Delhi

North East

CC/57/2016

Pal Singh - Complainant(s)

Versus

Green Touch Buildwell Pvt. Ltd. - Opp.Party(s)

04 Jan 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. 57/16

In the matter of:

	Pal Singh S/o Mamchand R/o H.No.- 665, Jheel Khuranja Krishna Nagar, East Delhi-110051	Complainant
	Versus
	Green Touch Buildwell Pvt. Ltd. Known as IFI Realty CS-3, 1st and 2nd Floor Gyan Khand-II Indrapuram Ghaziabad UP-201301 Also at Mayur Vihar B-26, Mayur Vihar Phase-II Delhi-110092	Opposite Party

 

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

17.02.2016 04.01.2019 04.01.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts germane as made out in the present complaint are that the complainant had booked a flat in Green Ocean Society with OP, the project to come up at Greater Noida west in March, 2013 and had paid a registration amount of Rs. 5,00,000/- vide Cheque No. 844625 drawn on ICICI Bank on 26.03.2013. Further the complainant paid a sum of Rs. 5,00,000/- on 17.05.2013  vide cheque No- 844627, Rs. 3000/- in cash 22.05.2013 and lastly Rs. 2,35,000/- vide cheque number 844635 drawn on ICICI bank on 20.08.2013. Therefore complainant paid a total sum of Rs. 12,38,000/- to the OP against the total cost of the flat which was Rs. 16,20,000/- between March, 2013 to August, 2013. Thereafter application for allotment was entered into by the both parties on 08.08.2015 and it was agreed that balance amount of Rs. 3,09,625/- would be deposited by the complainant with the OP at the time possession. However, the complainant was shocked on visiting the project site and finding no construction there and asked OP for refund of the above mentioned deposit along with interest and despite several visits to OP office, failed to get any satisfactory reply for either possession or refund. Therefore, the complainant was constrained to file the present complaint against the OP alleging unfair, illegal and unlawful trade practice and prayed for issuance for directions against the OP for refund of Rs. 12,38,000/- alongwith interest @ of 18% per annum along with Rs. 4,00,000/- as compensation for harassment, mental agony and pain and  Rs. 25,000/- toward the cause of litigation.

The complainant has attached copy of application form along with terms and conditions of allotment, account ledger from 01.04.2010 to 27.03.2015 in proof of payments made to OP and acknowledged by OP vide respective voucher number and payment plan scheduled.

2. Notices were issued to the OP at both the addresses on 17.02.2016 and were delivered 08.03.2016 however none appeared on behalf of the OP and was therefore proceeded against ex-parte vide order dated 13.05.2016.
3. The complainant filed ex-parte evidence and written argument on 03.06.2016 and 16.03.2018 reiterating his grievance against the OP. On 01.05.2018, this Forum had directed the complainant to satisfy on the aspect of the limitation since the last payment was paid by the complainant to OP in August 2013 but the complaint was filed in February, 2016. During the course of oral argument, the counsel for complainant argued that the application form was entered into in August 2015 that is after 2 years of making payment by the complainant and placed reliance on the judgment of Hon’ble NCDRC in RP no. 4336/2010 HUDA v. Taj Refrigeration Industry pronounced on 03.09.2012 in which the Hon’ble NCDRC held that “whatever the case may be, since the plot was not given to the petitioner and his money was also not returned, therefore, the cause of action continued.”
4. We have heard the arguments addressed by the complainant and perused the evidence placed on record which has gone unrebutted due to non appearance by OP. From the application form filed by the complainant, which itself was entered into after 2 years of receipt of 75% of the value of the flat,  it is evident that the OP has acknowledged the receipt of Rs. 12,38,000/- from the complainant toward the sale consideration of the said flat. The terms and conditions are completely silent/ non-committal on the date of possession/period of completion of project and the act of OP is a classic example of unfair trade practice.
5. As per the term and conditions of allotment, the OP had promised to construct and delivered possession of the said flat to the complainant in consideration of him paying balance consideration amount but till date the OP has not offered possession of the same to the complainant and also not refused to deliver position and therefore is a clear case of continuing cause of action as held by Hon’ble Supreme Court in the matter of Meerut Development Authority v. M K Gupta IV (2012) CPJ 12 wherein Hon’ble Supreme Court held that in such a case buyer has a recurrent cause for filing a complaint for non delivery of possession of plot.
6. After appreciating, the documentary evidence placed on record we are of the considered view that the complaint be allowed on merits against the OP on ground of unfair trade practice of wrongfully misappropriating/withholding fund of the complainant without offering him possession of the flat and drafting such term and conditions for allotment which are cryptic in terms of any time line for completion of project and handing over possession.
7. We therefore direct the OP to refund the sum of Rs. 12,38,000/- to the complainant along with interest @ 9% per annum from the date of institution of complaint till realization. We further direct the OP to pay a sum of Rs. 10,000/- to the complainant as compensation for harassment, mental agony and pain and Rs. 5,000/- toward cause of litigation. Let the order be complied within 30 days of receipt of this order by OP.
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 04.01.2019

 

 

(N.K. Sharma)    President

(Sonica Mehrotra)  Member