Delhi

New Delhi

CC/1159/2013

Pawan Tayal - Complainant(s)

Versus

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

28 Sep 2022

ORDER

 

 

DISPUTES CONSUMER REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

 Case No.CC.1159/2013                                     

In the matter of:

PAWAN TAYAL

R/O H.No.1134, Sector-14 HOUSE NO.624,

SECTOR-14, SONEPAT (HARYANA)                           ....COMPLAINANT

 

Versus

ANSAL LANDMARK TOWNSHIPS PVT. LTD.

HAVING ITS REGISTERED OFFICE AT B 47,

CONNAUGHT PLACE, NEW DELHI-110001

AND HAVING ITS OFFICE AT

112, ANSAL BHAWAN,16,

KASTURBA GANDHI MARG, NEW DELHI

 

ALSO AT:

 

 

ANSAL LANDMARK TOWNSHIPS (PVT)LTD.

HAVING OFFICE AT F-130-132, ABU PLAZA,

ABU LANE, MEERUT -250001 (UP)                            .....OPPOSITE PARTY

 

Quorum:

Ms. Poonam Chaudhry, President

Shri Bariq Ahmad , Member

Ms. Adarsh Nain, Member

                                                                   Dated of Institution:         30.12.2013                                                                             Date of Order : 28.09.2022 

O R D E R

BARIQ AHMAD, MEMBER

The present complaint has been filed u/s 12 of the Consumer Protection Act, 1986 (inshort CP Act) alleging deficiency of service. Briefly stated the facts of the case are:-

