STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                   UTTAR PRADESH, LUCKNOW

                                    COMPLAINT NO. 320 OF 2016

1. Major. Sudeep Singh Rawal

S/o Capt. Sujeet Singh Rawal

2. Capt. Sujeet Singh Rawal

S/o Sri Narendra Singh Rawal

Both R/o Flat No. 700 B

Surya Square Apartment

Vikalp Khand-4, Gomti Nagar

Lucknow-226010

                                                                                          ...Complainants

                                                           Vs.

1. M/s Abhisht Developers and Builders Pvt. Ltd.

Regd. Office IInd Floor,

Jai Hind Commercial Complex Centre

B. N. Road, Lucknow

Through its Managing Director

2. Managing Director

M/s Abhisht Developers and Builders Pvt. Ltd.

Regd. Office IInd Floor,

Jai Hind Commercial Complex Centre

B. N. Road, Lucknow

3. Umesh Azad (Authorized Signatory)

S/o Late Shyam Lal Azad

R/o IInd Floor,

Jai Hind Commercial Complex Centre

B. N. Road, Lucknow

                                                                                      ...Opposite Parties

BEFORE:

HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT

HON’BLE MR. MAHESH CHAND, MEMBER

For the Complainant           :    Mr. Mukteshvar Prasad Misra, Advocate.

For the Opposite Party        :    None appeared.                 

Dated :  07-09-2018

                                                  JUDGMENT

        PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT

This is a complaint filed before State Commission under Section 17 of the Consumer Protection Act 1986 by complainants Major Sudeep Singh Rawal and Capt. Sujeet Singh Rawal against opposite parties namely

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M/s Abhisht Developers and Builders Private Limited, Managing Director, M/s Abhisht Developers and Builders Private Limited and Umesh Azad (Authorised Signatory) seeking following prayers:-

“Wherefore it is prayed that this Hon’ble Commission may graciously be pleased to:-

1. Direct the opposite parties to return the entire amount of Rs.14,03,785/-, paid by the complainants to the opposite parties as 40% price of the flat in question, alongwith 18% interest compounded with quarterly rests, from the date of payment of the respective amounts by the complainant till the actual date of its return by the opposite parties.
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2. Direct the opposite parties to pay a cost of Rs.10,00,000/- to the complainants on account of deficiency in service and unfair trade practice including harassment and mental agony.
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3. Direct the opposite parties to pay Rs.50,000/- as costs of legal notice and litigation.
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4. Grant any other relief, as deemed fit by this Hon’ble Commission, in the facts and circumstances of the present case, otherwise the complainants shall suffer irreparably.

In complaint it has been stated by complainants that the High Power Committee constituted by Government of Uttar Pradesh selected M/s Ansal Properties and Infrastructures Limited for the development of Hi-Tech Township at Sultanpur Road, Lucknow (hereinafter referred to as the principal developer in short) and a Memorandum of Understanding was signed between Lucknow Development Authority and principal developer on 26-11-2005. Thereafter Detailed Project Report (hereinafter referred to as DPR in short) was submitted by principal developer and the same was approved by Lucknow Development Authority.

In complaint it has been further stated by complainants that in pursuance of approval of DPR the principal developer acquired land on the Sultanpur Road for the development of Hi-Tech Township and got the DPR

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approved as Sushant Golf City. Layout of the said township after approval was released by the town planner of Lucknow Development Authority in favour of principal developer.

In complaint it has been stated by complainants that the above principal developer has sold and handed over actual vacant physical possession of total buildable area situated at Celebrity Meadows, Block B and M at Sector-I of Group Housing Complex, Plot No.2 Sushant Gold City, Lucknow to the opposite parties No.01 and 02. Thereafter on 07-12-2010 the opposite parties allotted residential flat No. M/07/01 in Block-M Celebrity Meadows, Sector-1, Group Housing Complex, Sushant Golf City, Lucknow admeasuring 1970 square feet to complainants for Rs.37,43,000/-.

In complaint it has been stated by complainants that at the time of allotment they have deposited a sum of Rs.1,92,020/- through Cheque No. 578084 dated 21-11-2010 and thereafter Rs.12,11,765/- through Cheque No. 979695 dated 17-09-2011 was paid. Thus, total amount of Rs.14,03,785/- which is 40% of the total cost of the flat has been paid by complainants towards purchase of said flat.

In complaint it has been stated by complainants that they have deposited said amount on the assurance of the opposite parties that rest of the amount may be deposited as per payment schedule in proportionate to the development/erection of the building in question. Copy of allotment letter dated 25-12-2010 and receipts dated 07-12-2010 and 20-09-2011 have been annexed with complaint as annexures 01, 02 and 03 to the complaint.

