State Consumer Disputes Redressal Commission
Sanjeev Ginotra vs M/S Ansal Hi Tech Township Ltd. on 12 July, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 08.07.2021
JUDGMENT PRONOUNCED ON: 12.07.2021
COMPLAINT NO. 371/2016
IN THE MATTER OF
SANJEEV GINOTRA .....COMPLAINANT
VERSUS
M/S ANSAL HI-TECH TOWNSHIP LTD. ....OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: None for the Complainant.
None for the Opposite Party.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. Brief facts necessary for the adjudication of the present complaint are that on 22.07.2008, Complainant booked a plot in the project of the Opposite Party by the name and style of "Megapolis" located at Greater Noida, Uttar Pradesh and paid a registration advance of Rs. 6,88,640/- drawn on ICICI Bank, which was duly acknowledged by the Opposite party vide receipts no. 558 and 559.
CC 371/2016 Page 1 of 202. Vide letter dated 09.08.2008, the Complainant was allotted Plot bearing no. 059 admeasuring 450 sq. Mtrs for a basic sale price of Rs. 68, 86, 400/-. Thereafter, a Plot Allottee(s) Arrangement was entered between the parties on 22.07.2008 with respect to the aforesaid booking. The Plot Allottee(s) Arrangement provided for the Payment plan which has been reproduced below for ready reference:-
S. NO. STAGE (DUE DATE) % OF BASIC SALE AMOUNT DUE PRICE
1. AT THE TIME OF 10.00 % of BASIC Rs. 6, 88, 640.00/-
BOOKING
2. 45 DAY(S) FROM THE 10.00 % of BASIC Rs. 6, 88, 640.00/-
DATE OF BOOKING
3. 90 DAY(S) FROM THE 12.5 % of BASIC Rs. 8, 60, 800.00/-
DATE OF BOOKING
4. 135 DAY(S) FROM THE 12.5 % of BASIC Rs. 8, 60, 800.00/-
DATE OF BOOKING
5. ON LAYING OF WBM 10.00 % of BASIC Rs. 6, 88, 640.00/-
ROAD
6. ON LAYING OF STORM 10.00 % of BASIC Rs. 6, 88,640.00/-
WATER
7. ON LAYING OF SEWER 10.00 % of BASIC Rs. 6, 88, 640.00/-
LINE
8. ON LAYING OF WATER 10.00 % of BASIC Rs. 6, 88, 640.00/-
LINE
9. ON LAYING OF 10.00 % of BASIC Rs. 6, 88, 640.00/-
ELECTRIC CABLE
10. AT THE TIME OF OFFER 0.5 % of the BASIC Rs. 3, 44, 320.00/-
OF POSSESSION
TOTAL Rs. 68, 86, 400.00/-
3. The Complainant made timely payments to meet its liability for the aforesaid plot. The Complainant has made a payment of Rs. 30,98,880/- which constitutes nearly 45% of the Basic Sale Price.
4. However, the payment plan provided that the Complainant was only liable to make the payments towards the advancement in construction as executed by the Opposite Party.
CC 371/2016 Page 2 of 205. The Complainant time and again inquired about the status of construction and further payments. However, the Opposite Party failed to give a satisfactory reply to the Complainant.
6. Aggrieved by the aforesaid, the Complainant wrote a letter dated 20.11.2013 to the Opposite Party, requesting the Opposite Party to either deliver the possession of the plot or to refund the amount deposited by the Complainant. The Opposite Party again failed to revert to the letter of the Complainant.
7. Left with no other option, the Complainant then got served a legal notice dated 09.12.2015 upon the Opposite Party, seeking refund of the amount deposited along with the 24% interest on the amount. The Opposite Party did not pay any heed to the legal notice.
8. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainant approached this commission.
9. The Opposite Party contested the present case and raised some preliminary objections as to the maintainability of the present complaint and contended (a) that the said plot has been purchased solely for the purpose of investment, merely for "Commercial Purpose", hence, the Complainant is not a Consumer within the provisions of the Consumer Protection Act, 1986 ; (b) that there exists an Arbitration Clause in the Arrangement which provides that a dispute arising from the arrangement shall be referred to Arbitration ;
(c) that this Commission lacks territorial jurisdiction to adjudicate the present Complaint ; (d) that the Complaint has been filed beyond the period of Limitation ; (e) that the delay was caused due to circumstances beyond the control of the Opposite party and hence have invoked the force majeure clause ; (f) that the Complainant has CC 371/2016 Page 3 of 20 failed to establish any kind of deficiency in providing services by the Opposite Party. Pressing the aforesaid preliminary objections, the Opposite Party prayed that the present Consumer Complaint should be dismissed.
