Delhi

New Delhi

CC/88/2021

Anuj Kumar Singh - Complainant(s)

Versus

M/S. Ansal Landmark Township Pvt. Ltd. - Opp.Party(s)

29 Aug 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VI,

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

 

CC/88/2021

 

IN THE MATTER OF:

 

 

Sh. Anuj Kumar Singh

S/o Sh. Jai Pal Singh,

R/o KC-68/24

Kavi Nagar

Ghaziabad,U.P.                                                                  ………..Complainant

 Versus

M/S. Ansal landmark Townships Pvt.Ltd.

210, Ansal Bhawan,

16,Kasturba Gandhi Marg,

New Delhi-110001

Also At:

112&115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi-110001.                                                                …  Opposite Party

Quorum:

Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Adarsh Nain, Member

                                                                   Dated of Institution :26.03.2021

                                                                   Date of Order         : 29.08.2022.

O R D E R

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under Section 12 read with Section 13 of the Consumer Protection Act, 1986. Briefly stated the facts of the case are that the complainant is the consumer as defined under section -2 (d) (ii) of the consumer protection Act, 1986
2. It is also alleged that the Opposite Party is a company duly incorporated. under The Companies Act, 1956 and engaged in the business of real estate and developing 'Township and Group Housing under various names and style such as M/s .Ansal  Landmark Townships Pvt. Ltd having its registered office at 1124 115, Ansal Bhawan, 16, Kasturba Gandhi Ming, New Delhi 110001.
3. It is further alleged that the Opposite party widely advertised through alluring brochure and electronic media, newspaper and other means of communications that they are developing a residential township/project under the name& title as "Aquapolie Integrated Township at Doondahera and NI-1-24,opposiu Crossings Republic. behind ABES Engineering College) in Ghaziabad, U.P. Being allured by one of such advertisement, the complainant contacted Opposite Party and inquired about the aforesaid project and showed his interest to book a plot of 288 sq. yards. during aforesaid meeting, the opposite party had conveyed to the complainant that they have purchased the land for the project and all the necessary sanctions/approvals including LOI, layout plan, building plan etc. have been procured by them from the concerned authorities and therefore, they are able to hand over the possession of the plot to their customers/clients within 36 months and they incorporated a clause no. 17 in the plot buyers agreement stating that the construction of the house would be completed within 3 years from the date of intimation to take possession. It was further informed by the Opposite Party that all the plots have been sold by them, however they could arrange a plot for himin re-sale.
4. It is further stated in the month of March 2006, one of the executive of Opposite Party called the complainant and informed about the availability of one plot in re-sale in their aforesaid township/project and invited him to visit i.e.   AnsalBhawan, 16, kasturba Gandhi Marg, New Delhi 110001 and also at site office opposite crossings Republic(behind  ABES Engineering College), NH-24 in Ghaziabad, U.P. In order to finalize the  deal. Accordingly, the complainant met Smt. Savita Aggarwal  who was  Interested to sell her Plot admeasuring 288 sq. yards., bearing No. C0030 situated "Aquapolis", opposite Crossings Republic, NH-24, Ghaziabad. The. Opposite Party induced the complainant to finalize the deal as it would be the best project in the vicinity  near future.Being convinced/allured by the representations of the  Opposite Party, complainant agreed to purchasethe aforesaid Plot from the original allottee namely Smt. Savita Aggarwal.
5. It is also alleged the complainant made payment of the amount paid by allottee/seller to the Opposite Party. The allottee/seller completed all the document, formalities for transfer of said Plot in the name of complainant and also handed over all documents such Plot Buyer Agreement, payment receipts etc. to the complainant.
6. The original allottee namely Smt. Savita Aggarwal sent a request letter to Opposite Party for change of right to purchase Plot No. C/0030 on 17.07.2007 in favor of complainant and on the basis of aforesaid request, the Opposite Party transferred the Plot No. C/0030 admeasuring 288 sq. Yards in the name of complainant on 11.08.2007. That the Opposite Party charged Rs. 57,600/. towards transfer and brokerage of Rs. 3,50,000/- towards arranging aforesaid Plot in re-sale for the complainant.
7. It is further stated that the complainant waited for several months and made repeated oral and written requests to provide information about delivery of possession of aforesaid Plot and date of payment of next installment, but the Opposite parry neither raised any demand letter nor gave information about delivery of possession.
8. It is also alleged that the Opposite. Party is indulged in unfair trade practice, negligence and deficiency in service. The Opposite Parry has also committed breach of trust.
9. It is prayed that OP be directed to handover the possession of Plot admeasuring 288 sq. yards, bearing No. C0030 situated at "Aquapolie, opposite Crossings Republic (behind ABES Engineering College), NH-24, Ghaziabad immediately without any further delay and  also directed to pay Rs. 10,00,000/- (Rupees Ten Lakh) towards damages for mental agony, financial and physical harassment etc. due to delay in the possession of Plot and/or the litigation expenses of Rs. 66,000/- (Rupees Sixty Six Thousand) and Misc. Expenses  of Rs. 20,000/- (Rupees Twenty Thousand) in favor of complainant.
10. During the course of proceedings notice of the complaint was issued to OP. OP was served on 07.09.2021, counsel for OP appeared on 21.02.2022, however despite appearance, OP did not file written statement within the statutory period as provided under the Consumer Protection Act, 1986. In view thereof OP was proceeded exparte vide order dated 01.04.2022.
11. Complainant filed his evidence by way of affidavit and written arguments.
12. We have heard the Ld. Counsel for complainant and perused the evidence and material on record carefully.
13. From the unrebutted testimony of complainant, it has been proved that complainants booked a flat in the project of OP. The complainants have filed a copy of the flat buyer agreement and copy of ledger of account of OP acknowledging payment Rs. 19,94,800.36/- (Rupees Nineteen Lakh Ninety Four Thousand Eight Hundred Thirty Six Paise) made by complainant.
14. It was contended on the behalf of the complainant that OP was deficient in providing services. It was also submitted that OP failed to deliver the possession of flat till date and till the filing of complaint It was also argued that according to the Builder-Buyer Agreement, the possession was to be handed over within 36 months of the date of agreement i.e. 07.04.2007 but OP failed to hand over possession of the flat even till the filing of the complaint. It was further submitted that the prolonged delay in construction and handing over possession amounts to deficiency in service. It was also argued that the opposite party was under contractual obligation to constructs the property within 42 months with extended period of 6 months from the date of agreement. It was also argued that the builder/OP thus failed to comply with  the terms of the agreement. It is to be noted that 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.
15. It is also pertinent to note that 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.
16. After giving our careful thought to the arguments advanced by. Counsel for  complainant and the written arguments filed on behalf of complainant, we are of the view that there is inordinate delay in handing over the possession of the flat in question to the complainant by OP which amounts to deficiency in service.
17. It is to be noted Section 2 (r) of the Consumer Protection Act, 1986, 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.
18. 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.

19. 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 thus within the period of limitation.
20.  In view of the above judgement we direct OP to hand over possession of the plot no. C0030 Aquapolis admeasuring 288 Sq.. yards NH-24, Ghaziabad and to pay compensation of Rs. 50,000/- (Rupees Fifty Lakh) and litigation expenses of Rs. 20,000/- (Rupees Twenty Thousand).
21. A copy of this order be provided to all the 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