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.248/2018

SH. RAKESH KUMAR

S/O SH. RAM BILAS SINGH,

R/O H.NO. RZ-86, C/1, NEAR MAMTA BAKERY,

RAJ NAGAR-II, PALAM COLONY,

NEW DELHI-110077                                                                           .…..COMPLAINANT

Vs.

1. THE DIRECTORS

M/S. KALKA HOME DEVELOPERS PVT. LTD.

RZ-174B, STREET NO. 16,

TUGLAKABAD EXTENTION,

NEW DELHI-110019.

2. THE  DIRECTORS

M/S. KALKA HOME DEVELOPERS PVT. LTD.

CORPORATE OFFICE:

B-566, GROUND FLOOR,

GREENFIELD MAIN ROAD,

GREENFIELD COLONY, BLOCK-B,

SECTOR-43, FARIDABAD,

3. MAHENDRA KUMAR JANGID

MANAGER – MARKETING & CRM

M/S. KALKA HOME DEVELOPERS PVT.

CORPORATE OFFICE:

B-110, GROUND FLOOR,

GREENFIELD MAIN ROAD,

GREENFIELD COLONY, BLOCK-3,

SECTOR-43, FARIDABAD,

                                                                                                                              …..RESPONDENT/ OP 

  Date of Institution-19/11/2018

              Date of Order- 30/06/2022

 O R D E R

RASHMI BANSAL– Member

The present complaint is filed by complainant against OP for refund of his booking amount with interest, compensation and litigation cost

The facts of the case are that the complainant has invested in the project of OP named “Kalka the Pearl” situated at sector 53, village Kalka, Bhiwadi, district Alwar, Rajasthan and booked a flat bearing no. O-705 on 6.11.2014 by booking receipt Ex. A1. The complainant has paid total amount of Rs. 4,57,325/- for aforesaid flat from 05.11.2014 to 01.09.2015.  At later stage, complainant has also applied for booking of another flat bearing no. 407, as co applicant with his friend, on 09.09.2015, by paying booking amount of Rs. 1,31,445/-, which however, was later withdrawn and surrendered by him vide letter dated 06.01.2016, written to OP, Ex. A6.

Complainant has paid to OP, for the above said both the flats as follows:

Since complainant found that work of OP is not in progress, so he approached OP many times for refund of his total paid amount Rs. 5,88,765/- but OP did not refund. However, on 22/02/2017 OP had given an assurance in writing to refund an amount of Rs. 4,58,000/- only, vide his refund letter dated 22.02.2017. The complainant was seeking refund of entire amount paid with respect to both the flats, i.e. Rs. 5,88,765/-. Upon much persuasion, OP has refunded Rs. 2,00,000/- to complainant in June 2017 but the balance amount of Rs. 3,88,765/- remained pending with OP. Complainant sent legal notice dated 30.07.2018 and 30.08.2018 to OP demanding refund, Ex. A9 and A10 respectively, but no response was received from OP. The complainant submits that OP entirely failed to comply with the assurances as per agreement and has not provided the services despite the payment of hefty amount for the flats and thus have caused immense financial losses and mental / physical sufferings due to his gross deficiency in services and therefore, liable to compensate the complainant along with refund of balance amount of Rs. 3,88,765/-, along with annual compound interest @ 18%, Rs. 2 lakh towards compensation for causing physical and mental agony and Rs. 41,000/- towards cost of legal proceedings.

None of the OP appeared despite service, therefore, OP1 and OP3 vide order dated 18.04.2019 and OP2 vide order dated 18.01.2019, were proceeded ex- parte.

To prove his claim, the complainant, along with the complaint, filed his self-attested affidavit, ex – parte evidence. 

We have heard learned counsel for the complainant and have gone through the evidence, written arguments submitted on his behalf and record of the case carefully.

The documents filed by the complainant show that the complainant has paid total amount of Rs. 5,88,765/- to OP. The receipts placed on record also establish that the OP has received the above stated amount from complainant. On demand of refund from complainant, OP has paid Rs. 2,00,000/- to complainant in June 2017. A balance of  Rs. 3,88,765/- remains due towards OP. Vide refund letter dated 22.02.2017, OP was agreed to refund 4,58,000/- only, which is the total payment received by OP from complainant with respect to the flat no. O-705. OP remained silent about the refund of amount of Rs. 1,31,445/- paid by complainant with respect to the flat number 407, which was later withdrawn and surrendered by complainant.

Since all the OPs are proceeded ex – parte, thus, all the averments made in the complaint are deemed to have been admitted by the OPs and the evidence led by

the complainant stands unrebutted; for which an adverse inference is to be drawn against them as there is no denial/rebuttal to averments/evidence of the Complainant.

It is made out from the facts of the case that the OP was not able to hand over the possession of flat no. O-705 to complainant despite receiving the booking amount nor refunded the amount received. Therefore, this is established that OP has failed to meet his commitment for the delivery of the flat to the complainant within time and the possession of the flat in question is not given to complainant till date. Moreover, there is nothing on record to say, if OP has raised any further demand with the complainant, or made any attempt to cancel the allotment on the failure of the complainant to deposit further amount. So far as, flat no. 407 is concerned, since OP has received Rs. 1,31,445/- from complainant, and same was surrendered by complainant, therefore, OP is liable to refund the amount received against the said flat.

It is significant to note that the booking was made in November 2014 and the present complaint was filed in November 2018 but till filing of the complaint, OP has neither given possession of the flat in question to the complainant nor has refunded the amount paid by complainant, which gives rise to a continuous cause of action.

In Satish Kumar Pandey & Anr. v. M/s Unitech Ltd. 2015 (3) CPJ 440 (NC), the Hon'ble National Commission held in Para-17, “It is now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum.”

Same view was taken in in "Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 by Hon'ble NCDRC that unless or until the Complainants get possession of the flats, complete in all respects, they have got continuous cause of action.

Hon'ble Supreme Court in Meerut Development Authority v. M.K. Gupta IV (2012) CPJ 12, held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the flat.

The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure v. Trevor D'Lima [Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 : (2018) 3 SCC (Civ) 1] , Hon'ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.

Upon considering all the facts, circumstances and documents on record, this commission is of considerate view that by not providing the possession of the flat to the complainant, despite receiving the consideration for the same, the OP has deprived the complainant his right of getting possession of the above stated property and thus committed deficiency of service and indulged in unfair trade practice. Further, retention of  Rs. 3,88,765/- with him, as paid by complainant, for all these years through from date of deposit till date of order, caused financial loss to the complainant. Accordingly, the complaint filed by the complainant is allowed and following directions are issued to the OP:

1. To refund the entire balance amount due towards OP i.e. Rs. 3,88,765/- (Rupees Three Lakh eighty-eight thousand, seven-hundred sixty-five only) along with interest, on account of financial loss suffered by the complainant for depriving him of the utilization of the said amount during the period it remained with the OP, calculated at the rate of 9% per annum from June 2017 till realization;
2. To pay Rs. 50,000/- ( Rupees Fifty Thousand only) as compensation for the mental agony and harassment etc. suffered by the complainant;
3. To pay Rs.15,000/- ( Rupees Fifteen Thousand only) towards litigation cost and other expenses;

The compliance of this order shall be made by the OP within a period of 90 days from the date of passing of the order, failing which the entire amount shall carry the further interest @10% p.a. from 91st day of the date of order till the date of actual realization by the complainant.

The complaint stands disposed of accordingly. Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.

The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.

The order be uploaded on the website www.confonet.nic.in.

The order contains 7 pages and bears my signature on each page.