Delhi

North East

CC/11/2017

KAPIL RATHI - Complainant(s)

Versus

ARUN DEV BUILDERS PVT. LTD. - Opp.Party(s)

08 Jan 2019

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.11/17

 

In the matter of:

	Kapil Rathi S/o Late B B Rathi R/o Flat no. 501, Tower 22, Orchid Petals Sector 49, Sohana Road, Gurgaon Permanent Address 121 opposite Thana Sasni Gate Aligarh 202001 (UP)	Complainant
	Versus
	Arun Dev Builder Pvt. Ltd. Through Managing Director F-1186,C R Park, New Delhi-110019   Also at F- 1211, Basement Chittranjan Park New Delhi-110019	Opposite Party

 

 

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

17.01.2017 08.01.2019 08.01.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

 

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane as made out in the present complaint are that the complainant had, being lured by various advertisement/ propaganda and big hoardings / advertisements put up by the OP with respect to its upcoming project ‘Arun Dev City’ Roorkee, had booked a 200 sq yd residential plot for personal use in 2006. The complainant paid Rs. 1 Lac vide cheque no. 125362 dated 30.09.2006 drawn on HSBC Bank as registration deposit to OP and filled the registration form of the OP. Thereafter, the complainant paid a further sum of Rs. 2,71,910/- to the OP towards the said plot on later dates. However, when the complainant visited the project site, he came to know that there was no progress / construction on the site and when he questioned the OP regarding the same, the OP assured the complainant that the project will commence very soon. However, when no development happened thereafter for a considerable period, the complainant demanded refund of the aforementioned deposit amount of Rs. 3,71,910/- vide cancellation letter which was duly received alongwith original papers by OP on 09.07.2011 against the endorsement by seal of OP on the said cancellation letter. Thereafter, the OP vide letter dated 13.11.2013 to the complainant assured the complainant that his payment of Rs. 3,71,910/- would be transferred in his HSBC account no. 054-080494-006 between 25.11.2013 to 30.11.2013. however, OP failed to honor its commitment of refund and ultimately the complainant issued legal notice to OP dated 21.12.2016 and lodged a complaint with PS CR Park as well as EOW on 22.12.2016 against the OP and was informed by the investigating agencies that an FIR under Section 409 / 420 / 120 B IPC has been registered against OP on other complaints. Lastly, finding no other recourse the complainant was constrained to file the present complaint before this Forum against the OP for deficiency of service and unfair trade practice and prayed for issuance of direction against the OP for refund of Rs. 3,71,910/- alongwith interest @ 18% p.a. from date of payment till realization in addition to Rs. 50,000/- as compensation for loss of opportunity and punitive damages and Rs. 33,000/- as litigation.

Complainant has attached copy of Application for Provisional Registration dated 30.09.2006 alongwith registration deposit cheque of Rs. 1 Lac paid by complainant to OP, copy of allotment letter dated 15.04.2007 for allotment of plot no. B-580, copy of cancellation letter / form with acknowledgment seal of OP of receipt of original papers dated 09.07.2011, copy of letter dated 13.11.2013 by OP’s refund manager to the complainant for promise to transfer / refund amount of Rs. 3,71,910/-, copy of legal notice dated 21.12.2016 by complainant counsel to OP, copy of complaint dated 22.12.2016 to DCP EOW New Delhi and ASP / SHO PS CR Park New Delhi lodged by complainant against OP.

2. Notice was issued to the OP on 17.01.2017 however none appeared on behalf of OP despite service effected on 24.01.2017 and was therefore proceeded against ex-parte vide order dated 20.03.2017.
3. The complainant filed ex-parte evidence by way of affidavit and written arguments on 12.04.2017 and 24.04.2018 respectively.    

On 23.07.2018, this Forum had directed the complainant to satisfy on the aspect of the limitation since the refund was promised by OP in November 2013 but the complaint was filed in January, 2016.

4. The counsel for complainant argued that it is a continuing cause of action and placed reliance upon the judgment of Hon’ble NCDRC in Emaar MGF Land Ltd Vs Amit Puri II (2015) CPJ 568 (NC) which has laid down the principle that non delivery of an allotted plot, after receipt of full consideration thereof, tantamount to deficiency in rendering service as also unfair trade practice. The Hon’ble  Supreme Court in Meerut Development Authority v. M K Gupta IV (2012) CPJ 12  has held that in such a case buyer has a recurrent cause for filing a complaint for non delivery of possession of plot.

 

5. 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 of Rs. 3,71,910/- to the OP duly acknowledged / admitted by OP as per its refund promise letter dated 13.11.2013 towards booking amount and installments as also construction amount to the OP towards part payment of sale consideration of the residential plot booked by complainant with OP at its Arun Dev City Roorkee 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 and its own promise to pay vide letter dated 13.11.2013 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.

6. 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. 3,71,910/- 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. 5,000/- 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.           
7.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8.   File be consigned to record room.
9.   Announced on 08.01.2019

(N.K. Sharma)     President

(Sonica Mehrotra)  Member