Delhi

West Delhi

CC/17/603

ABHISHEK SHARMA - Complainant(s)

Versus

ANAND ULTIMA BUILDERS - Opp.Party(s)

23 Mar 2023

ORDER

                                     DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III:WEST

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI-110058

 

Complaint Case No.603/2017

 

In the matter of:

 

	1. Abhishek Sharma    S/o Sh. J.C. Sharma   2. Mrs. Kanchan Sharma        W/o Sh. J.C. Sharma Both residents of : C-34, Roopvilla CGHS Ltd, Plot no. 2, Sector 19-B, Dwarka New Delhi – 110075.                                                     ….Complainants.                                                                                                           Versus

1.Anand Ultima Builders Pvt Ltd

102-103, Vishwa Sadan,

District Centre, Janak Puri,

New Delhi – 110058.

 

Also at

3/31, IIIrd Floor,

West Patel Nagar,

New Delhi – 110008.

 

2.Mr. Anand Balabh

MD Anand Ultima Builders Pvt Ltd

102-103, Vishwa Sadan,

District Centre, Janak Puri,

New Delhi – 110058

 

       Also at

3/31, IIIrd Floor,

West Patel Nagar,

New Delhi – 110008.

 

Also at  C-202, Ist Floor, Gali No.39,

Mahavir Enclave Part-II, New Delhi

 

Also at:

Flat No.250, Suryodaya Apartment,

Pocket 8, Sector 12, Dwarka, New Delhi-110075

 

 

3. Ms. Ritu,

Director, Anand Ultima Builders Pvt Ltd

 

4. Mr. Anurag Kumar,

Director, Anand Ultima Builders Pvt Ltd

  

All at: 

102-103, Vishwa Sadan,

District Centre, Janak Puri,

New Delhi – 110058

 

       Also at

3/31, IIIrd Floor,

West Patel Nagar,

New Delhi – 110008.                                               .....Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:  DATE OF DECISION:

12.10.2017 14.03.2023 23.03.2023

 

CORAM

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

Present: None for the complainant.

                OP Ex parte.

 

ORDER

Per: Anil Kumar Koushal, Member

 

Concise facts of this complaint are noted hereunder:

1.         Complainants submit that  OP No. 1 is a land promoter and developer and claims to be the most diversified in Real Estate Industry and is primarily engaged in business of developing real estate projects/properties be it commercial or residential etc having its corporate and regional office at the address mentioned in the memo of parties. OP No. 2 is the Managing Director of OP No. 1 and OP Nos. 3 and 4 are the Directors of OP No.1 and are in-charge and responsible for the day to day working, operations, management and financial decisions making of OP No. 1. Sometime in the year 2013 OP No.1 launched a project titled "Ashiana Enclave" on NH-8, Ajmer Road, Jaipur  and invited public at large to invest in the said project for residential plots. The representatives of  OP No. 1 in furtherance of the promotion of the said Project, contacted the Complainants and made attractive and lucrative representations and assurances in order to lure the Complainants to invest their hard earned money into the said Project. The Complainants, believing the aforesaid assurances of  OPs to be true and correct, intended to invest their hard earned money in the said Project and booked Plot No. B- 67, admeasuring 150 sq yards @ Rs.2350/-  per sq yard and paid the booking amount of Rs.1,83,675/- vide two cheques bearing no.400706 dated 27.12.2013 amounting to Rs.37,500/- drawn on SBI and another cheque bearing no.065368 dated 13.01.2014 amounting to Rs.1,46,175/ drawn on IDBI Bank.  At the time of booking of the aforesaid plot, it was verbally assured by the officials of OP No.1 that the possession of the fully developed plot would be delivered to the Complainants within a maximum period of two years from the date of booking.   

