Delhi

New Delhi

CC/426/2016

Anju Sharma - Complainant(s)

Versus

M/s Falcon Reality Services Pvt Ltd - Opp.Party(s)

27 Oct 2022

ORDER

 

                                     CONSUMER DISPUTES REDRESSAL COMMISSION-VI(DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC. 426/2016

In the matter of:

Ms. Anju Sharma

D/o Sh. Suresh Chand Sharma

R/o 480, Gali Sheesh Mahal

Bazar Sita Ram,

Delhi-110006                                                                    ....COMPLAINANT

VERSUS

M/s Falcon Realty Services pvt. Ltd.

Having its registered office at-

801, 8^th Floor, New Delhi House,

27, Barakhamba Road,

New Delhi.                                                                 .....OPPOSITE PARTY

Quorum:

        Ms. PoonamChaudhry, President

          Shri.Bariq Ahmad, Member

          Ms. Adarsh Nain, Member

 Date of Institution :12.07.2016

 Date of Order   : 27.10.2022

O R D E R

ADARSH NAIN, MEMBER

1. The present complaint has been filed under section 12 of the consumer protection act, (in short CP Act) by the complainant against the Falcon Realty Services Pvt. Ltd, opposite party (in short OP).
2. Briefly stated facts of the complaint are as follows;

1. That the Complainant requested for booking a residential unit in the project of OP namely Akhil Bhartya Awasiya Yojna at Global Eco city, NH-8, NCR and paid booking amount of Rs. 25,000/- with the OP and accordingly, the complainant was allotted an apartment Silver S-1 vide allotment letter dated 15.01.2012. The total cost of the apartment was fixed at Rs.6, 52,375/- to be paid as per the payment plan annexed with the letter of allotment and as per clause 19(1) of the letter of allotment, the possession of the flat was to be delivered to the complainant within 30 months from the date of construction.
2. It is averred that as per the payment plan annexed with the allotment letter, the complainant had already deposited an amount of Rs. 3, 14,652/- as against the total cost of the flat i.e. 6, 52,375/-.
3. It is alleged that as under the terms of allotment letter, the OP had to deliver the possession within 30 months from the start of construction.  Despite the aforesaid payment, there was no information as to the delivery of possession of the unit to the complainant. On the contrary, the OP raised demand for payment for payment of service tax.
4. It is further stated that upon receipt of aforesaid demand, the complainant visited the site in July, 2014 to find out the progress of the project and shocked to see that there was no development at site. The complainant accordingly raised protest against the demand by the OP but did not get any response from the OP. Subsequently, vide her reminder dated 28.07.2014, the complainant asked for the refund of the amount paid by her.
5. It is further stated that when no response was received from the OP, the complainant served a legal notice calling upon OP to refund the amount with interest.
6. It is further stated that on the assurance of OP to deliver possession on or before October, 2014, the complainant booked the flat while it was a false assurance as the OP had no sufficient means to complete the project. Hence the complainant fell victim of fraud by OP and suffered mental agony.
7. Hence, the complainant filed the present consumer complaint for the redressal of her grievances, praying for refund of amount of Rs.3, 14,652 with interest at the rate of 24% from the date of such deposits till the date of payment as well as for compensation for mental harassment and cost of proceedings.

