Delhi

West Delhi

CC/18/461

RAJNI CHAUDHARY - Complainant(s)

Versus

MAHALAXMI ROYAL CREST - Opp.Party(s)

28 Feb 2023

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST

GOVT. OF NCT OF DELHI

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

NEW DELHI

 

Complaint Case No.461/2018

 

In the matter of:

 

Ms Rajni Chaudhary,

Resident of House No. K-1/29A,

New PalamVihar,

Phase-I, Block-d, Village- Chauma

District Gurugram,                                                   .........Complainant

                                                                    

 

                                                                     Versus

 

M/s Mahalaxmi Royal Crest

305, DDA Building-II, Janakpuri District Centre, New Delhi110058

Through its Director Sh. Naresh Kumar

 

Also at:

M/s MahalaxmiInfralandmarks Pvt. Limited

314-315, Third Floor, Vipul Trader Centre Sohna Road,

Gurugram - 122001(Haryana)                ..........Opposite Party/Respondent

 

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

31.10.2018 21.02.2023 28.02.2023

 

Ms. Sonica Mehrotra, President

Ms.Richa Jindal, Member

Mr. Anil Kumar Koushal, Member

Order passed by Mr. Richa Jindal, Member

ORDER

1. The complainant has filed the present complaint against OPs u/s 12 of the Consumer Protection Act, 1986. Brief facts of the complaint are as follows:-

1. The Complainant had offered the allotment of residential plotvide Plot No. C-84in an upcoming project ROYAL CREST by the OP situated at Village Ishroda, Bhiwadi, Alwar Highway, Rajashtanand the Respondent have also provided a Customer Code NO. RCA/139.

 

2. The Complainant had allotted a residential plot Plot No. C-84measuring 100 Sq.Yds @ 13205/- per sq.yds and paid an initial amount Rs. 1,25,000/- vide Cheque bearing No.177579 dated 17.07.2014 vide receipt No. RCR/00173 dated 26.07.2014, Rs. 4,69,225/- paid through cheque No. 177580 dated 03.09.2014 vide Receipt No. RCR-00233 dated 11.09.2014 and thus the Complainant had paid total amount of Rs. 5,94,225/-.

 

3. The Complainant was assured by the Respondent that there would be no hidden cost or clause and no charges in Plot would be made once the earnest money was accepted by the Respondent regarding specific plot.

 

4. That the Respondent have intentionally and deliberately did not deliver the possession of the above said residential plot and has violated the terms and conditions of the Allotment Letter.

 

5. As per Allotment Letter, the Respondent should have delivered the possession of the said Plot well within 36 months 26 July 2017 but despite elapsed the said period, the Respondent have failed to deliver the same and the said conditions is reproduced herein below:-

"The Company shall endeavor to give possession of the plot to the applicant/allottee within 36 months from the date of booking, failing which the company shall refund the amount paid by the applicant/allottee along with simple interest @ 12% p.a. to the applicant/allottee on the deposited amount in the same manner as received by the applicant/allottee subject. However, the refund shall be payable to force majeure circumstances with a reasonable extension of time".

 

6. The Complainant was shocked and surprised to know that the Respondent neither approved the Plan nor taken any License as required under law for set up the colony for residential purpose.

 

7. To the surprise of the Complainant, the Respondent did not adhere to their promises and adopted dilly delaying tactics. The conduct of the Respondent is arbitrary and malafide.

 

8. The complainant also moved an application for refund the aforesaid amount on dated 22.05.2018 to respondent but they did not refund the same.

 

1. The complainant served a legal notice to the Respondent regarding the above said payment on dated 14.09.2018 through registered post but the Respondent did not give any reply of the said legal notice and failed to pay the aforesaid amount to the complainant. Hence this complaint.

 

10. That there is a clear cut deficiency in service on the part of the Respondent. Thus the complainant has no other option except to claim her money back with interest.

 

11. No previous complaint is pending in respect of the present cause of action nor any such complaint has been decided by any court/forum except a complaint before the Hon'ble DCDRF Gurugram but the same has been dismiss as withdrawn with liberty to file before competent authority /forum vie order dated 11.10.2018. Hence this complaint, Wherein the complainant sought the following reliefs :

(i) The Respondent be directed to refund the earnest money of Rs. 5,94,225/- along with 24% interest per annum from the date of deposit till the realization.

 (ii)The Opposite Party/Respondent be directed to pay a sum of Rs. 50,000/- towards mental agony and harassment caused to the complainant on account of deficient services rendered by the Opposite Party.

 

(iii) The Respondent are directed to pay a sum of Rs. 25000/- towards legal expenses which the complainant has incurred.

 

2. Accordingly, a court notice was issued to the OP on various dates i.e. 17/12/2018, 04/03/2019. but none appeared on behalf of OP despite the service of notice.

