Delhi

North East

CC/17/2016

Prabhat Ranjan Mishra - Complainant(s)

Versus

Arun Dev Builder Pvt. Ltd. - Opp.Party(s)

19 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 17/16

 

In the matter of:

 

	Sh. Prabhat Ranjan Mishra S/o Sh. Krishna Shankar Mishra K-340, Yashoda Nagar Kanpur, Uttar Pradesh.	Complainant
	Versus
	Arun Dev Builders Pvt Ltd. D-153/A, Okhla Industrial Area Phase-1, New Delhi-110020.	Opposite Party

 

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

15.01.2016 11.04.2018 19.04.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he had come across advertisement by the OP in their upcoming project named as ‘Dev City’ – Bhiwadi, Rajasthan with respect to which the OP had invited applications from willing and interested buyers to purchase plots and had also got printed attractive brochures with respect to the said project. This project of the OP offered three categories of flats as per Weaker Section Plan of flats @ Rs. 1,191/- per sq.ft available at the size of 350/- sq.ft for Rs. 4,16,850/- with registration amount of Rs. 25,000/- and other two sizes but the relevant one which the complainant had to offered to purchase from the OP is the afore mentioned one. The complainant had visited the office of OP at New Delhi on 07.11.2007 to enquire about the advertised project, costing and time of completion of project when OP assured the complainant that the possession of 350 sq.yd plots would be given within next three years and the price was payable in installments/EMI @ Rs. 2,000/- and that the OP offered 10% discount on registration and construction amount alongwith one month EMI waiver to the complainant if the complainant paid one year EMI in one shot.  The complainant, believing on the commitment and assurance of the OP agreed to book a 350 sq.yd flat in the said project by paying registration amount of Rs. 25,000/- (Rs. 10,000/- paid vide cheque No. 139736 drawn on UTI Bank dated 07.11.2007 and Rs. 15,000/- vide cheque No. 936088 drawn on SBI Bank dated 07.11.2007) (duly acknowledged by OP vide receipts issued on the 8th November 2007), on which day i.e. 07.11.2007, the Application for Provisional Registration in Future Project Form of the OP was also got filled and signed from the complainant by the OP instead of the general practice executing Builder Buyer Agreement but admittedly the complainant does not have a copy of the same and therefore could not file it before this Forum. In the said form it was committed by the OP that in case the OP was unable to give possession to the complainant within 36 months from the date of registration, the complainant shall have the right to refund of the deposit of money alongwith simple interest @ 9% from the date of payment payable by OP. Thereafter, whenever the complainant enquired from OP about the progress of project, the complainant was always informed by OP that the construction was in full swing. Thereafter  the complainant made a series of payments of Rs. 2,000/- each towards 1^st to 12^th installments from the period between December 2007 upto December 2008 and also paid a sum of Rs. 25,000/- on 19.08.2008 towards construction amount vide cheque No. 486509 dated 19.08.2008 drawn on SBI Bank to OP duly acknowledged by OP on 21.08.2008 and the entire payments of all installments made by the complainant to the OP were acknowledged by the OP vide receipts issued in favour of the complainant between December 2007 to December 2008. Therefore, in total the complainant had paid a sum of Rs. 68,000/- to the OP duly acknowledged by the OP also. However, the complainant has submitted that to his utter shock, after waiting for almost two years,  on visiting the site of the OP at Bhiwadi on 01.09.2010 to enquire about stage of construction, the complainant saw that the construction work was not even at the bare minimum level and it was manifestly clear that the whole project was moving on papers and files and on further enquiry it was also revealed that the OP had not even taken any approval from the concerned local authorities and were simply collecting money from innocent consumer showing them dreams of residential plots which ultimately prove to be a nightmare. Thereafter, the complainant approach the OP on 15.09.2010 to enquire as to why there was no progress in construction work of the project but the OP advised the complainant to either opt for cancellation or wait for some more years for completion. The complainant sent a letter dated 27.09.2010 for cancellation of booking and request of refund but the OP instead asked the complainant to return all original documents pertaining to the booking of the said flat in order to process refund. Therefore, the complainant, vide cancellation request dated 07.02.2011 on the standard format of cancellation application form of the OP requested for refund of the deposited amount of Rs. 68,000/- and cancellation of his registration / application qua the said project. The complainant further submits that the said cancellation form also contained several terms and condition against the interest of the complainant but since he had no other way out, he had to fill up the said form and return the same alongwith original documents under grave duress and protest to the OP. The OP had assured that it shall returned the money of the complainant at the earliest, however failed to do so and after four months when the complainant visited the OP office on 21.06.2011, the representative of OP told the complainant that the OP is in Real Estate Business to build buildings on files, advertised them and obtain money from as many consumers as possible. The complainant has submitted that the OPs action to force the complainant to cancel the booking and forfeit his money is complete ignorance of social responsibility of business and against legitimate expectation of consumer based on equity, justice and good conscience as a project was meant for weaker section of society but was not achieved due to illegal & arbitrary attitude of OP amounting to unfair trade practice. Therefore, the complainant was constrained to file the present complaint after exhausting all attempts to persuade the OP to return his hard earned money which act of forfeiture by the OP is alleged to be unfair trade practice by the complainant and therefore vide present complaint the complainant has prayed for directions to the OP to refund the amount of Rs. 68,000/- paid by the complainant to the OP towards the sale consideration of the flat booked by him with OP alongwith 18% interest from the date of deposit. The complainant also prayed for issuance of directions to pay Rs. 1,00,000/- to the complainant for mental agony and harassment caused by OP to the complainant and Rs. 50,000/- towards cost of litigation and also for OP to desist from unfair trade practice by launching ‘Future Projects’.
2. Notice was issued to the OP however none appeared on behalf of OP despite service effected on 06.06.2015 and therefore was proceeded against ex-parte on 08.09.2016.
3. Ex- parte Evidence by way of affidavit and written arguments were filed by the complainant on 28.10.2016 and 02.04.2018 respectively, reiterating his grievance against the OP. The complainant has exhibited payment proof receipts and cancellation and refund request in support of his claim of recovery towards payment of Rs. 68,000/- paid by him to the OP towards booking amount on account of 1^st to 12^th installments and construction charges with respect to the said flat.
4. We have heard the arguments addressed by the complainant and perused the material documentary evidence placed on record.

It is not in dispute that the complainant had paid a sum ofRs. 68,000/- from the period November 2007 to December 2010 towards booking amount and 12 installments as also construction amount to the OP duly acknowledged by the OP vide receipts issued by it in favour of the complainant towards the part payment of sale consideration of the residential flat booked by complainant with OP at its Dev City Bhiwadi project However, the OP failed to file any defence much less any explanation by way of any documentary proof or justification for not refunding / returning the said amount to the complainant despite cancellation and refund request form filled by the complainant in February 2011 as per the OP’s own format which to our opinion is an unfair trade practice on the part of OP in not returning the legitimate dues of the complainant despite being under monetary and contractual liability to do so since the OP had failed to complete / deliver the project within the promised time period for possession and registry thereof to the complainant.

5. We therefore find merit in the case of the complainant and allow the present complaint against the OP and direct the OP to refund                    Rs. 68,000/- alongwith simple interest @ 9% p.a. from the date of filing of the complaint till realization. We also direct the OP to pay a sum of Rs. 7,000/- as compensation to the complainant on account of unfair trade practice, deficiency of service for harassment, mental agony, torture, loss and injury and Rs. 3,000/- towards cost of litigation to the complainant payable by OP. Let the order be complied within 30 days from the date of receipt of this order.          
6.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on 19.04.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member