Delhi

North East

CC/350/2016

NAVEEN CHANDRA JOSHI - Complainant(s)

Versus

M/S AVJ DEVELOPERS ( INDIA) PVT. LTD. - Opp.Party(s)

08 Oct 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 350/16

 

In the matter of:

	Naveen Chandra Joshi S/o Late Moti Ram Joshi R/o 6-388/11, Near Shakti Sadan Lane PO Bhotiaparaw City Haldwani, Distt. Nanital-263139. Uttarakhand.	Complainant
	Versus
	M/s AVJ Developers (INDIA) Pvt Ltd Through Managing Director AVJ Business park Plot C Community Centre, Near Anand Vihar Petrol Pump, Anand Vihar, Delhi-110092.   Also At:- D-237, 1st Floor (Back Side) Vivek Vihar, Phase-1, Delhi-95.   Site office:- Plot No.12/2 Plot No. GH-12/2, Sector Zeta-I Greater Noida, U.P.	Opposite Parties

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:         DATE OF DECISION      :

16.12.2016 08.10.2018 08.10.2018

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Grievance of the complainant in the present complaint is that lured by the project of the OP coming up in project AVJ Heights in Sector Zeta –I, Greater Noida U.P. by various representation / propaganda in hoardings and brochures, the complainant and his son booked a residential flat / apartment in the said project vide application form on 05.11.2014 after making an initial payment of Rs. 50,000/- as booking amount vide cheque No. 123073 dated 04.11.2014 drawn on SBI in favour of OP and the same was duly acknowledged by OP vide receipt no. 14077. Thereafter, further payments of                          Rs. 7,59,000/- was made by the complainant to the OP against which receipt no. 14091 dated 11.11.2014 was issued by OP to the complainant and accordingly flat no. I-305 admeasuring 1050 Sq. Ft was allotted to the complainant in the said project by OP. However, the OP failed to execute the flat buyers agreement and therefore the complainant asked for refund of the above amount paid which was agreed by OP on condition of return of original receipts against which the OP agreed to refund 100% of the paid amount to the complainant. Accordingly, OP issued eight cheques bearing series No. 079244 to 51 from 02.06.2015 to 07.07.2015 drawn on Axis Bank Ltd Dilshad Colony Branch of Rs. 1,00,000/- each and the last cheque of Rs. 1.09Lakh to the complainant towards clearing of outstanding liability. However, out of the above mentioned eight cheques only two cheques bearing series no. 44 and 45 of Rs. 1,00,000/- each got honored on 09.06.2015 credited into the account of complainant’s son held with ICICI Bank and the out of remaining six cheques, cheque no. 079246 dated 18.06.2015 signed by OP’s authorized signatory / MD Mr. Vinay Jain got dishonored. The complainant did not present the remaining five cheques for encashment. The complainant issued a letter dated 10.06.2016 to OP demanding refund against the remaining six cheques in his bank account at the earliest however OP failed to act upon the said request.  The complainant has submitted that he being a senior citizen had bought the said flat in question for his use in old age but was cheated by the OP causing him mental trauma, harassment and torture and OP kept giving him false assurances and continue to harass him for which reason the complainant issued a legal notice to OP dated 25.10.2016 demanding clearance of outstanding balance of 6,84,000/- by way of RTGS or Bank Draft to the complainant however the OP did not bother to reply or comply with the same. Lastly the complainant was constrained to file the present complaint against the OP alleging deficiency of service and unfair trade practice and seeking issuance of directions to the OP to refund the balance amount of 6,09,000/- alongwith interest @ 18% p.a. alongwith Rs. 2,50,000/- on account of compensation for misguiding, befooling, causing mental trauma, harassment, mental agony and torture to a senior citizen and loss of opportunity and Rs. 21,000/- towards litigation expenses.

Complainant has filed copy of application form dated 05.11.2014, copy of receipt no. 14077 dated 05.11.2014, copy of receipt no. 14091 dated 11.11.2014, copy of honored cheques no. 079244 and 079245, copy of dishonored cheque no. 079246 dated 18.06.2015 of Rs. 1,00,000/- alongwith cheque returning memo, copy of cheques of series 079248 to 51 of Rs. 1,00,000/- and last cheque (no. 51) of Rs. 1,09,000/-, copy of letter dated 10.06.2016 by complainant to OP, copy of legal notice dated 25.10.2016 by the complainant to OP.

2. Notice was issued to OP on 20.12.2016 however was returned unserved with postal remark ‘not available’ at its authorized address and ‘left’ at its Vivek Vihar address. Complainant had filed an affidavit on 22.02.2017 affirming that on physical verification on site he had found that OP was very much in existence there and therefore this Form held the view that the OP was deliberately evading service of summons and was therefore proceeded against ex-parte at the post lunch session of this Forum on 22.02.2017 itself.
3. The complainant filed ex-parte evidence by way of affidavit and written arguments on 20.03.2017 and 22.05.2017 respectively after which the matter was reserved for order however, due to subsequent change of the bench, the matter was relisted / reopened and arguments were reheard wherein the complainant was directed vide order dated 05.04.2018 to place on record the bank statement of June 2015 in support of payment received by complainant from OP. The complainant placed on record the copy of bank statement/ statement summary of his son Ashutosh Joshi with respect to the savings account no. 007301542283 held with ICICI Bank in which entries of credits of Rs. 1,00,000/- each against cheques no. 079244 and 079245 are shown as also cheque bouncing of cheque no. 079246 of Rs. 1,00,000/- with debit against returned charges to the tune of Rs. 114/-. There are no entries of the remaining five cheques of series 079247 to 079251.
4. We have heard the arguments addressed by the complainant and perused the material documentary evidence placed on record.

It has gone unrebutted that the complainant had paid a sum ofRs. 8,09,000/- in November 2014 to the OPtowards the said plot to the OP duly acknowledged by the OP vide receipts issued by it in favour of the complainant towards the part payment of sale consideration of the residential plotbooked by complainant with OP at its AVJ Heights Project. However, the OP failed to file any defence much less any explanation by way of any documentary proof or justification for not honoring the six cheques out of the eight cheques issued by it to the complainant in discharge of its monetary liability towardsrefund / return of the said amount to the complainant despite having issued the said cheques with the assurance to the complainant to refund the deposit amount against them which to our opinion is an unfair trade practice on the part of OP in not returning the legitimate dues of the complainant despite being under monetary and contractual liability to do so since the OP had failed to execute the flat buyers agreement.

5. We therefore find merit in the case of the complainant and allow the present complaint against the OP and direct the OP to refund the balance outstanding / unpaid amount of Rs. 6,09,000/- alongwith simple interest @ 9% p.a. from the date of filing of the complaint till realization. We also direct the OP to pay a sum of Rs. 20,000/- as compensation to the complainant on account of damages, loss of opportunity and punitive damages and Rs. 10,000/- towards cost of litigation to the complainant payable by OP. Let the order be complied within 30 days from the date of receipt of this order.          
6. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7. File be consigned to record room
7.  Announced on  08.10.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member