3. On service of notice, the OP entered their appearance but later on was proceeded ex parte vide order dated 03.07.2017.
4.  In an appeal preferred by OP against above order, Hon’ble State Commission vide order dated 07.12.2017, set aside the impugned order subject to payment of cost of Rs.10,000/- to the complainant by the OP and the OP was allowed to file written statement before this commission and this commission was directed to proceed further in accordance with law.
5. Accordingly, the OP filed their written statement before this commission after having paid the cost of Rs.10, 000/- to the complainant. In their reply, OP raised the preliminary objections that the complainant failed to make the payment in contravention of the terms and conditions of the allotment, therefore, the complaint is liable to be rejected.
6. The complainant filed his rejoinder to the reply of OP and denied all the averments and contentions made by OP stating them to be wrong.  
7. To prove her claim, the complainant, along with the complaint, filed her affidavit and photocopies of documents i.e. Application, Allotment letter dated 15.01.2012, Cheques and Provisional Receipts, Detailed demand sheet, Cheque dated 29.10.2011, and Provisional receipt dated 09.12.2011, Copy of letter  dated 28.07.2014 and its postal receipt and copy of legal notice.
8. Despite several Opportunities given, the OP did not file their affidavit in evidence and vide order dated 17.01.2020, defense of OP was struck off.
9. The complainant has filed his affidavit in evidence, documents and written arguments. The OP failed to file their affidavit in evidence timely and documents to prove the contentions made in written statement to the complaint.
10. We have heard learned counsel for the complainant and have gone through the written arguments submitted on her behalf and record of the case carefully.
11. The sum and substance of the complainant’s case is that the opposite party failed to complete the project and deliver possession of the flat in question to the complainant within the stipulated period which was 30 months from the start of construction despite having received approximately half of the sale price from the complainant. Instead, the OP raised demand for payment of service tax.
12. It is further alleged that the complainant booked the aforesaid unit on the assurance of the OP to deliver possession on or before Oct, 2014 which was a false assurance and the complainant fell victim of fraud played by the OP as the OP did not have the sufficient means to complete the project. As result, the complainant had to pay huge amount of rent on accommodation which caused severe mental agony beside a financial loss.
13. The thoughtful perusal of the documents relied upon the complainant reveals that as per the terms and conditions attached with the Allotment letter, the OP undertook to deliver possession within 30 months from the start of the construction and as per the demand sheet, the development work at the site was to be started in October, 2011.  The condition no.19 (II) of allotment letter and demand sheet confirm this fact.  Accordingly, the OP was to deliver the possession on or before October, 2014 while the OP had failed to do so.
14. On perusal of the record, it is also established that the complainant had already paid an amount of Rs.3, 14,652/- against the total cost of Rs.6,52,375 till Oct,2011 The copies of receipts to this effect have been filed by the complainant in support of his claim. Despite the receipt of approximately half of the sale price of the unit in question, the OP did not deliver the possession.
15. The complainant requested the opposite party to deliver possession of the flat, but to no effect. The OP did not furnish any information regarding delivery of possession and instead served a further demand of payment of service tax. They kept on utilizing the amount deposited by the complainant for their own use, without bothering to complete the project and to deliver possession of the unit to the complainant.
16.  It is to be noted that the  Apex Court in the matter of Fortune Infrastructure and Anr versus Trevor D'lima and ors as reported in II[2018] CPJ 1 (SC) held as under:

“Person cannot be made to wait indefinitely for possession of flats allotted to them. They are entitled to seek refund of amount paid by them, alongwith compensation.”

17.   As it is settled position of law that the allottees have a right to ask for refund if the possession is inordinately delayed and in the present matter, it is established that OP has not been able to complete the project in time and deliver the possession of property in question to the complainant in time as per the allotment letter. Consequently, a valuable right has arisen in favour of complainant by efflux of time and failure of OP to deliver possession within stipulated period under the contract.
18.  From the unrebutted averments and evidence placed on record by the complainant, it is proved that there was a valid subsisting contract between the complainant and the OP and OP committed breach of terms and conditions of said contract leading to deficiency of services. The submissions of the complainant supported with affidavit have remained unrebutted as the OP was proceeded ex parte.  Considering that, the contentions of the complainant are to be believed to be true. Since the OP has neither delivered the flat booked by the complainant nor refunded the amount to the complainant, so we are of the view that OP is guilty of deficiency in service.
19. In view of the unrebutted testimony of the complainant regarding deficiency of services, we are of the considered view that OP miserably failed in discharging their obligation under a valid and subsisting contract. 

 

20. We, thus, hold that OP insurance company is guilty of deficiency of services, and direct the OP to refund the amount of Rs.3, 14,652/- (Rs. Three Lacs, fourteen Thousand, Six hundred and fifty two only) paid by the complainant with 9% simple interest p.a from the date of the deposit till the date of realization within 4 weeks of the date of receipt of this order, failing which OP will be liable to pay interest @ 12% simple interest p.a. for the delayed period. A sum of Rs. 25,000/- is awarded  towards compensation and litigation expenses.

Announced in open forum on 27.10.2022

A Copy of this Order be supplied to all the parties free of cost.

The order be uploaded on www.confonet.nic.in

File be consigned to record room alongwith a copy of order.

 

 

POONAM CHAUDHRY

                                                                                              PRESIDENT

                              BARIQ AHMAD                                                                                     ADARSH NAIN

                                MEMBER                                                                                             MEMBER