BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.215 of 2020
Date of Instt. 04.08.2020
Date of Decision: 25.11.2021
Sachin Jain S/o Sanjeev Jain R/o 234, Advocate Enclave, Sector 49A, Chandigarh.
..........Complainant
Versus
1. Hamilton Land Developers Ltd., Hamilton Courts, E. H. 176, Civil Lines, Opposite Judicial Courts, Jalandhar City Through its authorized representative.
2. Kunal Sabharwal s/o Rakesh Sabharwal, M. D. Hamilton Land Developers Ltd., Hamilton Courts, R/o # 338, New Jawahar Nagar, Jalandhar City.
3. Satinder Singh Saini, Sales Manager, Hamilton Land Developers Ltd., Hamilton Courts, E. H. 176, Civil Lines, Opposite Judicial Courts, Jalandhar City.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Sh. M. K. Jain, Adv. Counsel for the Complainant. OPs No.1 to 3 exparte.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the complainant is law abiding citizen, was attracted and allured by the advertisement by OPs for venture under the name and style “Hamilton Mayfair”, in a hope to have a dream home with all latest amenities and ultra-modern facilities, to come up at 66 Feet Road, Jalandhar. That the OP No.3 representative of OPs No.1 and 2 also personally approached the complainant. The complainant getting entrapped in the honey coated words of the representative of the OPs and various advertisements both on print and electronic media booked a 3 BHK flat having a super area of 1850 sq ft including one reserved/marked car park place for a total price of Rs.45,00,000/-. That the said flat was allocated to the complainant on the 8th floor of F Tower bearing No.801 and a Builder buyer agreement to sell dated 01.08.2016 was entered into between the complainant and the OPs on payment of booking amount of Rs.3,50,000/- which was also duly incorporated in the said builder buyer agreement. That the complainant till date has made a total payment of Rs.23,50,000/- by mode of cash payment on various dates as agreed upon to the OPs and receipt dated 26.07.2016 for Rs.50,000/- made by mode of cash, which is Ex.C-2, receipt dated 01.08.2016 bearing No.1064 for RS.9,50,000/- is Ex.C-3, also paid by cash and another receipt for Rs.10,00,000/- Ex.C-4, also paid vide cash towards the part payment for the said flat. That as per the settled terms the delivery of possession of the buildup flat along with all the clearance and sanctions was to be made by year 2018. That however to the complainant’s utter dismay and consternation till date no possession has been offered as a matter of fact the construction is still not complete and no substantial construction is being carried out on the project site. That on failure on the part of the OPs to deliver the possession as per agreed terms, complainant approached OPs No.2 and 3 on 16.10.2018 and cancelled the agreement and demanded the refund of the amount paid along with interest which had been retained by the OPs without complying to the mutually agreed terms and non-timely delivery of possession of the flat which was flatly refused by the OPs on the flimsy ground of financial constraints and assured the complainant that a resale, would be arranged, by the OPs as for the said unit allotted to the complainant to settle the claim of the complainant within a period of three months from the said date of meeting. That however till date no resolution has been worked out at the end of the OPs and are arbitrarily holding on to the payment made by the complainant till date a sheer despotic action, depriving the complainant of his right over the said paid amount, his hard earned money. Then the complainant asked for refund along with interest on the said paid amount which was however blatantly refused by the OPs. The complainant also sent a legal notice dated 26.10.2019 to the OPs, but to no avail. The OP had not given the possession of the flat to the complainant even after protracted follow up and lapse of more than four years from the date of allotment. OP was unable to give any valid reason and justification for unpardonable delay and non-delivery of possession agreed and assured to the complainant, till date. The delay in delivery of possession per se attract Odium of deficiency, negligence and unfair trade practice envisaged under the provision of Consumer Protection Act, 1986.