10. The Complainant filed his Rejoinder rebutting the written statement filed by the Opposite Party. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record.
11. After the completion of the pleadings, the case was listed for Final Arguments on 08.07.2021. Since none appeared on behalf of the parties, the following order was passed:-
"Parties were directed to file written arguments. Written arguments of behalf of the complainant have been filed, however, the OP has chosen no to file the same.
Given the fact that the case pertains to the year 2016 and despite multiple opportunities to the OP to file the Written Arguments, the case calls for final adjudication.
Consequently, the judgment is reserved."
12. We have perused through the material available on record. The fact that the Complainant had booked a plot with the Opposite Party is not in dispute from the evidence on record. Moreover, in its written statement, the Opposite Party has not denied the receipt of an amount of Rs. 30, 98, 880/- paid by the Complainant, hence, the same stands unrebutted.
13. Before delving into the merits of the case, we deem it appropriate to adjudicate preliminary issues as to the maintainability of the Consumer Complaint.
CC 371/2016 Page 4 of 20WHETHER THIS COMMISSION HAS THE TERRTITORIAL JURISDICTION TO ADJUDICATE THE PRESENT COMPLAINT?
14. The first and foremost question for consideration is whether this commission has the jurisdiction to adjudicate the present complaint. We deem it appropriate to refer to Section 17 of the Consumer Protection Act, 1986 which provides as under:
"(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain-
(i) complaints where the value of the goods or services and compensation, if any, claimed [exceeds rupees twenty lakhs but does not exceed rupees one crore]; and
(ii) appeals against the orders of any District Forum within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. (2) A complaint shall be instituted in a State Commission within the 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, actually and voluntarily resides or carries on business or has a branch office or personally works for gain;
or CC 371/2016 Page 5 of 20
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
15. Analysis of Section 17(2) of the Consumer Protection Act, 1986 provides the extent of territorial jurisdiction, wherein it has been provided that the State Commission shall have the jurisdiction to entertain cases where Opposite Party at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or the cause of action arose.
16. Having discussed the statutory position, the facts of the present case reflect that the registered office of the Opposite Party is at 115 Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi-110001. Since the registered office falls within the territory of Delhi, this commission has the territorial jurisdiction to adjudicate the case.
17. To strength the aforesaid findings, we tend to rely on Rohit Srivastava v. Paramount Villas Pvt. Ltd. reported at 2017 SCC OnLine NCDRC 1198, wherein it has been held as under:
"It is not in dispute that the Registered Office of Opposite Party No. 1 Company is situated in Delhi, i.e., within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear CC 371/2016 Page 6 of 20 provision contained in Section 17(2)(a), which stipulates that a Complaint can be instituted in a State Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint."
18. Relying on the above settled law, we are of the view that this commission has the territorial jurisdiction to decide the present complaint.
PERIOD OF LIMITATION
19. The next issue to be adjudicated is whether the complaint is within the period of limitation as prescribed in the Consumer Protection Act, 1986. It is imperative to refer to Section 24A of the Consumer Protection Act, 1986 wherein it is provided as under:-
"24A. Limitation period.-
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in sub-
section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint as this such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."CC 371/2016 Page 7 of 20
20. Analysis of Section 24A of the Consumer Protection Act, 1986 shows that this commission is empowered to admit a complaint if it is filed within a period of 2 years from the date on which cause of action has arisen. We deem it appropriate to refer to Mehnga Singh Khera and Ors. Vs. Unitech Ltd. reported at I (2020) CPJ 93 (NC) wherein the Hon'ble National Commission has held as under:
"13. The Opposite Party contested the complaint as being barred by limitation prescribed under section 24(a) of the Consumer Protection Act, 1986 since the last date stipulated in the buyers' agreement for giving possession of the flat expired more than 2 years ago. It is a settled legal proposition that failure to give possession of flat is continuous wrong and constitutes a recurrent cause of action and as long as the possession is not delivered to the buyers, they have every cause, grievance and right to approach the consumer courts. It is only when the seller virtually refused to give possession that the period of limitation prescribed under section 24(A) of the Consumer Protection Act, 1986 would start. The Complainant has to file a case within two years from the date of refusal of delivery of possession to the buyer. In the present case, the Opposite Party has not refused possession of the flat to the complainants at any point of time. Therefore, the cause of action continues to subsist in favour of the Complainant."
