DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 120/2022

QUORUM:

Judgment By: Shri S.S. Malhotra (President)

JUDGMENT

By this judgment the Commission would dispose off the present complaint filed by the Complainant against OP alleging deficiency on the part of OP in not refunding the amount as per oral agreement.      

1. Brief facts as stated by the complainant in the complaint are that the complainant booked one apartment in the project of the OP i.e. being Aprameya Enclave Flat No.402, 4^th floor, Tower-A, having super area of 1415 sq. ft. with car parking for a total consideration of Rs.39,50,050/- in the project of OP vide agreement dated 01.10.2014 and he paid Rs.8,14,421/- against proper receipt. The project was to be completed within 40 months from the date of agreement but the same was not completed and when complainant approached the OP to know the progress report, OP informed that his project has been stalled and he would book complainant’s flat in another project and would adjust this amount in that project to which complainant under compelling circumstances agreed and as such the complainant through OP booked the property with another builder M/s Ascent Buildtech Pvt. Ltd. in their project SAVY VILLE DE situated at NH-58, Raj Nagar, Extension, Ghaziabad, U.P. and OPs were liable to transfer the booking amount paid to them in the said project and OP infact paid an amount of Rs.4,00,000/- in the account of the new builder but an amount of Rs.4,04,421/- was not paid to the new builder and it was assured that remaining payment would be made in the account of new builder at the time of taking over possession in the new project, but the said payment has not been made and  as such OP has failed to comply with their contractual obligation by not making remaining payment of Rs.4,04,421/- in the new project which amounts to deficiency in service and accordingly it is prayed that the complainant has been cheated and defrauded by OP and its principal office/directors/promoters, firstly by delaying in construction of their own project and then despite having assured that they will make the payment in the new project at the time of possession, which is not being done and as such complainant has filed the present complaint seeking directions to the OP to refund an amount of Rs.4,04,421/- with interest @ 24% p.a. along with compensation of Rs.10,00,000/- and litigation charges  of Rs.55,000/-. 
2. The OP was served and he initially  demanded legible copies of documents/paper book which were ultimately given to the counsel for OP on 11.09.2023 but no written statement was filed by OP and as such complainant was directed to file his evidence by way of affidavit which he has filed.
3. Complainant has filed written arguments. 
4. The Commission has heard the arguments and perused the record. 
5.    The facts in nutshell are that the complainant booked the flat in a project i.e. Aprameya Enclave and paid Rs.8,14,421/- to the builder (OP) and since that builder did not complete the project and assured the complainant for getting his flat booked in another Builder’s project where the amount paid by him would be adjusted to which complainant agreed and OP even paid an amount of Rs.4,00,000 /- to the said new builder but has not made remaining payment of Rs.4,04,421/- which amounts to deficiency in service.     
6. The Commission is of the opinion that once the complainant has booked the flat with a builder who had to provide certain services to the complainant in the form of completing the project and providing the flat, and once admittedly that builder has stopped its building activity and breached the agreement thereby offering some option to the complainant by further assuring that the amount paid by complainant would be adjusted in another new project, and even made the part payment in these circumstances, previous agreement of providing services by the original builder have come to an end, when the complainant has shifted to another project, and thereafter no services were to be provided by the OP to the complainant as once the project had already been stalled and cancelled which the complainant was aware of.  The only question is for remaining payment which the original builder assured that he would make payment to the new builder. The assurance as alleged is only oral and there is nothing on record as to whether OP agreed to pay the entire payment or agreed to adjust the entire payment. Apart from that, the Commission is of the opinion  once the project has been stalled and amount has been taken back by complainant, by way of adjustment now the original OP is no more bound to provide any further services, as stated under CP Act to the complainant. This is only a case of refunding the amount by the previous builder to the complainant which apparently does not fall within the ambit of CP Act and the concept of providing services has come to an end once the complainant has surrendered the flat and part payment was adjusted in new project of another Builder.  The complainant had relied upon certain judgments i.e. CC/1375/2015 titled  Satish Kumar Malhotra Vs DLF Ltd. and Anr., passed by Hon’ble National Commission, CC/427/2015 titled Satish Kumar Pandey Vs Unitech Ltd. passed by this Commission, Dewan Ashwani Vs Unitech Reliable Projects Ltd. held by this Commission, CC/613/2015 titled Ankur Jain Vs Wadhwa Residency Pvt. Ltd. held by this Commission and in CC/88/2012 titled Kushal K. Rana Vs DLF Commercial Complexes Ltd. but all these judgments are not para-materia as none of these judgments deals with the situation as mentioned in the present case i.e. complainant is asking for refunding of amount in a project which as per settlement has been stalled and part payment has been credited in the newly booked Flat of the complainant.  Therefore these judgments are not finding favour with the complainant. 

Accordingly, the complainant is not able to establish that after surrendering the flat by complainant, the OP was its service provider and that the complainant is still a consumer of OP and therefore complaint of the complainant is dismissed.    

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.     

Announced on 23.10.2024.