1. It is stated that complainant had applied for allotment of plot at Sushant City at Meerut being developed by the Opposite Party. On 29.5.2006 the complainant was allotted Plot No.4A/D/0029, Type-D, measuring 240 sq. yds. @ Rs.4700/- per sq. yd. @ Rs.4700/- per sq. yds. On 08.06.2006 the complainant had paid an amount of Rs.2,50,000/- in cash vide receipt no.8131 dated 8.6.2006 and also paid an amount of Rs.88,400/- to the Opposite Party vide cheque No.468346 dated 05.06.2006 drawn on Punjab National Bank, Sonepat which was received by the Opposite Party vide receipt No.8156 dated 09.06.2006.
2. That on 09.09.2006 a plot buyer's agreement containing the terms and conditions of allotment and payment of installments was also executed between the Party at New Delhi. As per the agreed terms and conditions the total sale price of the said plot is Rs.11,28,000/- and the same is to be paid by the complainant in various phases as per the 'Development Linked Installment Plan'. On 13.04.2007, the opposite party issued a demand letter to the complainant thereby demanding an amount of Rs.2,23,700/-. On 03.08.2007 the complainant deposited Rs. 2,23,700/- vide cheque No.201426 dated 27.7.2007 drawn on Urban Cooperative Bank, Gohaba Road, Sonepat, against which the Opposite Partes issued a receipt No.18495 dated 03.08.2007. However, the progress of development of plot was deliberately not mentioned in the said demand letter as there was no development taking place as per the agreed terms and conditions.
3. It is stated that to the utter shock and surprise of the complainant, the Opposite Party vide letter dated 23.11.2007 cancelled the allotment of the complainant without any prior notice or information as the prices of the land in locality hiked up and the said action of the Opposite Party is against all the settled principles of law.
4. The complainant made immediate visit to the office of the Opposite Party on 24.11.2007 whereupon the Opposite Party refused to meet the complainant. However, the Opposite Party deliberated upon the matter and on 26.11.2007 the Opposite Party further demanded Rs.2,24,820/- from the complainant. However, the actual development of the plot was not in conformity with the alleged level of development mentioned in the demand letter dated 26.11.2007. The complainant visited the office of the Opposite Party on 30.11.2007 and orally submitted his objections to the said demand letter, which is against the agreed terms and conditions of the allotment. The Opposite Party simply declined to accept the written objections of the complainant against the illegal demands made vide letter dated 26.11.2007. However, the complainant being in need of the plot in question showed his willingness to deposit the same as per demand dated 26.11.2007. However, the Opposite Party did not accept the same and took a U turn and placed reliance upon their earlier letter dated 23.11.2007 vide which the said plot of the complainant was illegally and arbitrarily cancelled without following the due process of law and in the absence of even a single show cause notice issued to the complainant prior to the alleged cancellation of the plot. Thereafter the complainant approached the Opposite Party several times personally on 15.12.2007, 25.4.2008, 27.7.2008, 22.12.2008, 25.4.2009 and requested them to deliver the possession of the said plot and not to cancel his allotment because the complainant has already paid a huge amount to the Opposite Party for the said plot but the Opposite Party remained adamant and ignored the genuine requests of the complainant. It is stated by the complainant that after having exhausted all his efforts, wrote a letter dated 8.10.2009 to the Opposite Party requesting to reallot the said plot. But all in vain. Consequently, the complainant suffered great mental agony, loss of reputation and financial loss alleging deficiency in service, the complainant filed this complaint before the Ld. District forum, Sonepat, wherein notices were issued and the Opposite Party entered appearance and instead filing their written statement/ reply to the said consumer complaint, they had filed objection dated April 2012 regarding the jurisdiction of the learned District Forum at Sonepat. That the learned District Forum, vide its order dated 13.5.2012 has dismissed the said application /objection of the Opposite Party. while concluded that "a prime facie case is made out in favour of the complainant within the territorial jurisdiction of this Forum and reserved the final order on the complain. On 05.06.2012, being aggrieved with the order dated 13.05.2012 passed by the Learned District Forum Sonepat in the present case, the Opposite Party herein filed a Revision Petition No.42 of 2012 before the Hon'ble State Commission, Haryana at Panchkula. On 24.09.2012, the Hon'ble State Commission, Haryana at Panchkula allowed the Revision petition filed by the Opposite Party herein, set aside the order passed by the learned District Forum and dismissed the complaint of the complainant only on the ground of jurisdiction. Being deeply aggrieved and dissatisfied by the said order dated 24.9.2012 passed by the Hon'ble State Commission, Haryana at Panchkula in Revision Petition No.42 of 2012, the complainant herein preferred Revision Petition No.271 of 2013 before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi.
5. It is stated that the Hon'ble National Commission vide order dated 12.08.2013 was pleased to allow the petitioner to withdraw the said revision petition alongwith complaint filed before learned District Forum, Sonepat and granted liberty to the complainant to approach the appropriate Court/ forum jurisdiction. The complainant filed this complaint alleging the deficiency in service of the Opposite Party. The complainant file an application u/s 5 of the Limitation Act for condonation of delay in filing the complaint inter-alia stated the facts of the complaint with the application. The complainant also file the certified copy of the order 12.08.2013 passed by the Hon’ble National Commission Revision Petition no. 271 of 2013 and craves leave of this Hon’ble Forum to condone the entire period right from the beginning of the cause of action as pleaded in the main complaint including the period spent by the complainant in perusing the case till the finally withdrawn and on permission and liberty from the Hon’ble Nation Commission the instant complaint is filed before this Hon’ble Forum/ Commission. It is prayed that quash the cancellation letter 23.11.2007 issued by the opposite Part and to accept the balance payment after adjusting the payments already made by the complainant and direct the Opposite Party to deliver the physical possession of the plot No.4A/D/0029, Sushant City, Meerut(UP) to the complainant with interest at the rate of 18% p.a. on the amounts already deposited by the complainant calculated from the date of each payment or in the alternative direct the Opposite Party to refund the amount deposited by the complainant alongwith interest @ 18% p.a. from the date of each deposit till its actual realization along with a compensation of Rs.1 Lakh in favour of the complainants and against the opposite party towards mental torture, pain, agony and harassment with cost of litigation of Rs.50,000/-.
6. OP contested the case and filed written statement/ Reply stating inter-alia that complainant is not a consumer as per sec.2 of CP Act, (However, the reply filed by Opposite Party is neither signed by any authorized person/ representative at Point ‘A’ and nor verified at Point ‘B’, as such the contents of the same cannot be relied upon.
7. It was also stated that the dealer through whom the complainant applied application form for allotment of plot is a necessary party and that the case of the complainant is barred by the law of limitation. It is admitted by the OP that the complainant initially made an advance registration by paying Rs 2,50,000/-in the year 2005 for a plot in an upcoming project who was later allotted a unit at Meerut. The amount at which the advance registration was done was Rs 4800/- per sq yd. An allotment letter dated 29th May 2005 was issued @ Rs 4700/- per sq yd wherein allotting the said unit and adjusting the amount paid as advance against the said unit. The complainant later paid Rs 88,400/- alongwith the application form. The plot buyer agreement signed between the Party is a matter of record.
8. The basic term of the agreement between the Party is about timely payment so that timely delivery with proper development could be given which the complainant failed to comply. The cancellation letter dated 23 November 2007 was sent on non payment after sending many demand notices. However when the complainant desired to make payment to avoid cancellation asking about the amount due, a demand of the amount due was sent on 26th November 2007. However, a letter dated 08.10.2009 was received. It is stated that the cause of action arose in 2006 and 2007 and not thereafter which is barred by law of limitation. It was stated that complainant is not entitled to the relief that the complaint is liable to be dismissed.
9. The complainant filed rejoinder reiterating therein the averments made in the complaint and controverting all the allegation made in the written statement. Both parties thereafter filed their evidence by way of affidavit and also written submissions. It is stated that OP file evidence of Sh. Ajay Baluja stated being the authorized representative of the OP however affidavit of evidence of OP not filed as per Evidence Act. The evidence of the OP also not attested by Oath Commissioner/Notary Public authorized by law, the deponent has neither signed nor verified the contents of the evidence of affidavit.
10. We have heard the Ld. Counsel for Parties and perused the evidence and material on record carefully.
11. The fact that complainant booked a flat in the project of OP is an admitted case as evident from the evidence of the parties. The complainant had relied upon the flat buyer agreement and receipt of payment Rs.2,50,000/- in cash and a amount of Rs. 88,400/- through Cheque, and a sum of Rs. 2,23,700/- through Cheque & receipt on dated 03.08.2007 against the sale price of the said plot is Rs. 11,28,000/-. The copies of receipt of the above amount issued by OP have been also filed by complainant. The payment and receipts are not controverted by OP.
12. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid 50% of the cost of the plot i.e. Rs. 5,62,100 /- (Rupees Five Lakhs sisty Two Thousand Hundred Only) to the OP but OP failed to deliver the property even after 16 years of the agreement. It was also argued that according to clause 10 of the Builder-Buyer Agreement/ Allotment letter dated 29.05.2006, the construction was to be completed within 03 years from the date of commencement of project that is around May, 2006 but OP failed to hand over possession of the plot even till on 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 3 years from the date of commencement of the project in May 2006, but it failed to do so.