21. Applying the aforesaid law, in the present case also, since the possession of the plot has not been delivered to the Complainant, the cause of action continues to subsist in favour of the Complainant and the present complaint is within the period of limitation.
COMPLAINANT- A CONSUMER OR NOT?
22. The Opposite Party has contended that the Complainant is not a Consumer as defined under the Consumer Protection Act, 1986 since the plot was purchased for investment, which constitutes commercial CC 371/2016 Page 8 of 20 purpose.
23. It is imperative to refer to the dicta of the Hon'ble National Commission in CC-1122/2018 titled Narinder Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon'ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Apartments were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainants have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainants are 'Consumers' as defined under Section 2(1)(d) of the Act."
24. From the aforesaid dicta of the Hon'ble National Commission, it flows that it is for the Opposite Party to prove that the plot purchased was for commercial purpose, by way of some documentary proof and a bald statement is not sufficient to raise adverse inference against the Complainant. It is a well-established principle of evidence that suspicion cannot take place of proof, which is also applicable to the present case.
25. On perusal of the record before us, we fail to find any material which shows that the Complainant is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such houses. Mere allegation, that the purchase of the property is for commercial purpose, cannot be the ground to reject the present consumer complaint. Consequently, the CC 371/2016 Page 9 of 20 objection raised on behalf of the Opposite Party in answered in the negative.
WHETHER THE COMPLAINT IS MAINTAINABLE AS PER THE ARBITRATION CLAUSE OF THE PLOT-
ALLOTTEE(S) ARRANGEMENT ?
26. The next question for consideration before us is whether the complaint is maintainable as per Clause 29 of the Plot Alottee(s) Arrangement entered into and duly executed between the Complainant and the Opposite Party. Clause 29 of the Plot Alottee(s) Arrangement has been reproduced below for ready reference:-
"29. All or any dispute arising out of or touching upon or in relation to the terms of this Arrangement or its termination, including the interpretation and validity thereof and the respective rights and obligations of the parties shall be settled amicably by mutual discussion failing which the same shall be settled through arbitration. The arbitration proceedings shall be governed by the Arbitration & Conciliation Act, 1996, or any statutory amendments, modifications thereof the time being in force. The arbitration proceedings shall be held at the registered office of the DEVELOPER/SPV alone in New Delhi by a sole Arbitrator who shall be appointed by the DEVELOPER/SPV, or any person nominated by him. The ALLOTTEE(S) hereby confirms that he/she/it shall have no objection to this appointment. The Courts at New Delhi shall alone have the jurisdiction in all matters arising out of/ touching and/or CC 371/2016 Page 10 of 20 concerning this Arrangement. This will be without prejudice to the statutory jurisdiction of Allahabad High Court, as provided in the Hi-Tech Township Policy of U.P. Government."
27. On the point of the existing arbitration clause, we deem it appropriate to refer to Emaar MGF Land Limited vs. Aftab Singh reported at (2019) 12 SCC 751, wherein the Hon'ble Supreme Court held as under:
"5. This Court in the series of judgments as noticed above considered the provisions of Consumer Protection Act, 1986 as well as Arbitration Act, 1996 and laid down that complaint under Consumer Protection Act being a special remedy, despite there being an arbitration agreement the proceedings before Consumer Forum have to go on and no error committed by Consumer Forum on rejecting the application. There is reason for not interjecting proceedings under Consumer Protection Act on the strength an arbitration agreement by Act, 1996. The remedy under Consumer Protection Act is a remedy provided to a consumer when there is a defect in any goods or services. The complaint means any allegation in writing made by a complainant has also been explained in Section 2(c) of the Act. The remedy under the Consumer Protection Act is confined to complaint by consumer as defined under the Act for defect or deficiencies caused by a service provider, the cheap and a quick remedy has been provided to the consumer which is the object and purpose of the Act as noticed above."
28. Hence, the perusal of the aforesaid dicta of the Hon'ble Apex Court reflects that the existence of an Arbitration clause is no bar for the consumer fora to entertain a complaint under the Consumer Protection Act, 1986.
CC 371/2016 Page 11 of 20FORCE MAJEURE- A VALID DEFENCE?
