Delhi

South Delhi

CC/423/2017

MR JITENDER ARORA - Complainant(s)

Versus

M/S EARTHCON CONSTRUCTIONS PVT LTD - Opp.Party(s)

30 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

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

(Behind Qutub Hotel), New Delhi- 110016

 

Case No.423/2017

 

1. Jitendra Arora
2. Ms. Kamni Arora

 

Both At:

 

H. No.163, Nimri Colony,

Ashok Vihar, Phase-IV,

Delhi-110052.

….Complainant

Versus

1. M/s Earthcon Constructions Pvt Ltd.

Registered Address:

D-226 Ground Floor,

Defence Colony,

New Delhi-110024

 

Also at:

B-11, Sector-1, Noida

Uttar Pradesh-201301.

 

Also at:

J-25A, Sector-18, Noida,

Uttar Pradesh-201301

 

 

2. Mr. Tanweer Obaid

Director

M/s Earthcon Constructions Pvt Ltd.

Registered Address:

D-226 Ground Floor,

Defence Colony,

New Delhi-110024

 

Also at:

B-11, Sector-1, Noida

Uttar Pradesh-201301

 

Also at:

J-25A, Sector-18, Noida,

Uttar Pradesh-201301

 

3. Mr. Mohd. Shoaib

Director

M/s Earthcon Constructions Pvt Ltd.

Registered Address

D-226 Ground Floor,

Defence Colony,

New Delhi-110024

 

Also at:

B-11, Sector-1, Noida

Uttar Pradesh-201301

 

Also at:

J-25A, Sector-18, Noida,

Uttar Pradesh-201301

 

4. Shadab Khan

Director

M/s Earthcon Constructions Pvt. Ltd.

70-T T/F 7, Secter DDA Flat,

Jasola, Sarita Vihar,

New Delhi-110025

 

5.     Naved Ahmed

          Director

          M/s Earthcon Constructions Pvt Ltd.

          70- T, Sector 7, Jasola Extn.,

Delhi-110025

 

        ….Opposite Party

    

 Date of Institution    :   18.12.2017    

 Date of Order            :   30.01.2023    

 

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

 

Member: Kiran Kaushal

 

1.         On the strength of his complaint, Complainant seeks directions to OPs to pay jointly and severally a sum of Rs.6,13000/- @18% interest per annum. Additionally it is prayed for directions to OP to pay Rs.2,00,000/- towards harassment, agony and litigation cost to the Complainant.

2.      M/s Earthcon Construction Pvt Ltd, hereinafter referred to as OP-1 is a company engaged in business of real estate and OP-2 to OP-5 are the directors,  managing the day to day affairs of OP-1 Company. OP-6 is the broker/agent of OP-1.

3.      Complainants, upon representations/promises made by OPs booked a flat with OP-1 admeasuring 550 sq ft. and paid an amount of Rs.1,00,000/- as advance payment on 18.10.2012 drawn on HSBC Bank. OP-1 acknowledged the same. OPs vide letter dated 09.01.2013 informed the Complainant that flat/ residential unit no. I-06 on ground floor in Block-I was allotted to him at the basic cost of Rs.19,80,000/-. Payment was to be disbursed to OP as per the construction linked plan therefore the Complainant paid Rs.1,50,000/- each, vide cheques dated 12.02.2013, 07.05.2013, 05.07.2013 and the last payment made by the Complainant was of  Rs.63,000/- on 04.01.2014,amount  totalling to Rs. 6,13,000/- Complainant made the payments only on the assurances given by OP that construction at the site had commenced and the 2nd instalment of 20% of consideration was to paid at the  time of commencement of construction.

4.      Subsequently an agreement dated 20.07.2013 was entered between the Complainant and OPs and as per the said agreement, construction of the flat was to be completed by OPs within 24 months from the date of commencement of construction. It is stated that during various visits to OP’s office, Complainants were assured that all necessary approvals have been obtained and construction work had started. However, when the Complainants visited the site in the month of July,2014, they were shocked and surprised to see that the construction site was lying untouched. Complainant immediately visited the office of OP and enquired about delay in commencement of construction at the site to which the OPs failed to give any satisfactory explanation.     