It was also argued that the builder/OP thus failed to comply with the terms of clause 10of the agreement. 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.

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

On the other hand it was submitted on behalf of the OP that the complainant was informed vide letter dated 23.11.2007 about the cancellation of plot having not received the balance payments. 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, 1986 and which could be attributable to the OP, therefore, the Complaint is liable to be dismissed.

The contention of the OP was 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 the contractual labor or due to force majeure or compliance of any rules regulations, notification of Government authority.

After giving our careful thought to the arguments advanced by Ld. Counsels forparties, 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.

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.

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.

We are further of the view that the accrual 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 within the period of limitation.

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, 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. In this regard to be noted that the remedy provided under the Consumer Protection Act are additional remedies apart from the other remedies including those provided by special statues. The availability of alternative remedy is no bar in entertaining a complaint under the Consumer Protection Act as held by Hon’ble Supreme Court in Civil Appeal No. 3581-3590-20 M/s Imperia Structures Limited Vs. Anil Patni and Anr.

We thus, hold that OP was 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 further hold that complaint tiled after expiry of two year counted from the date of accrual of cause of action. The complainant has sufficient cause for not filing the complaint within the prescribe period.During the course of proceeding vide order dated 05.07.2019 it is stated by the counsel for OP that OP company is ready to refund the amount deposited, the offer of the OP is not acceptable to the complainant.

We accordingly direct OP/Ansal Landmark Townships PVT. Ltd. to accept the balance payment after adjusting payments already made by the complainant and direct to the OP to deliver the physical possession of the plot no. 4A/D/0029, Sushant City, Meerut (UP) to the complainant along with interest @ 9% p.a. from the date of deemed date of possession till physical possession of the plot is handed or in alternative OP to deliver the physical possession of alternative plot available to the complainant on the agreed price i.e. @ 4700/- per. Sq. yd. along with interest @ 9% p.a. from the date of deemed date of possession till physical possession of the plot is handed, 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/- (Rupees Twenty Thousand Only) as cost on litigation.

A copy of this order be provided to all parties free of cost. The order be uploaded on the website of this Commission.

Announce on 28.09.2022.

File be consigned to record room along with a copy of the order.

 

(POONAM CHAUDHRY)

President

 

 

        (BARIQ AHMAD)                                                                          (ADARSH NAIN)

             MEMBER                                                                                       MEMBER