29. The Opposite Party in order to explain its failure to handover the possession of the plot within the stipulated time period has further contended that the construction of the building was majorly delayed due to reasons beyond their control and has relied on the Force Majeure Clause of the Arrangement which has been reproduced below for ready reference:-
"22. That the ALLOTTEE agrees that the sale of the 'PLOT'/'PLOT's is subject to force majeure clause which inter-alia include delay on account of non availability of steel, cement or any other building materials, or water supply or electric power or slow down strike or due to a dispute with the construction agency employed by the DEVELOPER/SPV, civil commotion or by reason of war, or enemy action or earthquake or any act of God. delay in certain decisions/clearances from statutory body(ies), or if non delivery of possession is as a result of any notice, order, rules or notification of the Government and/or any other public Competent Authority or for any other reason(s) beyond the control of the DEVELOPER/SPV and for any of the aforesaid event, the DEVELOPER/SPV shall be entitled to a reasonable corresponding extension of the time of delivery of possession of the said 'PLOT' on account of force majeure circumstances and in such eventually the ALLOTTEE(S) will not claim any amount of money by way of damages/compensation/interest, etc. from the DEVELOPER/SPV. In case of the DEVELOPER/SPV abandoning the scheme for any reason beyond its control then the DEVELOPER/SPV's liability shall be limited to the refund of the amount paid by the ALLOTTEE(S) as per the terms of Allotment Letter."
30. The Hon'ble National Commission in plethora of judgments have discussed the aforesaid issue and have held that it does not hold good ground. We tend to rely on Amit Tyagi vs. Unitech Hi-tech CC 371/2016 Page 12 of 20 Developers Ltd. and Ors. reported at IV (2017) CPJ 64 (NC), wherein the Hon'ble National Commission has observed as under:
"8. The issue regarding plea of Force Majeure is no more res integra. The aforesaid plea has been considered in earlier judgments of this Commission in the matter of R.K. Jain Vs. Unitech Hi-Tech Developers in CC No. 189 of 2009 decided on 30.05.2017 (relating to the same project) as also in CC No. 1272 of 2015 in Belu Syal Vs. Unitech Hi-Tech Developers Ltd. & Anr. Decided on 31.01.2017. The relevant observations of the Commission in the matter of Belu Syal (supra) are reproduced as under:
"So far as plea of the stay order issued by Hon'ble High Court of Allahabad dated 21.10.2011, it may be noted that this plea was considered and rejected by the Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Pvt. Ltd. and Ors. decided on 20.06.2016. Relevant observations of the Coordinate Bench are as under:
"As far as the judgment of Allahabad High Court dated 21.10.2011 is concerned, learned counsel for the complainant submits that the said judgment did not pertain to the land in question. He has produced on record a copy of the said judgment and submits that it relates only to the land allotted in Sector 91, 135 and 136. The learned counsel for the opposite party is unable to show to us how the aforesaid order dated 21.10.2011 pertains to the land on which the project, 'The Burgundy' was to be developed by it. Moreover, our attention has not been drawn to any direction of the High Court restraining the opposite party from carrying out development on the land in question. Hence, reliance upon the aforesaid order dated 21.10.2011 in Writ Petition No. 37443 of 2011 is wholly misplaced.CC 371/2016 Page 13 of 20
We find no reason to disagree with the judgment of the Coordinate Bench. Hence, the reliance placed by the opposite party on order of Hon'ble High Court dated 21.10.2011 in writ petition No. 37443 of 2011 is wholly misplaced.
The opposite party in support of Force Majeure has relied upon order dated 11.06.2013 passed by National Green Tribunal in application No. 59 of 2011 Vikram Singh Vs. Union of India and Ors. which prohibits extraction of ground water for the purpose of construction activities till the next date of hearing before the said Tribunal. The stay order by the National Green Tribunal in our view can be no justification for non completion of project and delivery of possession of the apartment to the complainant. Similar plea came to be considered and rejected by the Coordinate Bench of this Commission in the matter of Cap. Gurtaj Singh Sahni & Anr. Vs. The Manager, Unitech Ltd. & Anr. in CC No. 603 of 2014 decided on 02.05.2016. Relevant observations of the Coordinate Bench are reproduced as under:
"As far as the prohibition on use of underground water in construction is concerned, the learned counsel for the complainant has drawn my attention to the order dated 21.08.2012 passed by a Divisional Bench of Punjab & Haryana High Court in Civil Writ Petition No. 20032 of 2008 wherein the High Court noted that the public notice issued under Section 5(3) of the Environment Protection Act, 1986 was published in the newspaper on 26.12.2000. It further shows that the said notice had imposed a complete ban upon the use of underground water in the construction without prior approval of the competent authority. It was noted by the High Court that despite publication of the aforesaid notice, the builders continued to use underground water for construction purposes. If CC 371/2016 Page 14 of 20 there was a complete ban on use of underground water for construction and the said prohibition was notified on 26.12.2000, the opposite party must have taken into account, the impact of the said prohibition while entering into Buyers Agreements with the complainants. Therefore, it is not open to the opposite party to rely upon the said prohibition in order to justify the delay in construction of the villas sold to the complainants. The opposite party knew at the time of entering into agreements with the complainants that it will not be able to use underground water for construction of the villas and therefore, will have to make alternative arrangements from authorized sources for making the water available for the said construction. Therefore, the aforesaid prohibition on use of the underground water for construction purpose does not justify the delay in completion of the construction. In any case, no material has been placed by the opposite party on record to show that efforts were made by it during the relevant period to procure water from alternative sources but it was unable to obtain the water from the said sources. More importantly, in the Buyers Agreement executed between the parties, it was not disclosed to the buyers that since no underground water can be used for construction purpose, the developer will have to arrange water from alternative sources and in case it is not able to arrange water, the construction would be delayed and in that case, it will not be held responsible for the delay in completion of the construction."
