Delhi

East Delhi

CC/232/2022

SHASHI SEHGAL - Complainant(s)

Versus

M/S CONCEPT HORIZON INFRA PVT. LTD. - Opp.Party(s)

22 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. No.232/2022

 

	Shashi Sehgal D-76, Navkuknj Apartments, 87, I.P. Extension, Delhi – 110092.	….Complainant
Versus
	M/s. Concept Horizon Infra Pvt. Ltd. Through its Director Mr. Nitant Verma 8/11, First Floor, Jangpura Extension, New Delhi – 110014.	……OP

Date of Institution: 09.05.2022

Judgment Reserved on: 07.08.2023

Judgment Passed on: 22.08.2023

QUORUM:

 

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)

Sh. Ravi Kumar (Member)

 

 

 

Order By: Ms. Rashmi Bansal (Member)

 

 

 

JUDGEMENT

The present case filed by the complainant against OP alleging deficiency of service and unfair trade practice in not handing over the possession of the booked flat to her.

1. It is the case of the complainant that in the year 2016, she has booked a  banquet unit in the project of OP by making a payment of Rs. 10,13,935/- (Service Tax for Rs.42,268/- plus Rs.9,71,667/- unit price) through cheques, vide application form dated 18.04.2016 and MOU dated 16.01.2016, however, in July 2017, the OP informed the complainant that banquet in the project is shelved and persuaded the complainant to shift the amount paid by her to the residential unit, for a total basic sale consideration of Rs.11,00,000/- measuring 240 ft.², apartment number 725 at seventh floor, to which the complainant agreed and executed a builder buyer agreement dated 19.07.2017. The amount paid by the complainant for the banquet unit was adjusted against the residential unit and it is so recorded in the annexure 1 to the said agreement, wherein, the OP confirmed that a sum of Rs.10,86,565/- (after adjusting interest payable to the complainant, assured Return and service tax) were adjusted against residential unit booked by the complainant. The Complainant has also paid a sum of Rs.42,248/- towards service tax towards the unit.  Complainant further submits that as per clause 8.1 of the agreement, the possession of the unit was to be delivered to the complainant on or before expiry of 30 months from the date of execution of the said agreement i.e. by 18.01.2020, but there was no progress on the project site since January 2019 and OP officials kept assuring her to continue with the project and also that they will be able to deliver the project within time. Due to lock down in March 2020, on account of COVID breakdown the complainant could not keep track of the progress of the project due but in August 2021, the complainant visited the project site again and found the same structure as she found it in January 2019. The complainant enquired through email, dated 02.09.2021 and 14.10.2021 but such queries were not responded by OP and the legal notice dated 28.12.2021 was sent to OP calling it to pay the sum of Rs.11,28,813/-.  Not getting any response from OP, the complainant visited the office of the OP in March 2022, where the officials of OP again assured the complainant that the construction work on the project site would start soon. Complainant submits that OP has failed to start the construction work on the project site even after more than four and half years from the date of execution of the builder buyer agreement and has taken the hard earned  money of the complainant for its own advantage, which act of the OP clearly amounts to deficiency in service as well as unfair trade practice and the complainant has made to suffer a lot of mental harassment due to unprofessional, illegal, unwarranted and unjustified act of the OP and claims for refund of the sum of Rs.11,28,813, i.e. the amount of Rs.10,86,565/- paid by the complainant plus service tax of Rs.42,248/- and duly acknowledged by the OP as per annexure-1 of the builder buyer agreement along with interest from 19.07.2017 till actual refund and compensation for his sufferings and litigation cost.
2. The notice was served upon OP, but he failed to appear before this commission and therefore vide order dated 18.11.2022 OP was proceeded ex-parte.
3. The complainant has filed his ex-parte evidence and filed the following documents in support of his case:-

1. The copy of the master data of OP, EX.CW1/1;
2. The copy of the builder buyer agreement dated 19.07.2017, EX.CW1/2;
3. The copy of applications from dated 12.01.2016 and  MOU dated 16.01.2016, EX.CW1/3;
4. Copy of the email dated 02.09.2021 and 14.10.2021, EX.CW1/4 and CW1/5 respectively;
5. Copy of the legal notice along with postal receipt, EX.CW1/6 and CW1/7;
6. copies of the returned envelope containing remarks refused and left, EX.CW1/8 and CW1/9;

4. This Commission has perused the documents available on record and heard the oral arguments of the party. The documents on records show that complainant has paid total sum of Rs.11,28,813/- which are duly acknowledged by the OP in annexure-1 of the builder buyer agreement. Since OP is proceeded ex-parte therefore, this commission has no opportunity to hear the version of the OP and the allegations put forward by the complainant remained uncontroverted and as such has been deemed to be admitted by the OP in the absence of any denial on the part of OP.
5. This is settled principle of law that the purchaser of a flat has a continuous cause of action if the builder failed to offer the possession to the buyer within reasonable time. This is also settled principle of law that delay in offering the possession amounts to deficiency of service on the part of builder and buyer cannot be compelled to take delivery of flat when there is delay in delivery of possession by the builder and in such cases, the buyer is entitled to refund the amount received along with compensation as held by Hon;ble Supreme Court in Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, CA.12238/2018, vide it’s judgment dated 02.04.2019.
6. In the present case, the OP has failed to handover the possession of the flat to the complainant as per builder buyer agreement and has further failed to offer the possession within a reasonable period, which delay clearly amounts to deficiency of service on the part of OP. In Fortune infra structure Vs. Trevor D’Lima, CA3533-34/2017 the Hon’ble Supreme Court has held that a person cannot be made to wait indefinitely for the possession of the flat allotted to him and he is entitled to seek refund of the amount paid by him along with compensation.
7. Therefore, considering facts and circumstances of the case and the judgements of the Hon’ble Supreme Court in this respect, this commission is of the considered view that the complainant has made out a clear case of deficiency of service on the part of OP and cannot be compelled to accept the possession whenever it is offered by the OP at it’s will and is legally entitled for the refund of the money deposited by him along with compensation. Therefore OP is directed to refund the amount of Rs.11,28,813/- deposited with him with interest at the rate of 6% p.a.  from the date of each deposit alongwith a compensation of Rs.25,000/- and a litigation cost of Rs.15,000/- to be paid to the complainant within 30 days from the date of receiving of the order from this commission, failing which the entire amount including the compensation and litigation charges shall carry an interest at the rate of 9% p.a. till its actual realisation by the complainant.
8. The copy of the order be supplied to the parties as per CPA rules 2019 and thereafter filed a consigned to record room.
9. The order contains 06 pages, each beers of a signature.
10. Announced on 22.08.2023.