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.185/2016
MR. LAXMAN PRASAD
S/O SHRI KISHORI LAL,
R/O L-91-B, DDA FLAT, SAKET,
NEW DELHI-110017 .…..COMPLAINANT
Vs.
- ARUN DEV BUILDER LIMITED
F-1211, C.R. PARK, NEW DELHI-110019.
THROUGH ITS DIRECTOR,
PRESENT ADDRESS,
ARUN DEV BUILDER LIMITED
D-153, IInd FLOOR,
OKHLA PHASE-I,
NEW DELHI
THROUGH ITS DIRECTOR .…..RESPONDENT
Date of Institution-30/05/2016
Date of Order- 13/05/2022
O R D E R
RASHMI BANSAL– Member
Complainant has filed the present complainant against OP praying for the refund of the booking amount of Rs. 2, 51,000 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 a flat bearing number A- 2-2, ground floor in project floated by OP, at Arun Dev City, Mandawar Project, NH 73, Haridwar on 18.04.2007, by depositing Rs. 25,000 as booking amount, vide receipt number 13492, under registration number – 32683. The total consideration for the fully furnished flat was Rs. 5,01,860/-, and it was promised by OP that the possession will be given within 36 months from the date of booking. The rest of the amount was to be paid in instalment of Rs. 2000 per month as per the scheme and complainant has paid total amount of Rs. 1,01,000 with OP till 07.08.2010 including the booking amount. OP issued allotment letter dated 08.08.2010 to complainant, but thereafter no progressive step has been taken by OP. The complainant has paid an amount of Rs. 1,00,00 in cash to opposite party for booking of a shop bearing number 29 size measuring 20 Sq. yards, registration number – 00812 in the same project against receipt dated 02.03.2010. The opposite party demanded letters dated Rs. 50,000/ with promise to give possession of fully furnished flat within next 15 to 18 months, which amount was paid by complainant vide cheque number 568298, dated 14.08.2010 against receipt no. MND/ 32683/39/31511 dated 27.08.2010.
In this way complainant has paid a total amount of Rs. 2,51,000/- for the flat and for the shop at the aforesaid project, however, OP failed to give possession of flat and shop till date despite several requests from complainant. Terming the action of OP as deficiency in 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, he was proceeded ex - parte, vide order dated 15.09.2016.
To prove his claim, the complainant, along with the complaint, filed his self-attested affidavit, ex – parte evidence and photocopies of documents as follows:
- Advertisement is Exhibit - Annexure P/1
- Receipt dated 18.04.2007 exhibited as Exhibit - Annexure P/2.
- The copies of the receipts for the monthly instalments are Exhibit - Annexure P/3- P/40
- The allotment letter dared 08.08.2010 as Exhibit – Annexure P/41
- The receipt dated 02.03.2010 as Exhibit Annexure P/42
- The receipt no. MND/ 32683/39/31511 dated 27.08.2010 as Exhibit – Annexure P/43
We have heard learned counsel for the complainant and have gone through the 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. 2,51,000/- to opposite party. The receipts placed on record also establish that the opposite party has received the above stated amount. It is made out from the facts of the case that the OP Builder was not able to meet his commitment for the delivery of the property to the complainant within time. The possession of the flat or shop in question is not given to complainant till date. 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 April 2007 and the present complaint was filed in June 2016 but till filing of the complaint, OP 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 shop to the complainant, despite receiving the consideration for the same, the OP has deprived the complainant his right since 2007 and thus committed deficiency of service and involved in unfair trade practice. Further, retention of Rs. 2,51,000/- with him, as paid by complainant, for all these years through from date of deposit till 2022, OP has also caused financial loss to the complaint thus showing unfair trade practice on the part of OP. 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. 2,51,000/- ( Rupees Two Lakhs fifty one thousand only) 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 6 pages and bears my signature on each page.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
