Reserved

State Consumer Dispute Redressal Commission, Uttar Pradesh

Lucknow

ComplaintCase No. 393  of 2017

1. Anuj Kumar Mittal

S/o Sri Trilok Kumar Mittal

R/o B-67, C.C. Colony,

Opp. Ram PratapBagh, Delhi-110007.

Versus

1. M/s Amrapali Silicon City Pvt. Ltd.,

Registered office 307, 3^rd Floor, Nipun Towers,

Plot No. 15 Community Centre, Karkardooma,

Through its Managing Director.

2. Amrapali Silicon City Pvt. Ltd.,

Corporate Office: C-56/40, Sector-62,

Noida.

Through its Managing Director.

3. Amrapali Crystal Homes,

Site Office-GH 01/A,Sector-76,

GautamBudha Nagar.

Through its Managing Director.

                                                                                                      ……Opposite Parties

1. Hon’ble  Justice Akhtar Hussain Khan, President
2. Hon’ble Shri Mahesh Chand, Member.

Sri Naveen Kumar Tiwari, Advocatefor the Complainant.

Nonefor the  Opposite Parties.

Date:       04-10-2018

Judgment

(Delivered by Hon’ble Member Sri Mahesh Chand)

       This Complaint has been filed under section 17 of the Consumer Protection Act, 1986 against the above mentioned opposite parties.

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                 In brief the facts of the complainant’s case are :In response to the advertisements of the opposite parties, the Complainant booked a residential apartment/flat in their residential project in the name and style Amrapali Silicon City, Noida on dated 23.3.2015 and deposited a sum of Rs 5,85,000/- (Rupees Five Lac Eighty Five Thousand only) at the time of booking. The opposite parties allotted a unit no. T 4-2001, having a super areaof 1300 sq.ft. Amrapali Crystal Homes on dated 9.4.2015. Its total basic consideration was Rs 58,50,625/- (Rupees Fifty Eight Lac, Fifty Thousand, Six Hundred Twenty Five only). The Complainants and the opposite parties executed an Allotment cum Flat Buyer Agreement on dated 9.4.2015. The complainant deposited a sum of Rs5,85,000/- (Rupees Five Lac Eighty Five Thousand only)  with the opposite partieson dated 11.5.2015 vide Cheque No -537139 and a sum of Rs 12,42,565/- (Rupees Twelve Lac, Forty Two Thousand, Five Hundred Sixty Five only) on dated 28.5.2015 vide Cheque No.537140. Thus the complainant deposited a total sum of Rs 24,12,565/- (Rupees Twenty Four Lac, Twelve Thousand, Five Hundred Sixty Five only).According to para28(a) of the Allotment cum Flat Buyer Agreement dated 9.4.2015,the opposite parties had assured the complainant that the possession of the  said allotted flat will be handed over with in a period of 48 months of the date of agreement. But till now no construction work has been started by the opposite parties while they received more than 40% amount of the total consideration. When the complainants realized that there was no chance of completion of the project in the near future, then being aggrieved they filed the instant complaint whereby the following prayer has been made:-

1. “The opposite parties be directed to hand over the possession of the said residential flat in the same price and same scheme or refund the deposit amount of Rs 24,12,565 (Rupees Twenty Four Lac, Twelve Thousand, Five Hundred Sixty Five only) to the complainant as early as possible.
2. The opposite parties to pay Rs 5,00,000/- (Five Lacs) for mental pain and sufferings  tothe complainant.

3. The opposite parties to pay Rs 5,00,000/- (Five Lacs) forcost of the case.
4. The interest accruing in the light of the present facts and circumstances of the case, as the Hon’ble Commission may deem fit and proper.
5. Any other as deemed fit and proper in the circumstances of the case, may also be granted to the complainant.”

                          The notices were issued to the opposite parties. The Opposite parties  did not respond to the notice. The then bench of this commission vide its order dated 22.12.2017 presumed service of the notice on the opposite parties. The opposite parties  neither filed their written statementnor any evidence.  The complainant also did not fileany other  evidenceexcept the Allotment cum Flat Buyer Agreement dated 9.4.2015  and the deposit receipts which were filed along with the complaint.

                      The case was put up for hearing before this bench. Mr Naveen Kumar Tiwari, learned counsel for the complainants appeared.None appeared for the opposite parties. We heard the arguments of the learned counsel of the complainant and perused the record available on file. Thus this case is being decided ex-party against the opposite parties.

                    From the perusal of the documents available on file it is apparent that the Complainants had booked a  flat no.T 4-2001, having a super area of 1300 sq.ft. Amrapali Crystal Homes on dated 9.4.2015. Its total basic consideration was Rs 58,50,625/- (Rupees Fifty Eight Lac, Fifty Thousand, Six Hundred Twenty Five only). The Complainants and the opposite parties executed an  Allotment cum Flat Buyer  Agreement on dated 9.4.2015. The complainant deposited  the total sum of Rs 24,12,565/- (Rupees Twenty Four Lac, Twelve Thousand, Five Hundred Sixty Five only) as follows:-

1. Dated 23.3.2015        Rs   5,85,000/-   vide cheque No 53735
2. Dated 11.5.2015        Rs5,85,000/-   vide cheque No 537139

3. Dated 28.5.2015        Rs 12,42,565/-   vide cheque No 537140

Total AmountRs24,12,565/-(Rupees Twenty Four Lac, Twelve Thousand, Five Hundred Sixty Five only).

        According to  para 28(a) of the Allotment cum Flat Buyer Agreement dated 9.4.2015, the opposite parties had assured the complainant that the possession of the  said allotted flat will be handed over with in a period of 48 months of the date of agreement and the payment was to be made as per construction linked plan. But till now no construction work has been started by the opposite parties while they received more than 40% amount of the total consideration. When the complainant realized that there was no chance of completion of the project in the near future, then being aggrieved he filed the instant complaint. From receipts of the deposits  available on the file, it is proved that  the payment of Rs 24,12,565/- (Rupees Twenty Four Lac, Twelve Thousand, Five Hundred Sixty Five only) has been made to the opposite parties. The payment of the balance amount was to be made as per construction linked plan. Since there was no construction on the site despite payment of 40% amount of the basic price of the flat, there was no occasion for the complainant to make payment of rest 60% amount. Rather the complainant deserves the right to get the refund of the deposited amount along with interest @ 18 % per annum . In case the complainant prefers possession, then  the possession with be handed over by the stipulated time of 48 months after the date of execution of the said agreement i.e. by April 2019. In case the complainant prefers to take possession of the allotted flat, he will deposit the balance amount as per schedule of construction linked plan and the opposite party shall hand over the possession of the said unit.

                   The complaint is partially allowed. The opposite parties are directed to hand over the possession of the flat by April 2019 to  the Complainant. And complainant is

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bound to pay the balance amount as per schedule of the construction linked plan failing which the opposite party shall refund the total deposited amount to the complainants along with interest @ 18% per annum from the date of respective deposits till the date of actual payment.

(Justice Akhtar Husain Khan)                                                          (Mahesh Chand)

             President                                                                                      Member

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