BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, REWARI.
Consumer Complaint No: 596 of 2009.
Date of Institution: 09.09.2009.
Date of Decision: 11.03.2015.
Ashok Kumar son of Mahavir Prasad c/o M/s Shadiram Bhavani Sahai, old Subji Mandi Rewari, Haryana.
…….Complainant.
Versus
- Dwarkadhis Project (P) Ltd. Through its Managing Director at 3D, Biglows Tower, A-8 Netaji Subhash Place, Pitmpura, Delhi 110034 India,
- Dwarkadhis Project (P) Ltd. Namely “Arivali Heights” at sector-24, Dharuhera Distt. Rewari through its Manager/ project Incharge.
…...Opposite Parties.
Complaint Under Section 12 of Consumer Protection Act
Before: Shri Raj Kumar ………. …..………..PRESIDENT
Shri Kapil Dev Sharma…………………MEMBER
Present : Shri H.K.Luthra, Advocate for the complainant.
Shri Akshay Gupta, Advocate for the opposite parties.
ORDER
Per Raj Kumar President
Factual matrix comprising the case of the complainant, shorn of details, is that the complainant had booked a flat at Dharuhera measuring 1200 sq. feet against total cost of Rs.17,85,600/- and the complainant deposited a total amount of Rs. 9,74,160/- from 15.12.2006 upto 15.2.2009 as mentioned in para no.1 of the complaint. It is alleged that since there was no development work at the site and the material used in the construction was of low quality , the complainant requested for the refund of the amount but no heed was paid towards his requests; hence this complaint.
2) In reply, it is alleged that as per the agreement to sell executed independently, the complainant deposited Rs. 9,74,160/- against apartment no.D-4/03 and the balance is to be paid by him. It is also averred that the site has been developed and constructed as per norms and the material used in it is of good and proper quality and the work of construction is of very high standard. In the end, it is alleged that the complainant is not entitled for the refund of the money so paid.
3) We have heard both the counsel for the parties and gone through the record of the case available on the file thoroughly.
4) As per clause 11 of the agreement, the construction was to be done within 3 years as early as possible from the date of construction work unless due to unavoidable circumstances as the time is not the essence of the agreement to sell. The contention of the complainant’s counsel is that so far nothing is in existence and everything is on paper. The construction is dead stop at the site despite a lapse of five years. The opposite parties, however, tried to save the skin by alleging that the complainant himself is guilty as he has not paid the instalments in time despite issuing demand notice. The counsel for the opposite parties has pointed out towards clause 14.1 of the Agreement to Sell Ex. OPW-1/1 and contended that since the complainant himself is guilty for non performance of the contract by not paying the instalments as per schedule, he has committed breach of terms of the agreement and as such the opposite parties are entitled to cancel the allotment and will refund the amount deposited after forfeiting 10% of the price of the apartment without any interest. If the agreement is read as a whole, it is clear that even the opposite party has bluntly violated its own agreement. It cannot be allowed to blow hot and cold in the same breath. As per complainant, he was forced to ask refund of his money as there was no construction on the ground and he could not wait endlessly and still paid the installments out of his hard earned money. The opposite parties in its reply and evidence has not justified the delay in construction of the flats as per their own agreement. However, they are very keen to forfeit 10% of the amount as stated earlier. Shri N.S.Tanwar, Advocate was appointed as local commissioner to give actual report of the construction on the site. The local commissioner vide its report Ex. C-5 submitted detailed report wherein he has categorically stated that the construction was dead stop on the site and no construction is going on. No flooring, electric fittings and water supply, no wooden work was on the spot. He has also taken photographs of the spot to show that nothing substantial has come on the ground despite a lapse of five years . It is thus clear that despite lapse of 5 years, there is no likelihood of handing over the flats in near future. The complainant cannot be left to live in misery and to wait indefinitely at the mercy of the builder. Since it is established that the builder has acted in a most callous and negligent manner while performing his own agreement, he cannot be allowed to swindle away the hard earned money of the poor consumer. He cannot be allowed to inflict further hardship and torture on the complainant by forfeiting 10% by refunding after forfeiting 10% of the sale price that too without interest. One who does not come with equity cannot claim equity. The plea of the opposite parties to forfeit the deposited amount cannot be accepted as it itself also is blameworthy for not performing the part of contract as per the stipulated schedule. The opposite parties have so far been getting undue benefit amounting to wrongful gain of the amount received from the complainant and causing wrongful loss to the complainant and others by playing fraud and cheating at large. No cogent reason whatsoever has come on record as to why the builder has betrayed the terms and promise of completing the construction within time. The complainant must have suffered tremendous mental tension, harassment and financial loss. Under these circumstances, the complainant is entitled to the refund of his money with interest. So far as the rate of interest is concerned, since the builder in the agreement has claimed 18% interest, so we think it fit and proper if interest @ 12% is allowed.
5) It may be mentioned that counsel for the opposite parties relied upon Satish Batra Vs. Sudhir Rawal in civil appeal no. 7588 of 2012 of Hon’ble Apex wherein the earnest money was forfeited as the transaction failed by reason of the fault of the purchaser. It does not help the case of the opposite party as in that case the allottee had agreed to pay the enhanced cost in writing which she subsequently refused to pay. The another reliance on Delhi Development Authority Vs. Veena Tamta Bhatia 2013 (3) CPC 314 (NC) and Subhash Sharma Vs. Haryana Urban Development Authority & Ors 2013 (3) CPC also do not help the case of the opposite parties as in that case the petitioner himself has surrendered the flat due to financial difficulties and as such the refund of the deposited amount was returned after deducting 10% of the amount as per condition. In the present case, however, as held above the builder himself is guilty for non performance of the agreement and the complainant was only forced to request refund of the money. Not refunding the hard earned money in spite of repeated requests is certainly a deficiency of service on the part of the opposite parties.
6) Resultantly, the complaint is allowed directing the opposite parties to refund the deposited amount of Rs. 9,74,160/- with interest @ 12% p.a. from the date of respective deposits till payment. The complainant is also allowed compensation to the tune of Rs. 40,000/- for mental agony and physical harassment besides litigation expenses which are quantified at Rs. 11,000/-. Let the compliance be made within a period of two months from the date of receipt of the copy of this order. Ordered accordingly.
Announced
11.03.2015.
President,
Distt. Consumer Disputes
Redressal Forum, Rewari.
Member,
DCDRF,Rewari.
