Delhi

West Delhi

CC/19/238

ALOK SINHA - Complainant(s)

Versus

MAHA LAXMI - Opp.Party(s)

03 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI-110058

 

COMPLAINT NO.238/2019

 

IN RE :

 

Alok Kumar Sinha

S/o Shri J.P. Sinha

R/o 203, SFS Flats,

 Dr. Mukherjee Nagar,

New Delhi-110009                                                                                                Complainant

VERSUS

 

M/s. Mahalaxmi Infralandmarks Pvt.Ltd.

(Through its Managing Director)

304, DDA Building-II.

District Centre, Janak Puri,

New Delhi-110058

 

Also AT:

234, Pocket-8, Suryodaya Apartment,

Sector-2, Opp. Raddison Building

Dwarka, New Delhi-110075                                                                   Opposite Party

 

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:           DATE OF DECISION:

10.05.2019 09.05.2023 03.06.2023

CORAM

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

 

Present: Mr.Raman Chaudhary, counsel for the complainant.

                OP ex parte.

                 

ORDER

 

Per: Anil Kumar Koushal, Member

 

          Succinctly put, the facts of the present complaint are as under:

 

1.        Complainant submits that he had booked a residential plot No.99 admeasuring 100 sq. yds. in the project "Bhiwadi Hills" at Salarpur Village, Near Bhiwadi-Alwar Road, Bhiwadi-Tijara, Rajasthan being developed by the OP,  for a total cost of Rs.3,89,900/- and paid a sum of Rs.87,500/- towards booking amount vide Receipt No. 1261 dated 24.04.2013 and an agreement dated 17.06.2013 was executed at Delhi between the complainant and OP. At the time of booking, the complainant was assured by the OP that the allotment of the plots will be based on "First Come, First Get Basis". The complainant paid the first installment of Rs.1,75,000/- as per  payment schedule vide receipt No.394, dated 25.06.2013. In accordance with the agreement, the possession of the said plot was to be delivered to the complainant within a reasonable period after development of the project.

2.        It is submitted that after having received a sum of Rs.2,62,500/- out of total cost of Rs.3,89,900/-, the OP started avoiding the complainant and used to give vague reply regarding handing over the possession of the plot and OP has not handed over the same till date despite many personal visits and telephonic calls by the complainant. The OP has betrayed the trust posed upon it and it tantamounts to unfair trade practice.  OP has breached the terms and conditions of the agreement and failed to hand over the possession of the plot. As such, OP is liable to refund the amount with interest and also liable for damages.

3.        Since OP did  not perform its part and violated the terms and conditions of the agreement and  failed to complete the project in time, the complainant was satisfied that OP is not going to complete the Project as such the complainant wanted  refund of consideration i.e. Rs.2,62,500/-  paid by him to OP,  with interest along with compensation for mental pain, agony and physical harassment.   For this purpose, the complainant got issued a legal notice dated 11.03.2019 to the OP, but OP did not pay any heed nor refunded the amount despite having received the legal notice. Hence this complaint.

4.        The following prayers are made in the compliant:

 

 

1). To Pass order/directions to the  OP to refund/pay a sum of Rs.2,62,500/- to the complainant with interest @ 18% per annum from the date of deposit till its realization;

 

2).Pass order/direction, directing the OP to pay a sum of Rs.50,000/- towards compensation for mental pain, agony and physical harassment; and

 

3) Any other or further order which this Commission deems fit and proper may also be passed in favour of the complainant and against the OP in the interest of justice.

 

5.        Complainant attached the following documents with the complaint:

 

1.Copy of brochure of the OP alongwith  copy of the agreement dated

  17.6.2013 entered into between the parties,  showing receipt of

   Rs.2,62,000/-;

 

2.Demand notice dated 06.06.2013 from OP for payment of Rs.1,75,000/-

 

3. Receipt No.1261dated 24.4.2013 in the sum of Rs.87,500/-

 

4. Receipt No.394 dated 24.4.2013 in the sum of Rs.1,75,000/-

 

5. Legal notice dated 11.3.2019 sent to OP along with delivery report.

 

6.        Upon admission of the complaint on 16.8.2019,  notice was issued to OP.  However, despite service, the OP neither entered appearance not filed any reply thereto.   Accordingly, vide order dated 01.10.2019, the OP was proceeded against ex parte.