5.      To utter dismay of the Complainants, OPs arbitrarily changed their earlier allotment of flat at ground floor to a flat on the first floor and the same was informed to the Complainant vide letter dated 11.06.2015. Feeling cheated, Complainants requested OPs to refund the amount paid by them and it is stated that OPs assured that as per policy of company entire sum of Rs.6,13,000/- alongwith interest @18% p.a shall be returned within period of six months by OPs. However, no amount whatsoever was refunded by OPs.

6.      In February, 2017 representative of OP-1 informed Complainant No.2 that the project in question had been scraped by OP-1 and OP-1 offered the Complainant to purchase a residential unit in any of the other projects of OP-1 at Bhowali or at Greater Noida but the Complainant refused the same having lost faith in OPs. In the month of February, 2017, OP-1 called the Complainants alongwith their original papers and  informed the Complainants that the amount collected from the Complainants shall be refunded by OPs subject to deduction of 20% of the amount and that too after  03 months of deposit of original documents by the Complainant. OP-1 refused to give any acknowledgement of the same. Aggrieved by the arbitrariness and high handedness of OP, Complainant approached this commission for redressal of his grievance.

7.      OPs right to file reply was closed on 19.09.2018 as OPs failed to file the written statement within stipulated period. Evidence is filed on behalf of the Complainant, written arguments are filed on behalf of the parties.

 

8.      Admittedly, Complainant booked a flat in the project ‘Himalayan State’ of OPs vide agreement dated 20.07.2013. Receipt of the payment totalling to Rs.6,13,000/- are appended from page 26 to 30. It is seen that the first payment of Rs.1,00,000/- was made by the Complainant on 09.01.2013 and the last payment of Rs.63,000/- was made by the Complainant on 04.01.2014. A letter dated 11.06.2015 is appended at Page 32 wherein it is seen that OP company changed the location of the flat of the Complainants from Block-I to Block-F as per clause H of the Flat Buyer Agreement.

9.      It is seen from the Flat Buyer Agreement that as per the Clause 3(i), the company was to complete the construction of the flat within 24 months from the date of the commencement of the construction plus six months grace period, subject to force majeure conditions and/or subject to reasons beyond the control of the company. It is also seen from the records that despite putting in appearance in the Commission and collecting the complaint copy OPs chose not to file their written statement, hence  right to file reply of OP was closed.

10.    As no written statement has been filed on behalf of OP, no force majeure conditions and/or reason beyond control of the company have been brought to our notice.  Averments made in the complaint have remained unchallenged and uncontroverted therefore is no reason to disbelieve the version of the Complainant. It thus stands established that OPs failed to deliver possession of flat to the Complainants within the agreed time or even thereafter. Consideration towards the cost of flat ie. Rs. 6,13,000/- paid by the Complainants has not been returned by the OPs despite failure to even commence construction.

11.    OP has filed their written arguments making averments on facts and law. Since OP’s written statement is not on record, averments on facts cannot be looked into. The only legal points tenable are whether this commission has territorial jurisdiction to entertain the present complaint and the second is that parties are bound by the contract. As regards the first contention of territorial jurisdiction, our Learned predecessors vide order dated 3.1.2018 had dwelled upon the said issue before giving Notice to the Opposite Party and had entertained the complaint. Regarding the second point, we are of the view that OPs cannot take benefit of clause 3(ii) of the agreement which restricts the OP’s liability @ Rs. 5 per sq ft per month for the period of delay. The present is not a case merely of delay, it is a case of absolute failure to build and deliver the flat. OPs are not allowed to arbitrarily change the terms of contract without the consent of the Complainant and force him to accept the flat at an alternate location.

12.    As per the aforesaid discussion we hold OP to be deficient in service and OP is directed to refund the amount paid by the Complainant  i.e Rs.6,13,000/- with interest @10% p.a within three months from the date of filing of the complaint, failing which OP shall pay interest @ 15% p.a. till realization.

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