CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

                                                         Case No.140/2018

Mrs. RADHA Bansal

W/O Shri. SUSHIL KUMAR BANSAL

R/O E-96, NEW PALAM VIHAR PHASE1,

BAJGHERA CHOWK,

NEAR MONIKA HOSPITAL, SECTOR 110,

GURUGRAM 122017…..COMPLAINANT       

Vs.

MANAGING DIRECTOR & DIRECTORS

IMPERIA STRUCTURES LTD.

A-25, MOHAN CO-OPERATIVE,

INDUSTRIAL ESTATE,

NEW DELHI-110044 (INDIA)                                                              ..….RESPONDENT

        Date of Institution-26/06/2018

        Date of Order-25/04/2022

  O R D E R

MONIKA SRIVASTAVA– President

The complainant has filed the present complaint seeking immediate possession of a flat booked with the OP and in the alternative, pay a sum of Rs.1,567 ,608/- with 18% interest at the said amount. The complainant is also seeking a sum of Rs. 200,000/- on account of mental agony and harassment by the OP along with the cost of litigation.

It is the case of the complainant that he had purchased a flat of 750 square ft. in Imperial Business Park which was being developed by the OP i.e Imperial Structures Ltd. The complainants had opted for lump sum payment option and was allotted unit flat in Interior Business Park after signing of the agreement. It is averred by the complainant that the OP was to deposit a payment of Rs. 22,080/- every calendar month with effect from July 2012 up till possession and to this effect, had issued monthly cheques after deduction of TDS as per (Memorandum of Understanding) MOU. The complainant tried to contact the OP several times on phone for seeking these promised cheques however, the complainant have not received any monthly cheque from July 2012 up till today. It is also stated that the complainant received demand letters asking for outstanding amount, complainant requested for adjustments in the demand letters but the company has not been responding (Annexure VI). The OP has not responded to these requests of the complainant nor have they taken any action in this regard. It is further contended by the complainant that on 17.01.2018 the OP issued another demand letter of Rs.3,87,288/- and asking him to take possession. The complainant raised the issue of the monthly cheques but the OP denied to pay the payout committed cheques.

Per contra, the OP has taken a preliminary objection that this complaint is not maintainable as it pertains to a commercial transaction and the said unit was booked by the complainant only to earn profits through assured return and reselling therefore the complainant is not a consumer. On merits, it is stated that the OP had never represented that the project shall be completed by June 2012. It is admitted by the OP that he had undertaken to make a payment of Rs.22080/- every calendar month with effect from July 2012 till handing over possession and the OP had offered the possession of the said unit to the complainant in January 2015.  The complainants have not taken possession from January 2015. The OP states that the complainants have refused to pay the balance amount till this day despite repeated reminders and requests so that more money could be extracted from the OP by citing assured return. It is prayed by the OP that the complaint be dismissed with costs.

In their rejoinder, the complainant have referred to the MOU where it is clearly mentioned that this was a residential flat and not commercial unit. the complainants have reiterated that they made several request for payout of Rs. 22,080/- and requested them to adjust this amount in the demand letter. It is also stated that on 17.01.2018 the OP sent them a demand letter of Rs.3,87, 288/- and also offered possession. The complainant sent a legal notice dated 25.04.2018 but no reply was received from the OP.

Reply, rejoinder, evidence by way of affidavits have been filed by both the parties as well as the written arguments are on record and have been perused by this Commission thoroughly. Annexure 1 filed by the complainant along with their complaint incorporates

“And whereas the developer has all the rights of construction development marketing of the entire project in imperial business park comprising IT/ITES office space, residential unit, local shopping complex at plot number 44 and 45, KP V greater Noida Along with all the rights over the booking/ registration/ transfer”……

And whereas the allottee has booked a fully furnished residential flat as per specification mentioned in application form measuring 750 square feet for a total sale consideration of rupees 1048 000/-.

This document is duly signed by both parties and is admitted by the OP in his reply. Annexure 3 filed by the complainant  along with the complaint also verifies this fact which are demand letters issued by the OP wherein the subject matter it is stated

Outstanding dues for your booking of studio apartment at Imperial Residency at Greater Noida UP”

These documents which are admitted to by the OP expounds that the OP was developing a building which included both office as well as residential units as also local shopping complex And the complainant had booked a fully furnished residential flat/Studio apartment in this building. Having stated this, it is clear that the complainant is a consumer and the preliminary objection taken by the OP is not sustainable and is therefore rejected.

Most of the contentions of the complainant are admitted by the OP and therefore there is no dispute factually. Various demand letters issued by the OP and which are filed by the complainant on record states that the unit is ready for handover yet the OP has failed to provide any single document on record to show that they were in receipt of the completion certificate on that date. The complainant in the rejoinder had also averred that though the OP had offered possession in July 2015 but the floor was not as per the allotment letter issued to the complainant. It is said that as per the allotment letter the unit was to be allotted on 5th floor but the position letter mentioned 9th floor and therefore the complainant was incapable of taking possession of the unit allotted.

It is observed from the Annexure 3 that the demand letter dated 28.01.2015 the OP had raised a demand regarding apartment number D- 904 admeasuring 750 sq ft. and later on 21.09.2016 the demand letter issued by the OP refers to apartment unit at A 604. It can be safely concluded that the contention of the complainant pertaining to change in their unit stands corroborated.

Having gone through minutely through all the documents and pleadings of both the parties this Commission is of the view that the complaint ought to be allowed. Therefore, the OP is hereby directed to hand over the possession of the flat no.  A-604 Imperial Residency situated at greater Noida U.P, within 3 months from the date of this order. The OP is further directed to pay a sum of Rs. 22,080/- monthly from July, 2012 till 21/09/2016 i.e. the date when the apartment was offered for possession to the complainant. This amount is to be paid with an interest @ 9% per annum within a period of 3 months from the date of this order failing which the OP shall be liable to pay interest at the rate of 12% per annum. The OP is also liable to pay some of Rs. 1,00,000/- to the complainants on account of mental agony and harassment caused to these two senior citizens. No order as to costs.

File be consigned to the record room after giving a copy of the order to both the parties. Order be uploaded on the website

(Dr. RAJENDER DHAR)                  (RASHMI BANSAL)          (MONIKA SRIVASTAVA)

       MEMBER                                              MEMBER                           PRESIDENT