Delhi

New Delhi

CC/100/2020

Babu Ram - Complainant(s)

Versus

M/S. Ansal Urban Condominiums Pvt.Ltd. - Opp.Party(s)

21 Dec 2021

ORDER

  CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.100/2020                                                      

            DF. No.                                                                                              Dated:

 

         In the matter of:

 

1. BABU RAM

S/O LATE HUKAM CHAND

2. ANITA RANI

W/O SH. BABU RAM

 

BOTH FLAT NO. 137, BLOCK-69, SECTOR 3

DIZ AREA, GOLE MARKET

NEW DELHI 110001……..COMPLAINANT

 

Versus

 

M/S ANSAL URBAN CONDOMINIUMS PVT LTD.

115, ANSAL BHAWAN,

16, KASTURBA GANDHI MARG

NEW DELHI 110001……..OPPOSITE PARTY

 

Quorum:

Ms. Poonam Chaudhry, President

            Shri Bariq Ahmad , Member

            Ms. Nain Adarsh, Member

                                                                                                Dated of Institution :28.09.2020                                                                                                  Date of Order           : 21.12.2021

O R D E R

POONAM CHAUDHRY, PRESIDENT

Hearing through Video Conferencing.

1. The present complaint has been filed under section 35 of the Consumer Protection Act. 2019 (in short CP Act.) Briefly stated the facts of the case giving rise to the complaint are that the Complainants were allured by the offer of Opposite party (in short OP) and booked a plot on the project of OP in their project Sushant Aquapolis, Ghaziabad, UP, for a total consideration of Rs. 26,16,000/- (Rupees Twenty Six Lakhs Sixteen Hundred only). The Complainants  deposited Rs 2,00,000/- (Two Lakhs Only) vide cheque bearing no. 00009 dated 23.12.2011 and was allotted a flat in the above scheme. OP entered into an agreement with Complainants dated 27.07.2012, and under this agreement Complainants paid Rs. 23,11,017/- (Rupees Twenty Three Lakhs Eleven Thousand and Seventeen Only) in installments to OP till 09.08.2016. It is also stated that Complainants almost paid 95% the value of the flat in question to the OP and OP had assured that the project would be completed within 3 years from the date of booking, but OP miserably failed to do so and misappropriated the money deposited by the Complainants. It is further stated Complainants tried to contact the OP several times but OP avoided their calls. It is also alleged that not only OP failed to give the possession of the flat in question to the Complainants on time but Complainants have come to know that OP has sold the land on which the proposed project was to commence, and has misappropriated the money and cheated the Complainants. It is further stated that Complainant sent legal notice to OP dated 17.09.2020 vide speed post and courier.
2. It is further stated that the cause of action is a continuing one as neither  possession has been handed over nor the amount has been refunded. It is also stated that the complaint is within the limitation and this Commission has territorial jurisdiction. It is prayed that the OP be directed to refund Rs. 23,11,017/- (Rupees Twenty Three Lakhs Eleven Thousand and Seventeen Only) to the Complainants with interest @24% pa. The OP be also directed to pay 5 Lakhs as compensation for mental agony, financial agony suffered by the Complainant as well the cost.
3. OP contested the complaint, the written statement was filed, taking preliminary objection that this Commission does not have territorial jurisdiction to entertain the complaint, as the plot in question falls within the jurisdiction of Ghaziabad  Uttar Pradesh. It was further stated that complaint is also not maintainable as there is an arbitration clause in agreement/arrangement according to which any dispute arising between the parties was be referred to arbitration. It was also stated that, the complaint is pre-mature as the agreement/arrangement clearly provides the date of possession may get extended and the extention shall not be deemed to deficiency in service on part of OP. It was further stated that Complainants had booked the flat in question vide application dated 12.12.2011, for total consideration of Rs. 26,16,000/- (Rupees Twenty Six Lakhs and Sixteen Thousand Only). It was admitted that Complainant deposited Rs. 2,00,000/- (Rupees Two Lakhs Only). It was also stated that the parties thereafter entered into an agreement dated 27.07.2012 and Complainants thereafter paid Rs. 23,11,017/- (Rupees Twenty Three Lakhs Eleven Thousand and Seventeen Only) to the OP  for the flat in question in installments.
4. It was also alleged that the complaint is also not maintainable as the agreement provides that in case of force majeure i.e. non-availability of labor, OP shall be entitled to extend the date of possession. It was also stated that delay has been caused due to economic recession in the market which hampered the infrastructure sector and caused a delay. It was also stated that in around last quarter of 2021, OP offered possession to allottees. It was denied that the Complainants sent a legal notice. It was also denied that the OP cheated on the misappropriation of money of Complainants. It was prayed that the Complainant be dismissed.
5. Complainant thereafter filed rejoinder reiterating therein the contents of the complaint and denied all the allegations made in the written statement. Complainant No.1 has filed his evidence by way of affidavit reiterating therein averments made in the complaint. He filed the copy of cheque of Rs. 2,00,000/- (Rupees Two Lakhs Only) bearing no. 00009 given to OP, the agreement, the bank transaction, legal notice and postal receipts.
6. OP also filed its evidence by way of affidavit OP reiterating therein the contents made in the written statement. OP filed copy of photographs of the development of Tower in which Complainant had booked a flat.
7. We have heard the Ld. Counsels for the parties and perused the records.
8. As regards the contentions of the OP that this court has no territorial jurisdiction, it is to be noted that office of OP falls within the jurisdiction of this Commission, section 34(2) of the CP Act which relates to jurisdiction of the District Commission provides as under:-
9. “(2) (a) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,— (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain;, Thus we are of the view that the said contention of OP is without merits.
10. As regards the next contention of the Ld. Counsel for the OP that jurisdiction of this Commission is barred as the agreement/arrangement dated 27.07.2012 provides that any dispute arising out of the agreement shall be referred Arbitration. In this regard it is pertinent to be noted, the existence of arbitration clause would not bar the proceedings before this forum.
11. In this regard it has been held by in Hon’ble Supreme Court in Skypay Couriers Limited V. Tata Chemicals Limited IV (2000) SLT 494, Trans Mediterranean Airways V. Universal Exports IV (2011) CPJ 13 (SC) & National Seeds Corporation Ltd. V. M. Madhusudhan Reddy, 2012 (1) CPC 190. The provision of this Consumer Protection Act are in addition to and not in derogation to the other Acts or law or prevailing in India. Even if there exists an arbitration clause in an agreement and a complaint is made by the Complainant in relation to a deficiency of service then the existence of an arbitration clause would not bar the proceedings before this Forum.