2. The complainant has been running from pillar to post, earlier for the possession of the flat and now for return of the money paid by him to OP, but of no avail. The act and conduct of the OPs is absolutely a deficiency in service and unfair trade practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to return/refund Rs.23,50,000/- along with interest @ 18% p.a. from the date of deposit up to the date of actual payment and further OPs be directed to pay compensation to the complainant for causing mental tension, harassment and agony, to the tune of Rs.2,00,000/- and OPs be also directed to grant cost of proceeding of Rs.50,000/- to the complainant
3. Notice of the complaint was given to the OPs, who were duly served through publication in the newspaper “Punjabi Tribune”, but they did not appear and were proceeded against exparte on 16.03.2021. Thereafter, the OP No.1 filed the revision before the Hon’ble State Commission, whereby challenging the order dated 16.03.2021. The revision petition was allowed by the Hon’ble State Commission, vide order dated 18.06.2021 and the OP No.1 was directed to appear before the District Commission on 13.07.2021 and the application was allowed subject to cost of Rs.15,000/-, out of which Rs.7500/- was to be deposited in the Consumer Legal Aid Account of District Commission and Rs.7500/- were to be paid to the complainant by way of Demand Draft on or before filing the written statement. OP No.1 was also directed to file its written statement/reply and evidence before the District Commission within 15 days from the receipt of certified copy of the order and subject to depositing/paying the cost. As per the record, the OP No.1 did not appear before the District Commission nor deposited the cost. He did not file any written statement or evidence as the OP No.1 never appeared in the Court and not complied with the order passed by the Hon’ble State Commission, therefore he remained exparte. As per order dated 13.07.2021, the OPs had issued a cheque for Rs.20,00,000/- to the complainant for compromise. Thereafter none appeared and the case was fixed for exparte arguments.
4. In order to prove his respective version, the counsel for the complainant produced on the file his respective evidence.
5. We have heard the learned counsel for the complainant and also gone through the written argument submitted by learned counsel for the complainant as well as case file very minutely.
6. As per the submission of the complainant, the complainant booked a 3 BHK Flat bearing No.801 in F Tower including one reserved/marked car park place for a total price of Rs.45,00,000/- as per agreement Ex.C-1, which clearly indicates the different dates and schedule for the payment of the installment by the purchaser i.e. by the complainant and as per the agreement the complainant had paid Rs.3,50,000/- as booking amount and as per Ex.C-2 to Ex.C-4, the complainant has given Rs.20,00,000/- more, vide separate receipts to the OPs. As per the schedule given in Ex.C-1, the possession was to be delivered on the last installment of Rs.6,00,000/- after September, 2018. As per Ex.C-6 a notice was given to the OPs, wherein it has been specifically mentioned that the OPs assured the complainant to deliver the possession in 2018, but when the project was not completed the complainant cancelled the agreement on 16.10.2018 and sought the refund of the part sale consideration paid by the complainant of Rs.23,50,000/-. The complainant has also filed on record the postal receipts Ex.C-7 and Ex.C-8 to show that the legal notice was served upon the OP. It has also been submitted by the counsel for the complainant that the cheque given by the OP of Rs.20,00,000/- was also dishonoured with the remarks ‘account closed’. This clearly shows that there is a deficiency in service by the OPs.
7. The flat was booked in the year 2016 and the possession was not given till 2018. Even the complainant was forced to file the present complaint in the year 2020, meaning thereby that till 2020 neither the possession was given nor any refund was made by the OPs. The intention of the OP is clear from the fact that even the cheque was also dishonoured and nothing was paid to the complainant and also no reply was filed by the OPs. As per the law laid down by the Hon'ble National Commission in 2018 (1) CLT 311, titled as “Aegon Religare Life Insurance Co. Ltd. Vs. Adari Lakshmi”, wherein his Lordship held as under:-
“Non filing of the written reply to the consumer complaint amounts to an admission of the allegations leveled in the complaint”.
In the present case also despite the directions of the Hon’ble State Commission, reply was not filed, this amounts to admission of the facts and allegations raised by the complainant. It is proved that the flat was booked in the year 2016 and till today the complainant has been waiting and it has been held by the Hon'ble National Commission in 2018 (1) CLT 99 NC, titled as “Sanjeev Miglani & Ors. Vs. M/s Unitech Ltd.”, wherein his Lordship held as under:-
“The allottee cannot be made to wait for possession for the indefinite period.”
In the present case also the complainant has been waiting since long and it is a continuous cause of action. There is a violation of the agreement and the OP is guilty of deficiency in service. The OPs have not turned up to rebut the documents of the complainant. The case of the complainant remains un-rebutted.
8. We find there are much substances in the argument of learned counsel for the complainant, therefore, after going through the un-rebutted evidence of the complainant, we are of the considered opinion that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainant is partly allowed and OPs are directed to refund Rs.23,50,000/- along with interest @ 6% per annum from the date of deposit, till realization and further, OPs are directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.30,000/- and further OPs are directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be sent to the parties, as permissible, under the rules. File be indexed and consigned to the record room after due compliance.
Dated Jyotsna Harveen Bhardwaj
25.11.2021 Member President
