State Consumer Disputes Redressal Commission
Arun Garg vs M/S Ansal Api on 23 March, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
JUDGMENT RESERVED ON: 18.03.2021
JUDGMENT PRONOUNCED ON: 23.03.2021
COMPLAINT NO. 45/2018
IN THE MATTER OF
SHRI ARUN GARG .......COMPLAINANT
VERSUS
M/S ANSAL API .......OPPOSITE PARTY
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: Mr. K. K. Malviya, Counsel for the Complainant.
Opposite Party ex-parte.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
[Via Video Conferencing]
1. The present complaint has been filed before this commission under Section 17 of the Consumer Protection Act, 1986 alleging deficiency of services and Unfair Trade Practices by the opposite party, wherein it has been prayed as under:
a) Direct the respondent to deliver the possession of the Plot bearing No. B/0098 to the complainant immediately and execute all the necessary and required documents in respect of all the said plot in favour of complainant for which complainant is ready and willing to pay the balance amount of the sale consideration at the time of receiving the possession of said plot;CC 45/2018 Page 1 of 7
b) Direct the respondent to pay interest @18% per annum on Rs.22,34,900/- being the amount deposited by the complainant with the respondent from the date of deposit till the actual date of handing over of physical possession of the plot, complete in all respect by the respondent to the complainant;
OR IN ALTERNATIVE
c) Direct the respondent to refund Rs.22,34,900/- paid by the complainant to the respondent along with interest @18% per annum from the respective dates of payment till the date of refund;
d) Pass an award of Rs.10,00,000/- by way of compensation for causing mental agony and harassment to the complainant on account of inaction and negligence on the part of the respondent as a result of the above acts of omission on the part of respondent;
e) Award cost of the present complaint in favour of the complainant and against the respondent.
f) Any other relief which this Hon'ble Commission deems fit."
2. Brief facts of the case necessary for the adjudication of the present complaint are that the complainant booked a Residential plot bearing No. 0098, Block- B, at integrated Township popularly known as "Aquapolis" at the village Doondaheda, District Ghaziabad, Near NH-24, Uttar Pradesh. Thereafter, a Plot Buyer Agreement was executed between the parties dated 10.05.2008. The complainant over the time had paid a sum of Rs.22,34,900/- to the Opposite Party as and when demanded by it. However, despite receiving such a substantial amount, the Opposite Party failed to handover the possession of the plot to the complainant till date.
3. Being aggrieved by the same, the Complainant approached this commission.
4. During the course of the proceedings notice was issued to the Opposite Party on 09.08.2018. On 26.10.2018, proxy counsel for the CC 45/2018 Page 2 of 7 Opposite Party appeared and copy of the complaint was supplied. Direction for filing written statement was also given to the Opposite Party on the same date.
5. On 01.05.2019, none appeared on behalf of the Opposite Party and the Opposite Party was proceeded ex-parte. Direction was also given to the complainant to file the ex-parte evidence along with the written arguments, which were filed by the complainant and the case was listed for Final Arguments.
6. We have heard the counsel for the complainant and perused the material on record.
7. The fact that complainant had booked a plot with the Opposite Party is not in dispute from the evidence on record. Payment to the extent of Rs.22,34,900/- by the complainant to the Opposite Party is also evident from the material before us.
8. The only question 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 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period CC 45/2018 Page 3 of 7 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."
9. The perusal of the Plot Buyers Agreement reflects that there is no time limit incorporated in it, to handover the possession of the said plot. Even though the allotment letter is silent as to till which date the possession was to be handed over, however, the law has been well settled that in case the allotment letter does not mention a specific time period, the plot is to be handed over within a reasonable time. What constitutes reasonable time has been discussed by the Hon'ble National Commission in First Appeal No. 348 of 2016 titled Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors. dated 10.05.2019 wherein it has been held as under:
"......under Section 46 of the Indian Contract Act, 1872, the following provision is there:CC 45/2018 Page 4 of 7
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 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."
10. Returning to the facts of the present case, the fact that the complainant had been allotted a plot vide allotment letter dated 10.05.2008 with the Opposite Party is well established from the evidence on record. At the most, as per the dicta of the Hon'ble National Commission in Ajay Enterprises (Supra) and given the fact that the allotment letter was issued on 10.05.2008, the Opposite Party was duty bound to handover the possession by November, 2011, however, till date the Opposite Party has failed to handover the possession of the said plot to the complainant. It has been 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).
CC 45/2018 Page 5 of 711. Relying on the above settled law, we hold the Opposite Party deficient in providing its services to the Complainant as the Opposite Party had given false assurances to the complainant with respect to delivery of possession of the plot and kept the hard earned money of the complainant for about 13 years.
12. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the complainant i.e. Rs. 22,34,900/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date of each instalment received by the Opposite Party till 23.03.2021 (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 31.05.2021; C. In case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 31.05.2021, the entire amount is to be refunded with an interest @ 9% p.a. calculated from the date of each instalment received by the Opposite Party till the actual realization of the amount.
13. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of A. Rs. 1,00,000/- as cost for mental agony and harassment to the complainant; and B. The litigation cost to the extent of Rs. 50,000/-.
14. Applications pending, if any, stands disposed of in terms of the aforesaid judgment.
CC 45/2018 Page 6 of 715. 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.
16. File be consigned to record room along with a copy of this Judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
23.03.2021 CC 45/2018 Page 7 of 7