BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION- 1, LUCKNOW

----------------
COMPLAINT CASE NO. of 2024

IN THE MATTER OF:

1. Amit Shukla ……. COMPLAINANT

Versus

Ansal Properties & Infrastructure Ltd. ………RESPONDENT

WRITTEN STATEMENT ON BEHALF OF RESPONDENT

MOST RESPECTFULY SHOWETH: -

1. That the present complaint is not maintainable as it has been filed by the
Complainant in the gross violation of the provisions of the Consumer
Protection Act, 2019.
2. That before proceeding with the Para wise reply of the present complaint the
respondent shall place before the Hon’ble Commission preliminary objections
regarding the maintainability of the present complaint.

PRELIMINARY OBJECTIONS: -

3. That the present complaint is not maintainable as it has been filed by the
Complainant in the gross violation of the provisions of the Consumer
Protection Act, 2019.
4. That before proceeding with the Para wise reply of the present complaint the
respondent shall place before the Hon’ble Commission preliminary objections
regarding the maintainability of the present complaint.
 PRELIMINARY OBJECTIONS: -
5. That the present complaint is time barred in light of Section 69 of the
Consumer Protection Act, 2019(hereinafter referred as “Act of 2019”) and the
complaint was filed by the Complainant without any delay application.
6. That it is pertinent to mention her that the provision of section 69 of the Act of
2019 clearly provides that the complaint should by file before the Hon’ble
District Commission by within 2 years, when the cause of action has to be
arisen but in the present case the unit was allotted on 15-07-2013 in favor of
the Complainant and as per the agreed terms of Builder Buyer Agreement.
According to section 69 of the Act of 2019 the complainant has bound to file
present complaint by within 2 years after the stipulated time period of
completion of project as mentioned in BBA i.e. in 2018 but the complainant
has failed to file complaint in the allowed time period. The present complaint
that is filed in 2024 is 6 years after the ending of limitation period. It is further
submitted that the complainant has not attached any delay application that
justifies the time taken to file the complaint. Thus, the present complaint does
not stand in the eyes of law as it clearly violates the act of limitation, the
present complaint is thus not maintainable in the court of law.
7. That it is further submitted that according the terms of BBA, the possession
will be handover within 3 years i.e. 36 months from the date of layout plan
sanction, but due to force majeure circumstances and demonetization of
economic slowdown in real estate section since 2016 the respondent has faced
heavy financial crises and therefore the construction of the project getting
slow and the possession was delayed.
8. That however, the unit was booked by the Complainant on 15-07-2013 and the
last payment was made by the complainant on 03-06-2014 and thereafter, the
Complainant has evaded in payment and further Complainant has not
conversed with the Respondent.
9. That it is submitted that the present complaint is time barred as per section 69
of the Act of 2019 and hence needs to be dismiss on the ground of limitation.
10. That the Hon’ble Apex Court in Civil Appeal No. 5051-5052 of 2009 “Estate
Officer, Haryana Urban Development Authority &Anr. Vs. Gopi Chand
Atreja” has clearly held that in case the explanation given does not constitute
a sufficient cause and has not been properly explained is liable to be rejected
on the grounds of limitation alone.
11. That it is further submitted that the complainant is a defaulter who has failed
to make timely payment which was promised by him through Builder Buyer
Agreement. However, according to complaint the complainant has paid only
Rs. 5,02,374/- (Five Lakh Two Thousand Three Hundred Seventy-Four) out of
total cost of unit i.e. Rs. 16,24,350/- (Sixteen Lakh Twenty-Four Thousand
Three Hundred Fifty Only) Which is clearly shows that the complainant is still
liable to pay rest amount of allotted unit.
12. That the project was delayed to due force majeure circumstances of
demonetization and economic slowdown since 2016 and thereafter from
March, 2020 to till date the project was further delayed due to pandemic of
COVID-19 when the all over India has suffered by complete lockdown and
financial crises by COVID-19.
13. That it is further important to mention here that the complainant has failed
produce documentary evidence in support of his allegations and therefore
without proper evidence allegations of the complainant cannot be acceptable
in the eye of law.
14. That in light of above noted facts and circumstances present complaint has no
locus to stand before the Hon’ble District Commission and relief sought by the
complainant cannot be acceptable by this Hon’ble District Commission and
hence present complaint needs to be dismissed with cost in favor of the
respondent in the interest of justice.
 TRUE FACTS OF THE CASE

