Case No.CC/632/2015

Date of Institution:-20.11.2015

      Order Reserved on :- 10.05.2024

           Date of Order :-20.05.2024

IN THE MATTER OF:

Ms. Lotika B. Augustine

D/o Mr. M. Robinson,

R/o C1/608, Shree Sai Baba Apartments,

Sector-9, Rohini,

New Delhi – 110085.

          …..Complainant

VERSUS

1. Ashirwad Real Developers Pvt. Ltd.

G-14, 4^th Floor, Sec-3,

Noida (UP) – 201301.

2. Mohd Hisban Khan (Director)

H-97, Batla House,

Delhi – 110025.

3. Sneha Shah (Director)

B-11, Van, Ranapratap Marg,

Uttar Pradesh – 226001.

… Opposite Parties

O R D E R

Per R. C. YADAV , MEMBER

1. The present complaint has been filed under section 12 of Consumer Protection Act, 1986 (in short CP Act) against Opposite Parties(in short OP) alleging deficiency of service. Brief facts of the case are that OP-1 is a company registered under Indian Company Act and working as Builder. OP-2 and OP-3 are the active directors of the OP-1.   The OP-2 has given an offer to the complainant and the complainant has booked a plot no. 87 and 88 measuring 100 sq. yd. each in the project of OP namely “FNG PLOTS” on the terms and conditions. The complainant has paid Rs.6,22,248/- (Rupees Six Lakh Twenty Two Thousand Two Hundred Forty Eight) in different installments. Cheque for Rs.3,00,000/- (Rupees Three Lakh) and Rs.60,000/- (Rupees Sixty Thousand) respectively were provided by the OP to the complainant.  The complainant has deposited the said cheque drawn on ICICI bank which were returned unpaid with endorsement “payment stopped by drawer” on 15.11.2014. All the cheques were singed by the OP-3.  The complainant has informed the OP that cheque issued by the OP-3 were not cleared as they have intentionally stopped payments of the aforesaid cheques.  The OP have issued declaration dated 06.01.2015 in which they have apologized and also stated the OP will be able to pay the total amount after annual closing of 2014-15 probably in the last week of April, 2015. The complainant has not received single penny till date. The complainant has requested the OP for refund of his money but in vain.  The complainant has sent a legal notice demanding payment from OP on 23.09.2015 but the OP has not responded back to the complainant. The complainant has prayed for refund of his deposited money Rs.6,22,248/- (Rupees Six Lakh Twenty Two Thousand Two Hundred Forty Eight) alonwith Rs.1,00,000/- (Rupees One Lakh) for mental agony and harassment and pass any other order in the interest of justice.
2. Notice was issued to OPs. But the OP-1 and OP-2 did not appear to attend the proceedings before this Commission and OP-1 and OP-2 were proceeded Ex-parte vide order dated 28.09.2016 and 10.01.2017 respectively. The complainant has filed an application to delete OP-3 from the array of parties which was allowed and OP-3 was deleted from the array of parties.
3. The complainant has filed affidavit in Ex-Parte evidence as well as written arguments in support his case.
4. The matter was listed on 10.05.2024for final arguments and none present for the complainant. Since the case pertains to 2015, we feel it prudent that the case should be decided due to the long pendency of the present complaint. Hence, the order was reserved.
5. We have carefully considered the material on record and thoroughly perused the documents placed on record by the complainant.
6. It is the case of the complainant that he had booked a plot no. 87 and 88 measuring 100 sq. yd. each in the project of OP namely “FNG PLOTS” on the terms and conditions. The complainant has paid Rs.6,22,248/- (Rupees Six Lakh Twenty Two Thousand Two Hundred Forty Eight) in different installments.  Cheque for Rs.3,00,000/- (Rupees Three Lakh) and Rs.60,000/- (Rupees Sixty Thousand) respectively were provided by the OP to the complainant.  The complainant has deposited the said cheque drawn on ICICI bank which were returned unpaid with endorsement “payment stopped by drawer” on 15.11.2014. All the cheques were singed by the OP-3.  The complainant has informed the OP that cheque issued by the OP-3 were not cleared as they have intentionally stopped payments of the aforesaid cheques.  The OP have issued declaration dated 06.01.2015 in which they have apologized and also stated the OP will be able to pay the total amount after annual closing of 2014-15 probably in the last week of April, 2015. The complainant has not received single penny till date. The complainant has requested the OP for refund of his money but in vain.  The complainant has sent a legal notice demanding payment from OP on 23.09.2015 but the OP has not responded back to the complainant.

7. As the OP is Ex-Parte, the allegations made by the complainant have gone unchallenged, uncontested and unrebutted, and hence we find no reason to disbelieve the complainant’s averments. The complainant has annexed all the documents with his complaint to corroborate his sworn testimony, which is paid amount to Rs.1,93,000/-.However, the OP neither handed over the possession of the plotsnor refunded the amount to the complainant. This act apparently and clearly constitutes deficiency in service, monopolistic and unfair trade practice on the part of the OP.

8. It is the case of complainants that they did not get the possession of the flat so sought the refund of deposited amount. But the same has not been refunded despites repeated requests with the OP. It is her case that this conduct of OP amounts to deficiency in service and unfair trade practices.  Non-delivery of possession of flat on receipt of booked amount within reasonable time amounts to deficiency in service.

“Supreme Court Judgment in the case of Kolkata West International City Vs. Devasis Rudra dated 25^th March, 2019 Civil Appeal 3182/2019” is an authority on this point.

9. It is the case of the complainant that when he did not get the possession of plot he asked for refund of his deposited amount but the same has not been refunded by the OPs.  The allegations made by the complainants have gone unchallenged, unrebutted and uncontested and as such whatever has been placed on record is believed. From the facts of the case and evidence placed on record, it is clear that despite receipt of Rs.6,22,248/- (Rupees Six Lakh Twenty Two Thousand Two Hundred Forty Eight) from the complainant, the OP has neither handed over the possession of flat nor refunded the amount to the complainants and this act apparently and clearly constitutes ‘deficiency’ in service, monopolistic and unfair trade practices on the part of OP.
10. Accordingly, we allow the complaint and direct the OP to refund Rs.6,22,248/- (Rupees Six Lakh Twenty Two Thousand Two Hundred Forty Eight) to the complainant alongwth an interest @ 6% p.a. from the date of deposited money alongwith Rs.1,00,000/- (Rupees One Lakh) as lumpsum for mental agony within 45 days from the date of receipt of order failing which OP shall be liable to pay entire amount alongwith interest @ 9% p.a. till realization.wq2       

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announce in the open Court on 20.05.2024.