Monopolies and Restrictive Trade Practices Commission
Dr. S.R. Agarwal vs Akash Ganga Builders & Engineers Ltd. on 6 September, 2001
Equivalent citations: I(2003)CPJ60(MRTP)
ORDER
R.L. Sudhir, Member
1. The above named 17 compensation applications have been filed under Section 12-B of the Monopolies and Restrictive Trade Practices Act, 1969 [the MRTP Act for brief] to claim refund of the amounts deposited by them with interest @ 24% per annum. The subject-matter and the cause of action in all these matters being identical, they shall be disposed of by a single common order.
2. The respondent namely, Akash Ganga Builders and Engineers Ltd., is a public limited company with registered office at B-20, Ansal Chamber-1, Bhikaji Cama Place, New Delhi. It is engaged in building and developing residental/commerical complexes in and around Delhi. The respondent floated a project under the name and style of "Shiv Shakti Apartments" on a piece of land situated in Village Bhupatwala Kalan, Pargana Jwalapur, Distt. Haridwar (Uttaranchal) on 16.3.1998. The aforesaid project is claimed to have been duly sanctioned and approved by the Haridwar Development Authority. To invite offers from the general public and more particularly from the old and aged people, the respondent released advertisements in the daily newspapers. In the advertisements, the respondent highlighted the following salient features :
" Quality construction.
Round-the-clock water supply.
ISD/STD facility.
Security arrangements by qualified security personnel.
Common space/lawns for the flat owners.
Parking space, restaurant, departmental store and others within the complex. The site surrounded with famous Mandirs and Ashrams.
Doctors on call.
Easy commuting facility to site, being connected with city roads."
It was also stated that the respondent company had a sound financial infrastructure and experienced personnel in the field of planning, management and marketing etc. It was especially emphasized that the respondent company had a vision to venture into the area of providing living accommodation and social security to the elderly persons by constructing Old Age Home at Haridwar/Rishikesh/ Dehradun region of U.P. for persons above 55 years of age. The respondent proposed to include the following facilities in the Old Age Home :
Option of fully furnished/semi-furnished accommodation with provision of lift. A centralised kitchen, a dining hall and food would be available at discounted rate. Round-the-clock water supply, electricity, maintenance services and laundry. ISD/STD/PCO facilities, vehicle on call for commuting facility. Meditation/Satsang hall, library and departmental store.
Common parking space and common big green lawn.
A doctor, nurses and full-time service personnel.
All these facilities at a nominal service charge.
Under the payment plan given by the respondent, the applicants were required to pay initial booking amount equal to 10% of the cost ot the apartment and within thirty days of booking, the allotment amount of 20% was payable to the respondent. Thereafter the applicants were required to pay 12 monthly instalments, each equal to 5% of cost of the apartment. The balance amount of 10% was payable at the time of taking possession which was to be given after the payment of the 12th instalment in terms of the payment plan reproduced below :
3. Attracted by these assurances, the applicants applied for allotment of accommodation in the Shiv Shakti Apartments (Old Age Home) for different types of apartments as detailed below :
4. It has been stated that the applicants being helpless persons, joined hands with other similarly situated individuals and formed an Association namely, Shiv Shakti Apartments (Old Age Home), Haridwar, Members Welfare Association, Delhi to pursue the matter collectively. The representatives of the said Association made a common representation to the respondent on 11.10.1999 in which they voiced their grievances and sought redressal of the same. The applicants, however, did not get any response from the respondent. Thereafter, the said Association made another representation on 29.11.1999 seeking a detailed reply from the respondent, failing which, they sought refund of the entire money deposited by them with interest. To this representation also, no reply/response came forth from the respondent. Several meetings held with the respondent also failed to yield any positive results and, therefore, most of the members decided to get refund of their deposits with interest as there was no hope of the respondent completing the project in the near future. Thereafter, a legal notice was issued to the respondent on 16.12.1999 and the members also paid personal visits to the office of the respondent but the respondent kept avoiding each time. Thus aggrieved by the respondent's failure to fulfil the assurances given by it, the applicants have filed the present compensation applications in the Commission for grant of compensation.
5. Notice of compensation was issued to the respondent in respect of these compensation applications. As the respondent neither filed a reply nor entered appearance in the Court, the proceedings were set ex parte. against it and the liberty was given to each of the applicants to file their respective affidavits of evidence with supporting documents.
6. During the proceedings, bailable warrats were issued to Shri Ashok Arora, Managing Director of the respondent company to secure his presence in the Court. Shri Arora appeared in the Court on 27.7.2001 and stated that the money deposited by the applicants as also part of his own money had been invested in the project and that the completion of the project will take about two years more.
7. The applicants filed their respective affidavits of evidence and supporting documents and final arguments were heard on 20.8.2001. Apart from hearing the oral arguments, the Counsel for the parties were also given the liberty to file their written submissions within ten days.
8. We have considered the submissions made on behalf of the parties and have also gone through the facts on record. There is no dispute as to the fact that the applicants have not been given possession of the flats allotted to them within the stipulated period which was 15 months from the date of allotment with a maximum grace period of 90 days. It is also evident from the statement made by the Managing Director of the respondent company that the flats were not ready even on the day he appeared in the Court i.e. 27.7.2001 and that it may take about two years more to complete the project. However, in the written submissions filed by the Advocate for the respondent, delay has been attributed to unforseen circumstances which cannot be relied upon for want of specific details. It has been further submitted that the project will be completed within one year failing which the respondent will refund the deposits with 12% interest. Even this assurance carries no conviction in view of the indifference, apathy and non-cooperation shown by the respondent in the past.
9. The failure on the part of the respondent to fulfill the assurances given by it to the applicants who are old and aged people is well established. Such a deficiency in service amounts to unfair trade practice as contemplated in Section 36-A of the MRTP Act. It is also important to note that the respondent had floated this scheme especially for the benefit of the senior citizens above the age 55 years. Many of them are retired pensioners who invested their precious savings in the scheme. Depriving such applicants of their rightful claim is an egregious failure on the part of the respondent.
10. In view of the above, the compensation claims of the applicants are accepted. The respondent is directed to refund the amounts deposited by each of the applicants with interest @ 12% per annum from their respective dates of deposit within six weeks and file an affidavit of compliance within two weeks thereafter. Each of the applicants is also awarded cost of litigation which is quantified at Rs. 2,000/- per applicant.