Delhi

New Delhi

CC/230/2011

Pawan Kumar - Complainant(s)

Versus

M/S. Ansal LandMark Townships Pvt.Ltd. - Opp.Party(s)

19 Jul 2022

ORDER

 

 

CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

 Case No.CC. 230/2011                              

In the matter of:

 

PAWAN KUMAR

S/O LATE SH. PAHLAD RAI GUPTA,

R/O 8660/148, SHIDDIPURA,

KAROL BAGH, NEW DELHI.                        ……..COMPLAINANT

 

Versus

 

         M/S ANSAL LAND MARK TOWNSHIP (PVT.) LIMITED

          112, ANSAL BHAWAN

          16, KASTURBA GANDHI MARG

          NEW DELHI-110002

          THROUGH ITS MANAGING DIRECTORS/

          COMPANY SECRETARY                              ……..OPPOSITE PARTY

Quorum:

 

         Ms. Poonam Chaudhry, President

          Shri Bariq Ahmad, Member

          Ms.  Adarsh Nain, Member

                                                                                                                                   Dated of Institution : 04.03.2011                                                                                                                                                                            Date of Order            :19.07.2022

O R D E R

BARIQ AHMAD, MEMBER

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 initially booked a plot measuring 300 sq. yds in the project of OP i.e Sushant City Meerut Township Planning Scheme in Meerut (U.P.).
2. It is further alleged that initial payment and booking was done by complainant, and he had paid Rs.2,50,000/- through cheque bearing No.733718 dated 15.04.2005  drawn on Bank of Rajesthan Ltd. and a receipt dated 22.04.2005 for which was issued by OP in name of complainant.
3. It is also alleged that the complainant was allotted a plot No.4A/D/0021 for a total sale consideration of Rs.2,50,000/- (Rupees two Lakhs Fifty Thousand Only). 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.
4. It is stated as per the scheme, opposite party was required to hand over possession within a period of 6 month of registration application made.
5. 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 26^th August 2010 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 handover the possession of the allotted plot NO.4AD-21 AT SUSHANT CITY, MEERUT TOWNSHIP PLANNINGS SCHEME or Alternative to refund Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) the initial consideration amount of plot and Rs.1,00,000/- 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 is of the year 2005, that the period of limitation for filing of complaint is two years from the date of cause of action.
8. It was also stated that Complainant is not consumer. The complainant was never allotted any plot. It was only an application form which was dully filed in by the complainant. In fact the Op send several demand notices, demanding the completion of documents as well as for making payments.
9. Rejoinder was not filed by Complainant.
10. Both the parties have filed their evidences by way of affidavit. In order to prove his case, the complainant filed its evidence by way of affidavit reiterating therein the contents of the complaint. The complainant placed on record, copy of advance registration form of the plot Mark/Annexure-CW1/1. Copy of letter dated 12.08.2009 Mark/Annexure-CW-1/2, copy of receipt 22.04.2005 Mark/Annuxure-CW-1/3, Copy of legal Notice, speed postal receipt dated 26.08.2010 Mark/Annuxure-CW-1/4. In other hand OP has filed evidence by affidavit of Sh. Deokant Singh A/R of OP Company on the line of WS/ reply. The OP placed on record, copy of several letter dated 29.05.2006 letter of allotment of plot No.4A/D/0021. Second reminder dated 04.08.2006, call notice dated 28.09.2006, final reminder dated 03.10.2006, call notice dated 04.12.2006, first reminder dated 05.12.2006 and notice of cancellation of the plot dated 23.11.2007.
11. We have heard the Ld. Counsels for the parties and perused the record, It was contended on the behalf of the complainant that OP was deficient in providing its services. It was further contended that the OP a plot No.4-AD/0021 was allotted at SUSHANT CITY, MEERUT TOWNSHIP PLANNINGS SCHEME, despite of various efforts and request made by the complainant the possession of the plot has not been delivered. It was further contended that the complainant has not received any letters/ reminders as stated by the Op in his reply, no proof of service of notice/reminders was filed on record.
12. 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.
13. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 by Hon’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. It is to be noted that it is the case of the Complainant that he paid the advanced registration amount and the clause (a), (c) of the advance registration form  CW-1/1 provided that the possession was to be handed over within 6 months from the date of application. After giving our careful thought to the arguments advanced by Ld. Counsel for the parties, we are of the view that admittedly, there was inordinate delay in handing over the possession of the plot 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.
15. 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.
16. 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.

17. 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 plot was handed over to him  the complaint is thus within the period of limitation.
18. 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 possession of plot. We accordingly direct OP/M/s Ansal Landmark Township Limited to refund the amount Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand Eight only) 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
19. 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.

Announced on this19^thDay of July, 2022.

 

 

(POONAM CHAUDHRY)

President

 

 

        (BARIQ AHMAD)                                                             (ADARSH NAIN)        

              Member                                                                             Member