Delhi

New Delhi

CC/153/2020

Sanjeev Bhasin - Complainant(s)

Versus

M/S. Ansal Phalak Infastructue Pvt.Ltd. - Opp.Party(s)

30 Aug 2022

ORDER

 

 

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.153/2020                               

In the matter of:

 

Sanjeev Bhasin S/o Mahesh Chandra Bhasin

R/o A-801, Kamaroon Court, Opp. Gold Souk

Sector, 43, Gurgaon, Haryana-122002                ....COMPLAINANT

 

Versus

 

1. M/s Ansal Phalak Infrastructure Pvt. Limited

Through its Managing Director

Having its registered office at:

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

New Delhi-110001….. OPPOSITE PARTY

Quorum:

Ms.Poonam Chaudhry, President

          Shri Bariq Ahmad , Member

          Ms. Nain Adarsh, Member

                                                                     Date of Institution: 09.11.2020                                                                      Date of Order    : 30.08.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

1. The present complainant has been filed under Section 34 of the Consumer Protection Act,2019 (in short CP Act). Briefly stated the facts of the case are that the Opposite Party (in short OP) is a private limited company which is incorporated under the Companies Act, 1956 and is mainly dealing in the business of real estate. The OP is represented by its Managing Director, and is having its registered office at 115, Ansal Bhawan, 16 K.G. Marg, New delhi-110001
2. It is stated that the project was advertised widely by the OP and on seeing the lucrative advertisement, the officials and brokers of the OP made various lucrative representations and also made a promise that the apartments in the project will be delivered within 30 months from the date of booking. On the basis of these representation and the promises, the complainant applied for an apartment in the above housing project vide an application dated 25.10.2011 and paid application money of Rs. 9,83,350/- (Rupees Nine Lakh Eighty Three Thousand Three Hundred Fifty). The complainant was allotted an apartment in the said project. It is also alleged that after some time a Builder Buyer’s Agreement was sent by OP to be signed by the buyer/allotee/purchaser and returned to the OP. The total consideration of the apartment was fixed by the OP and was to be paid in accordance with a fixed payment schedule. The consideration and payment terms were accepted by the buyer/allotee/purchaser. Vide the buyer’s agreement the OP promised to handover the possession within 30 months from the date of execution of Agreement dated 07.11.2011. The proposed date of Possession was 07.05.2014..
3. The total consideration of the flat was Rs. 96,24,400/- (Rupees Ninety Six Lakh Twenty Four Lakh Four Hundred), out of which Rs. 50,73,868/- (Rupees Fifty Lakh Seventy Three Lakh Eight Hundred Sixty Eight) was paid by complainant.
4. It is also alleged Some of the clauses in the Buyer’s Agreement were/are one sided. Some of the clauses were totally unreasonable and were in favor of the OP, only. It is also stated that as per clause 5.1 of the Buyer’s Agreement the OP was bound to give possession of the flat to the complainant within 30 months from the date of execution of the agreement, which has already expired. The construction of the apartment is still not complete.
5. It is further stated that the complainant regularly visited the site but was surprised to see that the construction was never in progress. No one was present on the site to address the queries of the complainant.
6. It is also alleged that as per the clause 5.4 of the Buyer’s Agreement, it was agreed in case of any delay, the OP shall pay to the complainant, a compensation at the rate of Rs. 10/- per sq. ft. per month for the period of delay. It is further alleged unreasonable and inordinate delay was caused on the part of the OP  which amounts to deficiency of services.
7. It is prayed that OP be directed:

1. Direct the OP to refund Rs. 50,73,868/- (Rupees Fifty Lakh Seventy Three Thousand Eight Hundred Sixty Eight) with interest @ 18% p.a. on date of deposit collection till payment.  
2. OP be also directed to pay a sum of Rs. 5,00,000/- (Rupees Five Lakhs) towards mental agony and harassment and towards cost of litigation to the complainant.

8. Notice of the complaint was issued to OP, OP was duly served on 15.02.2021. However as none has appeared for OP, OP was accordingly proceeded exparte vide order dated 06.09.2021.
9. Complainant filed his evidence by affidavit reiterating therein the averments made in the complaint.
10. We have heard the Ld. Counsel for complainant and perused the evidence and material on record.
11. From the unrebutted testimony of complainant, it has been proved that complainants booked a flat in the project of OP and paid Rs. 50,73,863 (Rupees Fifty Lakh Seventy Three Thousand Eight Hundred Sixty Three). The complainant filed a copy of the flat buyer agreement and receipt of payments.
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 Rs. 50,73,868/- (Rupees Fifty Lakh Seventy Three Thousand Eight Hundred Sixty Eight) to the OP but OP failed to deliver the possession of flat even till date/till the filing of complaint It was also argued that according to the Flat-Buyer Agreement, the possession was to be handed over within 30 months from the date of the execution of agreement  dated 07.11.2011but 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 30 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.
13. 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.
14. 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 complainants by OP which amounts to deficiency in service.
15. 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.
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 being the continuing one as the amount advanced by complainants was not refunded neither possession of the flat was handed over to him, the complaint is within the period of limitation.
18. Ld. counsel for OP during the arguments relied upon a decision of Hon’ble Supreme Court in case titled DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda 2019 SCC online SC 689 in support of his contention that award of interest or compensation under the act has to be just  and equitable commensurate with the loss.
19. In view of the above judgement we direct OP to refund the entire amount deposit by complainant i.e. Rs. 50,73,868/- (Rupees Fifty Lakh Seventy Three Thousand Eight Hundred Sixty Eight) with interest @ 8% p.a. from the date of deposit till realization within 4 weeks, from the date of receipt of the order failing which OP will be liable to pay interest @ 12% p.a. till payment/realization.

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