District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.378/2020.
Date of Institution: 13.10.2020.
Date of Order: 15.06.2022.
Ravinder Wadhwa S/o Sh. J.D.Wadhwa, 29 Chander Lok Enclave, Pitampura, New Delhi – 110 034.
…….Complainant……..
Versus
M/s. Ferrous Infrastructure Pvt. Ltd., Regd. Office: R-13, Greater Kailash, New Delhi – 110 048.
IInd address:
Ist floor Block –B, Vatika Towers, Gold Course Road, Sector-54, Gurgaon – 122022 (India).
IIIrd address:
Site Office: Ferrous City, Sector-89, Faridabad.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh.Ankur Gosain , counsel for the complainant.
Sh. M.G.Dass, AR on behalf of opposite party.
ORDER:
The facts in brief of the complaint are that the complainant made a booking for a flat in the project of the opposite party namely “Ferrous City” in the year 2008. At the time of booking it was assured by the opposite party that the possession of the flat would be delivered to the complainant within 3 years. The payment of the said flat was agreed to be paid as per the construction linked plan. Upon such booking a flat bearing No. 1602, in Tower D (16th floor) having a super area of 1835 sq. ft. was allotted to the complainant vide allotment letter dated 09.07.2008 and thereafter the Buyer’s Agreement dated 14.08.2008 was executed between the complainant and opposite party and vide this agreement also the opposite party agreed to deliver the possession of the flat within 36 months from the date of said agreement of construction of the Tower in which the flat was located. As per the said agreement dated 14.08.2008 the said flat was allotted to the complainant for a basic sale price of Rs.25,69,000/- (+) additional charges. Out of the above mentioned amount the complainant had already paid to the opposite party a sum of Rs.14,03,775/- even before the execution of Buyer’s agreement dated 14.08.2008 on various dates against which the due receipts were issued by the opposite parties. The said sum of Rs.14,03,775/- was acknowledged by opposite party in clause 6(a) of the abovementioned agreement. The details of the payment of the abovementioned amount was as follows:
Receipt dated Amount (Rs.
30.05.2006 3,50,000/-
07.02.2007 3,50,000/-
15.04.2008 3,67,600/-
Thereafter the complainant had been making various payments as and when the same was demanded by opposite party against which the opposite party had issued due receipts. As such the complainant had already paid the entire basic sale price alongwith all the additional charges total amounting to Rs.35,59,000/- towards the above mentioned flat. The details of various payments made after the execution of buyers agreement dated 14.087.2008 were as follows:
Receipt date Amount(Rs.)
26.07.2008 3,76,175/-
29.12.2008 5,00,000/-
16.03.2009 67,200/-
14.03.2009 1,30,100/-
10.10.2009 7,28,025/-
22.12.2009 4,06,900/-
06.03.2014 2,63,000/-
As per clause 14 of the Buyers agreement dated 14.08.2008 the possession of the abovementioned flat was to be delivered to the complainant within a period of 36 months from the date of the execution of the said agreement or start of construction which means the possession was to be handed over by August 2011 but the opposite party failed to provide the possession of the said flat to the complainant instead still kept on asking for more payment. A time period of more than 8 years had already been elapsed but the site of the said project of the opposite party was lying abandoned and opposite party had failed to provide the possession of the said flat to the complainant till date despite receiving the entire sale consideration amount. The complainant had invested his hard earned money in the above said flat and since there was no progress at the site the complainant felt cheated and asked the opposite party various times to cancel the allotment of the complainant and refund the entire amount paid by the complainant towards the cost of the said flat but the opposite party paid no heed to the genuine request of the complainant. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) refund to the complainant an amount of Rs.35,39,000/- alongwith interest @ 18% p.a. from the date of deposit till its realization alongwith the damages of Rs.1,00,000/- on account of mental tension and harassment.