In complaint it has been stated that in pursuance of above allotment letter dated 25-12-2010 an agreement was entered into between complainants and opposite parties in respect of said flat for total sale consideration of Rs. 37,43,000/- out of which above Rs.14,03,785/- has been paid by complainants on the assurance given by opposite parties to handover possession of the premises within 36 months or by the end of 2013. Model agreement has been annexed with complaint as annexure-4.

In complaint it has been stated by complainants that on 14-12-2013 vide email the complainants raised their grievance with opposite parties that the project was to be completed within 36 months or by the end of 2013 but no work including the foundation of building in question has yet been started

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on the land demarcated for the said Block-M. The complainants sent reminders through email dated 12-01-2014. In response to this email opposite parties vide email date 17-01-2014 accepted the delay in project and intimated that they have started work on the site. They demanded payment also which was contrary to the agreement schedule. Copy of email dated 17-01-2014 is annexure-6 to the complaint.

In complaint it has been stated by complainants that vide email dated 22-01-2014 they asked the opposite parties to provide copy of the approved site plan but no reply was given by opposite parties. Thereafter complainants sent reminders but the opposite parties without providing approved sanctioned plan and other documents vide email dated 18-02-2014 directed the complainants to approach to the bank for loan. Thereafter on 21-03-2014 the complainants served a letter by hand to opposite parties stating therein grievance in respect to the over delayed project with discrepancies in payment schedule and requested to settle the dispute and differences as the construction work was again paused at the behest of the opposite parties but no reply was given by the opposite parties. Therefore, vide email dated 25-06-2014 complainants requested opposite parties to refund the deposited money with interest.

In complaint it has been stated that on 08-07-2014 opposite parties admitted the pause in construction and further intimated in implied sense that they are not ready to refund the deposited amount with interest rather they gave an option to switch either in Block-A or Block-B. Consequently the complainants vide email dated 09-07-2014 sought information regarding the vacant position of the flat in Block A and B whereupon opposite parties vide email dated 10-07-2014 provided the list of flats in Block-A and Block-B and the complainants having no other option consented to switch from Flat No. M/07/01 in Block-M to Flat No. B/06/01 in Block-B vide email dated 11-07-2014. Thereafter opposite parties assured to complete the documentation but again they kept mum and adopted lethargic attitude and stopped communication with the complainants. Consequently the complainants wrote several letters to opposite parties and ultimately vide email letter dated 12-12-2014 opposite parties asked complainants for

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further payment without completing the documentation of switched flat. The opposite parties completed formalities for switching to other block only on 16-12-2014.

In complaint it has been further stated by complainants that they have been making continuous request with the opposite parties that they are in utter urgent need of the flat for their own residential purpose. However, their requests have been unheard and even after lapse of substantial period of more than four and half years the opposite parties have not paid attention to the request of complainants. Therefore, complainants sent notice to the opposite parties either to fix date for execution of sale deed immediately alongwith immediate transfer of possession of this flat or to refund their deposited money Rs.14,03,785/- alongwith 18% interest but neither complainants were given possession of flat nor got refund of their deposited amount with interest as prayed. As such feeling aggrieved complainants have filed complaint before State Commission with above prayers.

Notices have been issued to opposite parties through registered post which were not returned unserved. Therefore, after expiry of 30 days service of notices on opposite parties was presumed sufficient. But opposite parties neither turned out nor filed written statement to oppose the complaint. As such the case has been proceeded exparte against opposite parties.

Complainant No.2 Capt. Sujeet Singh Rawal has filed affidavit alongwith annexures in support of facts alleged in complaint.

Learned Counsel Sri Mukteshvar Prasad Mishra appeared for complainants.

None appeared for opposite parties.

We have heard learned Counsel for the complainants and gone through records of the case.

Annexures 2 and 3 of the complaint are receipts dated 07-12-2010 and 20-09-2011 respectively. Through these receipts complainants have paid Rs.1,92,020/- on 07-12-2010 and Rs.12,11,765/- on 20-09-2011.

Annexure 4 of complaint is letter of allotment and through this allotment letter the opposite parties have allotted 3 BHK + Study No.1 at Floor 06 in Tower-B. The area of flat allotted is 1970 square feet and total

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basic sale price agreed is Rs.37,43,000/-. In this allotment letter in para 5 it has been accepted that Rs.1,87,150/- has been received at the time of booking and the allottee agrees to pay remaining sale price and all other charges.

