CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.51/2018
SH. AJEET SINGH
SON OF SH. BHAGWAN
RESIDENT OF RZ-M-3/B
NANDA BLOCK, MAHAVEER ENCLAVE,
NEW DELHI-110045.…..COMPLAINANT
Vs.
ARUN DEV BUILDER LTD.
OFFICE ADDRESS:- F-1211, CHITRANJAN PARK,
NEW DELHI-110019..…..RESPONDENTN/ OP
Date of Institution-08/03/2018
Date of Order- 28/06/2022
O R D E R
RASHMI BANSAL– Member
Complainant has filed the present complainant against OP praying for the refund of the total amount of Rs. 3,50,000 /- with interest @18% paid from the date of booking along with the compensation for an amount of Rs. 2,50,000/- for causing mental and physical harassment and Rs. 25,000/- towards litigation expenses and for any other further relief in the interest of justice.
The complainant is the subsequent allottee of the plot in OP’s project, which was originally allotted to Mr. Pramod Kumar and at later stage, was purchased by complainant from him. The above said plot was in OP’s project named ‘Dev City, Bhiwadi’, Rajasthan allotted to Mr Pramod Kumar on 12.05.2008, measuring 100 square yards, vide provisional registration bearing no. 66424, Mark A, on booking amount of Rs. 1,00,000/-, paid through pay order/ draft
no. 246125, dated 12.05.2008, against receipt dated 15.05.2008, Mark B, and allotment letter dated 29.10.2009, Mark C/ Mark H. The total sale consideration of the above said plot was Rs. 3,50,000/. Due to some dispute between the parties, a consumer complaint was filed by Mr. Pramod Kumar against OP, bearing case no. CC 118/2012, however, during pendency of the case, OP has issued an assurance letter dated 03.06.2013, Mark D, in favour of Mr. Pramod Kumar seeking apology for delay in handing over the physical possession of the plot and assuring to hand over the physical possession of the plot on or before 31.01.2014 and no further delay will occur. Upon such assurance, Mr Pramod Kumar has withdrawn the complaint case CC 118/2012 on 03.07.2013, Annexure A.
On 07.08.2013, the complaint has purchased the above said booking unit / plot from Mr. Pramod Kumar and also made payment of Rs. 1,66,000/- to OP against receipt dated 19.08.2013, Mark G issued by OP, after endorsing the same in their record, vide application for provisional registration dated 07.08.2013, Mark E.
That complainant was forced by OP to sign a sale deed, dated 29.07.2015, Mark F, executed before Sub registrar, at page 167 to 178, between the seller of plot and him, as a buyer, without getting physical possession of property from OP or from the seller of plot and has also paid an amount of Rs. 1,84,000/- on 16.07.2015, Mark I, against receipt dated 19.08.2013 of OP, Mark G. When the complainant did not find any progress in work as per the site plan given by OP, Mark J, he has filed the present complaint, submitting that because of the vicious acts and object failure in providing the possession of plot till date as promised by the OP, he has suffered grave mental agony, pain, trauma, loss of money. Terming the action of OP as negligent act, deficient service, cheating and unfair trade practice, the complainant, praying, for refund of entire amount with interest along with other relief.
Upon notice, OP failed to appear, despite service and, as such, was proceeded ex - parte, vide order dated 11.05.2018.
To prove his claim, the complainant, along with the complaint, filed his self-attested affidavit, ex – parte evidence.
We have heard learned counsel for the complainant and have gone through the evidence, written arguments submitted on his behalf and record of the case carefully.
The documents filed by the complainant show that the complainant has paid total amount of Rs. 3,50,000/- to OP. The receipts placed on record also establish that the OP has received the above stated amount. The detail of the paid amount to OP is Schedule I of the order. It is made out from the facts of the case that the OP was not able to meet his commitment for the delivery of the plot to the complainant within time and the possession of the plot in question is not given to complainant till date, despite execution of the sale deed in favor of complainant. Moreover, there is nothing on record to say, if OP has raised any further demand with the complainant, or made any attempt to cancel the allotment on the failure of the complainant to deposit further amount.
Since the OP is proceeded ex – parte, thus, all the averments made in the complaint are deemed to have been admitted by the opposite parties and the evidence led by the complainant stands unrebutted; for which an adverse inference is to be drawn against them as there is no denial/rebuttal to averments/evidence of the Complainant.
It is significant to note that the booking was made in May 2008 and the present complaint was filed in March 2018 but till filing of the complaint, OP has neither given possession of the plot in question to the complainant nor has refunded the amount paid by complainant, which gives rise to a continuous cause of action.
In Satish Kumar Pandey & Anr. v. M/s Unitech Ltd. 2015 (3) CPJ 440 (NC), the Hon'ble National Commission held in Para-17, “It is now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum.”
Same view was taken in in "Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 by Hon'ble NCDRC that unless or until the Complainants get possession of the flats, complete in all respects, they have got continuous cause of action.
Hon'ble Supreme Court in Meerut Development Authority v. M.K. Gupta IV (2012) CPJ 12, held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot.
The inordinate delay in handing over possession of the plot clearly amounts to deficiency of service. In Fortune Infrastructure v. Trevor D'Lima [Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 : (2018) 3 SCC (Civ) 1] , Hon'ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
Upon considering all the facts, circumstances and documents on record, this commission is of considerate view that by not providing the possession of the plot to the complainant, despite receiving the consideration for the same, the OP has deprived the complainant his right of getting possession of the above stated property and thus committed deficiency of service and indulged in unfair trade practice. Further, retention of Rs. 3,50,000/- with him, as paid by complainant, for all these years through from date of deposit till date of order, OP has also caused financial loss to the complainant. Accordingly, the complaint filed by
the complainant is allowed and following directions are issued to the OP :
- To refund the entire amount deposited by the complainant, i.e. Rs. 3,50,000/- (Rupees Three Lakh Fifty Thousand) along with interest, on account of financial loss suffered by the complainant for depriving him of the utilization of the said amount during the period it remained with the OP, calculated at the rate of 10% per annum from the respective dates of deposit till realization;
- To pay Rs. 50,000/- (Rupees Fifty Thousand only) as compensation for the mental agony and harassment etc. suffered by the complainant,
- To pay 15,000/- towards litigation costs and other expenses.
- The compliance of this order shall be made by the OP within a period of 90 days from the date of passing of the order, failing which the entire amount shall carry the further interest @12% p.a. from 91st day of the date of order till the date of actual realisation by the complainant.
The complaint stands disposed of accordingly. Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. The order be uploaded on the website www.confonet.nic.in.
The order contains 5 pages and bears my signature on each page. Schedule 1 is at page 6.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.51/2018
SH. AJEET SINGH
SON OF SH. BHAGWAN
RESIDENT OF RZ-M-3/B
NANDA BLOCK, MAHAVEER ENCLAVE,
NEW DELHI-110045.…..COMPLAINANT
Vs.
ARUN DEV BUILDER LTD.
OFFICE ADDRESS:- F-1211, CHITRANJAN PARK,
NEW DELHI-110019..…..RESPONDENTN/ OP
Date of Institution-08/03/2018
Date of Order- 28/06/2022
SCHEDUE 1
S.No. | Amount | Dated | Cheque No. | Through |
1. | Rs. 1,63,000/- | 20/08/2013 | 715165 | Cheque |
2. | Rs. 3,000/- | 25/08/2013 | 715166 | Cheque |
3. | Rs. 1,84,100/- | 16/07/2015 | 151312 | Cheque |
Total Amount = Rs. 3,50,000/- |
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
