Haryana

Panchkula

CC/232/2014

SURINDER KUMAR - Complainant(s)

Versus

M/S BHOOMI INFRASTRUCTURE CO. - Opp.Party(s)

SATBIR MOR.

13 Mar 2015

ORDER

BEFORE  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                    

                                                                                   

Consumer Complaint No	:	232 of 2014
Date of Institution	:	20.11.2014
Date of Decision	:	13.03.2015

                                                                                                                 

Surinder Kumar S/o Sh.Amar Nath, R/o H.No.1281, Sector-15, Panchkula.

 

                                                                                                             ….Complainant

Versus

M/s Bhoomi Infrastructure Co., Gold City, Plot No.11, Sector 19-D, Vashi, Navi Mumbai-400705, Maharashtra.

Branch Office:- H.No.1411, Sector-21, Panchkula-134112.

                                                                                          ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:                    Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                                    Mr.Anil Sharma, Member.

 

For the Parties:         Mr.S.S.Mor, Adv., for the complainant alongwith complainant in person. 

Op already ex-parte.

ORDER

(Dharam Pal, President)

1. The complaint is filed by the complainant-Surinder Kumar under Section 12 of the Consumer Protection Act, 1986 against the Op with the averments that he is a lower middle class person and has no house of his own. In order to have a dream house booked a flat No.C-1/103, 1^st floor, covered area 1175 sq. ft. @ Rs.2750/- per sq. ft. for Rs.30,25,000/- with the Op who launched a Group Housing Project in 2010 known as “Amazon-The Defence County” situated within the Revenue Estate of Village Moginand, Sector-30, Panchkula and deposited Rs.4,58,906/- (Annexure C-1) vide cheque No.075296 drawn on Allahabad Bank. The Op vide allotment letter dated 03.03.2010 (Annexure C-2) issued the provisional allotment of residential unit in the Amazon-The Defence County Project wehrein it was mentioned that the complainant has to pay one time charges as Rs.75,000/- for club membership, Rs,1,50,000/- for car parking, Rs.2,47,500/- for Govt. dues (EDC/IDW), Rs.1,10,000/- for PLC @ Rs.100/- P.S.F. and total cost came Rs.36,07,500/- in which the complainant was given a discount of Rs.25,000/- and net payable cost came to Rs.35,82,500/-. Later, the Op has increased the tentative covered area of the flat to 1175 sq. ft. as well as cost of flat as @ Rs.2909/- per sq. ft. and even EDC/IDC were also increased without any justifiable reason. The tentative cost of the flat was also increased to Rs.33,93,750/- apart from the club membership, car parking, TLC etc. The complainant was forced to sign the flat Buyer’s Agreement executed on 04.10.2011. The terms & conditions were solely decided and finalized by the OP in a dominating position without any discretion left with the complainant. The complainant supposed to sign the printed flat Buyer’s Agreement by imposing unilateral and one sided terms & conditions. The complainant was supposed to make the payment of installments on construction linked basis schedule. The complainant deposited Rs.2,00,000/- vide cheque No.101050 dated 29.09.2011 and Rs.5,00,000/- vide cheque No.833684 dated 19.07.2012 drawn on Allahabad Bank with the Op as per the payment schedule. The complainant had deposited Rs.11,58,000/- with the Op upto 25.07.2012 but there was no construction of the flat at all. The OP also did not have proper license and clearance from the various departments before starting the project. As per clause 26 of the Buyer Agreement, the Op was liable to handover the possession of the ready flat within 36 months from the date of execution of the agreement and if the developer failed to complete the construction of unit within stipulated period, it should be liable to pay the allotee compensation @ Rs.5/- per month as per sq. ft on the super built up area of the unit for delay beyond the no claim period. The relevant clause 26 is reproduced as under:-

“The Developer shall, subject to force majeure circumstances or such other circumstances beyond the reasonable control of the Developer, endeavour to complete the construction of the Unit within a period of thirty six (36) months from the date of execution of his Agreement with an extension of additional twelve (12) months (on a no claims basis) subject to timely payment by the Allottee of the Basic Sale Price and all other charges as may be payable under the Payment Plan and/or under this Agreement and/or otherwise demanded by the Developer. The Developer upon execution of the Sale Deed for the Unit shall, hand over the Unit to the Allottee for his/her/their/its occupation and use, subject to the Allottee having complied with all the terms conditions of this Agreement. Save and except as otherwise provided in this Agreement, if the Developer fails to complete construction of the Unit within the stipulated period, it shall be liable to pay the Allottee compensation at Rs.5/- (Rupees Five only) per month on per square feet of the Super Built-Up Area of the Unit for delay beyond the no claim period.”

