Judicial Analysis Court Copy Headnote Facts Arguments Court observation

DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. Sangita Dhingra Sehgal, President and Anil Srivastava, Member
[Via Video Conferencing]
Mr. K.N. Gupta – Complainant
versus
Ansal Properties & Infrastructure Ltd.
and Anr. – Opp. Parties
Complaint No.493 of 2013
Decided on 12.7.2021

Advocates:
Counsel for the Parties:
For the Complainant: None
For the Opp. Parties: None

IMPORTANT POINTS
1. In terms of construction, cause of action remains concurrent and continuous till possession is delivered.
2. Failure to comply with the rules of the contract on part of the builder (Opp. Parties herein) will be treated as deficiency in service.

Headnote:
(i) Consumer Protection Act, 1986 – Section 17 [Sec. 47(1) of Consumer Protection Act, 2019] – Jurisdiction - Complainant booked a flat in Opp. Parties’ apartments by paying booking amount of Rs. 4,00,000 – Complainant also paid installments but received delayed allotment of the flat with less area as promised under agreement – Opp. Party/Respondent revoked allotment of this flat upon complaint and provided another flat not listed in the agreement as the original scheme was abandoned by Opp. Parties – Complainant pled before State Commission for costs incurred, sum paid with interest and allotment of another flat – State Commission awarded total sum paid, along with Rs. 1,00,000/- as cost of litigation, 6% interest on installments and 9% on booking amount. (Paras 2, 8, 9, 22, 23 & 24)
(ii) Consumer Protection Act, 1986 – Section 24A [Sec. 69(1) of Consumer Protection Act, 2019] – Limitation Period – Opp. Parties alleged that State Commission cannot hear the matter as limitation period of 2 years from the arising of cause of action had passed – State Commission ruled, based on precedents, that building disputes are treated as ongoing cause of action as dispute hasn’t been solved till date. (Paras 10, 11 & 12)
(iii) Consumer Protection Act, 1986 – Section 2(1)(g) [Sec. 2(11) of Consumer Protection Act, 2019] - Deficiency in service – Complainant alleged deficiency in service on part of the Opp. Party – State Commission ruled that failure to comply with terms of contract on part of builder, providing possession of flat on time, qualifies as deficiency in service under the act – Builder did not provide possession, degraded flat to smaller one and ultimately changed the flat – Builder liable to pay cost and interest. (Paras 18, 19, 20 &21)
Result: Complainant awarded amt. to be refunded with 9% interest, Rs.1,00,000/- for mental agony and Rs. 50,000/- as litigation costs

JUDGMENT

Dr. Sangita Dhingra Sehgal, President.—The present complaint being filed under Section 17 of the Consumer Protection Act, 1986 by Mr. K. N Gupta (hereinafter referred to as ‘complainant’) against Ansal Properties & Infrastructure Ltd. & Anr. (hereinafter referred to as ‘opposite parties’) and has prayed the following reliefs.

a) Pass an order against OP no 1 to refund amount of Rs. 8,57,922=00 to the complainant.

b) Pass an order against OP no 1 to pay pendent elite and future interest @ 20% p.a. till date of full and final payment.

c) Pass an order against OP no 1 to pay Rs. 30,60,000=00 for the delay in construction of the flat/project and for covering up the difference in cost for enabling the complainant to purchase a similar flat admeasuring 1800 sq ft. in the same vicinity as on the date of filing this complaint.

d) Pass an order against OP no 1 to pay an amount of Rs. 10.00 Lacs to the complainant towards deficiency in service including the mental agony and harassment caused to the complainant.

e) Pass any other or further order; which this Hon’ble Commission may deem fit and proper in the interest of justice.

Facts of the case

2. Brief facts necessary for the adjudication of the present complaint are that the complainant vide application form dated 31.08.2006 booked a flat having super area about 1800 sq. ft in the project of the opposite party no. 1 named “The Europa Residency” situated at Kundli, Sonepat and paid Rs. 4,00,000/- to the opposite party no. 1. As per clause (a) of the application form, the provisional allotment shall be made within 12 months by the opposite party no. 1 from the date of the application form. The allotment letter was issued after delay on 30.09.2009 by the opposite party no. 1, for a flat bearing no. C-0601 admeasuring 1335 sq. ft. instead of 1800 sq. ft. stipulated in the application form. The complainant disputed this allotment and requested opposite party no. 1 to allot flat as per the specifications mentioned in the application form. However, the opposite party no. 1 did not pay heed to the grievance of the complainant and vide letter dated 01.04.2010 demanded an amount of Rs. 1,16,812.50 to be paid within 180 days. Affronted by this, the complainant vide letter dated 19.04.2010 sought withdrawal and refund from the opposite party no. 1 of the amount paid by him. The opposite party no. 1, thereafter, unilaterally changed the flat from C-0601 to G-1202 and further issued various demand letters to the complainant. The opposite party no. 1 neither refunded the money of the complainant till date nor has offered possession of the flat yet.

3. Alleging deficiency in service and unfair trade practice on the part of opposite party no. 1, the complainant has approached this commission.

Contentions of the Opposite Parties

4. The Opposite Party No. 1 has contested the present case and has raised some preliminary objections as to the maintainability of the complaint case. The counsel on behalf of the Opposite Party no. 1 submitted that the complainant is not “Consumer” as defined under the Consumer Protection Act, 1986 as the complainant had booked various flats in the same project and the present complaint is barred by limitation as per section 24A of the Consumer protection Act, 1986.

5. The counsel for the Opposite Party no. 1 submitted that the complainant himself defaulted in making the due payments to the opposite party no. 1 and the flat was changed from C-0601 to G-1202 as the original scheme got abandoned. It is further submitted by the counsel for the opposite party that there is no deficiency on the part of the opposite party no. 1 as no construction can be made without payment. Pressing the aforesaid preliminary objections, the counsel appearing on behalf of the Opposite Party no. 1 prayed that the complaint should be dismissed.

6. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record.

7. We have perused the material avai

Click Here to Read the rest of this document

IMPORTANT POINTS1. In terms of construction, cause of action remains concurrent and continuous till possession is delivered.2. Failure to comply with the rules of the contract on part of the builder (Opp. Parties herein) will be treated as deficiency in service.

IMPORTANT POINTS
1. In terms of construction, cause of action remains concurrent and continuous till possession is delivered.
2. Failure to comply with the rules of the contract on part of the builder (Opp. Parties herein) will be treated as deficiency in service.