Chandigarh

DF-I

CC/686/2022

JASWINDER KAUR - Complainant(s)

Versus

M/S AERENS ENTERTAINMENT ZONE LIMITED THROUGH ITS M.D JAINARAIN - Opp.Party(s)

HARSH NAGRA

30 Aug 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/686/2022
Date of Institution	:	25/7/2022
Date of Decision	:	30/08/2024

 

Jaswinder Kaur W/o Jarnail Singh Resident Of House No 1579, Sector 38- B Chandigarh.

...Complainant

Versus

 

1. M/S Aerens Entertainment Zone Limited having its registered office at 6th Floor Mahindra Towers 2A Bhikaji Cama Place New Delhi through its Director Rajesh Jainarain Aeren.

2. M/S Aerens Entertainment Zone Limited, Festival City, Village Quadian and Faguwal, G.T. Road, (NH-I), Ludhiana, through its Managing Director Mr. Chandan K Singh.

 

Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Sh. Harsh Nagra, Advocate for complainant (through VC)
	:	OPs ex-parte.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under:-

1. It transpires from the averments as projected in the consumer complaint that in the year 2005 the OPs floated a commercial project in the name of Festival City at GT Road Ludhiana Jalandhar Bypass, Ludhiana. The complainant was interested in the said project and accordingly she booked a shop floated in the market by the OP. The shop was booked under construction linked plan for total sale consideration of Rs.22,84,998/-  which was payable by the complainant and the complainant had paid an amount of Rs.21,56,175/ - to the Ops as per payment plan and the copies of receipts issued by the OPs are annexed as Annexure C-3 to C-14. Accordingly the OPs allotted shop No. FF-32B (hereinafter referred to be as subject shop), vide letter of intent Annexure C-1  dated 4.3.2006. The payment plan schedule is annexed as Annexure C-2. As per letter of intent clause 10 if the subject shop is not delivered to the complainant within a period of 1 year  from the date of issuing of letter of intent then the complainant has right to claim back his deposited amount alongwith 9% interest. The shop was purchased by the complainant with a view to earn his livelihood by way of self employment.  In the  year 2009 when the complainant visited the site she was shocked to know that the OPs have not started construction of the subject shop. Not only this even after that the complainant visited the site several times and every time she found that the OPs had given false assurances by not starting construction at the spot. The complainant had written several letters to the Ops to inform her about the status of subject shop and possession but with no response.   In the year 2011, the complainant again visited the site and it was found that the OPs were not in a position to hand over  the possession  of the subject shop to the complainant. Even in the year 2019 when the complainant visited the office of OPs and asked for refund of the deposited amount then it was informed to the complainant by the representative of OPs that the project has been withdrawn and no construction is being raised on the spot.  Thereafter the complainant sent various emails to the OPs for refund of the paid amount  but with no result. Earlier the complainant filed a complaint before the Hon’ble  State Consumer Disputes Redressal Commission, Punjab, Chandigarh  but the same was withdrawn by the complainant with liberty to file fresh one with better particulars and the copy of the order is annexed as Annexure C-15.  In this manner, the aforesaid act of OPs amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs  were properly served and when OPs did not turn up before this Commission, despite proper service, they were proceeded against ex-parte on 23.4.2024.

2. In order to prove her claim the complainant has  tendered/proved her evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the complainant and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that  the OPs had allotted the subject shop to the complainant after receiving an amount of Rs.21,56,175/-  from the complainant out of the total sale consideration of Rs.22,84,998/-  as is also evident from letter of intent Annexure C-1 and Annexure C-2 the copy of construction linked plan and receipts Annexure C-3 to C-15 and till date neither the OPs could handover the possession of the subject shop to the complainant nor could they refund the paid amount to the complainant, the case is reduced to a narrow compass as it is to be determined if  the aforesaid act of the OPs amounts to deficiency in service and the complainant is  entitled for the relief as prayed for and for that purpose the documentary evidence led by the complainant is required to be scanned carefully.
   2. Perusal of the letter of intent clearly Annexure C-1 indicates that the complainant had booked the subject shop with  the Ops for total sale consideration of Rs.22,84,998/-  by paying an amount of Rs.2,33,100/- as booking amount. Perusal of clause 10 of Annexure C-1 further makes it clear that the OPs had agreed to commence the project within one year  from the date of issue of letter of intent  i.e. 4.3.2006 and in case of failure, the  complainant shall have the right to claim the refund of the paid amount alongwith interest @9% simple interest. Annexure C-2 the construction linked plan further indicates that the complainant had paid an amount of Rs.21,56,175/- to the Ops which  is also evident from receipts Annexure C-3 to C-15.
   3. Thus one thing is clear from the documents as discussed above  that the subject shop was allotted to the complainant by the OPs for total sale consideration of Rs.22,84,998, out of which the Ops have received Rs.21,56,175/- from the complainant. Not only this when it has come on record that the Ops neither could have launched the subject project within the prescribed period as agreed upon by the OPs through letter of intent  Annexure C-1 nor they could handover the possession of the subject shop to the complainant till date despite of repeated requests to the  OPs by the complainant, hence, the aforesaid act of OPs amounts to deficiency in service and unfair trade practice on their part, especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OPs..
   4. So far as the question of limitation is concerned,  it has come on record that the OPs  have failed to deliver the lawful possession of the subject shop after obtaining necessary approvals/completion certificate from the competent authority. In this regard, reliance can be placed on the judgments of Hon’ble Apex Court in the case of Lata Construction &Ors. Vs. Dr. RameshchandraRamniklal Shah &Anr., AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC) wherein it was held that when possession of the residential units is not offered, there is continuing cause of action in favour of the allottee/buyer.  It has also been held by the Hon’ble National Commission in the case of Chairman and Managing Director, Ajeet Ajay Estate and Resort Pvt. Ltd. Vs. Dinesh, R.P. No.1978 of 2017 decided on 29.3.2019 that if the amount deposited lies with the builder and it has not returned the same, there will be continuing cause of action in favour of the complainants to file the consumer complaint. It was also held by the Hon’ble National Commission in the case of KNK Promoters & Developers v. S.N. Padmini, IV(2016) CLT 54 (NC) and Saroj Kharbanda v. Bigjo’s Estates Ltd., II(2018) CPJ 146 (NC) that the builder/OPs cannot withhold the amount deposited by the allottee and if it is so, there is continuing cause of action in favour of the allottee to file a complaint seeking refund of the said amount.
4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to refund ₹21,56,175/- to the complainant alongwith interest @ 9% per annum (simple) from 3.3.2007 i.e. after one year of execution of letter of intent as per clause 10 thereof till onwards.
2. to pay ₹70,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
6. Pending miscellaneous application(s), if any, also stands disposed off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 30/08/2024 mp			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member