DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 537/2014
D.No.________________________ Dated: _________________
IN THE MATTER OF:
VIMAL CHHARIA S/o SH. S.L. CHHARIA,
R/o A-142, PRASHANT VIHAR,
NEW DELHI-110085.… COMPLAINANT
Versus
CMD PARDESI DEVELOPERS PVT. LTD.,
(THROUGH THE MANAGING DIRECTOR),
901 & 909, ITL TWIN TOWERS,
B-09 BUILDING, NETAJI SUBHASH PALACE
PITAM PURA, NEW DELHI-110088. … OPPOSITE PARTY
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
MS. USHA KHANNA, MEMBER
Date of Institution: 02.05.2014
Date of decision: 01.04.2019
SH. M.K. GUPTA, PRESIDENT
ORDER
1. The complainant has filed the present complaint against the OP under section 12 of the Consumer Protection Act, 1986 thereby allegingthat OP is engaged in building and selling the residential
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flats and OP through the advertisement, pamphlets and other propaganda means allured, induced and enticed the general public including the complainant for the allotment of residential flats at Ushay Tower Project, Kundli Sonipat and offered various lucrative schemes and the complainant having been attracted to the said advertisement of OP induced the complainant to part with his hard earned money and accordingly the complainant booked 2 Bedroom flat having 1212 Sq. Ft. area @ 1750/- per Sq. Ft. and the complainant deposited Rs.3,00,000/- by means of cheque no. 118665 drawn on HDFC Bank, Sec-9, Rohini branch dated 16.02.2006 as booking amount as well as 1st installment of the flat on 16.03.2006 as the complainant does not has any property/house in Delhi/NCR and the complainant has been residing in his father’s house. At the time of booking of the flat, OP assured the complainant that further payments would be linked to construction of the apartments (construction linked plan) and he was also verbally assured by OP that construction would commence from the month of June-2006 but unfortunately no work started as per the promise/assurance therefore the complainant personally visited the site on 21.06.2006 and enquired from the site office wherein he was told that there is no immediate program for initiation of construction and the complainant when tried to contact OP but OP could not give any satisfactory reply and again in the month of
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October-2006 the complainant enquired from the site office wherein he was told that there is no immediate program for initiation of construction. Further the company has changed its name from CMD Developers and Infrastructures to CMD Build Tech Pvt. Ltd. and thereafter to CMD Pardesi Developers Pvt. Ltd. without even bothering to intimate the complainant about the change of the name of the company. Perturbed by the said development the complainant went to the office of HUDA and Municipal Corporation of Sonipat to inquire about the issuance of DPC Certificate as well as Sanction Building Plan for the said project i.e. Ushay Towers Kundli, Sonipat in the month of December-2006, March-2007 and May-2008 but was shocked to learn that neither DPC Certificate nor Sanctioned Building Plan has been issued by the Competent Authority and OP has virtually taken the gullible public at large including the complainant for ride as they induced the complainant and the complainant visited the office of OP and they give them false promises that project would be completed very soon. However, OP was consistent in raising demand notes and the perusal of the demand notes which was issued in the year-2007 reflect that the proposed work was being carried out at the site though in reality nothing of that sort happened as the valid clearance was not issued to OP by the competent authorities and the payment of the flat was to be made under CLP Plan, however OP started generating demand
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notes without even carrying out any construction/building activities at the site which shows that OP is guilty of practicing gross malpractices and unfair trade practices also. The complainant further alleged that the misdemeanor of OP did not stop here as they went on increasing the size of the flat from 1020 SF to 1212 SF and then to 1266 SF without even taking the pain to intimate the investor/the complainant even once and further OP has been continuously reminded that the complainant has to pay interest @ 24% for the delayed period whereas they are keeping mum on the point of payment of the compensation for the delay in completion of the project and OP even after lapse of 8 years of launch of the project never ever asked once to sign the building buyer agreement though they were under legal obligation to get it executed by both the parties but the same was not done for the reason best known to OP only further they have imposed the heavy penalty of Rs.10,17,756/- as an interest @ 24% for 42 months as on 21.03.2014 further they are totally silent on the aspect of the payment of the compensation on account of delay on the part of completion of the project. The complainant further alleged that being fed up with the malafide conduct of OP, the complainant made a request for refund of his booking amount of Rs.3,00,000/- alongwith interest but instead of refunded the amount OP told thecomplainant that the money has been forfeited and threatened the
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complainant of dire consequences.
2. On these allegations the complainanthas filed the complaint praying for direction to OP to refund the sum of Rs.3,00,000/- as booking amount as well as compensation of Rs.3,00,000/- for causing mental harassment to the complainant as the said flat was booked @ 1750/- in the year-2006 whereas the current going rate is Rs.4,500/- per Sq. Ft. The complainant also sought Rs.11,000/- as cost of litigation alongwith interest @ 24%.
