Delhi

North East

CC/129/2017

Smt. Tahira Begum - Complainant(s)

Versus

Director, PBNK Developers Pvt. Ltd. - Opp.Party(s)

02 Apr 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. 129/17

 

In the matter of:

	Tahira Begum W/o Md. Ashraf R/o- C-6/292, Gali No. 6 C-Block, Brijpuri Delhi-110094	Complainant
	Versus
	PBNK Developers Pvt Ltd. (Through its Directors) F-1211 Basement, Chitranjan Park (C.R. Park) New Delhi -110019   Also at A-4, Brijpuri, Wazribad Main Road Near Victoria Public School Delhi-110019   Also at PBNK Cottage Haridwar Project Atmal, Roorki (U.K.) Office at : F-89/11, Okhla Industrial Area, Phase-1 New Delhi -110020 Registered Office At 612, Yamuna Apartment Holi Chowk, Devli, Khanpur New Delhi-110062	Opposite Party

 

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

15.04.2017 02.04.2019 02.04.2019

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that she had come across advertisement/ propaganda by the OP of their upcoming project named as ‘PBNK Cottage Project’ at Rehmatpur, Roorkee, district Haridwar (Uttranchal). The complainant booked a 100 sq. yards cottage vide application / registration no. 00155 on 08.08.2008 for a total sum of Rs. 6,00,000/- with OP on assurance of OP to complete the said project within 12 months i.e. September 2009 and possession be handed over by December 2009. The complainant, in terms of the construction linked  payment plan of OP, paid Rs. 1,00,000/- as booking amount vide cheque no. 419426 dated 06.09.2008 drawn on Delhi Nagrik Sehkari Bank to OP acknowledged by OP vide receipt no. PBNK / 1058 dated 10.09.2008. Thereafter complainant paid three installments of Rs. 1,00,000/- each to OP between February 2009 to January 2012 in cheques duly acknowledged by OP vide corresponding receipts. The complainant received an undated allotment letter from OP on 12.05.2009 informing her of having being allotted cottage no. B-12 in the said project. However, no possession was given by OP and the complainant made several visits and follow ups to OPs office but no construction work had been commenced on the site despite lapse of almost nine years since the time of booking. Therefore, the complainant demanded refund of her deposited sum of Rs. 4,00,000/- alongwith interest @ 24% from OP by legal demand notice 07.09.2016 but the OP fail to reply or act thereon much less hand over physical possession of the cottage or refund the deposited amount. Lastly, the complainant, having suffered tremendous financial burden and mental agony due to unfair trade practice and deficiency of service on the part of OP in having failed to hand over possession and misappropriated the complainant hard earned money on which she is paying bank loan interest, was constrained to file the present complaint against the OP praying for issuance of direction against the OP to either deliver the physical possession of the cottage or in the alternate refund the total amount of Rs. 4,00,000/- received from the complainant alongwith interest @ 24% thereon and also compensation of Rs. 1,00,000/- for financial loss incurred by the complainant, Rs. 1,00,000/- as compensation for mental pain and harassment and Rs. 25,000/- as litigation cost.

Complainant has attached copy of brochure / booklet of the project plan alongwith copy of application for provisional registration with payment schedule, copy of acknowledgment receipts issued by OP of payments of Rs. 4,00,000/- received from complainant vide receipt no. PBNK / 1058 dated 10.09.2008, PBNK / 1253 dated 13.02.2009, PBNK / 1538 dated 28.04.2011 and PBNK / 1621 dated 09.01.2012, copy of demandletters dated 22.09.2011, 12.10.2011 & 09.12.2011 issued by OP to complainant acknowledging receipt of Rs. 3,00,000/- and demanding Rs. 1,00,000/- towards second roof slab payment and copy of legal notice 07.09.2016 to OP from complainant’s counsel.

2. Notice was issued to the OP on 19.04.2017 on complainant filing amended memo of parties however OP failed to appear despite service effected on 08.05.2017 and was therefore proceeded against ex-parte vide order dated 06.07.2017. 
3. Ex- parte Evidence by way of affidavit and written arguments were filed by the complainant on 13.09.2017 and 01.02.2018 respectively, reiterating her grievance against the OP. 
4. This Forum had directed the counsel for complainant to satisfy on maintainability of complaint on grounds of limitation since last payment was made by complainant to OP in January 2012, the allotment letter being undated and complainant having being filed in 2017.  The counsel for complainant argued that the OP was not able to deliver the possession of the cottage in question within stipulated time and had issued the allotment letter in May 2015 and had never refused to give possession of property and therefore was a continuing cause of action against OP.
5. It has gone unrebutted that the complainant had paid a sum of Rs. 4,00,000/- from the period September 2009 to January 2012 towards the said cottage to the OP duly acknowledged by the OP vide receipts issued by it in favour of the complainant towards the booking amount, first, second & third installments as part payment of sale consideration of Rs. 6,00,000/- of the residential cottage  booked by complainant with OP at its Roorkee project and the remaining Rs. 2,00,000/- were to be paid at the time of registry. 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 made by complainant vide legal notice dated 07.09.2016. 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 despite having received almost 70% of the value of the said cottage by January 2012. On the aspect of limitation, we are in agreement with the argument of the complainant since OP builder had not even cancelled the allotment made in favour of complainant and therefore it was continuing cause of action as is settled legal proposition that failure to deliver possession is a continuous wrong constituting recurrent cause of action and therefore so long as possession is not delivered to him, a buyer can always approach a Consumer Forum as has been held by Hon'ble Supreme Court in Meerut Development Authority Vs M.K. Gupta IV (2012) CPJ 12. The ratio of the said case was followed by Hon'ble National Commission in Satish Kumar Pandey & Anr Vs M/s. Unitech Ltd. III (2015) CPJ 440 (NC).  
6. We have heard the arguments addressed by the complainant and perused the material documentary evidence placed on record.
7. The case of the complainant having gone unrebutted and the factum of deposit of Rs. 4,00,000/- established / proved as received by OP towards the said project, we find merit in the case of the complainant and allow the present complaint against the OP and direct the OP to refund Rs. 4,00,000/- alongwith simple interest thereon @ 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 financial loss and mental pain and harassment and Rs. 3,000/- towards cost of litigation to the complainant payable by OP. Let the order be complied by OP within 30 days from the date of receipt of this order.          
8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 02.04.2019

 

 

(N.K. S harma)     President

(Sonica Mehrotra)  Member