2.         According to complainants, in the month of August 2015 Sh.J.C.Sharma, father of Complainant no.1 and husband of Complainant no.2 visited the office of OP No.1 to check the progress of the aforesaid project and personally met the builder and OP No.2 and his junior Sh.Balwant Singh who intimated that till then there was no progress qua the development of the said project due to a dispute regarding the name and title of the project namely "Ashiana Enclave' as the developer of another nearby project objected to the name 'Ashiana Enclave’, who had already launched his project namely “Ashiana Builder” and had also filed a civil suit in the Court regarding the same and told him that on account of the aforesaid dispute, the said project was likely to be delayed considerably and verbally requested Sh.J.C.Sharma to advice Complainants to shift to their another project namely AUB Residency Part II situated at SOTANALA Industrial Area, Behror (Rajasthan) with the specific verbal assurance of giving possession of fully developed plot in that project latest by two/three months with further assurance of compensating the loss suffered by the Complainants by paying an amount of Rs.45,000/- at the time of registry of the said plot and on persistent requests of OPs, the Complainants agreed to shift to the project at Behror. At that time, aforesaid officials of OPs malafidely also persuaded the Complainants to hand over the original papers of the plot initially booked at 'Ashiana Enclave' and shifted the Complainants to their  other  project i.e. AUB Residency Part-II.

3.         Complainants further submit that on 13.08.2015 the OPs allotted Plot No.E-1 admeasuring 111.11 sq yards to the Complainants @ Rs.4,500/- per sq yard together with I.D.C.@ Rs.199/- per sq yard and PLC @ 10% of the basic sale price in ‘AUB Residency Part-II' and handed over documents thereof to Sh. J.C.Sharma and adjusted the amount of Rs.1,83,675/-  given at the of booking of plot at  ‘Ashiana Enclave' towards the price of the plot booked at ‘AUB Residency Part-II' and issued fresh receipt of the aforesaid amount to Sh.J.C.Sharma and informed him  the balance amount required to be paid to the OPs as Rs.3,43,431/-  to be paid either by EMI of Rs.28,619/- or in lump sum. The Complainants opted to pay in lumpsum at the time of registry of the plot.  Thereafter in the month of May 2016, the Complainants received a telephonic call at their residence from said Balwant Singh, employee of OP No.1 Company informing the Complainants that the registry process of ‘SOTANALA' Project has started and requested the Complainants to pay the due balance consideration at the earliest preferably within one month to expedite the registry process. Consequently Sh. J.C.Sharma, father of complainant No.1 personally met OP No.2 to enquire the mode of payment of the balance amount of Rs.3,43,431/- who  informed that there was no plot available of the dimension of 111.11 sq yards as booked and the plots of 100 sq yards were available and there was no requirement of payment towards I.D.C. and P.L.C. and the Complainants were to pay @ Rs.4500/- per sq yard. Thereafter, on the demand of OPs, the Complainants on 20.05.2016 paid a sum of Rs.2,76,325/-, out of which an amount of Rs.36,325/- was paid vide cheque no.146926 and rest of the amount was paid in cash. The OPs issued three receipts to the Complainants regarding the aforesaid payment.

4.         Complainants further contend that on 25.05.2016, a telephonic message was received from said Sh.Balwant Singh intimating that the registry of the plot would be got done on 30.05.2016 at Kotputhly and asked the Complainants to be ready to go there at 5AM. During the aforesaid conversation, said Balwant Singh persuaded the Complainants to get the registry done in the name of Complainant no.2 Mrs. Kanchan Sharma to enable the Complainants to save a good amount of money and the Complainants asked him to show the project site and the plot while going to Kothputly since they had not been shown the same. Accordingly in the morning of 30.05.2016, as scheduled, Complainant No.2 along with her husband accompanied said Balwant Singh for Kothputly and reminded him of showing the plot and the project site. Two more such like buyers accompanying him also desired and insisted to show the project site.