15. That the Respondent is a Multinational Real Estate Company who launched
their Hi-Tech Township Project, BASERA ENCLAVE SEC-K LUCKNOW
in Sushant Golf City, Sultanpur Road Lucknow.
16. That on 15-07-2013 the complainant has applied for a residential Unit No.05,
at 11th floor in tower H, Having super area of 663 sq ft with the base price of
16,24,350(Sixteen Lakh Twenty-Four Thousand Three Hundred Fifty Only).
17. That in pursuance of aforesaid allotment Builder Buyer Agreement was
executed in 2013 and as per agreed terms of clause of BBA the respondent has
promised that the possession will be handover within 36 months from the date
of lay out plan was sanction on subject of receiving total cost of unit and force
majeure circumstances.
18. That the Respondent is a Multinational Real Estate Company who launched
their Hi-Tech Township Project, BASERA ENCLAVE SEC-K LUCKNOW
in Sushant Golf City, Sultanpur Road Lucknow.
19. That on 15-06-2013 the complainant has applied for a residential Unit No. 1-
B/R, having super area of 663 sq ft with the base price of 16,24,350(Sixteen
Lakh Twenty-Four Thousand Three Hundred Fifty Only).
20. That in pursuance of aforesaid allotment Builder Buyer Agreement was
executed in 2013 and as per agreed terms of clause of BBA the respondent has
promised that the possession will be handover within 36 months from the date
of lay out plan was sanction on subject of receiving total cost of unit and force
majeure circumstances.
21. That the complainant was free get delay interest at the decided
rate of interest and still the complainant decided to wait for the
completion of the construction in the original project fully
knowing that the current project is facing delays and thus the
 consumer now cannot claim for refunds and delay interests at
exorbitant rate of interests.
22. That however, the project was further delayed due to demonetization and
economic slowdown in real estate sector and force majeure circumstances of
pandemic of COVID-19 which is beyond the control of respondent and
therefore the respondent is not liable for that delay.
23. That as per agreed terms of BBA, the complainant has promised to make
timely payment in respect of his allotted unit but he has defaulted in making
timely payment and when the complainant himself is a defaulter than legally
he cannot be eligible for seek any relief by the respondent.
24. That it is pertinent to mention here that vide application/allotment/Flat
Buyer’s Agreement dated 13-12-2010 (hereinafter referred as “BBA”) the
Complainant agreed to the terms and conditions of the BBA and thereafter, the
Complainant has signed BBA in open eyes and with his full gratification.
25. That the BBA was signed by the Complainant on his acceptances also on the
agreed terms and conditions of the BBA and therefore, that was also a binding
on the Complainant as well. The copy of BBA is already annexed with the
complaint.
26. That it is further agreed by the Complainant “That the Allottee(s) shall be
entitled to possession of the “Unit” only after the amounts payable under this
Arrangement are fully paid” but in the present case the Complainant has not
paid his complete dues to get the possession of the unit therefore, the
Complainant is not entitled to seek possession of his booked unit furthermore,
the Complainant is even not entitled to seek any delay interest or
compensation for delay in possession.
27. That in the similar matter the Real Estate (Regulation and Development) Act,
2016 specifically states that on default in payment by the allottee(s) is also a
compensatory in nature under section 19(6) of RERA Act, 2016 further
section 19(6) provides that allottee is under obligation to make payment as
 terms and conditions of the Agreement and further 19(7) of RERA Act, 2016
envisages levying of the interest for the period of delay in making payment to
the builder. In the given case, the Complainant one side has failed to fulfill its
obligations of payment but other side, Complainant is misusing the process of
law in order to arm twist the Respondent for vested interest.

