Case No.CC/560/2014

Date of Institution:-13.08.2014

Order Reserved on :- 21.03.2024

           Date of Order :-02.05.2024      

IN THE MATTER OF:

Shri Mahendra Singh

R/o House No. L-62,

New Palam Vihar,

Phase-I, Gurgaon – 122017

Haryana.

          …..Complainant

VERSUS

M/s. Eminent Infradevelopers Pvt. Ltd.

Through its Managing Director,

A-1/112, Safdarjung Enclave,

New Delhi – 110029.

..…Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 against Opposite Party (in short OP) alleging deficiency of service. Brief facts of the case are that the complainant has booked a studio apartment bearing no. K-401-A, Fourth Floor, Block-K, Area 500 Sq. Ft. and the complainant has paid Rs.2,00,000/- (Rupees Two Lakh) vide cheque no. 174834 dated 26.09.2012 drawn on Central Bank of India, Gurgaon.  The OP has issued receipt bearing no. 3075 dated 26.09.2012 against the said payment.  The receipt is attached as Annexure CW/1.  The OP has assured the complainant that construction work of the project is under progress and the same will be completed by March, 2013.  It was further told to the complainant that the flay buyer’s agreement will be executed within 30 days from the date of application.  The total consideration which was required to be paid for the flat was Rs.20,50,000/- (Rupees Twenty Lakh Fifty Thousand).  In October, 2012, the complainant visited to the construction site of the OP, he was surprised to know that the progress of the construction of the flat at a very slow pace and quality of construction was very poor. The complainant has noticed from the site of construction that the possession of the said flat would not be able to him till March, 2013.  The OP has not given copy of flat buyer’s agreement even after passing of 30 days as promised by the OP.  The complainant has requested for the same to OP but the OP has assured the complainant that the flat buyer’s agreement copy will be available soon but the same has not been given to the complainant. The complainant has requested the OP to refund his deposited amount for booking of flat and the OP has assured to refund his amount in December, 2012.  In January, 2013, the complainant has again requested the OP for refund of his deposited amount but no action was taken by the OP.  The complainant was shocked to see the reply of the OP in which his request for refund had been denied on the ground that as per the agreement the earnest money is not refundable whereas no such agreement had been executed between the parties.  The agreement is attached as Annexure CW/2.The complainant written a letter to the OP to return his money but the OP has not refunded his deposited money. The OP has willfully kept the money of the complainant for so long and used it for gain in the business. This act on part of the OP amounts to deficiency in service and unfair trade practice.  The complainant has prayed for refund of his deposited money Rs.2,00,000/- (Rupees Two Lakh) alongwith interest @ 18% p.a. from date of payment alongwith Rs.2,00,000/- towards mental agony and harassment and Rs.25,000/- (Rupees Twenty Five thousand) as litigation charges.
2. Notice of complaint was served to OP. The OP has filed his reply and taking several preliminary objections thatthe complainant has applied for allotment for a studio apartment/flat area measuring 500 sq.ft. in the project of OP namely “Arogayam” located at Roorki, Haridwar NH-58, opposite Crystal World, Bhadrabad, Haridwar and the OP has allotted studio type flat bearing no. 401-A, situated at 4^th floor, Block K in the said project.  In the application dated 26.09.2012, it is clearly mentioned in para 6 that in case allottee opt for cancellation or withdrawal of allotment and non-payment of basic sale price then the earnest money shall be liable to be forfeited. The OP has stated that the complainant is total misleading as he has concealed the material facts as the complainant deliberately has not annexed the complete copy of terms and conditions of flat buyer’s agreement dated 26.09.2012.  The possession of flat cannot be handed over to the complainant without clearing the payment towards the basic sale price and interest on delayed payment. In view of the facts and submissions, the complaint may be dismissed.
3. In response to the written statement, the complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
4. Both the parties have filed affidavit of evidence as well as written arguments in support of their respective case.
5. On 21.03.2024, the case was listed for arguments and none was present for complainant.  We have heard the arguments from OP and the case was reserved for order.
6. We have carefully considered the material on record and thoroughly perused the documents placed on record by the complainant.
7. It is the case of complainant that he had booked a studio apartment bearing no. K-401-A, Fourth Floor, Block-K, Area 500 Sq. Ft. and the complainant has paid Rs.2,00,000/- (Rupees Two Lakh) vide cheque no. 174834 dated 26.09.2012 drawn on Central Bank of India, Gurgaon.  The OP has issued receipt bearing no. 3075 dated 26.09.2012 against the said payment.  The OP has assured the complainant that construction work of the project is under progress and the same will be completed by March, 2013.  It was further told to the complainant that the flay buyer’s agreement will be executed within 30 days from the date of application.  The total consideration which was required to be paid for the flat was Rs.20,50,000/- (Rupees Twenty Lakh Fifty Thousand).  In October, 2012, the complainant visited to the construction site of the OP, he was surprised to know that the progress of the construction of the flat at a very slow pace and quality of construction was very poor.  The complainant has noticed from the site of construction that the possession of the said flat would not be able to him till March, 2013.  The OP has not given copy of flat buyer’s agreement even after passing of 30 days as promised by the OP.  The complainant has requested for the same to OP and the OP has assured the complainant that the flat buyer’s agreement copy will be available soon but the same has not been given to the complainant. The complainant has requested the OP to refund his deposited amount for booking of flat and the OP has assured to refund his amount in December, 2012.  In January, 2013, the complainant has again requested the OP for refund of his deposited amount but no action was taken by the OP.  The complainant was shocked to see the reply of the OP in which his request for refund had been denied on the ground that as per the agreement, the earnest money is not refundable whereas no such agreement had been executed between the parties.  The complainant written a letter to the OP to return his money but the OP has not refunded his deposited money. The OP has willfully kept the money of the complainant for so long and used it for gain in the business. It is the case of the complainant that he has paid Rs.2,00,000/- to the OP as per terms and conditions but despite payment the possession of flat was not handed over to him. It is his case that when he did not get possession of flat, he asked for refund of his deposited money but the same has not been refunded by the OP despite repeated requests. It is the case of this conduct of OP amounts to deficiency in service and unfair trade practice. The OP has not denied the booking of the flat in their written statement.  It is also stated that they cannot refund the money as the complainants have not paid due installments. The OP has stated that the case of a contractual in nature and this case should not come to the Consumer Commission for redressal. As far as the plea of Arbitrator clause between the parties is concerned, the same is not relevant as Section 3 and Section 100 CPC do not bar in filing of such complaint, despite having their Arbitration clause between the parties.  The OP has not refunded the money to the complainant, however these reasons are not relevant to the issue and the OP was under obligation to refund his booking amount as claimed by complainant. Non-delivery of possession of flat on receipt of money within a reasonable time amounts to deficiency in service and unfair trade practice.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512” is the authority on this point.

8. In the end, it is clear from the records that the complainant has paid money for the flat but the possession of the flat was not handed over to the complainant.  The OP has not refunded the deposited money to the complainant.
9. We are satisfied that this act on part of the OP constitutes deficiency in service and also unfair trade practice.
10. Accordingly, we allow the complaint and direct the OP to refund Rs.2,00,000/- (Rupees Two Lakh)to the complainant alongwth an interest @ 6% p.a. from the date of booking of flat alongwith Rs.25,000/- (Rupees Twenty Five Thousand) as lumpsum for mental agony and litigation charges within 45 days from the date of receipt of order failing which OP shall be liable to pay entire amount alongwith interest @ 9% p.a. till realization.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announce in the open Court on 02.05.2024.