5.         When the parties reached near Behror, the intending buyers requested Shri Balwant Singh,  official of OP to show them the project site, but for reasons best known to him, he did not stop the vehicle and proceeded straight to Kothputly by saying that they were getting late and told that the project site would be shown while coming back to Delhi, which created some doubts in the minds of complainant No.2 and other buyers and they became apprehensive about the true designs and mala fides on the part of OPs. On the way back, after registry of plot, aforesaid official of OPs  showed the site and on seeing the same, the intending buyers including the complainant No.2 were taken aback and shocked as the site shown was not of 'SOTANALA’ as was promised to them. The Complainants felt being victims of cheating, criminal breach of trust and unfair trade practice and, fraudulent misrepresentations and criminal conspiracy and told said Balwant Singh of being victims of their dishonest, fraudulent designs and cheating. He tried to convince and console the Complainants by assuring that the disputes if any, would be amicably resolved in the meeting organised by OP No.2 coupled with the assurances that if the Complainants were not convinced with the site shown, they would be shifted to the 'SOTANALA' project at Behror. But the extent of miseries of the Complainants did not stop there, in as much as on further enquiries it transpired that on account of non payment of the agreed consideration, the land owner cancelled the deal and OP No.1 was not even in possession of the land, sale deed of which was got registered in the name of  Complainant No.2. The deal with the Complainants was completely fraudulent and mala fide and was nothing but a device to cheat the Complainants.

6.         According to complainants, when Sh.J.C.Sharma on behalf of the Complainants met OP No.2, he too assured him to shift Complainants to 'SOTANALA' project as and when registry of the said project would open. Complainants submitted that they came to know that the OPs had charged the sale consideration @ Rs.4,500/- per sq yard from them whereas an amount of Rs 3000/- per sq.yard had been charged from the other similar buyers purchasing the plots of similar size in the same project. The Complainants were further shocked when they saw the registered sale deed as the sale consideration was shown only as Rs.75000/-  and the OPs had charged a sum of Rs 4,50,000/- from the Complainants. Further the registry charges were shown as Rs.9,000/- but the OPs charged Rs.21500/-  from the Complainants.

7.         Complainants submit that till date nothing meaningful has been done on the assurances given by OP No.2. Rather the OPs started avoiding the same on one pretext or the other and have even stopped to attend the telephonic calls of the Complainants. Even the personal visit of Complainants and Sh.J.C. Sharma to the office of OP No.1 have proved to be futile.  From the acts of OPs it is evident that the OPs had ulterior and mala fide motives from the very beginning. They have  enticed the Complainants and usurped their monies only with the sole intention of unjustly enriching themselves at the risk and costs of the Complainants and are now not bothered about their fate.

8.         Therefore, the Complainants having no other alternative were forced to issue Legal Notice dated 11.04.2017 through their Advocate to OPs thereby demanding refund of the entire amount of Rs.4,50,000/- towards the sale consideration plus amount of Rs.21,500/-  as charged by OPs as Registry Fee with interest @ 18% PA from the date of receipt of Legal Notice. The dishonest and malafide intentions of the OPs became clear when the Legal Notice sent to them was received back to the Complainants with the remarks 'Refused".

9.         Complainants submit that the OPs have intentionally breached the trust and faith reposed in them by the Complainants, resulting in great mental agony & trauma and financial losses to the Complainants.  Therefore, in view of the procrastinating conduct of the OPs being deficient and negligent in rendering services to the Complainants contrary to the offer made to the Complainants, the Complainants were  constrained to file the present complaint to seek redressal against the unfair trade practices and deficiency on the part of OPs.  The following prayers are made by the complainants:

(a) To direct the OPs to Refund the entire amount of Rs.4,50,000/- and Rs.21,500/- along with interest @18% per annum from January 2014 till the date of its realization.

(b) to direct the OPs to pay compensation of Rs.2,00,000/- to the Complainants on account of mental agony and harassment.

(c) to direct the OPs to pay Rs.50,000/- as litigation charges.

(d) to pass such other and further order(s) as this Commission deems fit and proper in the interest of justice.

10.       Complainants filed with the complaint copies of i) receipt No.P7764 dated 27.12.2013 issued by OP No.1 for Rs.1,83,675/- against  the project “Ashiana Enclave”; ii)Allotment letter/buyer’s agreement dated 22.01.2014 issued by OP No.1; iii)Receipt No.P.11928 dated 13.08.2015 issued by OP No.1 against Plot No.E-1,AUB Residency-II, Sotanala Industrial Area, Behror; iv) Allotment letter/buyer’s agreement dated 13.08.2015 for Plot No.E-1, AUB Residency-II; v)Payment schedule of Plot No.E-1, AUB Residency-II; vi)copy of the Registered sale deed entered into by OP No.1 in favour of complainant No.2; vii)copy of legal notice dated 05.04.2017 sent by complainants to OP No.1.

