Case No.CC/361/17

Date of Institution:- 05.12.20217

Order Reserved on :- 19.07.2024

           Date of Order :-12.08.2024

IN THE MATTER OF:

Sh. Ram SukhYadav

S/o Late Sh. Shiv Ram Yadav,

R/o D-4/309, Sultanpuri,

Near Dr. GejendraChauhan,

New Delhi – 110068.

          …..Complainant

VERSUS

M/s.ArunDev Builders

F-89/11, Okhla Phase-I,

New Delhi – 110020.

Also at:

F-1211, C. R. Park,

New Delhi – 110019.

… Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The present complaint has been filed under section 12 of Consumer Protection Act, 1986 (in short CP Act) against Opposite Parties (in short OP) alleging deficiency of service.
2. The brief facts of the case are that the complainant has booked a flat measuring 350 sq. ft. in the Project of OP namely “Dev City Bhiwadi” by filling only a single page application form on 31.03.2008, and paid the initial token payment of Rs.30,000/- through cheque bearing number 504925 dated 21.03.2008 drawn on Dena bank. The cheque amount was Rs.60,000/- (in which Rs.30,000/- for booking of the complainant and rest Rs.30,000/- for booking of his wife Smt. RadhaYadav).  Copies of application form and cheque are annexed as Annexure C-2 (Colly).   The OP has allotted a flat bearing no. D-85/9, Second Floor after receiving a cheque bearing no. 172186 dated 31.08.2009 for Rs.12,000/- drawn on HDFC bank. Copy of allotment slip dated 31.08.2009 and allotment letter dated 07.09.2009 are annexed as Annexure C-4 (Colly).The complainant has paid total amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) to the OP.   The complainant continuously visited the office of OP for handing over the said flat but OP advised the complainant to wait for some more periods on the pretext that the aforesaid project had been slightly delayed due to some unforeseen circumstances. In 2016, the complainant visited the site of the said project and was shocked to see that the said project in which his flat was proposed to be situated was not even 20% complete, no flat in the proposed project had even come in shape.The complainant has asked for refund his deposited moneyalongwith interest as he was in dire need of residence and he proposed to purchase a similar flat in same locality, the prices of which have gone much higher during that point of time, which has become unnecessary burden upon the complainant caused by OP.  But the OP did not pay any heed to the request made by the complainant for refund. The OP has neither handed over the flat nor refunded his deposited money. The complainant has prayed for refund of Rs.5,00,000/- alongwith interest @ 24% p.a.
3. Notice was served to OP but OP did not attend the proceedings before this Commission and OP was proceeded Ex-Parte vide order dated 05.01.2018. 
4. The complainant has filed Ex-parte evidence and written arguments in support of his case.
5. On 19.07.2024, the case was listed for argumentsand we have heard Sh. Suresh Prasad, Ld. Counsel for complainant, OP was Ex-parte and the order was reserved.
6. We have carefully considered the material on record and thoroughly.
7. It is the case of the complainant that he had booked a flat measuring 350 sq. ft. in the Project of OP namely “Dev City Bhiwadi” by filling only a single page application form on 31.03.2008, and paid the initial token payment of Rs.30,000/- through cheque bearing number 504925 dated 21.03.2008 drawn on Dena bank. The cheque amount was Rs.60,000/- (in which Rs.30,000/- for booking of the complainant and rest Rs.30,000/- for booking of his wife Smt. RadhaYadav).   The OP has allotted a flat bearing no. D-85/9, Second Floor after receiving a cheque bearing no. 172186 dated 31.08.2009 for Rs.12,000/- drawn on HDFC bank. The complainant has paid total amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) to the OP.   The complainant continuously visited the office of OP for handing over the said flat but OP advised the complainant to wait for some more periods on the pretext that the aforesaid project had been slightly delayed due to some unforeseen circumstances. In 2016, the complainant visited the site of the said project and was shocked to see that the said project in which his flat was proposed to be situated was not even 20% complete, no flat in the proposed project had even come in shape.  The complainant has asked for refund his deposited money alongwith interest as he was in dire need of residence and he proposed to purchase a similar flat in same locality, the prices of which have gone much higher during that point of time, which has become unnecessary burden upon the complainant caused by OP.  But the OP did not pay any heed to the request made by the complainant for refund.  The OP has neither handed over the flat nor refunded his deposited money.
8. It is the case of the complainant that when he did not get the possession of the flat so sought the refund of the deposited amount, but the same has not been refunded by the OP despite repeated requests.  It is her case that this conduct of the OP amounts deficiency in service and unfair trade practice. Non-delivery of the possession of the flat on receipt of the booked amount within a reasonable time amounts to deficiency in service.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512”is the authority on this point.

9. The allegations made by the complainant have gone unchallenged, unrebutted and uncontested and as such whatever has been placed on record is believed. 
10. From the facts of the case and evidence placed on the record, it is clear that on receipt of the deposit amount of Rs.3,01,382/- (Rupees Three Lakh One Thousand Three Hundred Eighty Two) from the complainant, the OP has neither handed over the possession of the plot nor refunded the amount to the complainant and this act apparently and clearly constitutes deficiency in service, monopolistic and unfair trade practice on the part of the OP.
11. Accordingly, we allow the complaint of the complainant and direct the OP to refund Rs.1,50,000/- (Rupees One Lakh Fifty Thousand)alonwth interest @ 6% p.a. from the date of deposited amount and Rs.50,000/- (Rupees One Lakh) as lumpsumfor mental harassment and litigation charges to the complainant within 45 days from the date of receipt of order failing which the OP shall be liable to pay the entire amount with interest @ 9% p.a. till realization.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announce in the open Court on 12.08.2024.