Case No.CC/613/2013

Date of Institution:-28.11.2013

Order Reserved on :-16.05.2024

           Date of Order :-29.05.2024

IN THE MATTER OF:

Mukesh Kumar

849/61, Dharuhera,

Distt. – Rewai,

Haryana.

          …..Complainant

VERSUS

Dreamland Promoters & Consultants Pvt. Ltd.

F-132, Jai Vihar, Phase-1,

Near Airforce Depot, Nangloi Road,

Najafgarh, New Delhi – 110043.

Also at :

3-A, 3^rd Floor, Uppal’s M-6 Plaza,

Jasola District Centre,

New Delhi – 110025.

211 to 213, 2^nd Floor,

Krishna Apra Plaza,

Sector-18, Noida – 201301.

… Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The brief facts of the case are thatcomplainant has lured by the various advertisements of the OP and booked a 150 sq. yd. plot in August, 2006 in the project of OP namely ‘Royal Heritage’ on Bhiwadi Always Highway. The complainant has paid Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) by way of cheque bearing no. 202495 dated 28.08.2006 drawn on Citi Bank. The receipt no. 1511 dated 04.10.2006 issued by the OP is annexed as Annexure C-1.  The registration form was filled by the complainant and executed in Delhi. The registration form provides for refund @ 10% p.a. in case the company is not in a position to offer plot within 12 months.  The complainant has paid Rs.1,30,000/- vide cheque no. 013267, 166225 dated 19.12.2007 drawn on Citi Bank towards another demand raised by the OP and the payment receipt issued by the OP annexed as Annexure C-2. The complainant has visited the site in September, 2008 when he came to know that no development was started at the site.  The complainant informed the OP regarding development but the OP has assured the complainant that development will be started very soon.  The complainant has visited the site of the OP but there was no development on the site.  The OP has issued communication for BhumiPujan in March, 2009 annexed as Annexure C-3. The complainant has requested for refund his deposited money but the OP has not bothered to refund the amount. The complainant came to know that multiple complaints have been registered against the OP with PS EOW New Delhi as well as an FIR no. 56/09 PS SaritaVihar New Delhi  was also registered against the OP.  The complainant is a consumer within the definition of Consumer Protection Act who has taken the services from the OP who have failed to perform or fulfill their obligations.  Hence, the present complaint.
2. The complainant prayed for refund of Rs.2,80,000/- (Rupees Two Lakh Eighty Thousand)alongwith interest @ 18% p.a. and Rs.50,000/- for the damages besides compensation and Rs.21,000/- asthe costs of the litigation.
3. Notice was served to OPand OP entered its appearance and filed written statement taking several preliminary objections including the one that the present complaint is not maintainable because it is not a matter of consumer dispute rather it is a matter of breach of contract as there was a contract executed between the parties. It is the complainant who has not fulfilled the terms and conditions set out in the agreement dated 27.08.2006. Hence, the present complaint is beyond the scope of consumer disputes and as such the present complaint is liable to be dismissed.  The OP has submitted that the present complaint is not in the period of limitation and the same is time barred. The complainant has not filed this complaint within 2 years from the date of occurrence and the complainant has paid last payment on 19.12.2007. Therefore, the present complaint is liable to be dismissed.
4. In response to the written statement, the complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
5. Both the parties have filed affidavit of evidence as well as written arguments in support of their respective case.
6. The matter was listed for final arguments on 16.05.2024 and none was appeared. Since the case pertains to 2013, we feel it prudent that the case should be decided due to the long pendency of the present complaint. Hence, the case was reserved for order.
7. We have carefully considered the material on record and thoroughly perused the documents placed on record.
8. It is the case of the complainant that he had booked a residential plot measuring 150 sq. yd. plot in August, 2006 in the project of OP namely ‘Royal Heritage’ on Bhiwadi Always Highway.  It is also the case of the complainant that he had paid Rs.2,80,000/- (Rupees Two Lakh Eighty Thousand)  to the OP as per the terms and conditions.But despite of payment, the OP has not started the construction work at the project. It is the case of the complainant that when he did not get possession of the plot, he requested for a refund of his deposited amount but the same has not been refunded despite repeated requests.  It is the case of the complainant that this conduct of OP amounts to deficient in service and unfair trade practice.  The OP has not denied the booking of plot in their written statement stating that it is a matter of record and need no reply. The OP has not denied the booking of the plot in their written statement.  It is also stated that they cannot refund the money as the director of the company was arrested by the police.As far as the plea of Arbitrator clause between the parties is concerned, the same is not relevant as Section 3 and Section 100 CPC do not bar in filing of such complaint, despite having their Arbitration clause between the parties. However, these reasons are not relevant to the issue and the OP was under obligation to refund his booking amount as claimed by complainant. Non-delivery of possession of plot on receipt of money within a reasonable time amounts to deficiency in service and unfair trade practice.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512” is the authority on this point.

9. In the end, it is clear from the records that the complainant has paid money for the plot but the possession of the plot was not handed over to the complainant. 
10. We are satisfied that this act on part of the OP constitutes deficiency in service and also unfair trade practice.
11. Accordingly, we allow the complaint and direct the OP to refund Rs.2,80,000/- (Rupees Two Lakh Eighty Thousand)to the complainant alongwth an interest @ 6% p.a. from the date of deposited moneyandRs.50,000/- (Rupees FiftyThousand) as lumpsum for mental agony and litigation charges within 45 days from the date of receipt of the order failing which OP shall be liable to pay entire amount alongwithinterest @ 9% p.a. till realization.

• 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 29.05.2024.