State Consumer Disputes Redressal Commission
Rohit Bhadauria vs Director/Ceo M/S Ansal Api on 24 January, 2022
CC/1051/2018 D.O.D: 24.01.2022
NISHTHA VIJAY SAWANT VS. DIRECTOR/CEO M/S ANSAL API
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Date of Institution: 21.08.2018
Date of Final Hearing: 04.01.2022
Date of Decision: 24.01.2022
COMPLAINT CASE NO.- 1051/2018
IN THE MATTER OF
NISHTHA VIJAY SAWANT
w/o Late Sh. Rohit Bhadauria,
r/o E-520 DJA Appartment,
Plot No. 1A, Sector-13, Dwarka
New Delhi
(Through: VED V TRIPATHI, Advocate)
...Complainant
VERSUS
DIRECTOR/CEO M/S ANSAL API
115, Ansal Bhawan,
A6 Kasturba Gandhi Marg,
New Delhi - 110001.
...Opposite Party
ALLOWED PAGE 1 OF 8
CC/1051/2018 D.O.D: 24.01.2022
NISHTHA VIJAY SAWANT VS. DIRECTOR/CEO M/S ANSAL API
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Shri Ved Vyas Tripathi, Counsel for Complainants.
Shri Tanuj Sharma, Counsel for Opposite Party.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The present complaint was filed by Sh. Rohit Bhadauria (Complainant No. 1) and Smt. Nishtha Vijay Sawant (Complainant No. 2), being the joint applicants in the project of the Opposite Party. However, during the pendency of the present Complaint, Sh. Rohit Bhadauria expired, and an application under Order 22 Rule 2 of the Code of Civil Procedure was moved for substitution of Smt. Nishtha Vijay Sawant as the sole Complainant, which was allowed vide order dated 04.01.2022.
2. Brief facts necessary for the adjudication of the present complaint are that the Complainants booked a plot in the project of the Opposite Party by the name and style of "Sushant Megapolis"
located at Greater Noida and vide Allotment Letter dated 09.02.2012, the Complainants were allotted plot admeasuring 162 sq. mtr., bearing No. 331 at Sector-12.
3. The Basic sale price was agreed between the parties at Rs. 17581.23/- per sq. meter, in furtherance of which, the Complainants paid an amount of Rs. 1,42,590/- as earnest money and ALLOWED PAGE 2 OF 8 CC/1051/2018 D.O.D: 24.01.2022 NISHTHA VIJAY SAWANT VS. DIRECTOR/CEO M/S ANSAL API were ensured that the possession of the Plot shall be delivered within 36 months from the date of booking.
4. The Complainant had made a total payment of Rs. 10,16,434/- as per the payment schedule, within a year of the booking of the plot and the remaining payment was to be made after the demarcation of the plot, laying of WBM road, etc. as agreed in the Allotment Agreement.
5. The Complainants were in constant touch with the Opposite Party, in order seek information pertaining to the development of the Sector in which their plot was located, however, it was of no use since the Opposite Party stopped any kind of communication with the Complainant. The Complainant tried to contact the Opposite Party by sending various mails, however, there was no reply on behalf of the Opposite Party.
6. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainants approached this Commission.
7. Notice of the present Complaint was issued to the Opposite Party and on 10.10.2019, Mr. Robin Raju, Advocate, appeared on its behalf, who was directed to file the Written Statement/Reply. However, till 09.04.2021, despite multiple opportunities in between, the Opposite Party failed to file its Written Statement/Reply. Given the laxity on the part of the Opposite Party, direction to file Evidence by Way of Affidavit by the Complainant along with Written Arguments was given vide order dated 09.04.2021 and the Final Arguments were heard on 04.01.2022, after which, the case was reserved for Judgment.
ALLOWED PAGE 3 OF 8 CC/1051/2018 D.O.D: 24.01.2022
NISHTHA VIJAY SAWANT VS. DIRECTOR/CEO M/S ANSAL API
8. We have heard the counsel for the Complainant and perused through the material available on record.
9. The fact that the Complainant had booked a flat with the Opposite Party is well established from the evidence available on record. Payment to the extent of Rs. 10,16,434/- made by the Complainants to the Opposite party is also evident from the material before us.
