  …….Opposite Party

 

H.M. VYAS - MEMBER

 

                                                      ORDER

 

The case was initially filed on 08/10/2008 and the predecessor of this Forum vide orders dated 04/12/2012 directed the OP to pay the principal amount alongwith 12% interest and Rs. 50,000/- for litigation & harassment. The case was listed on 18/12/2012 for compliance. The OP placed on record a cheque no. 591633 dated 14/12/2012 of Rs. 3,72,400/- with this Forum on 18/12/2012 and the case was dismissed as complied  

The Hon’ble State Commission vide orders dated 13/05/2015 in F.A. no. 923/13 filed by the complainant held that the impugned order is not legally sustainable and remanded back the case to pass fresh orders after hearing the parties in accordance  with law.

The brief facts  in the case are that, the complainant has approached by agent to purchase Plot No. 7  Aakriti Homes  in Chiranjiv Vihar at Ghaziabad in the scheme of OP. The total consideration was Rs. 4,19,988/-  and Plot Buyers Agreement & Construction Agreement was scheduled on 06/10/2019. The complainant paid 10% of the cost (i.e. Rs. 41,880/-) vide receipts dated  The complainant made a total amount of Rs. 1,05,077/-  to the OP including the amount of Rs.41,880/- paid on 06/10/1994 & 07/10/1994. The complainant sought permission of OP for mortgaging the property  as well  as for  rescheduling of the payment Plan. The OP rescheduled  the payment plan on 18/04/1995 and the payments were  to be made  as below :-

            25%  of the consideration (basic cost)       Upto 15^th May, 1995

            25%  of the consideration (basic cost)        Upto Slab

             20% of the consideration  (basic cost)       On casting of RRC slab

            20% of the consideration  (basic cost)         On fixing D/ W frames

            10% of the consideration  (basic cost)        At the time of offer of possession

            It is alleged that the continuous follow up with the OP to issue non- encumbrance certificate but did not yield any result. The OP was issued  said non-encumbrance certificate in March 1996. The complainant then paid  Rs. 63,197/- balance left from 25% of basic cost on 13/05/1996 vide receipt  dated 14/05/1996. The OP did not start  construction. The possession  was to be given by OP within 3 years  from the date of agreement. The complainant  requested the OP to intimate  the status  of construction and about delivery of possession but all in vain. The OP failed  to furnish the site plan showing the location of the plot. The requests of complainant  to hand over the possession fell in deaf ears. The complainant received  a show cause notice  date4d 28/01/2004 from Additional District Magistrate  ( F& R) which was due to  malafide  misinformation given by the OP about  the construction activities.

            It is alleged that the OP has neither raised any demand for payment of installments as per scheduled nor has taken steps to hand over possession.

Following prayer has been made :-

1. Direct the respondent to hand over vacant and peaceful possession of 7, Aakriti Homes, Chiranjiv Vihar, Ghaziabad on its original; price to the complainant or an alternative  accommodation  similar to the booked.
2. Direct the respondent  to compensate the complainant for the following losses suffered by not handing over vacant and peaceful possession of 7 Aakriti  Homes, Chiranjiv Vihar, Ghaziabad:

 

1. Rs. 84,000/- for the loss occasioned on not getting the Tax rebate  @ Rs. 7,000/- per annum for 14 years.
2. Rs. 8,64,000/-  for the loss occasioned for not realizing  the rent @  Rs. 72,000/- per year ( Rs. 6,000 per month) for 12 years.
3. Rs. 5,00,000/-  on account of National loss of property as no information by the respondent  about the status of construction  deprived  the complainant  of any chance  of acquiring  alternate property.

d) direct  the respondent  to pay Rs. 5,00,000/- on account of  damages for deficient  and  negligent  services rendered by it  to the complainant, and

e) Direct the respondent  to pay a sum of Rs. 33,000/-  to the complainant towards litigation  charges.

