Delhi

New Delhi

CC/480/2016

Sangeeta Khanna - 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. 480/2016

In the matter of:

Ms. Sangeeta Khanna

W/o Sh. Rajeev Khanna

R/o 68, Kanchanchanga Apartments,

Plot -90, Patparganj,

New Delhi-110092.                                                 ....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 on 14.09.2012, the Complainant booked a residential apartment in Gulmohar Woods at Global Eco city, Tehsil-Kotkasim, Rajasthan, a residential group housing colony being developed by the OP company.
2. That all the relevant documents were executed and the complainant in total paid/deposited a sum of Rs. 12, 61,487/- against the above booking.
3. It is alleged that the OP Company failed to start the construction at the site within the promised period of three years or even till date.
4. It is alleged that the OP company sent a letter dated 11.06.2015 to the Complainant  assuring that the  construction of the project was going to start in month of August, 2015 but no construction was started as promised or communicated.
5. It is further stated that as per clause 10 of Flat Buyer’s Agreement, flat was to be delivered to the buyer within 36 months from the date of agreement. Since the builder has been unable to offer/ failed to deliver possession of the booked flat within the promised time period, OP is liable to pay penalty @ Rs.5 per sq. ft. per month as written in clause 13 of the Flat buyer Agreement besides other penalties and interest.
6. In above circumstances, the complainants were constrained to cancel his booking to get back his deposited money with interest from OP, hence, a legal notice demanding his money was served.
7. It is further alleged that inspite of repeated demands for refund, the OP is avoiding payment on one pretext or other and the letter sent by the OP company to start the construction in August- Sept 2015 was just to hold the money of buyers as there was no progress in construction.
8. Hence, The complainant approached this commission and filed the present consumer complaint for the redressal of his grievances, praying for refund of amount of Rs.12, 61,487/- with interest at the rate of 18% from the date of such deposits till the date of payment as well as Rs. 1,00,000/-for compensation for mental harassment and Rs. 30,000/- as 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. As per order dated 11/01/2018 of this commission, the OP filed their written statement after having paid the cost of Rs.10, 000/- to the complainant which was imposed by Hon’ble State Commission vide order dated 07.12.2017 .
5. 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 complainants filed their rejoinder to the reply of OP and denied all the averments and contentions made by OP stating them to be wrong.  
7. To prove their claim, the complainants, along with the complaint, filed inter alia their affidavits and photocopies of documents i.e. Flat buyers’ agreement, allotment letter, Welcome letter, copies of cheques and Provisional Receipts of payment made, copy of legal notice and its postal receipt.
8. Despite several Opportunities given, the OP did not file their affidavit in evidence and vide order dated 17.01.2020, OP was proceeded ex parte.
9. The complainants have filed their affidavits 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 complainants 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 36 months from the date of the execution of the Flat Buyer’s Agreement.
12. It is further alleged that the complainants were constrained to cancel the booking as no construction was started within the period of 36 days as promised under the agreement. The letter sent by the OP to the complainant to start the construction in the month of August- Sept 2015 was just to hold the money of buyers as there is progress in construction.
13. The thoughtful perusal of the documents relied upon the complainant reveals that as per the terms and conditions attached with the Flat Buyer’s Agreement, the OP undertook to deliver possession within 36 months from the date of the execution of the said agreement. As per clause 10 of Flat Buyer’s Agreement, flat was to be delivered to the buyer within 36 months from the date of agreement and as per clause 13 of the said agreement, OP was liable to pay penalty @ Rs.5 per sq. ft. per month  besides other penalties and interest if fails to deliver within time.
14. As it is evident from the record that the agreement was executed on 20.06.2014 and the OP was unable to offer/ failed to deliver possession within 36 months/three years of the said date, the OP has committed breach of terms and conditions of the agreement.
15. On perusal of the record, it is noted that the complainant has stated to have paid Rs.12, 61,487/- in total while the complainant has filed the provisional receipts of amount Rs.10, 16,133/- only. Hence, it is established that the complainants had already paid an amount of Rs.10, 16,133/-.The copies of provisional receipts to this effect have been filed by the complainants in support of his claim.
16. 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. 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.
17.  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, along with compensation.”

18.   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.
19.  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. The submissions of the complainant supported with affidavit have remained unrebutted as defence of OP stood struck off.  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.
20. 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. 
21. We, thus, hold that OP insurance company is guilty of deficiency of services, and direct the OP to refund the amount of Rs.10, 16,133/- (Rs. Ten Lakhs, sixteen thousand, one hundred and thirty three 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. 50,000/- 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