19(6) of RERA Act :-Every allottee, who has entered into an

agreement for sale to take an apartment, plot or building as the
case may be, under section 13, shall be responsible to make
necessary payments in the manner and within the time as
specified in the said agreement for sale and shall pay at the
proper time and place, the share of the registration charges,
municipal taxes, water and electricity charges, maintenance
charges, ground rent, and other charges, if any .

19(7) of RERA Act:-The allottee shall be liable to pay interest,

at such rate as may be prescribed, for any delay in payment
towards any amount or charges to be paid under sub-section (6).

28. That in view of applicable position under 19(6) and 19(7) of RERA Act, 2016,
the Complainant has breached the terms and conditions of the Buyers
Agreement and thus is not entitled for any interest or compensation. Since the
complainant has violated the essence of agreement by not making the
payments timely and is also a defaulter and thus is not entitled for any interest
or compensation.
29. That the Hon’ble NCDRC in “Dlf Southern Towns Pvt. Ltd. Vs Dipu C.
Seminlal”, 2015 has clearly held that:
15. In the light of above discussions, it becomes clear that as

complainant failed to perform terms and conditions of the agreement

inspite of repeated reminders, OP was well within its right to forfeit the
 amount of earnest money and the Learned District forum committed

error in allowing the complaint and Learned State Commission further

committed error in dismissing appeal.

30. That at the time of booking the Complainant was fully aware that the project
was a proposed project and possession will be handed over after attaining the
necessary permission by the competent authority or subject of force majeure
circumstances. That after considering the all above noted terms of the BBA,
the BBA was signed with his full satisfaction in open eyes and on his
acceptance therefore, the Complainant cannot go beyond the terms of BBA.
31. That however, the terms of BBA, itself in the nature of contract and therefore
the terms and conditions are binding on the complainants itself. Hon’ble
Supreme Court of India in the matter of “Marine Container Servicers
South Vs. Go Go Garments” on order dated 23-01-1998 specifically
provides that the contract act is applicable on the Consumer Protection Act,
1986 and held herein under:

The National Commission took the view that, inasmuch as the

respondent was pursuing the remedy available to it under the
provisions of the Consumer Protection Act and had claimed
that it had hired the services of the appellant and there was
deficiency in rendering such services, its complaint was
maintainable, for the protection given to an agent
under Section 230 of the Contract Act was available only when
the action arose out of or in relation to the enforcement of a
contract.

4. We are not a little surprised to read that the Contract Act does
not apply to complaints filed under the Consumer Protection
Act. The Contract Act applies to all the litigants before the
Commission under the Consumer Protection Act included.
Whether in proceedings before the Commission or otherwise,
 an agent is entitled to invoice the provisions of Section 230 of
the Contract Act and, if the facts found support him, his
defence based thereon cannot be brushed away.

32. That contract is the proof of the acceptance of the parties that the parties are
agreed by the terms and conditions to comply.
33. That the Hon’ble Supreme Court of India in the case of “Amalgamated
Electricity Co. Vs. Municipal Committee, Ajemer” vide their order dated
25-07-1968 held that-
Under the notification imposing surcharge the plaintiff is not
entitled to get any additional sum as regards the pumping of
water. Under that notification to the extent, it is applicable to
this case surcharge is levied only on the price of electrical
energy supplied under a contract for street lighting and not in
respect of the price of the electrical energy used for pumping
water. Under Exh. 21 the plaintiff entered into an agreement to
pump water for a fixed consideration. For so doing it may have
to utilize the electricity produced by it but that does not amount
to supplying electricity to the Municipal Council much less
supplying electricity for street lighting. From el. 8 of that
agreement, it is seen that the parties to that agreement
contemplated the pumping of water by using Oil Engines
though ordinarily it was expected that it will be done by
electrical energy. It is true that el. 20 of the agreement
provides that the Municipal Council shall have first claim over
other consumers for the supply of energy for pumping such
quantity of water as may be required from the wells at
Bhaonta. In construing the true nature of the contract entered
into between the parties. the contract has to be read as a whole
and if so, read it is clear that what the plaintiff undertook was
to pump water from the wells in question and not to supply any
electrical energy.
34. That the Hon’ble Supreme Court of India M/S. Bay Berry Apartments
Pvt. ... vs Shobha &Ors on 19 October, 2006 held that-
The decision of this Court in N. Krishnammal (supra) is
binding on this Court. The meaning of the expression "heir" in
the context of the Hindu Succession Act has been considered
therein. The expression "heir" would mean a legal heir. In
construing a document, this Court cannot assign any other
meaning. A document as is well-known must be construed in its
entirety. Although some parts thereof should not be read in
isolation, the contents of Clause (7) of the Will are really
important. It may be true that in the last part of the Will, the
propounder while placing his sons adduced the words 'Putra
Poutra'. But the same cannot control the unequivocal
expression contained in Clause (7) thereof. When a document
is not uncertain or does not contain an ambiguous expression,
it should be given its literal meaning. Only when the contents
are not clear the question of taking recourse to the application
of principles of construction of a document may have to be
applied. It is also not a case where there exists any
inconsistency between an earlier and later part of the
document. What is necessary for true, proper and effective
construction of the Will in question is to give effect to the
intention of the propounder of the Will. It will bear repetition
to state that an embargo was put on.