In receipt dated 07-12-2010 annexure-2 to complaint Rs.1,87,075/- has been mentioned as basic charges, Rs.4,801/- has been mentioned as service tax, Rs.96/- has been mentioned as Cess and Rs.48/- has been mentioned as Sec. Cess. In para 13 of above allotment letter it has been mentioned that the promoter shall endeavor to offer possession of apartment to the allottees within 36 months from the date of sanction of building plans by the authorities subject to force majeure circumstances and on receipt of complete payment of basic sale price. Payment schedule annexed with allotment letter shows that the payment was to be done through Construction Linked Interest Free Instalment Plan. According to this payment plan Rs.1,87,150/- was to be paid at the time of booking, Rs.2,80,725/- was to be paid within 45 days from the date of booking, Rs.2,80,725/- was to be paid within 90 days from the date of booking, Rs.3,10,725/- was to be paid within 120 days from the date of booking and Rs.3,10,725/- was to be paid within 180 days from the date of booking. Thereafter instalments were payable on starting of construction work but as per complaint version as well as affidavit filed by complainants opposite parties have not started construction of flat allotted to complainants and there is nothing on record to show that the complainants have committed default in payment of instalments as provided in payment schedule.

Annexure-14 to affidavit of complainant is letter dated 16-12-2014 regarding transfer of Unit No. M/07/01 in Celebrity Meadows originally allotted to complainants. This letter has been sent to complainant No.02 by opposite party No.03 to inform him that the request made by him for Unit No. B/06/01in Block-B in place of original Unit No. M/07/01has been accepted. This letter annexure-14 has been sent by opposite parties to complainant No.02 in response to his letter dated 12-12-214 wherein complainants have shown their willingness for payment only after B Block construction  reaches 5^th floor slab and has requested opposite parties to send

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documents or confirm date when complainants to come their office.

Email letter dated 12-12-2014 written by complainant No.02 to opposite parties is the reply of email letter dated 12-12-2014 sent for opposite parties. Relevant part of this letter is extracted below:-

“With reference to your previous mail it has been approved that after shifting you will have to clear all your dues against the unit on reaching the construction work on 5^th floor in B block. 

Now, kindly give your final consent over the same so that we can proceed with accounting and documentation formalities required for the same.

In view of above email letter dated 12-12-2014 sent by on behalf of opposite parties to complainants and as well as email letter dated 12-12-214 sent by complainants to opposite parties the allotment of second flat proposed to be made to complainants was subject to payment of all instalments upto construction of 5^th floor in B block on reaching construction work on 5^th floor. Vide email dated 12-12-2014 complainants have accepted this condition for shifting. Thereafter vide letter dated 16-12-2014 the opposite parties have allowed transfer of allotment.

In view of facts mentioned above it is crystal clear that complainants have deposited Rs.14,03,785/- with opposite parties for the Flat No. M/07/01 originally allotted to them on 25-12-2010 and construction of this flat was not started within stipulated period. The complainants have deposited Rs.14,03,785/- with opposite parties till 20-09-2011. This money has been utilized by opposite parties and complainants have been deprived of benefits of this money deposited by them. According to complainants opposite parties have not started construction of flat originally allotted to them. The opposite parties have not turned out to oppose complaint and to deny the allegations made by complainants. Complainants have not been delivered possession till now. Considering all facts and circumstances of the case as well as averments made in complaint and affidavit of complainants, we are of the view that the complainants should be allowed refund of money deposited by them with opposite parties with interest at the rate of 18% per annum from the date of respective deposits till date of actual payment. The complainants have deposited Rs.14,03,785/- till 20-09-2011 and even after

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seven years they could not get their desired flat. At present the price of flat has gone up. Considering these circumstances of the case we are of the view that the complainants should be awarded compensation of Rs.1,00,000/- for the deficiency in service committed by opposite parties.

In view of conclusion drawn above complaint is allowed partially. Opposite parties are directed jointly and severally to pay Rs.14,03,785/- to the complainants deposited by them with interest at the rate of 18% per annum from the date of respective deposits till date of actual payment. The opposite parties are further ordered to pay Rs.1,00,000/- as compensation to complainants for the deficiency committed by them in the service assured. The opposite parties shall pay Rs.10,000/- as cost of litigation also to the complainants.

Let copy of this order be made available to the parties within 15 days positively as per rules.  

                                                                ( JUSTICE A H KHAN )

                                                                                 PRESIDENT

                                                                    ( MAHESH CHAND )

                                                                                     MEMBER

          Pnt.