Chandigarh

DF-I

CC/503/2020

Vinod Jain - Complainant(s)

Versus

M/s Blackberry Realcon Pvt. Ltd. - Opp.Party(s)

S.K Jain

23 Sep 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/503/2020
Date of Institution	:	03/11/2020
Date of Decision	:	23/09/2021

 

1. Vinod Jain wife of Late Sh. Anil Kumar Jain, resident of Kothi No.304, Sector 38-A, Chandigarh.
2. Rohan Jain son of late Sh. Anil Kumar Jain resident of Kothi No.304, Sector 38-A, Chandigarh through his attorney Vinod Jain wife of Anil Kumar Jain, resident of Kothi No.304, Sector 38-A, Chandigarh.

… Complainants

V E R S U S

M/s Blackberry Realcon Pvt. Ltd. having its Corporate Office at 11^th Floor, Paras Twin Tower (Tower-B), Sector 54, Golf Course Road, Gurgaon – 122002 through its Managing Director/Director.

… Opposite Party

CORAM :	SHRI RAJAN DEWAN	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                               

ARGUED BY	:	None for complainants
	:	OP ex-parte

 

Per Rajan Dewan, President

1.      The facts in brief are, on 5.8.2013, complainants booked a Service Apartment/Retail Unit No.ST/08/ 11 on Eighth Floor Type – A measuring 870 sq. ft. super area in Project Paras Square Service Apartments & Retail Units, Sector 63, Gurgaon, Haryana for residential purposes and paid the amount of ₹7,50,000/-. The OP issued allotment letter dated 5.8.2013. On 10.11.2014, complainants and OP entered into a Builder Buyer Agreement with the OP in respect of the aforesaid apartment and the total sale consideration was settled at ₹80,66,490/- including EDC, IDC, parking and IFMSD charges. As per the said agreement, complainants were required to make payments as per construction to be carried out by the OP.  The OP agreed that the possession of the said apartment would be delivered within 36 months from the date of start of construction and as the construction commenced in 2014, OP was obliged to deliver physical possession by the end of the year 2017.  The complainants from 2.9.2013 onwards paid total amount of ₹79,10,741/- to the OP on various dates as per its demand. The balance amount was to be paid on delivery of possession, but, the OP failed to deliver actual physical possession despite repeated telephonic requests, personal visits, writing emails and also legal notice dated 12.2.2020. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OP, complainants have filed the instant consumer complaint.
2.     Registered notice was sent to the OP which was presumed to have been served. Since none appeared on behalf of the OP, therefore, vide order dated 10.2.2021 of this Commission, it was proceeded against ex-parte.
3.     Complainants led evidence by way of affidavit and documents.
4.     We have gone through the record of the case, including written arguments.
5.     Per pleadings of the complainants, they booked a Service Apartment/Retail Unit No.ST/08/ 11 on Eighth Floor Type – A measuring 870 sq. ft. super area in Project Paras Square Service Apartments & Retail Units, Sector 63, Gurgaon, Haryana with the OP and paid the amount of ₹7,50,000/-. Per complainants, they paid in all ₹79,10,741/- to the OP on various dates vide receipts Annexure C-2, C-3 and C-6 to C-12, as per demand raised by it.  Though as per complainants, they had also paid an amount of ₹6,11,277/- to the OP on 30.3.2016, but, no receipt thereof has been placed on record. Therefore, in the absence of any documentary evidence or admission by the OP, it cannot be said that the said payment has been deposited by the complainants with the OP.
6.     It has been urged by the complainants that as per Builder Buyer Agreement dated 10.11.2014 (Annexure C-5), OP assured to hand over possession within a period of 36 months from the date of start of construction. As per complainants, construction started on 13.02.2014 and even after granting six months grace period, OP was obliged to hand over possession by August, 2017, but, it failed to do so. It has also been urged by the complainants in their written arguments that the OPs in November, 2019 had sent five post dated cheques dated 31.12.2019, 28.2.2020, 30.4.2020, 31.5.2020 and 30.6.2020 of ₹18,14,199/- each totalling ₹90,70,995/- without their consent and without any calculation but subsequently complainant No.1 received a call not to present the said cheques in bank. It has been further urged that the OP neither offered possession of the apartment in question nor refunded the deposited amount to the complainants despite lapse of more than 8 years. In support of their contentions, complainants have filed their duly sworn affidavit.
7.     In order to rebut the allegations of the complainants, it was imperative for the OP to file its written reply alongwith some cogent evidence. However, what to talk of rebutting the allegations, OP did not put in appearance before this Commission and chose to be proceeded against ex-parte. This act of the OP draws an adverse inference against it and proves that it has nothing to say in its defence qua the allegations made by the complainants. In the absence of anything to the contrary, allegations of the complainants go unrebutted and uncontroverted. Hence, OP is proved to have indulged in deficiency in service as it neither handed over the possession of the apartment in question within the stipulated period nor refunded the deposited amount to the complainants.
8.     The complainants had invested a huge amount in the project of the OP for the purchase of the apartment for residential purposes, but, due to the failure of the OP in handing over the possession of the apartment, complainants had to suffer immense harassment and were deprived of usage of the same. Not only this, till date OP is enjoying the benefits of the amount deposited by the complainants and such like other consumers.
9.     In view of above discussion, present consumer complaint succeeds and the same is accordingly partly allowed. OP is directed as under :-

1. to refund the total amount deposited by the complainants i.e. ₹72,99,464/-, as mentioned above (excluding the amount of ₹6,11,277/-), alongwith interest @9% per annum w.e.f. the respective dates of deposit till realization. However, it is made clear that if the complainants produce the receipt/proof of payment of the amount of ₹6,11,277/- to the OP, the said amount shall also be refunded by the OP to the complainants on the above lines;
2. to pay an amount of ₹1,00,000/- to the complainants as compensation for causing mental agony and harassment to them;
3. to pay ₹10,000/- to the complainants as costs of litigation.

10.     This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
11.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/	Sd/-	Sd/-
23/09/2021	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rajan Dewan]
hg	Member	Member	President