3. OP has been contesting the case and filed the written statement and submitted that the complaint is hopelessly barred by limitation and admitted the booking was made in the year-2006 whereas the present complaint has been filed in the year-2014 i.e. after the lapse of 8 years and the complainant has filed a false and frivolous complaint as the complainant has no cause of action and is liable to be dismissed. OP further submitted that OP was granted licence by the concerned authorities for raising the construction of flats on 25.02.2007 and other formalities were completed till December-2007 and OP also received UHBVN/DHBVN connection for the subject project on 20.12.2007 and OP also received NOC from Pollution Control Board in Decmber-2007. OP further submitted that there is no delay on the part of OP and construction on the site is going on and construction of B, D and F Block is in progress andafter starting the construction work, OP demanded further amount
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from the complainant towards the cost of construction of flat but the complainant did not make the payment of 2nd& 3rd installments and the complainant is guilty of his own act and conduct as despite repeated demands made by OP, the complainant failed to pay the installments. OP further submitted that compliance of payment schedule was the essence of the contact but the complainant failed to make the timely payment and as the complainant has failed to make the payment, the booking of the complainant has already been cancelled and booking amount has already been forfeited by OP and the complainant is not entitled to any relief.
4. Complainant filed rejoinder and denied the submissions of the OP.
5. In order to prove his case, the complainant filed his affidavit in evidence and the complainant also filed written arguments. The complainant also placed on record copy of receipt no. 000082 dated 16.03.2006 for a sum of Rs.3,00,000/- through cheque no. 118665 dated 16.02.2006 drawn on HDFC Bank Ltd., Delhi issued by OP, copy of pamphlets of OP, copy of payment detail dated 21.03.2014, copy of letter dated 10.03.2014 sent by the complainant to OP seeking refund of the booking amount with interest which was received by OP, copy of payment reminder alongwith copy of booking details dated 31.12.2007 sent by OP to the complainant, copy of letter dated 24.02.2014 sent by OP to the complainantdemanding payment of the amount, copies of letters dated
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20.06.2007 & 15.09.2007 sent by OP to the complainant regarding payment of 2nd& 3rd installment, copy of booking details dated 20.06.2007, copy of letter dated nil regarding Special Diwali Offer issued by OP, copies of letters dated 14.03.2007 & 21.03.2007 regarding payment of installment alongwith copy of booking details dated 20.03.2007.
6. On the other hand, on behalf of OP Sh. C.M. Narula, Director of OP filed his affidavit in evidence which is as per the case of OP taken in reply. However, after filing affidavit of evidence on 25.03.2015 none for OP appeared continuously, no written arguments were filed by OP despite giving various opportunities and imposition of cost and subsequently right to file written arguments by OP was closed vide order dated 17.01.2018.
7. The complainant also filed his additional affidavit in evidence thereby repeating that at the time of booking of flat, OP assured that the construction would commence from the month of June-2006 but no work of construction was started by OP as per promise.
8. This forum has considered the case of the complainant as well as OP in the light of evidence and documents placed on record as well as written arguments of the complainant. The receipt issued by OP after receiving the booking amount from the complainant showsthat the complainant has booked 2 bedroom flat of 1212 Sq. Ft. area @ Rs.1,750/- per Sq. Ft. and paid Rs.3,00,000/-.
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9. On the other hand, OP has failed to prove any document to show when the requisite permission and sanctioned for construction of the project has been received from the Concerned Authorities. OP has vaguely stated in his affidavit that the formalities were completed till December-2007 and received NOC from Pollution Control Board in December-2007. But OP has failed to show and prove these documents on record. So, this Forum is of opinion that OP has not commenced the construction of the project work in time and OP has further failed to prove that OP was having all the requisite sanction to start construction of the project before accepting money/booking amount from the complainant. Furthermore, no document has been proved by the OP to show that in case of default of any installment, the OP can forfeit the amount already deposited by the complainant. So, the stand of the OP in forfeiting the amount deposited by the complainant does not find favour with the OP and OP cannot resort to action of forfeiting the amount deposited by the complainant. It accordingly proves that the flat booked and allotted to the complainant was not complete. The act of the OP in forfeiting the booking amount of the complainant amounts to deficiency in service and has been proved by the complainant.
10. Accordingly, we hold OP guilty of unfair trade practice and deficiency in service. Accordingly, OP is directed as under:
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i) To pay/refund to the complainant the amount of Rs.3,00,000/- deposited towards booking of a Flat alongwith interest @ 6 % p.a. w.e.f. 16.03.2006 till the date of this order.
ii) To pay to the complainant an amount of Rs.50,000/- as compensation towards mental agony and harassment caused to the complainant.
iii) To pay to the complainant an amount of Rs.10,000/- towards litigation cost.
11. The above amount shall be paid by the OP to the complainant within 30 days from the date of receiving copy of this order failing which OP shallbe liable to pay interest on the entire awarded amount @ 10% per annum from the date of receiving copy of this order till the date of payment. If OP fails to comply with the orderwithin 30 days from the date of receiving copy of this order, the complainant may approach this Forum u/s 25 of the Consumer Protection Act, 1986.
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. Thereafter file be consigned to record room.
Announced on this 1st day of April, 2019.
BARIQ AHMED USHA KHANNA M.K. GUPTA
(MEMBER) (MEMBER) (PRESIDENT)
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