b) any other relief which this Hon’ble Commission deems fit and proper may also be awarded in favour of the complainant and against the opposite party.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the present transaction was covered by Flat-Buyers Agreement for the reason that the Flat Buyer’s Agreement was stated to be executed on 14.08.2008 categorically provides in Clause 47 & 56 that any dispute arising out of the said agreement should be referred/adjudicated by way of Arbitration. The only undisputed fact was that the complainant had made a booking with the opposite party for a flat in the project being developed by the opposite party in the name of “Ferrous City’ at Sector-89, Faridabad. Post execution of the necessary documents, a flat was allocated to the complainant. It should not be out of place to mention that the complainant had well understood the terms and conditions of the agreement before executing the same. Remaining all averments of the complaint were concocted and fabricated solely with the intent to gain extraneous and illegal benefits. Complainant was himself guilty of suppression very and suggestion falsi as complainant himself had concealed material information/facts. The complainant had not approached the Hon’ble Commission with the clean hands and had concealed material facts from this Hon’ble Authority. At the very outset, it was submitted that the project in question was situated at Sector-89, Faridabad was being developed by opposite party. After getting the land partitioned from the revenue authorities the opposite party obtained CLU from the Director, General Town & Country Planning Department, Haryana for development of the aforementioned project. After getting the license the flats/floors were offered for sale I n the said project. After the application made by the complainant for allotment of a flat, the complainant was allotted a unit being Nu,ber B-1602, Ferrous City, Sector-89, Faridabad, Haryana having a super area of 1835 sq. ft. for a basic sale price of Rs.25,69,000/- exclusive of additional charges. It was submitted that the complainant opted to pay the sale consideration in terms of the construction linked installment plan. Itr was further submitted that it was categorically stated in the said agreement that timely payments, in terms of the schedule of payments duly agreed upon by the parties was the essence of the said agreement and subject to such payments the possession of the said uni9t would be handed to the complainant. Further, the complainant had also agreed to comply with their terms and conditions of the said agreement and was fully aware that the non-payment/delay in making payment of any amount due to the opposite party, would give full authority and power to the opposite party to cancel the said agreement and forfeit the earnest money. The opposite party duly completed the construction of the tower in which the unit of the complainant was situate din year 2013 and had proceeded to handover possession to more than 180 allottees but the complainant did not take the possession because he did not want to make any further payments. Also in terms of the Construction Linked Plan, the opposite party issued several demand letters/notices informing the complainant for making the payments in tune to the construction linked payment plan in terms of the said agreement but the complainant failed ot make any payment despite all such repeated reminders. It was a matter of record that after some initial payments, the complainant did not pay any amount and paid some amount only when he was intimated in writing that his allotment would be cancelled if he further fails to pay the outstanding amount. The delay was attributed, on account of the delay in obtaining approvals from various statutory authorities, which time would be excluded from the period of completion of construction and therefore, falls within the ambit of Clause 15 of the said agreement. It was further submitted that the project was complete and application for O.C. was already applied in year 2016 and more than 180 allottees had already taken possession and more than 50 families were residing in the said project. Further some of the flat had also been given on rent by their respective allottees. Delay in grant of O.C. of the project had occurred due to the DTCP, Chandigarh who had failed ot comply with the order dated 22.04.2016. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party – Ferrous Infrastructure with the prayer to : a) refund to the complainant an amount of Rs.35,39,000/- alongwith interest @ 18% p.a. from the date of deposit till its realization alongwith the damages of Rs.1,00,000/- on account of mental tension and harassment. b)any other relief which this Hon’ble Commission deems fit and proper may also be awarded in favour of the complainant and against the opposite party.
To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Ravinder Wadhwa,, Ex.C1 – Allotment letter,, EX.C2(colly) – Flat Buyer Agreement, Ex.C3 - Price list & payment plan, Ex.C-4 to Ex.C12 – Receipts, Ex.C-13 – email.