 

3. In M/s. Madan and Co. Vs. WazirJaivir Chand AIR 1989 SCC 630, the Hon’ble Supreme Court has held “That if a registered letter addressed to the person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's conduct. If he is staying away for some time all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorized by him.” Further, Hon’ble Apex Court in State of M.P. Vs. HiraLal&Ors. (1996) 7 SCC 523 has held that notices returned with postal remarks “Not available in the House”, “House Locked” and “Shop Closed", must be deemed that the notices have been served on the respondents. Accordingly, the respondent proceeded ex parte on vide order dated 14-03-2019.

 

4. The respondents were also served through court notice and after that also they didn’t turn up and ignored the court notice. This act of the respondents clearly shows that the respondents are avoiding/disrespecting the court proceedings although they have been duly served.

 

5. The complainant filed exparte evidence by way of an affidavit on 15-07-2019 testifying all the facts stated in the complaint along with documents exhibit CW-1/1 to CW-1/6 affirming the facts alleged in the complaint. Details of the documents relied upon by the complainant are as follows:-

1. The true copies of allPayment receipts, & acknowledgement issued by the OP are attached herewith as Annexure P-1 &P-2 (Colly).
2. The copy of allotment Letter is annexed as Annexure-P-3.
3. The copy of the application for refund is placed as Annexure-P-4.
4. True copy of legal Notice and postal receipt, is attached as Annexure-P-5. And Annexure-P-6.

 

6. Finally on 21/02/2023 complainant argued the matter and order was reserved. We have carefully gone through the record of the case and have heard the submissions of the complainant.

 

7. Perusal of the record shows that the complainant filed the present complaint before this Forum and the notice of the present complaint was duly served upon the respondent but the respondents neither appeared before this Forum nor filed any reply to the complaint and the documents of the complainants are on record which shows the deficiency in services on behalf of the respondents and relationship between the complainant and the respondents of consumer and service provider.

 

8. Before we deal with the submissions we need to examine, whether the present complaint is maintainable in view of the fact the complainant is a consumer or not.
9. For proper adjudication of this matter, Reliance is placed on the judgement passed by Hon’ble NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION  NEW DELHI in FIRST APPEAL NO. 1107 OF 2014 in the case titled M/S. PARKER BUILDERS PVT. LTD.  Versus RAVINDER AGGARWAL
   •  

 

10. For proper adjudication of this matter, Reliance is placed on the judgement passed by Hon’ble NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION  NEW DELHI in FIRST APPEAL NO. 1107 OF 2014 in the case titled M/S. PARKER BUILDERS PVT. LTD.  Versus RAVINDER AGGARWAL
11.  

 

11. In view of the above, we are of opinion that the dispute between the parties was concerned with unfair trade practices. A reference in this regard can be made to the decision of the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. v. GovindanRaghavan, II (2019) CPJ 34 (SC)=III (2019) SLT 435=(2019) 5 SCC 725, which to the extent it is relevant, reads as under:

"6.6. Section 2(r) of the Consumer Protection Act, 1986 defines unfair trade practices in the following words:

'unfair trade practice' means a trade practice which, to promote the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice ...", and includes any of the practices enumerated therein. The provision is illustrative, and not exhaustive.

12. As per the pleadings of the parties, the complainants had booked one plot with the opposite party for a total costs of Rs 5,94,225/- and Allotment letter/Buyer's agreement was executed between the parties. According to the agreement, it has been stated that the company shall put its best efforts to complete the development of the unit within 36 months or within an extended period of 6 months from the date of execution of agreement/allotment letter, which was executed on 12.11.2014 and 36 months will be completed on 11.11.2017 and the complaint was filed by the complainants on 25.11.2018 when the opposite parties could not deliver the possession to the complainants within the agreed time. On 12.11.2014.
13. In case opposite party No.1 has failed to complete the project within the specific time and to handover the possession, it amounts to deficiency in service and complainants are entitled to withdraw from the scheme. A reference can be made to the judgment reported in 2017(1) CPR 168 (NC) titled as "Sanjay Kumar v. Sahara Prime City Limited &Ors.", wherein it was held that allottee is entitled to withdraw from the scheme in the event of delay in completion of that project. Sequel to the above, we are of the opinion that there is deficiency in service on the part of the opposite party No.1 as opposite party No.1 failed to deliver the possession of the shop to the complainants within the agreed time after receiving the major amount as demanded by the opposite party No.1 from time to time. In case, the shop has not been constructed or possession was not delivered within the agreed time then the complainants have a right to withdraw from the scheme and seek refund.
14. Hence we pass the order in favour of the complainant and against the opposite party, thereby directing the OP to refund the deposit amount of Rs.Rs 5,94,225/- with interest @7% per annum from the date of deposit along with compensation of Rs.25,000/- and cost of Rs.10,000/- to be paid by OP to the complainant for the harassment, mental agony, loss of time, litigation charges.
15. Let the order be complied with by OPs within 30 days from the date of receipt of the copy of this order.
16. Let a copy of this order be sent to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.
17. File be consigned to record room. Announced on­ 25/02/2023. 

 

(Richa Jindal)         Member

(Anil Kumar Koushal)               Member

(Sonica Mehrotra)                         President