Coram:    Mohd. Anwar Alam, President

                  Vikram Kumar Dabas, Member

                                                                     ORDER                                    Dated:   28-04-2017

Mohd. Anwar Alam, President

1. The complainant filed this complaint on 17-04-2015 and alleged that   believing the representation of OP company  she purchased a residential home at plot no. 9 Tech Zone, Greater Noida measuring apporx. 390 Sq. Ft. super area and paid a total sum of Rs. 8,09,000/- through two cheque and also paid  a sum of Rs. 3,91,000/- in cash for good work and decorum to the OP.    On signing  MOU dated 18/06/2009, OP company hereby undertaken to make a payment of Rs. 8,090/- as assured return by every month from July 2009 to the complainant till the actual date of possession of residential flat but OP failed to do so and stopped the assured return of Rs.8090/-  to her  from February 2014.   Initially, it was agreed between the parties that the residential flat at plot no. 9 , Tech Zone, Greater Noida, shall be handed over  to her within the stipulated period of May 2011.   OP has failed to deliver the possession of the flat and also failed to refund the amount despite repeated requests  and reminders sent by the complainant in this regard.    Hence there is deficiency in service on the part of OP and complainant prayed to direct OP to  refund sum of  Rs. 8,09,000/-  along with interest @ 18% from the date of month of February 2014 till its realization and Rs. 3,91,000/- along with interest @ 18% from the date of June 2009 till its realization in respect of the payment.
2. In reply, OP admitted that complainant had paid an amount of Rs. 8,09,000/- to the OP through two  cheque and  also admitted that OP undertakes to make a payment of Rs. 8,090/- as assured return by every month from July 2009 till the date of possession of her flat.  In the MOU it is also mentioned that the developer shall complete the construction of the flat on or before May 2011. The Allahabad High Court has imposed a stay on the construction in the Greater Noida Area and that stay was also operating on the project site.  OP denied rest of the allegations and prayed to dismiss the complaint with costs.
3. The complainant has filed rejoinder to the written statement and denied the objections made by OP and supported her complaint.
4. In support of her complaint complainant filed her own affidavit along with documents i.e.  copy of receipt (Ex. CW1/1 ) (colly) , flat buyer’s agreement (Ex. CW1/2), copy of letter confirmation letter (Ex. CW1/3), copy of notice and its receipt (Ex. CW1/4 and Ex. CW1/5) .
5.  In support of reply OP filed affidavit of Bani Gopal ( Authorized Representative,)  along with documents i.e.  copy of resolution (Ex. RW1/1) , copy of MOU (Ex. RW1/2) and  judgment passed by Allahabad High Court (Ex. RW1/B)
6. Both the parties filed their written arguments.
7. OP did not make the payment of cost of Rs. 1,000/- as imposed on 09.02.2017 and on 11.04.2017 time was sought to deposit this cost.
8. We have heard the arguments and considered the evidence led by the parties and their written and oral arguments.  In this case points to be considered are as under:-

1. Whether complainant is a consumer?
2. Whether there is any deficiency in service on the part of the OP?
3. Relief?

9.  In reply OP admitted that complainant had paid an amount of Rs. 8,09,000/- through two  cheques hence complainant is a consumer.
10.  OP also admitted that OP undertook  as promised in MOU payment of Rs. 8,090/- as assured return by every month from July 2009 till the date of possession.  It is also mentioned that the developer shall complete the construction of the flat on or before May 2011. It was further admitted that  Allahabad High Court has imposed a stay on the construction in the Greater Noida Area and that stay was also operating on the project site vide judgment dated 21.10.2011.  It is pertinent to mention herein that this stay of Hon’ble Allahabad High Court was after the expiry of the completion date i.e. on or before May 2011. These above admissions by the OP are suffice to prove that OP did not complete the construction of the residential flat on or before May 2011 as mutually agreed in the MOU between the parties. It is also admitted by the OP that OP was supposed to make a payment of Rs. 8,090/- every month from July 2009 till the date of possession. The allegations made in complaint by the complainant that OP has failed to give the possession of the flat and has stopped the assured return from Februrary is not specifically denied by the OP. 
11. Looking to the above facts and circumstances and admission of the OP we are of the considered opinion that  OP was deficient in services by not handing over the possession of the flat within the stipulated period as per the MOU between the parties  i.e. on or before May 2011 and he also failed to make the payment of assured return of Rs. 8,090/- per month till the possession as agreed between the parties from February 2014 till date, therefore we direct OP as under:-

1.    To make the refund of Rs. 8,09,000/- along with 18% interest p.a. from the date of deposition till realization.
2.   To make the payment of assured return of Rs. 8,090/- as per MOU  between the parties from February 2014 to date of this order.
3. To make a compensation of Rs. 15,000/- towards the mental agony.
4. To make the payment of Rs. 10,000/- as litigation cost.

12.  All this above amount will be made by the OP within a period of 30 days from the date of this order failing which an additional interest of 18% will be payable on the assured return , compensation as well as cost of litigation.

13.  Copy of the order made available to the parties free of cost as per law.    File be consigned to record room.

Announced on………