Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 373.
Instituted on : 27.06.2017.
Decided on : 15.10.2018.
Shivani w/o Sh. Vineet Vij R/o H.No.C-157, Radha Garden, Near Defence Colony, Mawana Road, Meerut.
………..Complainant.
Vs.
- M2M Buildtech Private Limited, Registered Office at 39-G, Pocket A-1, Mayur Vihar Phase-III, New Delhi-110096 through its Director Suresh Gogia DIN-00309565. CIN-U70109DL2012PTC242480.
- Subhash Chander Gogia, DIN-07202440, Director, M2M Buildtech Pvt. Ltd., R/o H.No.1448, Sector-1, Rohtak-124001.
- Pankaj Wadhwa, DIN-02172958, Director, M2M Buildtech Pvt. Ltd., R/o H.No.611/23, DLF Colony, Rohtak-124001.
- Arun Kumar Rathee, DIN-06381654, Director, M2M Buildtech Pvt. Ltd., R/o H.No.1188, Sector-2,3 & 4, Rohtak-124001.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
SMT. SAROJ BALA BOHRA, MEMBER.
Present: Sh.Parveen Kumar, Advocate for the complainant.
Sh.Lalit Kaushik, Advocate for the opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant had applied for allotment of a residential flat with the respondents and had paid an amount of Rs.400000/- to the respondents vide receipt No.MB1/12-13/161 dated 03.01.2013. That the respondents promised the complainant to refund advance registration amount alongwith interest of 18% p.a. in case respondents fail to allot a residential flat within one year of advance registration and to raise construction for the above said project. That respondent no.2 to 4 are directors of OP No.1 company and had acted as booking agents for OP No.1 and had received the booking amount on behalf of OP No.1. That the respondents have neither started the construction work nor allotted any flat to complainant till date. That respondents did not release the above said amount despite the repeated representations and reminders of the complainant. Hence, this complaint and the complainant has prayed for directing the respondents to make the payment of Rs.400000/- alongwith interest besides compensation qua mental harassment etc. and cost of litigation as explained in relief clause.
2. On notice, opposite parties appeared and filed their written reply submitting therein that complainant has deposited the amount of Rs.400000/- vide receipts dated 03.01.2013 and has filed the complaint on July 2017 i.e. after the expiry of statutory period of 2 years. That the complainant is not a consumer as the flat was not required by the complainant for his personal use, the present complaint is time barred by limitation. That there was no agreement between the parties for completion of work within one year. That the total value of the flat in dispute is more than 20 lakhs i.e. value of the jurisdiction of this Court. That this Forum has no territorial jurisdiction as the registered office/head office of the OPs is at Gurgaon. There is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 & Ex.C2 and closed his evidence. On the other hand, ld. counsel for the opposite parties made a statement that the reply already filed be read as affidavit in evidence, tendered document Ex.R1 and has closed his evidence.
5. We have heard ld. counsel for the parties and have gone through the material aspects of the case.
6. The objection as to commercial purpose was taken during the pendency of the complaint but OP failed to place any cogent evidence or material which could prove that the flat was purchased for commercial purpose. Regarding the objection of pecuniary jurisdiction, the total relief claimed is less than Rs.20 lacs. So this objection is turned down. Regarding the objection of territorial jurisdiction, the office of opposite parties is situated at Rohtak and the flat in dispute is also situated at Rohtak, so this Forum has territorial jurisdiction to entertain the case. On the offer of the opposite parties complainant paid Rs.400000/- which was accepted by the opposite parties. Hence the complainant is a consumer.
7. After perusal of the documents placed on record by both the parties we come to the conclusion that the respondents have received an amount of Rs.400000/- from the complainant on 03.01.2013 as per receipt Ex.C1. Moreover on the date of receiving the amount from the complainant the respondents have no any licence or L.O.I with them. The perusal of para no.15 of the preliminary objections of the written statement itself shows that the respondents have changed their project from Group Housing Society to “Deen Dayal Jan Awas Yojana”. It is also admitted in this para that licence is still under process for the said Deen Dayal Jan Awas Yojana. Meaning thereby, till date the respondents have no any licence to built up any group housing society or residential premises. So the act of opposite parties itself is not only a grave deficiency in service, such deficiencies or omission tantamounts to unfair trade practice.
8. We have also placed reliance upon the law of Hon’ble National Commission, New Delhi in III(2018)CPJ 374(NC) titled as Emaar MGF Land Vs. Gagan Gupta and TDI Infrastructure Ltd. Vs. Aditya Tomar. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it is observed that OPs are liable to refund the amount deposited by the complainant alongwith interest and compensation.
9. In view of the above, complaint is allowed and we hereby direct the opposite parties to refund the amount of Rs.400000/-(Rupees four lacs only) which shall be paid by opposite parties jointly and severally alongwith interest @ 12% p.a. from the date of payment to the opposite parties till its realization and shall also pay a sum of Rs.25000/-(Rupees twenty five thousand only) as compensation on account of deficiency in service and litigation expenses to the complainant within one month from the date of decision.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
15.10.2018.
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Nagender Singh Kadian, President
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Ved Pal, Member.
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Saroj Bala Bohra, Member.
