DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. NO. 38/2017

Date of Institution: 20.01.2017

Judgment Reserved on: 29.05.2023

Judgment Passed on:05.07.2023

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

Order By: Sh. Ravi Kumar (Member)

JUDGEMENT

The Complainant has alleged deficiency in service on the part of OP in not handing over the possession of the Flat booked by him nor refunding the amount paid by him to the OP. 

1. It is stated in the complaint that OP lured Complainant to book a Flat in the project Mahagun Mascot+ (Plus) Crossing Republic, NH-24 through Jeevan Vihar Sahakari Awas Samiti Ltd. The cost of the Flat  was quoted as Rs.21,00,000/- and without Car Parking the cost was Rs.19,00,000/-.
2. The Complainant booked a Flat in the project of OP and paid Rs.1,03,110/- on 12.12.2011 by way of cheque number 878748 and he made further payment of Rs.4,96,000/- on 27.12.2011 vide cheque number 002.  Thus, the Complainant paid Rs.5,99,110/- which was 30% of the consideration amount of the Flat. Complainant was informed by OP that next demand would be made after 6 months however Complainant did not receive any further demand from OP towards remaining cost of the Flat. OP had also issued Circular no.02/2012 dated 27.03.2012 as per which the Flat was to delivered by June 2014. Since there was no progress on the construction of Flat, the Complainant in 2016 wrote letters dated 19.09.2016, 23.09.2016 and 04.08.2016 demanding refund of the amount he had paid to the OP but there was no response. 
3. The Complainant has stated that he met OP at the residence of Mr. Ganeshi Lal who is known to him where Mr. Anil Bhardwaj, President of Jeewan Vihar Sehkari Awas Samiti Ltd. was present and he persuaded the Complainant to become member of the Society as Mr. Ganeshi Lal had already become member by paying Rs.4,00,000/-.  Since Sh. Ganeshi Lal was known to him, he (Complainant) also became member of the said Society and booked a Flat in the Project of OP and made payment of Rs. Rs.5,99,110/- to the OP. When there was no construction activity at the site, the Complainant demanded refund of the amount and OP advised him to join one NGO i.e. Jan Kalyan aiwam Gramudyog Sewa Sansthan by paying Rs.5000/- so that he could refund the amount through that NGO to the Complainant.  Accordingly, Complainant became member of the said NGO on 13.04.20104 and paid Rs.5000/- to the OP. Thereafter OP refunded Rs.4,00,000/- on 02.12.2022 and Rs.50,000/- on 08.02.2023 to the Complainant.
4. On 24.02.2023, the Complainant amended his complaint and has made following prayers in his complaint:

• The OP be directed to refund the deposit amount a sum of Rs.1,49,110/- with interest to the Complainant. 
• The OP be directed to pay a sum of Rs.1,00,000/- to the Complainant as compensation or harassment, mental agony and pain. 
• The OP be directed to pay a sum of Rs.25,000/- to the Complainant as cost of litigation. 

5. Notice was issued to the OP however the same could not be served and the Complainant served the notice Dasti on OP which was refused by OP and to this effect Complainant filed his affidavit and this Forum on 08.01.2020 ordered that the OP is deemed to have been served and OP was proceeded ex-parte.
6. The Complainant filed ex-parte evidence wherein he has marked following documents as exhibits:

• Receipt No.289 dated 15.12.2011 of OP for the amount of Rs.1,03,110/- as Exhibit-1.
• Receipt No.293 dated 27.12.2011 of OP for the amount of Rs.4,96,000/- as Exhibit-2.
• Share Certificate dated 18.12.2011 issued by OP in favour of the Complainant as Exhibit-3.
• Circular No.2/2012 issued by OP as Exhibit-4.
• Copy of Passbook showing payment of Rs.1,03,110/- on 15.12.2011 and Rs.4,96,000/- on 28.12.2011 to OP as Exhibit-5.
• Membership Receipt No.2059 dated 13.06.2014 for Rs.5000/- of Jan Kalyan aivam Gramodhyog Sewa Sansthan as Exhibit-6.

7. This Commission has heard the arguments of the Complainant and perused the records.  The OP is running ex-parte. 
8. The case of the Complainant is that he was lured by the OP for booking Flat in the project – Mahagun Mascot+ (Plus) Crossing Republic, NH-24 and he made payment of Rs.1,03,110/- on 12.12.2011 (Exhibit-1) by way of cheque number 878748 and further payment of Rs.4,96,000/- on 27.12.2011 (Exhibit-2) vide cheque number 002  which was received by the OP.  As per the Circular No.02/2012 (Exhibit-4) signed by the Secretary and President of the OP Society, the cost of the Flat was shown as Rs.21,51,000/- and the Project was to be completed Phase-wise latest by June, 2014.  The Complainant made the above payment however there is no development at the site of the project nor was there any further demand of payment from OP, the Complainant demanded refund of the amount vide his letter dated 19.09.2016, 23.09.2016 and 04.08.2016 i.e. after two years when the project was to be completed by the OP.  OP has refunded Rs.4,00,000/- on 02.12.2022 and Rs.50,000/- on 08.02.2023 to the Complainant.
9. Hon’ble NCDRC in the case Anil Kumar Jain vs Nexgen Infracon (P) Ltd 2019 OnLine NCDRC 716 held that ‘If the Builder fails to comply with the contractual obligation and at the same time, is unable to show that the delay in completion of Flat and offering its possession to the Consumer is on account of circumstances beyond his control, this would constitute deficiency on the part Builder/Service Provider in rendering services to the Consumer’.
10. OP is otherwise running ex-parte and the Complainant has filed evidence which goes un-rebutted. As per Circular 02/2012 of the OP (Exhibit-4) OP had assured to complete the construction of Flats latest by June 2014. But it failed to do so. It is apparent that from the beginning there was no intention of OP to construct the Flat and to hand over possession to the Complainant and OP had taken huge amount from the Complainant and failed to deliver the Flat to the Complainant.
11. This clearly establishes deficiency in service on the part of the OP and the Commission orders as follows:

• OP shall pay Rs.1,49,110/- to the Complainant with interest @7% p.a. with effect from 27.11.2011 within 30 days of date of the Order.
• OP shall pay Rs.15,000/- towards mental agony and pain to the Complainant.
• OP shall pay Rs.10,000/- towards legal expenses to the Complainant.

This Order shall be complied by OP within 30 days from the date of the Order failing which OP shall pay interest @ 9% on all the above amounts till the date of realization.  

Copy of the Order be supplied/sent to the parties free of cost as per Rules.

File be consigned to Record Room.

Announced on 05.07.2023