DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.269/2010

Mrs. Dev Prabha Thapliyal

B-40 A, Street No.3

Bhajanpura, Delhi

Present Address:

House NO.5,

Jawahar Navodya Vidayal,

Mungeshpur, Qutab Garh,

New Delhi-110039

….Complainant

Versus

M/S Buildmore India Private Limited

B-1A, Ajit Singh House

12, Yusuf Sarai,

D.D.A Community Centre

New Delhi-110049

        ….Opposite Party

 Date of Institution    :    26.04.2010   

 Date of Order            :   21.10.2022

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Sh. U.K Tyagi

1.      Complainant has made a request for passing an award directing M/s Buildmore India Pvt. Ltd. (hereinafter referred to as OP) (i) to give possession of the flat on payment of balance amount as per terms of agreement;(ii) to pay interest @15% per annum on the amount deposited and delay in giving possession of flat from May, 1999 to the date of handing over the actual possession of flat;(iii) to pay compensation of Rs. 1,00,000/- for mental agony and harassment etc; (iv) to pay litigation charges of Rs. 21,000/- etc.

2.      Brief history of the case is as under:-

 The complainant booked a two-room apartment in the project of OP at Loni, Gaziabad, UP. OP allotted flat No. B-210 having approx.  area of 550 Sq ft.  To this effect, Flat Buyer’s Agreement was executed between Complainant and OP on 26.11.1997. Copy of the same is enclosed as Annexure- CW/1.  The Complainant made payment  from time to time. Copies of the receipt annexed as Annexure CW/2 (Colly). The Agreement to sell was executed on 09.01.1999, duly  registered with Sub-registrar. Copy is enclosed as Annexure –CW/3. The husband of the Complainant got a letter from OP on 19.06.1999 stating that handing over the flat is not far away and requested to bear the delay till September, 1999.  On this assurance, the OP gave demand draft of Rs. 4,400/- dated 14.09.1999 in favour of UPSEB for installation of electricity connection in her flat. The Complainant visited the site but the progress was very slow. Meanwhile OP wrote letter dated 09.03.2000 to the Complainant stating that the work is in full swing. The OP again  sent letter dated 08.05.2000 stating the same fact but also demanded the balance amount so as to enable the OP to complete the project.

3.      OP sent a letter dated 23.06.2006 demanding the balance amount. The project is still not completed. The OP did not provide possession in all these years instead sent a letter dated 13.07.2009 enclosing therewith a D.D No.168351 for  Rs. 1,28,457/- in favour of complaint stating that in case, the Complainant does not accept the amount, the whole of the amount deposited by complainant shall be forfeited by OP. However, in this process of what to do, the said D.D got misplaced. Accordingly, OP was intimated. The Complainant is only interested in  possession of the flat. From the above, it is abundantly clear that OP had indulged in unfair  trade practice as defined under Consumer Protection Act. This amounts to deficiency in service as well.

4.      OP, on the other hand, stated vide its reply that Complainant was not interested in taking the possession of said flat on making the balance payment. Since, the Complainant failed to take appropriate steps, hence, he was with no option but to return payment. He further averred that the Complainant paid only earnest money and liable to make full payment before possession of flat. As stated above, OP sent letter to the Complainant about the progress of the project and requested for making balance payment. As such, he had to cancel the allotment. In all fairness and bonafide, he sent letter alongwith D.D for the payment made by him. The Complainant was trying to make out the case that draft sent by OP was got misplaced. There is no cause of action for the Complainant to file this complaint.

5.      Both the parties have filed written submissions as well as evidence in-affidavit. Written statement is on record so is rejoinder. Oral arguments were heard and concluded. It may be relevant to mention here that  OP  was declared exparte vide order dated 19.09.2011 of this Commission. The said order was assailed before the Hon’ble State Commission, Delhi. The Hon’ble State Commission vide its order dated 26.11.2013 set aside the above order dated 19.09.2011 of this Commission and restored. Hence OP was allowed.

6.      This Commission has gone into the entire gamut of issues placed on record and due consideration was given to the oral arguments. It is fact that the Complainant had booked the flat in question and some payment in piecemeal was found made to the OP. It is seen from the Flat Buyer’s Agreement, where the cost of said  flat was shown to the tune of Rs.1,99,000/-. The OP herself accepted this fact that Complainant made the payment to the tune of Rs.1,28,487/- and which was intended to return  by D.D mentioned above. This amount is more than half of the cost of flat as mentioned above, this amount had been deposited much earlier and progress of construction of the flats was very slow. Hence, balance payment might not have been made by the complaint. The payment was made to the OP in two-three years of the booking whereas, the payment of Rs.1,28,487/- was intended to be returned in 2009. Last reference of OP was seen of 2006 where balance payment towards cost of flat was demanded. No correspondence was shown by the OP to this effect that he had been demanding the balance payment repeatedly and in failure of payment, OP was constrained to return the amount.

7.      The attention of this Commission was also drawn towards the letter dated 09.03.2000 which is annexed  at Annexure CW/6. The letter provides “As the value of the property/flat at Classic Home Project are appreciating…… .If you are interesting to sell your flat, kindly sent us your consent.”

8.      The said letter written in 2006 shows that there had been a good amount of appreciation in the project, so, OP took the decision unilaterally to return the amount so that he can put the flat for resale in the market to fetch higher amount than what he could have collected from the complainant. The OP could not lead any credible evidence to prove his case. His averments were found bald and had relied some of documents advanced by the Complainant.

9.      In nutshell, this Commission after having considered the material placed on record, opines that there is deficiency in service on the part of OP. Therefore, OP is directed to allot the said flat. If the said flat is allotted to some other person, then he may be allotted another flat of same measurement at the earlier rate when the said apartment was booked. The complainant shall make the balance payment if any. No interest shall be allowed as the cost of flat shall be reckoned at the earlier cost. The Commission desired to know about the status of flat on the date of arguments but no information could be provided by the Complainant. Alternatively, if the OP is not in possession of any flat in any of its projects at all, then, the  OP shall pay interest @12% per annum from the date of booking of the flat on the amounts deposited by the complainant alongwith Rs. 1,00,000/- towards compensation. The above process should be completed within 03 months from the date of receipt of this order failing which a penalty of Rs. 50,000/- shall be levied.

File be consigned to the record room and order be uploaded on the website.