Chandigarh

DF-I

CC/803/2022

RAJINDER KUMAR - Complainant(s)

Versus

M/S ERIKA INFRACON INDIA PVT LIMITED - Opp.Party(s)

VIKAS KUTHIALA

22 May 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/803/2022
Date of Institution	:	15.9.2022
Date of Decision	:	22/05/2024

 

1.   Rajinder Kumar S/o late Sh Darshan Kumar, aged about 51 years.

2. Poonam W/o Mr. Rajinder Kumar, aged about 44 years.

     Both Residents of House No B-6, IMTECH Housing, Sector 39-A, Chandigarh.

 

 

… Complainants

Versus

 

M/s Erika Infracon India Pvt. Limited having its office at GF-09, Plaza M-6, Jasola District Centre, New Delhi 110025 through its Managing Director.

.  … Opposite Party

 

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR SURESH KUMAR SARDANA	MEMBER MEMBER

                       

ARGUED BY	:	Sh. Vikas Kuthiala, Advocate for complainants (through VC) and complainant No.1 in person
	:	Sh. Dixit Garg, Advocate for OP.

Per surjeet kaur, Member

     Briefly stated the Complainants being allured by the marketing and advertisement as made by the OP for its project "World Trade Centre Chandigarh" at Plot No. 02, Block D, Aerocity, SAS Nagar, booked a Type 1 suit measuring 735 sqft at Unit No 1107, 11th Floor vide Agreement dated 22.11.2017 with the OP for their own personal use.  The total cost of the unit  was Rs.48,46,750/-  and the complainant has already paid an amount of Rs.32,98,382/- to the OP towards the payment of the unit in question. The Complainants opted for the Annexure A (Payment plan - II) for the said suite unit, as allotted to them by the OP, and made all the payments to the OP as per the Annexure A (Payment plan -II) within time and without any delay whatsoever, as and when demanded by the OP. As per the clause 4.5 of the Agreement dated 22.11.2017 (Exhibit C-1) the OP was liable to give possession of the suite unit to the complainants within 48 months of the said agreement i.e. on or upto 21.11.2021 but the same has neither been offered nor delivered possession of the same till date. It is averred that the OP was liable to give to the complainants a monthly return @ 11% on the payment of the 70% of the Unit price upto the offer of possession or December 2020, which ever was earlier. However till date there is no offer of possession of the Unit and  the OP not even started the construction work of Unit and the monthly return @ 11% on the payment of the 70% of the Unit paid upto the March 2020 instead upto December 2020. Thus, the Complainants are entitled to receive a monthly return of Rs. 30,235-00 per month alongwith interest @12% from the due date till actual date of payment @11% on 70% of the cost of the unit as per the Annexure A (Payment plan -II) in the Agreement dated 22.11.2017 from March 2020 to December 2020, a period of 9 months. Even as per clause 4.5 of the agreement the OP is also liable to pay amount of Rs.10.00 per sft. of the super area per month as compensation to the allottee if the OP is unable to handover the possession of the unit in question. It is alleged that the OP has failed  to handover the possession of the unit till date despite repeated requests made by the complainants. Alleging the aforesaid act of Opposite Parties deficiency in service and unfair trade practice on their part, this complaint has been filed.

2. The Opposite Party in  its reply stated that Complainants have got the allotment of Unit bearing No. 1107, 11th Floor, measuring 735 Sq. Ft. in Super area at basic Price of Rs.5750/- per Square Feet in Building/Tower named "Suites" in OP Project "WTC Chandigarh (Suites)" vide Developer Buyer Agreement dated 22.11.2017, only for the purposes of earning returns and not for self-use, as is duly admitted by the Complainants that they have got the returns till March 2020 as per the 'C.App Secure Payment plan' opted by the Complainants. Opposite Party has up till March 2020 paid a total sum of Rs.6,25,201/- towards pre-possession returns to the Complainants (i.e. Rs.1,56,301/- to Complainant No.1 and Rs.4,68,900/- to Complainant No.2).  As  per clause 4.5 of the Agreement stipulates the date of offer of possession of Unit for fit-outs only which itself shall be expiring on 22.11.2022 after considering the Force Majeure period at least 6 months as granted by the RERA authority for completion of the Project due to emergent circumstances created by the then prevailing COVID-19 which was declared Pandemic by WHO on 11.03.2022. The date of Completion of Project is however 31.12.2024 as is provided in the Registration Certificate issued by the Punjab RERA which now stands extended to 30.06.2025 in view of circular dated 28.10.2020. Thus, the instant complaint is premature one as the date of offer of possession for fit outs as well as possession is yet to arrive.  Denying any deficiency on its part all other allegations made in the complaint have been  denied being wrong.
3. Rejoinder was filed and averments made in the consumer complaint were reiterated.
4. Contesting parties led evidence by way of affidavits and documents.
5. We have heard the learned counsel for the contesting parties and gone through the record of the case.
6. It is evident from Annexure C-1 the copy of Agreement dated 22.11.2017  that the complainants booked  the unit in question with OP for their personal use. As per Annexure C-2 at page 36 the OP have already received an amount of Rs.34,13,765/- towards the sale consideration of the unit in question. As per agreement the OP had to  hand over the possession of the unit  in question by 21.11.2021 but till date the OP have shown their inability to hand over the possession to the complainants. As per page 30  the payment plan II  the allottee shall be entitled for a return of 11% on maximum 70% BSP which shall start post receipt of 70% BSP within 60 days from the date of booking. It is also mentioned in the said payment plan that the return shall be payable till offer of possession or 31^st December 2020 whichever is earlier.
7. As per para 7 of the complaint the OP paid the aforesaid delayed interest till March 2020 instead of upto December 2020, therefore, the complainant has sought monthly return of Rs.30,235/- per month for 9 more months i.e. till December 2020.
8. During the arguments the counsel for the complainant submitted that since the OP have utterly failed to handover the possession of the unit in question till date despite receiving 70% of the basic sale price of the unit in question, the complainants are not interested to take possession and want refund of their hard earned money paid to the OP.
9. From foregoing and discussion and keeping in mind the entire documentary evidence, we are of the opinion that certainly the OP have failed to handover possession of the unit in question to the complainant till date and the complainant cannot be made to wait for an indefinite period. The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018 has observed that a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with the compensation.
10. Further, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed: “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”
11.  The ratio of law laid down in the aforesaid cases is squarely applicable to the facts and circumstances of the instant case. Hence, the OP are liable to refund the deposited amount to the complainants with interest. However it is made clear that since the complainant has admittedly received return on the deposited amount till March 2020, hence, the complainant is entitled for interest on the deposited amount from April 2020 onwards only.
12. In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OP is directed as under:-

1. to refund Rs. Rs.34,13,765/-  with interest @9% P.A. w.e.f  April 2020 till realization.
2. to pay Rs.1,00,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

13.      This order be complied with by the OP within 45 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.
14. Pending miscellaneous application(s), if any, also stands disposed off.
15.      Certified copies of this order be sent to the parties free of charge. The file be consigned.

			sd/- [Pawanjit Singh]
			President
			Sd/-
			[Surjeet Kaur] Member Sd/-
22/5/2024			[Suresh Kumar Sardana]
mp			Member