Delhi

North East

CC/250/2012

Sh. Dinesh Chander - Complainant(s)

Versus

Arun Dev Builders 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. 250/12

 

In the matter of:

 

	Sh. Dinesh Chander S/o Sh. Gosai Datt A-4, DDA Flat, Bhindi Pur, Pocket III Dwarka, New Delhi.	Complainant
	Versus
	Arun Dev Builders Ltd F-89/11,Okhla,Phase-1,                                New Delhi-110020.	Opposite Party

 

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

26.06.2012 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 04.09.2007 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/- vide cheque No. 419902 drawn on Kangra Co-operative Bank Ltd dated 04.09.2007 (duly acknowledged by OP vide receipt issued on 06.09.2007), on which day i.e. 04.09.2007, 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. 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 11^th installments from the period between December 2007 upto March 2009 and also paid a sum of Rs. 25,000/- on 11.06.2008 towards construction amount vide cheque No. 904524 dated 11.06.2008 drawn on ICICI Bank to OP duly acknowledged by OP vide receipt dated 14.06.2008 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 September 2007 to April 2009. Therefore, in total the complainant had paid a sum of Rs. 72,000/- 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 01.07.2010 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 05.07.2010 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. Therefore, the complainant, vide cancellation request dated 02.08.2010 on the standard format of cancellation application form of the OP requested for refund of the deposited amount of Rs. 72,000/- 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 ten 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. 72,000/- 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. 50,000/- to the complainant for mental agony and harassment caused by OP to the complainant and Rs. 20,000/- 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 and OP entered appearance on 01.10.2012 and filed written statement on 03.10.2012 in which the OP took the preliminary objection that the complaint was not maintainable since the OP had to be sued through its MD being a company. The OP denied having received Rs. 25,000/- from the complainant towards the booking amount or that any agreement was entered into between the OP and the complainant for providing flat measuring 350 sq.ft to the complainant or any clause regarding return of principal amount with interest therein to complainant. The OP further denied receipts of alleged payment towards installments claimed to have been made by the complainant to the OP towards the Dev City Bhiwadi Project. The OP also denied that there was no construction on spot at the site of the project for 3-4 years as claimed by the complainant or that the project was moving only on papers and files without approval. The OP admitted to the complainant having requested for cancellation of booking which request was denied by the OP as the cancellation was subject to facts of the agreement. The OP denied having received original documents pertaining to the said booking from the complainant and also denied handing over blank cancellation application with affidavit for the purpose of applying for cancellation or any terms and condition therein against the interest of the complainant. The OP further denied any promise made to the complainant to refund the amount and stated that where the payment of installment is defaulted by the complainant, the OP is authorized to forfeit the amount paid by the complainant towards cots of the flat. Lastly the OP prayed for dismissal of the complaint as being time barred as even according to the complainant, the booking amount of Rs. 25,000/- was paid in September 2007 whereas the present complaint was filed in 2012.
3. Rejoinder to the written statement was filed by the complainant denying the rebuttal of the OP in the written statement and reiterating his grievance in the complaint.
4. Evidence by way of affidavit was filed by the complainant exhibiting the application form, payment proof receipts and cancellation form.
5. Evidence by way of affidavit was filed on behalf of OP reiterating its defence taken in the written statement.
6. Written arguments were filed by both the parties and oral arguments were heard on 05.04.2013 and judgment was reserved on the same day and pronounced on 12.04.2013 by this Forum dismissing the complaint on grounds that the complainant was not a consumer within the meaning of the Section 2 (1) (d) Consumer Protection Act on grounds that the complainant had only applied for allotment of plot and was only a prospective investor and no allotment had been made in his favour till date on which he filed a requisition for cancellation of registration seeking refund of the amount and as such the complainant was not a consumer and the case does not fall within the ambit of the said Act.
7. The complainant had preferred an appeal against the impugned order before Hon’ble SCDRC, Delhi and Hon’ble SCDRC vide order dated 11.11.2016 in FA No. 551/223, observed that the order of this Forum was erroneous in the sense that it failed to appreciate that merely because the appellant / complainant was not issued an allotment letter does not mean he is not a consumer within the provision of CPA. A person who pays the consideration amount in relation to purchase of something becomes a consumer. The law laid down in Lucknow Development Authority Vs M K Gupta AIR 1994 (SC) 787 has crystallized the issue in which the Hon’ble Apex Court held that if housing construction or building activity is carried out by a private body, the same is within the meaning of service defined in Section 2 (o) and therefore the order passed by this Forum in dismissing the complaint was erroneous and the Hon’ble SCDRC set a side order dated 12.04.2013 and remanded back the complaint to this Forum for fresh adjudication to be decided on merits on other grounds.
8. We have heard the arguments addressed by the complainant and perused the material documentary evidence placed on record.

It is evident from documentary evidence that the complainant had paid a sum of Rs. 72,000/- from the period September 2007 to April 2009 towards booking amount and 11 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 August 2010 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. The written statement filed by OP is an evasive denial and escapist tactic to wriggle out of monetary and contractual liability towards the complainant.

9. 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. 72,000/- 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. 8,000/- as compensation to the complainant on account of unfair trade practice, deficiency of service for harassment, mental agony, torture, loss and injury and Rs. 4,000/- 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.          
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on 19.04.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member