Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-421/22.11.2016
Mr. Subhash Chand s/o Late Sh. Samey Singh
R/o A2B-43B, MIG Flats, Ekta Apartments,
Paschim Vihar, New Delh-63 ...Complainant
Versus
Earth Infrastructures Ltd. (through Director)
Regd. Office:
B-100, Naraina Industrial Area,
Phase-I, Delhi-28 ...Opposite Party
Order Reserved on: 20.02.2023
Date of Order : 19.05.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Shahina
ORDER
1. The instant complaint has been filed by complainant on 22.11.2016, by alleging that the complainant on assurances and promises by OP to allot a unit within a period of one year from the date of booking. The complainant states that he was assured by the representative of OP that they will provide free club membership along with free covered parking, and all these are inclusive of the decided price. The complainant further alleges that OP had also assured to the complainant that possession of the residential flat would be given to the complainant at the maximum upto September, 2015.
Thus the complainant booked a flat measuring 1395 sq. ft. and paid Rs. 1,00,000/- through cheque no. 721006 dated 13.05.2014. Later on, the complainant had later deposited cash of Rs. 80,000/-, for which OP issued acknowledgement under no. 21393 dated 05.06.2014 and then paid Rs. 2,00,000/- through cheque no. 721016 dated 07.07.2014 and OP issued acknowledgement no. 21472 dated 24.07.2014. The complainant had deposited total amount of Rs. 3,80,000/- (copy of invoices/acknowledgements are annexed to complaint (as Annexure-A).
2. The complainant narrates that he had visited the site on 14.08.2014, but he had not found there any progress of construction of residential project.
The complainant wrote a letter dated 19.11.2014 by requesting to cancel the above stated booking and also refund the advance amount (Copy of the letter is annexed as Annexure-B). Then the complainant met the representatives of the opposite party Mr. Jitender Jha and Mr. Samrat Banarji who had assured the complainant that the opposite party is best in providing housing project and the company deliver him the residential flat on time. On their assurances the complainant decided to wait till September, 2015, but it was unfair trade practice of the opposite party, since opposite party was not in a position to give the above said booked residential flat till today.
3. It is further alleged that in September, 2015, he had again visited the site of the residential project and found that the project not furnished and the project would take years to complete. The opposite party had extended the date of delivery of possession of flats to the end of 2017.
4. The complainant sent legal notice dated 17.11.2015 to the opposite party to cancel the booking as well as refund the advance paid immediately as the said amount was borrowed on loan by the complainant at high rate of interest. The opposite party avoided their legal liability by ignoring the phone calls of the complainant, the staff of the opposite party had also mis-behaved and threatened the complainant. It is lack of the services and also negligence on the part of OP. The complainant suffered damage on account of mental humiliation as well as harassment.
5. It is, further, stated that the OP has illegally and unlawfully retained the amount of Rs. 3,80,000/- since 13.05.2014 till date. The complainant alleges deficiency in service against OP and complainant seeks direction to direct OP to refund the sum of Rs. 3,80,000/- along with interest at the rate of 18% p.a. till the realization of the amount; Rs. 2,00,000/- as compensation and Rs. 50,000/- as litigation expenses.
6. Notice on complaint was sent to OP. The OP had not appeared despite service nor filed their reply within the statutory period of 30 days, hence right to file written statement was closed on 26.05.2017. However, on 12.09.2017, counsel for OP appeared and opted not to file written arguments, as per proceedings dated 12.09.2017.
7. Complainant has filed affidavit of evidence to prove its complaint copy of agreement, copy of acknowledgement receipts of payments, copy of request letter , legal notice.
8. The complainant had filed written arguments, however, despite opportunity, oral submissions were not made and that is why letter was proceeded further as per norms.
9. We have considered the contention of complainant and the record filed and prove on behalf of complainant. The facts and documents proof by the complainant remained unchallenged and unprotested for want of appearance of OP and also for want of any reply or counter plea. The complainant had booked the flat, he had also deposited the amount and further paid the amount as demanded, despite it the flat was not constructed for its delivery and possession to the complainant within initial period of September, 2015. Moreover, the OP has extended the period to the end of 2017. On the face of it, there is deficiency in services of the OP to construct and hand over the possession of flat upto maximum period of September 2015. The OP failed to give the possession in time.
10. Since, there is deficiency of services on the part of OP to construct and deliver residential flat to the complainant, therefore, complainant is entitled for refund of paid amount of Rs. 3,80,000/-.
The claimant claims interest of 18 % p.a. and considering the circumstances of advanced booking amount of Rs. 3,80,000/- which complainant had given to the OP and complainant could not utilized his money, he is held entitled for interest at the rate of 9% p.a. from the date of complaint till realization of the amount. Since the complainant has faced harassment and mental agony, compensation of Rs. 20,000/- in his favour and against the OP is allowed and cost is also quantified as Rs. 5,000/-.
11. Accordingly, the complaint is allowed in favour of complainant and against the OP while directing the OP to pay a sum of Rs. 3,80,000/- as refund of the amount along with interest at the rate of 9% p.a. from the date of complaint till realization of the amount besides damages of Rs. 20,000/- and cost of Rs. 5,000/-. The amount will be payable within 30 days. In case, the amount is not paid within 30 days, the rate of interest will be 10% p.a. in place of interest at the rate of 9% p.a. on amount of Rs. 3,80,000/-.
12. Copy of this Order be sent/provided forthwith to the party free of cost as per rules for necessary compliance.
13: Announced on this 19th May, 2023
[Vyas Muni Rai] [ Shahina] [InderJeet Singh]
Member Member (Female) President
