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.18/2016
Mr. DIWAN SINGH
S/o Sh. INDER SINGH
R/o RZ-33A, ASHOK PARK
WEST SAGARPUR
SOUTH WEST …..COMPLAINANT
Vs.
ARUN DEV BUILDERS Ltd.
THROUGH
THE DIRECTORS REG. OFFICE-
D-153A, SECOND FLOOR OKHLA INDUTRIAL AREA
PHASE-1, BEHIND COURTESY HONDA
NEW DELHI – 110020
ALSO AT:-
F-1186, CHITTRANJAN PARK
NEW DELHI – 110019. …..RESPONDENT/ OP
Date of Institution-15/01/2016
Date of Order- 29/06/2022
O R D E R
RASHMI BANSAL– Member
Complainant has filed the present complainant against opposite party praying for the refund of the total amount of Rs. 1,70,000 /- with interest from the date of payment along with the compensation for causing mental and physical harassment to the complainant and the litigation expenses and for any other further relief in the interest of justice.
The brief facts, as averred in complaint, are that the complainant has booked an apartment in project ‘Dev City, Bhiwadi’, vide brochure Ex. Cw1/A, floated by opposite party, measuring 350 sq ft. by depositing booking amount of Rs. 50,000/-, through cheque no. 280610, dated 08.04.2009, Ex. CW1/B, under registration number- 63930. It was promised by opposite party that the possession will be given within 36 months from the date of booking. The complainant observed that the project was not started till 2011, therefore he started approaching the opposite party again and again, then the opposite party informed the complainant that they will allot a plot instead of an apartment and vide an allotment letter dated 16.06.2011, the opposite party allotted a plot in favour of complainant bearing registration number 67849, plot number ED307, east facing vide allotment letter number dated 16.06.2011, Exhibit CW1/D. the opposite party vide its letter dated 05.11.2014, Ex. CW1/E, promised to complainant to handover the position to him till January 2 015. Complainant submits that as per payment schedule he kept on paying the instalments in hope to get the dream apartment within time as promised by opposite party but to his utter surprise he did not receive progress information from opposite party. The last payment made by the complainant was 11.05.2012 by which time the complainant has paid a total amount of Rs.1,70,000/- to opposite party, including the booking amount, against receipts from opposite party, Ex. CW1/C (Colly). Complain states that since no progressive steps were taken by opposite party, a legal notice dated 27.04.2015, Ex. CW1/F (Colly) was sent to opposite party but no reply was received. Complainant further submits that because of the vicious acts and object failure in providing the possession of flat or plot till date as promised by the opposite party, has caused grave mental agony, pain,
trauma, loss of money to complainant. Terming the action of opposite party as as negligent and deficient service, cheating and unfair trade practice, the complainant, praying, for refund of entire amount with interest along with other relief. Upon notice, opposite parties failed to appear, despite service and, as such, was proceeded ex - parte, vide order dated 27.04.2017. 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 and written arguments submitted on his behalf and record of the case carefully.
The documents filed by the complainant shows that the complainant has paid total amount of Rs. 1,70,000/- to opposite party. The receipts placed on record also establish that the opposite party has received the above stated amount. The detail of the paid amount to opposite party is Schedule I of the order. It is made out from the facts of the case that the opposite party was not able to meet his commitment for the delivery of the property to the complainant within time. The possession of the flat or plot in question is not given to complainant till date. Moreover, there is nothing on record to say, if opposite party 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 opposite party 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 April 2009 and the present
complaint was filed in January 2016 but till filing of the complaint, opposite party has neither given possession of the flat 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 flat 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 flat and plot to the complainant, despite receiving the consideration for the
same, the opposite party 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. 1,70,000/- with him, as paid by complainant, for all these years through from date of deposit till date of order, opposite party has also caused financial loss to the complainant. Accordingly, the complaint filed by the complainant is allowed and following directions are issued to the opposite party:
- To refund the entire amount deposited by the complainant, i.e. 1,70,000/- ( Rupees one Lakh seventy 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 opposite party, calculated at the rate of 10% per annum from the respective dates of deposit till realization;
- To pay 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 opposite party 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 8 pages and bears my signature on each page including schedule 1.
Encl: Schedule 1
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.18/2016
Mr. DIWAN SINGH
S/o Sh. INDER SINGH
R/o RZ-33A, ASHOK PARK
WEST SAGARPUR
SOUTH WEST
- …..COMPLAINANT
Vs.
ARUN DEV BUILDERS Ltd.
THROUGH
THE DIRECTORS REG. OFFICE-
D-153A, SECOND FLOOR OKHLA INDUTRIAL AREA
PHASE-1, BEHIND COURTESY HONDA
NEW DELHI – 110020
ALSO AT:-
F-1186, CHITTRANJAN PARK
NEW DELHI – 110019.…..RESPONDENT/ OP
Date of Institution-15/01/2016
Date of Order- 29/06/2022
SCHEDUE 1
S No. | DATE | RECEIPT No. | PAYMENT | CHEQUE No. | CHEQUE DATE |
1 | 16/06/2011 | DC-BWD/67849/1/73825 | 148000 | 280610 | 04-08-2009 |
280615 | 25/05/2009 |
280616 | 25/06/2009 |
280017 | 25/07/2009 |
335267 | 25/08/2009 |
280618 | 25/08/2009 |
280619 | 25/09/2009 |
280620 | 25/10/2009 |
335261 | 25/11/2009 |
335262 | 25/12/2009 |
335263 | 25/01/2010 |
335264 | 25/02/2010 |
335265 | 25/03/2010 |
335266 | 25/04/2010 |
335272 | 25/05/2010 |
335273 | 25/06/2010 |
335274 | 25/07/2010 |
335275 | 25/08/2010 |
335276 | 25/09/2010 |
335277 | 25/10/2010 |
335278 | 25/11/2010 |
335279 | 25/12/2010 |
335280 | 25/01/2011 |
338121 | 25/02/2011 |
338122 | 25/03/2011 |
338123 | 25/04/2011 |
2 | 07-11-2011 | DC-BWD/67849/2/74421 | 2000 | 358127 | 25/06/2011 |
3 | 08-08-2011 | DC-BWD/67849/3/74813 | 2000 | 358128 | 25/07/2011 |
4 | 09-09-2011 | DC-BWD/67849/4/75409 | 2000 | 358129 | 25/08/2011 |
5 | 10-07-2011 | DC-BWD/67849/5/75946 | 2000 | 358130 | 25/09/2011 |
6 | 11-02-2011 | DC-BWD/67849/6/76496 | 2000 | 358131 | 25/10/2011 |
7 | 15/12/2011 | DC-BWD/67849/7/77070 | 2000 | 358132 | 25/11/2011 |
8 | 01-03-2012 | DC-BWD/67849/8/77444 | 2000 | 3581333 | 25/12/2011 |
9 | 02-09-2012 | DC-BWD/67849/9/77892 | 2000 | 358134 | 25/01/2012 |
10 | 17/03/2012 | DC-BWD/67849/10/78554 | 2000 | 358135 | 25/02/2012 |
11 | 04-10-2012 | DC-BWD/67849/11/78733 | 2000 | 358136 | 25/03/2012 |
12 | 05-11-2012 | DC-BWD/67849/12/79204 | 2000 | 358137 | 25/04/2012 |
TOTAL PAID | 170000 | | |