Haryana

StateCommission

CC/128/2015

ATTAR SINGH KADIAN - Complainant(s)

Versus

LANDMARKS APARTMENTS PVT. - Opp.Party(s)

S.P.KHATRI

26 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No.    :   128 of 2015

Date of Institution:   23.07.2015

Date of Decision :    26.07.2016

 

1.      Attar Singh Kadian s/o Shri Dhara Singh

2.      Omwati w/o Shri Attar Singh Kadian

3.      Shailender Kadian s/o Shri Attar Singh Kadian

3.      Dharamender Kadian s/o Shri Attar Singh Kadian

          All Residents of House No.870/35, Janta Colony, Rohtak.

 

                                      Complainants

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 Complainants.

                             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 Attar Singh Kadian, his wife Omwati and two sons namely Shailender Kadian and Dharamender Kadian-complainants, averring that pursuance to the advertisement published by M/s Landmark Apartment Private Limited ((for short, ‘the Builder’)-Opposite Parties,  they 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 C-1 on April 12^th, 2008, for their livelihood at the rate of Rs.5,000/- per square feet. The complainants paid Rs.53,50,000/-, to the builder vide receipts Exhibits C-3 to C-11. The Ledger Account Sheet is Exhibit C-8. Memorandum of Understanding (MoU) Exhibit C-2, was executed on September 25^th, 2012. 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 complainants got issued legal notice dated July 31^st, 2014 seeking refund of the amount deposited by them, 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 complainants do not fall within the definition of Consumers. It was stated that necessary license and other permissions were issued by the authorities.  They had already applied for the completion certificate to the competent authority, so the delay was neither intentional nor any lapse on their part.  It was prayed that the complaint merited dismissal.

3.                In evidence, Attar Singh Kadian-complainant appeared as CW-1 and produced documents Exhibits C-1 to C-12 besides affidavit Exhibit C-13. 

4.                The builder tendered affidavit of Rajesh Garewal, authorized representative alongwith documents Exhibits R-1 and R-2.

5.                Arguments heard. File perused.

6.               Attar Singh Kadian-complainant, when appeared as CW-1, has specifically stated that they wanted to purchase the space for the purpose of earning livelihood by opening Consultancy for mariners recruitment. Builder has not produced even an iota of evidence to prove that the space was booked by the complainants for the purpose of trading or that it was not for earning their 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.                The application for booking of space (Exhibit C-1) is on the file. As per Clause (d) of the application, 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 complainants were 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 April 12^th, 2008, an admitted fact. The project has not been completed till date despite lapse of more than 8 years. Even in the written version the builder has not denied that despite lapse of more than 8 years, possession has not been handed over to the complainants.

8.                Clause 4 of the MoU (Exhibit C-2) reads as under:

“4.     That the First Party will pay Rs.50000/- (Rupees Fifty Thousand Only) as assured return per month payable quarterly to Second Party till the date of possession or 3 years whichever is earlier.”

 

9.                In the nature of assured return, the complainants have received a sum of Rs.2,70,000/-. The total payment made by the complainants to the builder is Rs.53,50,000/- on different dates from April 12^th, 2008 to September 19^th, 2012.  Since the complainants have opted for refund, they are entitled to the refund of the deposited amount, that is, Rs.53,50,000/- with interest @ 12% per annum from the dates of respective deposits till its realisation, less the amount of Rs.2,70,000/- already paid to the complainants 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