The OP filed written statement denying all allegations of deficiency in service leveled by the complainant. It is stated that  this Forum did not have the jurisdiction  as the complainant  has wrongly invoked the jurisdiction of this Forum.  It is stated that as per the Para 3 of the agreement, the refund of the actual amount  received  by OP was to be made

“in case the particular plot is omitted or the promoter is not able to hand over the same  to the buyer for any  reason other that mention in Clause 4”. Receipt of the amount  of Rs. 1,05,077/- is admitted. It is also stated that  the amount of Rs. 1,05,077/-  was also refunded  to the complainant  vide cheque no. 242896 dated 23/07/2008.  After making the refund, there is  service no cause of action in such a complaint is liable to be dismissed . The total basic cost of the property was Rs. 4,19,988/-.

Both the parties filed their respective evidence  reiterating the contentions made in their pleadings and  have also their written arguments. The complainant also moved an application under Section 13(3b) of the CP Act for interim protection praying to restrain  the OP from creating  third party rights in the plot in question. Reply to the same was also filed by OP.

            We have  considered  the material placed before us and the submissions made by the parties with  relevant provisions of law.

            Regarding the application moved for interim protection filed by the complainant  under Section 13 ( 3 B )  of this Consumer Protection Act,  it was stated  on behalf  of the complainant  that since the properties  had already been sold  to someone therefore,  said application  was not pressed.

            On merits, it has been argued on behalf of the complainant  that the responsibility  and reliability  of the OP  cannot be absolved  by sheer issuance of the cheque for the amount paid  in the year  2008 ( though  received  by OP  in 1994).  The said  amount was never encashed  and the same remained with the OP  till date.

            Further, it was  argued order of this Forum  dated 04/12/2012 was impugned before  the Hon’ble State Commission and the same have been set aside  with no consequential impact  on the merits  of the case .

            Further, it is stated that the complainant was interested in buying the property and executed the agreement with the OP.  There is no justification given by the OP that as to what ground it was unable to provide the allotted plot with construction  despite  have been booked  it and refunded  25 %  of the total consideration. It is also argued that the persons who booked the plots in said  project were also accommodated  by giving  alternate  property. As such it was obligatory on the part of the OP to allot the said plot and in any inevitable  circumstances  the complainant could have been accommodated  by giving an alternate  plot.

            The OP during arguments has relied on refund of the amount to the complainant through a cheque in the year, 2008 and further by placing  on record a cheque  of Rs. 3,72,496/- pursuant  to the orders  dated  04/12/2012 and 18/12/2012. It is stated that the OP being bonafide had all intentions  to refund  the amount to the complainant since the plot could not be  offered.

            In these circumstances this Forum feels that the agreement was executed in the year 1994 thereafter no demand was ever raised. The OP has not placed on record supporting its contentions making it unable to deliver the booked plot to the complainant.  Arguments of the OP is not  on account of Force Majure. Retaining an amount of 25% of the total consideration for more than 14 years and refunding an amount in 2008 clearly shows the unfair trade practice adopted by the OP.

            Not only is this but also inordinate time consumption without delivery of possession also gross deficient in service on the part of OP. The prayer  of the complainant  to hand over his  vacant and peaceful possession of the booked plot cannot be allowed being in fructuous for the reasons that the complainant himself  as stated before this Forum  that the said plot has already been  sold out  by the OP and further without the OP has argued  that no alternative accommodation  similar to the booked plot  is available  with it.

In view of above discussions, we are of the considered view  that the OP  is deficient in service and also adopted unfair trade practice  and hold accordingly. We direct the OP as under :-

1. OP to pay a sum of Rs. 1,05,077/- along with the 9 % interest  w.e.f. 14/05/1996 till the date of realization.
2. OP to pay a sum of Rs. 30,000/- as compensation and litigation cost.

The order shall be complied within 30 days of the receipt of the copy of this order. If the said amount is not paid by the OP within a period of one month from the date of receipt of this order, simple interest at the rate of 9% per annum shall be payable by OP on the awarded amount from the date of this order till recovery of the said amount.

 

A copy each of this order each be sent to both parties free of cost by post.

Orders be also sent to www.confonet.nic.in.

File be consigned to record room.

Pronounced in open Forum on 12/09/2019.

 

 

                                                             (ARUN KUMAR ARYA)

                                                                    PRESIDENT

 

       (NIPUR CHANDNA)                                                                       (H M VYAS)

                  MEMBER                                                                                    MEMBER