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party, Ex.RW1/A – affidavit of shri MG Dass, A.R of M/s. Ferous Infrastructure Private Ltd., New Delhi, Ex.R/1 – Resolution Ex.R/2 – letter dated 23.01.2007,,Ex.R/3 – order passed by the Hon’ble Supreme Court of India in case titled Ashish Seth Vs. Govt. of NCT of Delhi & Ors., Ex.R/4 (colly) – order dated 02.12.2015 passed by the Hon’ble high Court of Punjab & Haryana at Chandigarh., Ex.R/5(Colly) – Status report by way of affidavit of Jitender Sihag, Chief Town Planner, Haryana, Department of Town and Country Planning Haryana, Chandigarh on behalf of opposite parties Nos.2 & 3, Ex.R/6 – order dated 24.4.2020 passed by Hon’ble Supreme Court of India in case titled Ashish Seth Vs. Sumit Mittal & Others,, Ex.R/7 – order dated 09.10.2020 passed by Hon’ble Supreme Court of India in case titled Ashish Seth Vs Sumit Mittal and others, Ex.R/8 (colly) – order dated 03.12.2020 passed by6 Hon’ble Supreme Court of India in case titled Ashish Seth vs. Sumit Mittal & Ors., Ex.R/9 - letter dated 01.03.2021 regarding renewal of licence No.34-36 of 2007 dated 23.01.2007, Ex.R/10 – order dated 26.11.2021 passed by Hon’ble Supreme Court of India incase titled Ferrous City Association Vs. Madhur Mittal & Ors., Ex.R/11 – letter dated 08.02.2022 Permission for assignment of Joint development & Marketing rights for an area measuring 10.27 acre to Ferrous Infrastructure Pvt. Ltd. out of total licenced area, Ex. R/12 – photographs, Ex.R/13 (colly) – letter dated 04.12.2008.
6. It is evidence from Ex.C1, A flat bearing No. 1602, in Tower B (16th floor) having a super area of 1835 sq. ft was allotted to the complainant vide allotment letter dated 09.07.2008. As per flat Buyer Agreement dated 14.08.2018 was executed between the complainant and the opposite party vide Ex. C2(colly) and vide this agreement also the opposite party agreed to deliver the possession of the flat within 36 months from the date of said agreement/start of the construction of the tower in which the flat is located. It is evident from Ex. C4 to C12 the complainant had paid the entire basic sale price alongwith all the additional charges total amounting to Rs 35,39,900/-. Receipt of Rs.2,63,000/- has not placed on record.
7. During the course of arguments, counsel for the complainant has placed on record statement of account for the period 01.03.2014 to 31.12.2014 showing that an amount of Rs.2,63,000/- has been withdrawal by the opposite party – Ferrous. As per clause 14 of Buyers agreement dated 14.08.2018 the possession of the abovementioned flat was to be delivered to the complainant within a period of 36 months from the date of the execution of the said agreement or start of construction which means the possession was to be handed over by August, 2011..
8 After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite party because the allotment letter was given to the complainant in 09.07.2008 and he has waited for more than 8 years to see the project to be completed and offer of possession of the allotted plot to him. So that unilateral clause about the cancellation by the allottee debar him from seeking refund is not binding in view of the ratio of laid down in the following cases:
1) Ram Vilas “Sharma & 23 others Vs. M/s. Gold Souk Infrastructures Private Ltd. in consumer case No. 421 of 2018 passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi referred the authority passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II(2019) CPJ 29 (SC)……….In the circumstances, we are of the view that the orders passed by the SCDRC and by NCDRC for refund of moneys were justified.”
ii) Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the Hon’ble Supreme Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him alongwith compensation. The complainant had been waiting for completion of the project in which allotted unit is located for more than six years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the refund of the amount deposited with the opposite party besides interest and compensation.
9. Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. As per law laid down by the Ld. Supreme Court in Supertech case, rate of interest should be given @ 9% p.a. on the date of deposit in case of refund. Opposite party is directed to refund the deposited amount to the complainant with compensation in the form of simple interest @ 9% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 15.06.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