7.        Complainant filed ex parte evidence by way of affidavit and exhibited the documents filed on record.  Written arguments were also filed by the complainant on record. Oral arguments were heard on 9^th May, 2023.    Complainant submitted that he has still not got either possession of the plot in question or refund of his  money paid to the OP.

8.       Having gone through the pleadings filed on record, we find that the OP was deficient in not delivering possession of the plot in question to the complainant till date.  In the agreement entered into between the parties, the  plots under the project were to be developed within twenty four months from the start of work.  Complainant submits that no activity has taken place at the site and therefore, the OP is liable for deficiency in service and following unfair trade practice by withholding his hard earned money.   

9.       On the question of delay in delivering possession, the Hon’ble NCDRC in the case of  Gautam Saha & Anr. vs Anant Raj Industries Limited decided on 22 February, 2022,(CC No. 747 OF 2020)  held as under:

“12. Having considered the objections of the Opposite Party, we will now deal with the main issue at hand. We find that there is no doubt to the fact that, there has been unreasonable delay in construction and giving possession as per the Agreement. The Complainants made substantial payment to the Opposite Party with an expectation of getting timely possession of the Unit. In the written version of the Opposite Party, it is clearly admitted that the Construction of the Project is nearly completed and Occupation Certificate has been already applied on 23.12.2019. But the Occupation Certificate till date has not been obtained which clearly means that the construction is not complete in all respect. The Opposite Party failed to construct and deliver the Unit to the  Complainants even after delay of about 4 years from the promised date of possession for which the Opposite Party has not given any valid reason to justify the delay. The Complainants cannot wait for an indefinite time as they have invested heavily their hard earned money with the intention to get delivery of the Unit on time. Since, the Agreement is a valid legal document, as per its terms and conditions, possession should have been given in 3 years (36 months) i.e. by September, 2015 or March, 2016 (after adding 6 months of grace period). The Complainants booked the Unit 9 years back and the Opposite Party has not obtained Occupancy Certificate till date. The Complainants have all his right to claim refund along with a reasonable compensation for the unreasonable delay. Even today in the year 2022, possession has not been given and the Project is not complete. There are a number of Case Laws wherein the Hon'ble Supreme Court has decided favourably on the right of the buyers for getting refund of their money in case of undue and unreasonable delay by the Developer in giving possession in terms of the Agreement.

                                                                    (emphasis supplied)

13.  In case of Emmar MGF Land Ltd. & Ors. Vs. Amit Puri- {(II 2015 CPJ 568 (NC)}, decided on 30.03.2015, this Commission has held as under :

"After the promised date of delivery, it is the discretion of the Complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation."

14. We also find it a fit case to place reliance on the judgment of the Hon'ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, II (2019) CPJ 29 SC, decided on 25.03.2019 in which the Hon'ble Apex Court has observed as hereunder :

".....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified."

                                                                               (emphasis added)

10.     Following the judicial pronouncements of the higher echelons, we are satisfied that the OP was deficient  in not delivering the possession of the plot in question to the complainant  within a reasonable  time and same is the position till date.  The cause of action is still continuing. The OP was not only deficient in service but also followed unfair trade practice in not giving either possession of the plot in question to the complainant till date or refunding the cost of the land.  The height of negligence can be judged from the fact that the OP did not participate in the proceedings before us, to take the matter to its logical conclusion. Accordingly, the complaint is allowed and  OP is held guilty of deficiency in service and unfair trade practice.   OP is directed to refund to the complainant the amount of Rs.2,62,500/-  along with interest @ 7% from the date of filing of the complainant till final recovery. For the harassment and mental agony faced by the complainant in seeking possession of his plot, OP is directed to pay to the complainant a sum of Rs.25,000/- as compensation  along with Rs.15,000/- as litigation expenses.    Let this order be complied with by the OP within 30 days of receipt of copy of this order.          

A copy of this order shall be supplied free of costto parties to the dispute in the present complaint,upon a written requisition being made in writingin the name of President of the Commission in terms of Regulation 21 of the ConsumerProtection Regulations, 2020.

File be consigned to record room after pronouncement of order.

 

(Richa Jindal)                             (Anil Kumar Koushal)                        (Sonica Mehrotra)

MEMBER                                     MEMBER                                          PRESIDENT