35. That the Hon’ble Supreme Court of India in Polymate India Pvt Ltd. Anr.
Vs. National Insurance Co. Ltd., specifically held that the Court cannot give
any other color to the contract, held herein under:
In this connection, a reference may be made to series of
decisions of this Court wherein it has been held that duty of the
Court to interpret the document of contract as was understood
between the parties. In the case of General Assurance Society
 Ltd. Vs. Chandmull Jain reported in 1966 (3) SCR 500 at
pages 509-510, it was observed as under:

"In interpreting documents relating to a contract of

insurance, the duty of the court is to interpret the words
in which the contract is expressed by the parties, because
it is not for the court to make a new contract, however
reasonable, if the parties have not made it themselves.

" Similarly, in the case of Oriental Insurance Co. Ltd. Vs.

Samayanallur Primary Agricultural Co-op. Bank reported in
(1999) 8 SCC 543- Para 3 at page 546-f, it was observed as
under:
"The insurance policy has to be construed having
reference only to the stipulations contained in it and no
artificial farfetched meaning could be given to the words
appearing in it.
" Therefore, the terms of the contract have to be construed
strictly without altering the nature of the contract as it may
affect the interest of parties adversely.

36. That in view of aforesaid judgments it is clear that the terms of the BBA are
contract between the parties and binding on the complainant and respondent as
well and therefore needs to be consider to decide the case on merit in the eye
of law.
37. That it is pertinent to mention here that in light of agreed terms of BBA as
stated above the complainant is only liable to seek refund of her deposited
amount without any delay interest or compensation.
38. That on the deficiency in service, the Hon’ble Supreme Court of India passed
an order in the Case No. 8701 of 1997 (Ravneet Singh Bagga Versus Klm
Royal Dutch Airlines) on dated 02-11-1999 and held-
“Section 2(o) defines the "Service" to mean service of any description
which is made available to potential users and includes the provision of
facilities in connection with banking, financing, insurance, transport,
processing, supply of electrical or other energy, board or lodging or both,
entertainment, amusement or the purveying of news or other information.
but does not include the rendering of any service free of charge or under a
contract of personal service. Section 2(g)defines "deficiency" to mean 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.”
“Onus of proof of deficiency in service—Verification of visa of the
complainant by airlines authorities, second time under certain suspicious
circumstances—it was found that such examination of visa was altogether
bona fide—Even if it results in delay in arrival at the destination abroad
and may have caused harassment, mental torture of financial loss, it did
not amount to deficiency in service.”
“The deficiency in service cannot be alleged without attributing
fault, imperfection, shortcoming or inadequacy in the quality, nature
and manner of performance which is required to be performed by a
person in pursuance of a contract or otherwise in relation to any
service. The burden of proving the deficiency in service is upon the
person who alleges it. The complainant has. on facts, been found to
have not established any willful fault, imperfection, shortcoming or
inadequacy in the service of the respondent. The deficiency in service
has to be distinguished from the tortuous acts of the respondent. In the
absence of deficiency in service the aggrieved person may have a
remedy under the common law to file a suit for damages but cannot
insist for grant of relief under the Act for the alleged acts of
commission and omission attributable to the respondent which
otherwise do not amount to deficiency in service. In case of bonafide
disputes no willful fault, imperfection, shortcoming or inadequacy in
the quality, nature and manner of performance in the service can be
 informed. If on facts it is found that the person or authority rendering
service had taken all precautions and considered all relevant facts and
circumstances in the course of the transaction and that their action or
the final decision was in good faith, it cannot be said that there had
been any deficiency in service. If the action of the respondent is found
to be in good faith, there is no deficiency of service entitling the
aggrieved person to claim relief under the Act. The rendering of
deficient service has to be considered and decided in each case
according to the facts of that case for which no hard and fast rule can
be laid down. Inefficiency. lack of due care, absence of bonafide,
rashness, haste or omission and the like may be the factors to
ascertain the deficiency in rendering the service.