In M/s. National seeds Corporation Ltd. v. M. Madhusudhan Reddy : 2012(2) SCC 506: 2012 () AIR (SC) 1160: 2012(1) Scale 367 the Honourable Supreme Court has made the following observations:

“29. The remedy of arbitration is not the only remedy available to a grower. Rather, it is an optional remedy. He can either seek reference to an arbitrator or file a complaint under the Consumer Act. If the grower opts for the remedy or arbitration, then it may be possible to say that he cannot, subsequently, file complaint under the Consumer Act. However, if he chooses to file a complaint in the first instance before the competent Consumer Forum, then he cannot be denied relief by invoking Section 8 of the Arbitration and Conciliation Act, 1996 Act. Moreover, the plain language of Section 3 of the Consumer Act makes it clear that the remedy available in that Act is in addition to and not in derogation of the provisions of any other law for the time being in force. In Fair Air Engineers (P) Ltd. V. N.K. Modi (supra), the 2-judge Bench interpreted that section and held as under:.

12. As regards the contention of the OP that the delay in the project was due to force majeure, 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 and due to force majeure including compliance of new rules regulations, notifications by Government authority.
13.  It is to be noted, as per terms agreement possession was to be handed over within 36 months from the date of execution of this agreement; however OP failed to do so. The OP stated in its written statement that in the last quarter in 2021 possession of flat was offered but the specific date regarding the same has not been mentioned anywhere in the written statement. The Complainant stated that OP had assured that the project would be completed within 3 years from the date of booking but miserably failed to do so and misappropriated the money deposited by the Complainants. Thus when possession of property is not delivered within the stipulated period, the delay so caused is deficiency in services. As regards the contentions of OP that the complaint is not maintainable and has been filed by the Complainants for monetary benefit. It is to be noted no evidence was brought on record to show that complaints booked a flat for monetary benefit.
    1. In this regard it has been filed in by Hon’ble Supreme Court in Sai Everest Developers vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, that:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit.”
    2. Thus as no evidence was brought on record by OP to prove the said contention, we are of the view that the same is without any merit.
    3. 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 the plot was handed over to them, the complaint is within the period of limitation. It is also pertinent to note that complainant sent a legal notice to the OP dated 16.09.2020 but no reply to the same was given by OP. OP denied the receipt of the notice. However, Complainants have filed the postal receipts. Thus as the OP has not denied its address in the postal receipts. The presumptions of service of the same arises.
    4. Thus we are of the view that there has been delay in handing over the possession of the plot to complainants. It is the case of complainants that he has waited for more than ten years for the allotment of the plot. As regard the delay caused by developer in allotment/handing over possession, Hon’ble Apex Court has held in Kolkatta West International City Pvt. Ltd. Vs. Devasis Rudra, II(2019) CPJ 29 SC,as under:

“……It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29.March, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.

14.  We thus, hold that OP is guilty of deficiency in services. We accordingly direct OP M/s. Ansal Urban Condominiums Pvt. Ltd. to refund the amount Rs. 23,11,017/- (Rupees Twenty Three Lakhs Eleven Thousand and Seventeen Only) to the complainant with interest @9% p.a. from the date of deposit  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 the OP is directed to pay interest @12% p.a. for the delayed period.
15. We also direct OP to pay a sum of Rs.10,000/- (Rupees Ten Thousand Only) as cost of litigation. The order be complied within the period of 30 days of the receipt of the copy of the order.
16. A copy of the order be uploaded on the confonet website (www.confonet.nic.in)  and also supplied to all the parties/ Ld. Counsel  free of cost. File be consigned to record room.

Announced in Open Commission on 21.12.2021.

 

 

 

(Poonam Chaudhry)

                                                                                                      President

 

 

 

        (Bariq Ahmad)                                                                                     (Adarsh Nain)

       Member                                                                                                      Member