11.       Upon admission of the complaint on 16.10.2017, notice was issued to OPs.  Despite service of OPs on 23.10.2018, they neither put in appearance nor filed any reply to the complaint.  Accordingly, vide order dated 23.10.2018, the OPs were proceeded against ex parte.

12.       Ex parte evidence  by way of affidavit was led by the complainants and they exhibited the documents filed on record.  Written arguments were also filed by the complainants.   The matter was listed for final arguments  on 14.03.2023.  However, the complainants were not represented.  After having glanced through the written arguments filed by the complainants, orders in terms of Section 38(3)(C) of the CP Act, 2019 were reserved.

13.       The complainants have filed on record payment receipt for the sum of Rs.1,83,675/- only  on record  and as per pleadings filed on record by the complainant,  an amount of Rs.36325/- was paid vide cheque No.146926/- and rest of the amount was paid in cash.  The total amount claimed to have been  paid by the complainants to the OPs is Rs.4,50,000/- for booking of the plot and Rs.21,500/- was paid for registry of the said plot.  The same amount is reflected in the legal notice sent to  OP No.1.    From the pleadings filed on record, unfair trade practice followed by the OPs is writ large. Firstly, the OPs allotted a plot of 150 Sq.Yds to the complainants in “Ashiana Enclave” , Ajmer Road, Jaipur.  Later on the complainants were shifted to another project called AUB Residency Part-II, Behror by allotting a plot of lesser area of 111.11 Sq.yards. Thereafter when the registry of the plot was done, it was some other plot.  Further, the complainants also came to know that the plot of which registry was got done  by the OPs in their favour on 30.05.2016 has also been got cancelled by the original owner thereby depriving the complainants of the said plot also.  The complainants made request to the OPs for refund of the amount of Rs.4,50,000/- but the same has not been paid till date.

14.       Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, decided on 25.03.2019 has observed as hereunder :

".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified."

                                                                      (emphasis added) 

                15.          Following the law laid down by the Hon’ble Apex Court in the aforesaid case, we are of the view that the complainants have been suffering and craving for grant of possession of a legitimate plot since 2013 and despite making all the payments to the OPs, the possession of plot of appropriate size at a reasonable location has been eluded by the OPs to the complainants  nor the money paid by the complainants to OPs has been refunded to them.  Since there is no rebuttal to the averments of complainants as the OPs have chosen not to contest this case, we are left with no option but to accept the contentions of complainants as correct.  Accordingly, the complaint is allowed and the OPs are jointly and severally  held guilty of deficiency in service and unfair trade practice under the CP Act, 1986.   The OPs are directed to refund to the complainants the sum of Rs.4,71,500/- charged from them for allotment of  a plot in Rajasthan, with interest @ 6% p.a. from the date of filing of the present complaint  till recovery along with   Rs.20,000/- towards litigation expenses in terms of judgment of the  Hon’ble Supreme Court in the case of DLF Homes Panchkula Pvt. Ltd. vs D.S. Dhanda Etc., decided on 10 May, 2019 , II (2019 CPJ 117(SC)= IV(2019) SLT675  wherein it was observed that when interest is awarded by way of damages, awarding additional compensation is not justified. Let this order be complied with by the OPs within thirty days of receipt of copy of this order.

                A copy of this order shall be supplied free of cost  to parties to the dispute in the present complaint,  upon a written requisition being made in writing  in the name of President of the Commission in terms of Regulation 21 of the Consumer Protection Regulations,2020. File be consigned to record room.

 

(Richa Jindal)                                                   (Anil Kumar Koushal)                                   (Sonica Mehrotra) 

   Member                                                                Member                                                        President