Even in the instant case, the written statement of the opposite party does not record any effort made by the opposite party to obtain water for construction from alternative sources. Thus, in our view, the reference to the direction of National Green Tribunal in only an excuse to justify the inordinate delay on the part of the CC 371/2016 Page 15 of 20 opposite party to complete the project and failure of delivery of possession to the complainant.
In view of the discussion above, it is evident that opposite party has failed to prove its defence of Force Majeure. Undisputedly, the opposite party has failed to deliver possession of subject apartment to the complainant even after expiry of more than two years from the stipulated date of delivery of possession without any reasonable excuse. Thus, we are the view that opposite party is guilty of deficiency in service. In our aforesaid view, we are supported by judgments of Coordinate Bench in CC No. 930 of 2015 Aakash Chopra Vs. Unitech Acacia Projects Ltd. & Ors. and Cc. No. 367 of 2015 Richa Aggarwal & Anr. Vs. Unitech Hi-Tech Developers Limited passed in favour of the complainants in respect of same development project."
9. We do not find any reason to disagree with the reasoning and view taken in the above noted case. Thus, we are of the view that opposite party is guilty of deficiency in service as they have failed to deliver possession of the allotted apartment to the complainant even after expiry of more than four years from the stipulated period of delivery of possession."
31. In the present case, the Opposite Party has not brought forth any evidence to prove that the construction was effected due to the reasons beyond their control. Hence, we are of the view that the said ground is only an excuse to justify the inordinate delay caused by the Opposite Party due to its own default. Consequently, we hold that the unforeseen circumstances were not the reason for the delay in construction of the plot which is the subject matter of the present consumer complaint.
CC 371/2016 Page 16 of 20DEFICIENCY OF SERVICE
32. Having discussed the maintainability of the present complaint, the next issue to be adjudicated is whether the Opposite Party is actually deficient in providing its services to the Complainant. 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) 12 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 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."CC 371/2016 Page 17 of 20
33. Returning to the facts of the present case, we deem it appropriate to refer to Clause 3.2 (a) of the Plot Allottee(s) Arrangement, which reads as follows:
"3.2.(a) That the Allottee shall be entitled to possession of the plot only after the amounts payable under this Arrangement are fully paid."
34. Clause 3.2 (a) of the Plot Allottee(s) Arrangement stipulates a precondition to the delivery of possession of the Plot. The Possession shall only be given subject to the timely payments made by the Complainant.
35. At this juncture, it is imperative to refer to the Payment Plan as opted by the Complainant, wherein the Complainant was liable to make payments subject to the Opposite Party reaching a milestone of construction. In simple words, the Payment plan provided for completion of a particular stage of construction by the Opposite party and only then a certain demand of money could be made from the Complainant. However, the Opposite Party failed to make any progress in the Construction even at the time of filing the present complaint.
36. Perusal of the record reflects that the Complainant booked the plot on 22.07.2008 and thereafter there was no progress made in the project site. It is settled law 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).
CC 371/2016 Page 18 of 2037. The Opposite party failed to handover the possession of the plot within a reasonable time period and thus the Opposite Party is deficient in providing its services to the Complainant.
CONCLUSION
38. 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. 30, 98, 880/- along with interest as per the following arrangement:
A. An interest @ 6% calculated from the date of each installment/payment received by the Opposite Party till 12.07.2021 (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 30.08.2021; C. In case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 30.08.2021, 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. 2,00,000/- as cost for mental agony and harassment;
CC 371/2016 Page 19 of 20B. And the litigation cost to the extent of Rs. 50,000/-.
39. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
40. 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.
41. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
12.07.2021 CC 371/2016 Page 20 of 20