Delhi

StateCommission

CC/771/2017

JEEWESH KUMAR JHA - Complainant(s)

Versus

M/S AMRAPALI LEISURE VALLEY PVT. LTD. - Opp.Party(s)

SANJAY KUMAR SHUKLA

05 Aug 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 05.08.2019

Complaint Case No. 771/2017

In the matter of:

Mr. Jeewesh Kumar Jha

Permanent Address:

Flat No.602, Block-E, Jal Vayu Tower,

Action Area, 1-D, Rajarhat, Kolkata,

West Bengal-700156

              &

Presently resides at:

Flat No. 1930, Block-E, 6^th Avenue,

Gaur City I, Greater Noida West,

Gautam Budha Nagar,

UP-201009                                                                      .....Complainant

 

Versus

 

M/s Amrapali Leisure Valley Pvt. Ltd.

Through its Directors

Having registered office at:

307, 3^rd Floor, Nipun Tower, Plot No. 15

Community Centre, Karkardooma,

New Delhi 110015                                                            …..Opposite Party

 

                                                                  

CORAM

 

SALMA NOOR - PRESIDING MEMBER

 

1.             Whether reporters of local newspaper be allowed to see the judgment?                                   

2.             To be referred to the reporter or not?                                                                                                     

 

 

MS. SALMA NOOR - PRESIDING    MEMBER

 

 

1. Present complaint is filed under Section 17 of the Consumer Protection Act 1986 (in short the ‘Act’).
2. Brief facts of the case are that the complainant came across the offer of above named OP of Amrapali Group/ M/s Amrapali Leisure Valley Private Limited who floated scheme for the provisional allotment of residential apartment in the project under the name and style of “Amrapali Verona Heights” situated at Plot No. GH-02, Tech Zone IV, Greater Noida, Gautam Budh Nagar, U.P. The authorized persons/Directors of OP categorically stated that the entire property is free and marketable and that they have a clear, legal and marketable title to the said property and ever part thereof, complainant was attracted by the lucrative offer of the project launched by the OP and accordingly booked a three bed room flat bearing no. G-2104 having super area measuring 1300 sq. ft. for a total sale consideration of Rs.37,58,000/- as per the construction linked payment plan vide an “Allotment-cum-Flat Buyer Agreement” dated 09.03.2013 executed between OP and the complainant along with his wife Mrs. Neeti Kumari jointly. As per the Payment Schedule, complainant has paid total Rs.21,30,766/- to the OP till date. It is stated that some payment receipts issued by OP as acknowledgment of payment made by complainant an email dated 30.12.2014 sent by Mr. Gurinder Singh, Manager, Amrapali Group with attachment of account statement/payment detail made by complainant to OP received on the request of complainant on his mail id, wherein it is clearly admitted by OP that payment of Rs.21,30,766/- has been received from the complainant.  As per the terms of Flat Buyer Agreement, OP promised to deliver the possession of flat to complainant within 42 months from the date of Allotment-cum-Flat Buyer Agreement subject to force majeure circumstances beyond the control of accused company. The OP was thus duty bound to complete the project in time and to hand over the possession of flat to the complainant without any default or delay. Thereafter the complainant visited the site first time in June 2016 and was shocked to see that the structure is nowhere near completion and that no construction activity of any kind was going on the site and it is clear that OP have abandoned the site and they have no intention to complete the project. It is alleged that complainant asked number of times verbally and telephonically from the staff/Directors/authorized persons of the OP as to when the project will complete but OP did not replied and avoided the query of the complainant. Representatives of OP also told the complainant that in fact they have no idea about the project completion date and further development of the project. OP never apprised the complainant about the progress of construction that is taking place at the project site. It is alleged that OP through its Directors/authorized persons have deliberately with malafide intention induced complainant to pay Rs.21,30,766/- without any intention to deliver the flat. Not getting any response from the OP, complainant served a legal notice dated 17.10.2016 to the OP. Despite service OP and its Directors neither refunded the money nor offered possession of flat. Finding no hope, complainant made complaint to the SHO on 23.11.2016 but no action is taken on his complaint. Thereafter, complainant made a criminal complaint in Karkardooma Court where matter is still pending for filing ATR by police officials. It is stated that complainant repeatedly requested to OP and its Directors to refund the hard earned money of complainant but they never responded to any request of complainant, in reverse they are demanding balance amount to complete the project.
3. Being aggrieved by the actions of OP, complainant filed the present complaint wherein prayer is made for refund of Rs.21,30,766/- with interest @24% per annum. They have further prayed for compensation to the tune of Rs.5,00,000/-. They also prayed for litigation cost of Rs.1,00,000/-.
4. OP was served with the notice of the complaint. Counsel for the OP had put in appearance by filing memo of appearance and sought time for filing written statement. However, OP did not file the written statement within the stipulated period and its right to file written statement was closed vide order dated 28.05.2018. The said order was not challenged by the OP.
5. Complainant Mr. Jeewesh Kumar Jha filed his own affidavit wherein the contents of complaint case have been reiterated on oath. The complainant has proved on record the copy of the allotment cum Flat Buyer Agreement dated 09.03.2013, Ex.CW-1/C1; copy of payment schedule of Rs.21,30,766/-, Ex.CW-1/C2;  copy of payment receipts and account statements received by complainant from OP by email, Ex.CW-1/C3(Colly); copy of legal notice dated 17.10.2016, Ex.CW-1/C4; copy of FIR, Ex.CW-1/C5.
6. As noted above, the evidence of complainant has gone unrebutted and unchallenged. From the unrebutted evidence it stands established that the construction of the unit in question is not near completion yet and the period of about 7 years is already over. It is also stated that there is no sign of completing of the project in near future. OP has retained hard earned money of the complainant. In terms of clause 27 of the Allotment-cum-Flat Buyer Agreement, the OP had promised to deliver the possession of flat to complainant within 42 months with an extension period of 06 months subject to force majeure circumstances.
7. In the absence of any evidence/explanation for failure of the OP to comply with the delivery of possession, it is an admitted position that OP has not completed the construction and is not in a position to deliver the possession of the flat to the complainant despite receiving an amount of Rs.21,30,766/- from the complainant and has committed deficiency in service and also indulged in unfair trade practice. Complainant cannot be expected to wait for possession of the flat for an indefinite period. 
8. In view of the above discussion, the complaint is allowed with the following directions:

“The OP shall refund the entire amount of Rs.21,30,766/- paid by the complainant within forty five days from the date of receipt of the order alongwith simple interest @12% from the date of each deposit till realization.”

 

9. A copy of this order be sent to the parties free of costs as per rules. Thereafter file be consigned to Record Room.       

 

(Salma Noor)

Presiding Member