Delhi

North East

CC/93/2014

Jitender Kr. - Complainant(s)

Versus

Arun Dev Builders - Opp.Party(s)

03 Dec 2015

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.93/14

In the matter of:

 

	Jitender Kumar S/o Ram Bir Singh R/o Village Nawada Fatehpur PO Sikanderpur, Gurgaon	Complainant
	Versus
	M/s. Arun Dev Builders Pvt. Ltd. F-1186, CR Park New Delhi. Also at : F-89/11 Okhla Phase-1 New Delhi-110020
		Opposite Party
Order

 

	DATE OF INSTITUTION:	05-03-2014
	DATE OF DECISION      :	03-12-2015

N.K. Sharma, President

Nishat Ahmad Alvi, Member

Ms. Manju Bala Sharma

 

1. Case of the complainant is that in 2007 he booked a flat in the project of the OP namely “Dev City Bhiwadi on Bhiwadi-Alwar Highway (Rajasthan). The booking was registered at No. 65919 by paying Rs. 65,000/- to the OP. The payment plan opted was construction linked plan. In November 2008 when the complainant visited the site it was found out that there was no development in the project. It was also revealed that OP didn’t even possess the land required for the project. In the year 2009 to 2011 whenever the complainant visited the site he found no progress in the project. On complaint to OP, he assured that construction activity will start very soon. OP also issued letter to this effect. Later on also, OP kept assuring the development but no such development ever took place. On investigation complainant found that an FIR No. 171/09 PS EOW u/s 409/420/120B IPC is registered against the OP. Ultimately, complainant sought refund of deposited amount. OP got application for refund on its printed format from the complainant. OP assured refund by March 2012. But even after follow up OP did not make the refund. Ultimately complainant lodged complaint with EOW, New Delhi. Pleading deficiency on the part of OP, complainant has prayed for directions to OP to refund Rs. 65,000/- alongwith 18% interest per annum from the date of payment till final realization. Complainant also prayed for damages of Rs. 50,000/- and litigation cost a sum of Rs. 21,000/-.
2. After Notice OP by filing its reply has taken preliminary objection to maintainability of complaint on the grounds- that the complaint is not covered under the provisions of Consumer Protection Act 1986 being of civil nature as it is a contract between the parties, property in question being in Rajasthan and the agreement executed at Rajasthan this Forum has no territorial jurisdiction, complaint is time barred as cause of action against the OP arose only in November 2010 and complaint is not filed within two years thereafter.
3. On merits while admitting the booking of flat of 350 sq ft at Bhiwadi in 2008 OP has not admitted the payment of Rs. 65,000/- and denied the number given being registration number, three years’ target to develop the project and delay and no progress in development of project in the year 2011 by OP. It is also stated by OP that in 2011 some of the flats were built up and ready for delivery of possession but the cost of flat was not paid by the complainant. OP also denied alleged FIR and not admitted lodging of FIR by complainant in EOW, New Delhi. Further, OP says that he never assured refund by March 2012, and submitted that the complainant committed regular defaults in payment of installments.  Complainant is not a consumer and there is no deficiency on the part of OP and complaint having no force is liable to be dismissed.
4. By filing his rejoinder complainant denying all the averments of reply has reiterated the contents of complaint and pressed the prayer made.
5. Affidavit of evidence filed by both the parties.
6. Heard and perused the record.
7. Complainant has filed three documents in support of his case i.e. letter of assurance for possession as Annexure C1, Cancellation form as Annexure C2 and EOW complaint as Annexure-C3. But OP filed no document in support of its defence. Perusal of Annexure C-1 shows that it is a letter dated 27.08.2011, issued by OP to its members in general as  Assurance letter for possession. This letter is an admission of delay in project - Dev City, Bhiwadi further tendering apology by OP undertaking to start work shortly. It is also stated in this letter that allottee can pay the balance in installments after construction work starts. Annexure C-2 is an application for cancellation of registration of unit on format of the OP itself. This application is duly received by OP. By this application complainant has sought refund of Rs. 65,000/-. Annexure C-3 is a complaint lodged to Jt Commissioner of Police EOW of Delhi Police made by so many complainants including complainant herein.
8. Regarding preliminary objections Annexure C1 & Annexure C2 clearly show that OP has its office at New Delhi, hence, this Forum has territorial jurisdiction over this complaint. Plea of OP that complainant is not a consumer, it has clearly been held by Hon’ble Supreme Court in Lucknow Development Authority V/s M.K. Gupta III(1994)CPJ-7(SC) housing is a service and when possession is not delivered within stipulated period  the delay so caused is denial of service. Accordingly, the complainant who booked a flat in housing project of OP and was not provided the same, he is very much consumer of OP. Regarding plea of time barred as held by Hon’ble Supreme Court in Lata Construction & Ors Vs Dr. Ramesh Chandra Ramniklal Shah & Anr. III(1999)CPJ 46 (SC) and by Hon’ble National Commission in Hashmukh Patel & ors Vs Sunil Kumar Manjhi & Ors (2012) CPJ 669(NC) cause of action remains continued till allotment of site or till refusal. In the present case complainant was neither allotted the flat nor it was refused by the OP. Hence, cause of action in favour of complainant and against the OP continued at the time of filing of complaint.  Thus, the complaint is very well in time.
9. Regarding payment of Rs. 65,000/- OP has clearly affirmed the same through its affidavit of evidence placed on record filed by its Managing Director.
10. On the basis of above observations we are of the view that though OP booked flat in the name of complainant in its project by the name Dev City at Bhiwadi (Rajasthan) but it did not, develop the project and gave possession the flat to complainant. Hence, holding OP guilty of deficiency of service and unfair trade practice, we direct it to pay to the complainant Rs. 65,000/- with 12% p.a. interest thereon from receipt thereof till full and final payment. We also award Rs. 15,000/- to the complainant to be paid by the OP by way of compensation for harassment including litigation cost.
11. This order shall be complied within 30 days on the receipt of this order failing which the amount of 65,000/- shall carry 15% p.a. interest thereon.
12. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. File be consigned to record room.

 

Announced on: - 03-12-2015

 

(N.K.Sharma) President

(Nishat Ahmad Alvi) Member

(Manju Bala Sharma) Member