The complainant booked the flat on 02.03.2010 and nothing happened till April, 2014 i.e. after passing 4 years, the basic structure of the flats was not completed at all. The complainant visited several times to the office of Op and requested that due to non-delivery of the flat, he had to live in rented house but no satisfactory answer was given by the Op. The complainant wrote a letter dated 20.02.2014 to the Op for refund of the amounts deposited by him alongwith interest but only Rs.5,00,000/- was refunded to the complainant vide cheque No.937053 dated 28.08.2014. The complainant visited many times to the office of Op for refund of remaining amount of Rs.6,58,000/- with interest @ 21% but to no avail. Even no compensation @ Rs.5/- per sq. ft per month was given to the complainant. As per clause 31 of the agreement, the Op was charging 18% interest for first 90 days and 21% compound interest for the delayed payments made by the allottees which act of the opposite party amounts to deficiency in service on its part. Hence, this complaint.

2. Notice was issued to the Ops through process server and the same has been received back after effecting service. But none has appeared on behalf of the Ops and the Ops were proceeded against ex-parte vide order dated 24.02.2015.
3. The complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-6 and closed his evidence.
4. We have heard learned counsel for the complainant and have also perused the record.
5. It is admitted that the complainant booked a flat No.C-1/103, 1^st floor, covered area 1175 sq. ft. @ Rs.2750/- per sq. ft. for Rs.30,25,000/- with the Op who launched a Group Housing Project in 2010 known as “Amazon-The Defence County” situated within the Revenue Estate of Village Moginand, Sector-30, Panchkula and deposited Rs.4,58,906/- (Annexure C-1) vide cheque No.075296 drawn on Allahabad Bank. The Op issued the provisional allotment dated 03.03.2010 (Annexure C-2) in the Amazon-The Defence County Project whereby the complainant has to pay one time charges as Rs.75,000/- for club membership, Rs,1,50,000/- for car parking, Rs.2,47,500/- for Govt. dues (EDC/IDW), Rs.1,10,000/- for PLC @ Rs.100/- P.S.F. and total cost came Rs.36,07,500/-. The complainant was also given a discount of Rs.25,000/- and therefore, net payable cost came to Rs.35,82,500/-. The complainant has signed the flat Buyer’s Agreement executed on 04.10.2011 (Annexure C-3). After that, the complainant deposited Rs.2,00,000/- vide cheque No.101050 (Annexure C-4) dated 29.09.2011 and Rs.5,00,000/- vide cheque No.833684 (Annexure C-5) dated 19.07.2012 drawn on Allahabad Bank. As per clause 26 of the Buyer Agreement, the Op was liable to handover the possession of the ready flat within 36 months from the date of execution of the agreement and if the developer failed to complete the construction of unit within stipulated period, it should be liable to pay the allotee compensation @ Rs.5/- per month as per sq. ft on the super built up area of the unit for delay beyond the no claim period. The complainant booked the flat on 02.03.2010 but after passing 4 years, the basic structure of the flat was not completed at all. The complainant requested several times the Op that due to non-delivery of the flat, he had to live in rented house but to no avail. The complainant has written a letter dated 20.02.2014 (Annexure C-6) in which he withdrew the allotment and requested for refund the amount deposited by him alongwith interest but only Rs.5,00,000/- was refunded to the complainant vide cheque No.937053 dated 28.08.2014. The complainant visited many times to the office of Op for refund of remaining amount of Rs.6,58,000/- but to no avail. The complainant has also filed his duly sworn affidavit (Annexure C-A).
6. Moreover, the Ops did not appear to contest the claim of the complainant and preferred to proceed against ex-parte, which draws an adverse inference against them. The non-appearance of the Ops despite notice shows that they have nothing to say in their defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted. As such, the same are accepted as correct and deficiency in service on the part of the Ops is proved.
7. In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed and the same is accordingly allowed. The Op is directed as under:-

(i)        To refund the amount of Rs.6,58,906/- to the complainant alongwith interest @ 9% per annum from the date of deposit i.e. 03.03.2010 till realization.

(ii)       To pay an amount of Rs.10,000/- as compensation for mental agony, harassment.

(iii)     To pay Rs.5,000/- as cost of litigation.

                   Let the order be complied with within the period of 30 days from the receipt of certified copy of this order.  A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

 

Announced

13.03.2015          ANIL SHARMA           ANITA KAPOOR              DHARAM PAL

                            MEMBER              MEMBER                        PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

     

                                         

                                                                        DHARAM PAL

                                                            PRESIDENT