10. The short question for adjudication in the present complaint is whether the Opposite Party was deficient in providing services to the Complainant.
DEFICIENCY OF SERVICE
11. The expression Deficiency of Service has been dealt with by the Hon'ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at (2020) 16 SCC 512, wherein it has been held as follows:
"28. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the ALLOWED PAGE 4 OF 8 CC/1051/2018 D.O.D: 24.01.2022 NISHTHA VIJAY SAWANT VS. DIRECTOR/CEO M/S ANSAL API provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation."
12. Returning to the facts of the present case, the record reflects that the Complainant booked the plot in the project of the Opposite Party, after which, the allotment letter was issued on 09.02.2012. The Allotment letter does not stipulate any time period for delivery of the possession of the plot whereas it only states that the possession shall be handed over only after the amounts payable under the agreement are fully paid.
13. We deem it appropriate to refer to First Appeal No. 348 of 2016 titled as Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors. wherein the Hon'ble National Commission has held as under:
"......under Section 46 of the Indian Contract Act, 1872, the following provision is there:
46. Time for performance of promise, where no application is to be made and no time is specified -
Where, by the contract, a promisor is to perform his promise without application by the promisee, and no ALLOWED PAGE 5 OF 8 CC/1051/2018 D.O.D: 24.01.2022 NISHTHA VIJAY SAWANT VS. DIRECTOR/CEO M/S ANSAL API time for performance is specified, the engagement must be performed within a reasonable time.
Explanation - The question "what is a reasonable time"
is, in each particular case, a question of fact".
19. From the above provision it is clear that if there is no time limit for the performance of a particular promise given by one party, it is to be performed within a reasonable time. In most of the builder buyer agreements, the period ranges from 24 to 48 months and the most common agreement seems to be for 36 months plus grace period of six months for completion of construction and delivery of possession. If the possession is delivered beyond 42 months or beyond 48 months, the deficiency in service on the part of the opposite party shall stand proved."
14. From the aforesaid dicta, it flows that there cannot be indefinite or unreasonable delay in handing over the possession of the plot/flat and even if the time of delivery is not mentioned in the agreement, it should be performed within a reasonable time. Moreover, it is well settled that the Complainant cannot be expected to wait for an indefinite time period to get the benefits of the hard earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442).
15. Consequently, we hold that since the Opposite Party has failed to even offer the possession of the Plot booked by the Complainants during the pendency of the present complaint let alone the actual possession, the Opposite Party is deficient in providing its services to ALLOWED PAGE 6 OF 8 CC/1051/2018 D.O.D: 24.01.2022 NISHTHA VIJAY SAWANT VS. DIRECTOR/CEO M/S ANSAL API the Complainants and the Complainants are entitled for the refund of the money deposited by him with the Opposite Party.
CONCLUSION
16. Having discussed the liability of the Opposite Party for its deficient services and keeping in view the facts of the present, we allow the following reliefs as prayed for by the Complainant:
I. We direct the Opposite Party to pay an amount of Rs. 10,16,434/- along with interest as per the following arrangement:
A. An interest @ 6% calculated from the date of each instalment/payment received by the Opposite Party till 24.01.2022 (being the date of the present judgment);
B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 28.02.2022; C. In case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 28.02.2022, the entire amount is to be refunded with an interest @ 9% p.a. calculated from the date of each instalment/payment received by the Opposite Party till the actual realization of the amount.
II. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is also directed to pay to the Complainant A. A sum of Rs. 1,00,000/- as cost for mental agony and harassment;
B. And the litigation cost to the extent of Rs. 50,000/-.
ALLOWED PAGE 7 OF 8 CC/1051/2018 D.O.D: 24.01.2022
NISHTHA VIJAY SAWANT VS. DIRECTOR/CEO M/S ANSAL API
17. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
18. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
19. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
24.01.2022 ALLOWED PAGE 8 OF 8