39. That it is further submitted that as per the definition of the current rate of
interest as given in the Interest Act, 1978, it is the highest rate of interest
payable in FDs and highest FD rate is about 7-8% p.a. and therefore, more
interest cannot be granted even if a decision is taken to refund the amount
along with interest.
40. That in the similar matter the Hon’ble National Consumer Dispute
Redressal Commission, New Delhi in “Shalabh Nigam vs Orris
Infrastructure Pvt. Ltd. & ...” passed an order dated 06th May, 2019 and
directed Ops. As under:
i). Complete the construction work and handover the physical possession
of the flat complete in all respects as per agreement till 30th September
2019 after obtaining occupancy certificate.
ii) The OP-1 shall pay interest @ 6% p.a. on the deposited amount by the
complainant till the due date of possession from the due date of
possession till the actual date of possession. For the amounts paid after
the due date of possession, the interest shall be payable from the date of
completion of one year from the date of deposit till the date of physical
possession. The receivables of compensation in the form of interest
 @6% p.a. shall be adjusted at the time of possession before any due
amount is taken from the complainant by the OPs.
iii) If the possession is not delivered till 30.9.2019, the complainant shall be
at liberty to take refund of the total deposited amount along with
interest @ 10% p.a. from the date of respective deposits (from or after
05.09.2012) till actual payment. OP-1 shall be liable to pay the same
within a period of six weeks after receiving the request letter from the
complainant. If the complainant does not ask for refund, he shall be
entitled to get interest @ 6% p.a. as already ordered till possession is
handed over.
41. That further in the case of “Chitra Sharma Vs. Union of India” the
Hon’ble Supreme Court specifically helds that:
40 As we have stated earlier, an amount of Rs 750 crores is lying in deposit
before this Court pursuant to the interim directions, on which interest has
accrued. The home buyers have earnestly sought the issuance of interim
directions to facilitate a pro-rata disbursement of this amount to those of
the home buyers who seek a refund. We are keenly conscious of the fact
that the claim of the home buyers who seek a refund of monies deserves to
be considered with empathy. Yet, having given our anxious consideration
to the plea and on the balance, we are not inclined to accede to it for more
than one reason. Firstly, …… Secondly, the figures which have been made
available presently, following the opening of the web portal by the amicus
curiae, indicate that 8% of the home buyers have sought a refund of their
monies while 92% would evidently prefer possession of the homes which
they have purchased. We cannot be unmindful of the interests of 92% of
the home buyers many of whom would also have obtained loans to secure
a home. They would have a legitimate grievance if the corpus of Rs 750
crores (together with accrued interest) is distributed to the home buyers
who seek a refund.
42. That therefore it is clear that the delay was belongs to non-payments by
the allottee(s) and to the force majeure circumstances which is beyond the
control of the respondent and hence that period cannot be admissible in
delay period in the interest of justice.
43. In light of the above noted facts and circumstances it is clear that the
allegations of the complainant is completely false, fabricated and
concocted by the complainant however, the complainant himself a
defaulter and he is not eligible to seek any relief from this Hon’ble District
Commission and further in the present case the complainant has
committed a clear violation of Contract Act, 1872 therefore, present
complaint needs to be dismissed in favor of the Respondent in the interest
of justice.
44.