Haryana

StateCommission

CC/94/2015

KRISHNA PARKASH - Complainant(s)

Versus

LANDMARK APARTMENT PVT. - Opp.Party(s)

S.P.KHATRI

26 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No.    :     94 of 2015

Date of Institution:   05.06.2015

Date of Decision :    26.07.2016

 

Ms. Krishna Parkash wife of Mr. Braham Parkash, Resident of Plot No.7 and 8 KH No.229, Ground Floor, Flat-A, Village Sultanpur Colony, New Manglapuri, Mahroli, Delhi.

 

                                      Complainant

Versus

 

M/s Landmark Apartment Private Limited, Gurgaon, through its directors:

1.      Shri Sandeep Chhiller s/o Sh. Kartar Singh

2.      Shri Yashvir Kadayan s/o Sh. Raghbir Singh Kadayan, Office at Plot No.85, Sector-44, Gurgaon, Haryana.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Shri Vishal Nehra, Advocate for Complainant.

                             Shri S.S. Mor, Advocate for Opposite Parties.

 

                                                   O R D E R

B.M. BEDI, JUDICIAL MEMBER

 

          The present complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Consumer Act’) has been filed by Ms. Krishna Parkash-complainant averring that pursuance to the advertisement published by M/s Landmark Apartment Private Limited (for short, ‘the Builder’)-Opposite Parties,  she applied for purchase of space for shop measuring 1000 square feet, in the upcoming project namely “Landmark Cyber Park, Sector-67, Gurgaon” vide application (Exhibit CW/2) for her livelihood at the rate of Rs.5500/- per square feet. The Complainant paid Rs.55.00 lacs, to the builder vide receipts Exhibits C-2 and C-3. Memorandum of Understanding (MoU) Exhibit C-4, was executed on December 17^th, 2008. The project was to be completed within three years from the date of execution of the MoU.  The builder did not complete the project within the stipulated period of three years.  The complainant got issued legal notice seeking refund of the amount deposited by her, alongwith interest as per MoU but the builder did not pay the amount. Hence, the present complaint.

2.                The builder-opposite parties contested the complaint by filing reply raising preliminary objection that the space in their project being commercial, the complainant does not fall within the definition of consumer. It was admitted that necessary licence and other permissions were issued by the authorities.  They had already applied for the completion certificate to the competent authority, so the delay was not on their part.  It was prayed that the complaint merited dismissal.

3.                In evidence, Krishna Parkash-complainant appeared as CW-1 and produced documents Exhibits C-1 to C-4, besides affidavit Exhibit C-5. 

4.                The builder tendered affidavit of Rajesh Garewal, authorized representative alongwith documents Exhibits R-1 to R-3.

5.                Arguments heard. File perused.

6.               Krishna Parkash-complainant, when appeared as CW-1, has specifically stated that she wanted to purchase the space for the purpose of earning livelihood by opening Consultancy Services. Builder has not produced even an iota of evidence to prove that the space was booked by the Complainant for the purpose of trading or that it was not for earning her livelihood. So, a bald assertion by the builder that the property had been booked for the purpose of making profits is not sufficient to hold that the transaction was for “Commercial purpose.”  So, this plea of the builder is hereby rejected.

7.                As per Clause (d) of the application for booking of space, it was agreed that the builder shall allot the space within 36 months and in case of there being failure on the part of the builder in doing so, the complainant was at liberty to either withdraw the amount so advanced and the builder was obliged to refund the amount with interest @ 12% per annum. The date of booking is December 17^th, 2008, an admitted fact. The project has not been completed till date despite lapse of more than 7½ years. Even in the written version the builder has not denied that despite lapse of more than 7½ years, possession has not been handed over to the complainant.

8.                Clause 4 of the MoU (Exhibit C-4) reads as under:

“4.     That the First Party will pay Rs.55,000/- as a assured return per month payable quarterly to Second Party till the date of possession or 3 years.”

9.                In the nature of assured return, the complainant has received a sum of Rs.26,71,020/- from 23.01.2009 to 23.04.2013. The total payment made by the complainant to the builder is Rs.55.00 lacs.  Since the complainant has opted for refund, she is entitled to refund with interest @ 12% per annum on the amount of Rs.55.00 lacs, from the date of booking, which is October 17^th, 2008 till the date of realisation, less the amount of Rs.26,71,020/- already paid to the complainant in the nature of assured return. The amount shall be refunded within 60 days from the date of receipt of the copy of the order and in case of failure to refund the amount; the builder shall be liable to pay interest @ 15% per annum on the ordered amount.  The builder is further directed to pay compensation of Rs.25,000/- for mental agony/harassment etc and Rs.10,000/- litigation expenses.

10.              The complaint stands disposed of accordingly. 

 

Announced 26.07.2016

Diwan Singh Chauhan Member

B.M. Bedi Judicial Member

Nawab Singh President

CL