Haryana

StateCommission

CC/67/2018

ANIL KUMAR GOYAL - Complainant(s)

Versus

M/S JINDAL REALTY LTD. - Opp.Party(s)

ANIL KUMAR SHARMA

13 Jun 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.67 of  2018

Date of the Institution:09.02.2018

Date of Decision:    13.06.2022

 

Anil Kumar Goyal S/o Sh.Ram Avtar Goyal R/o 1011, Neel Kanth Apartment, Plot 49, Sector 13, Rohini, Delhi 110085

                                                                   .….Complainant

Versus

1. Jindal Realty Limited, Sector-35, Sonepat Narela Road, Sonepat, Haryana 131001 through its authorized officer/Director.
2. Rajiv Kumar, Director of Jindal Reality Private Limited, M-2/D10, Jhule Lal Flats, MIG, M-2 Pitampura, New Delhi.
3. Vivek Aggarwal, Director of Jindal Reality Private Limited, A-303, GH-8, Prerana, CGHS, Sector 56, Gurgaon (Haryana) 122003.

                                                          .….Opposite Parties

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Mr.A.K.Sharma, Advocate for the complainant.

Mr.Drupad Sangwan, Advocate for the Opposite Parties.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint  are that On 1401.2013, he (complainant) applied for independent floor bearing No.56, Block No.B, type Woodland-1, Floor Ground for basic sale price of Rs.39,49,000/- inclusive of EDC and IDC with the opposite parties.    He was bound to pay Rs.50,000/- on account of club membership charges.  An amount of Rs.4,07,102/- on account of booking amount was paid. At the time of booking of apartment, it was assured by the ops that possession would be handed over to him within 24 months from the date of execution of the buyers agreement.  In pursuance to the application dated 14.01.2013, an allotment letter dated 25.02.2013 was issued  and OPs allotted flat bearing No.B-56, Ground Floor in his name.  on 30.07.2013, a floor buyer agreement was executed between him and OP No.1.  It was agreed that floor buyer agreement would be effective from 01.04.2013.  He has made total payment of Rs.31,03,419/- out of Rs.39,49,000/- to the OPs.  The possession would be handed over positively by last quarter of 2017.  As per the buyer’s agreement, the possession would be handed over within three years (36 months), but, OPs failed to hand over the possession.  He requested the OPs to refund the entire amount deposited with the OPs for the allotment of aforesaid floor alongwith interest @ 18% as per clause 38.3 and clause 38.4 of the floor buyer’s agreement.   He made various representations  vide letter dated 20.09.2017, 26.09.2017, 30.10.2017 and 05.10.2017 for seeking refund of the amount but the OPs failed to act upon the aforesaid representations. Thus there was deficiency in service on the part of the OPs.

2.                Notice of the complaint was issued against the O.Ps. and the written statement was filed, wherein the O.Ps.  alleged that complainant was not a consumer rather has invested his money for commercial gains in the said project.  It was admitted that  OPs allotted independent floor bearing number 56, Block B to the complainant.  It was denied that they ever agreed to hand over possession to the complainant within 36 months from the date of execution of buyers agreement. However, regarding time period of delivery of possession, it is clearly stipulated in the buyer agreement under clauses 28 and 47.   It was specifically denied that at the time of signing of the agreement it was agreed to be made effective from 01.04.2013, however the buyer agreement that was signed between parties on 30.07.2013. It is denied that terms of buyer agreement has been breached by the OPs. Thus there was no deficiency in service or any sort of unfair trade practice on the part of the O.Ps.

3.                When the complaint was posted for recording evidence of the parties, complainant-Anil Kumar Goyal in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-11 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps. has also tendered the affidavit of Mr.Sachin Kumar S/o Jugmandra Singh authorized representative Ex. RA and further tendered the documents Ex.R-1 to R-8 and closed its evidence.

5.                The arguments have been advanced by Mr.A.K.Sharma, learned counsel for the complainant as well as Mr.Drupad Sangwan learned counsel for the opposite parties.  With their kind assistance entire record including documentary as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averments taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited, alongwith the interest? 

7.                While unfolding the arguments, it has been argued by Sh. A.K.Sharma, the learned counsel for the complainant that as far as the factum of execution of the buyers agreement  is concerned it is not in dispute.  It is also not in dispute that the basic price of the floor was Rs.39,49,400/- out of which a total sum of Rs.31,03,419/- had already been paid by the complainant to the  O.Ps.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession of the floor, the possession complete in all respect was to be delivered to the complainant by the O.Ps.  within 36 months subject to some reservations.  The period within which, the possession of the floor was to be delivered had already expired despite complainant depositing the amount of Rs.31,03,419/-.  In these circumstances the complainant had no other option, but, to seek the refund of the amount alongwith interest, which he had already paid. 

8.                On the other hand, it has been argued by Mr.Drupad Sangwan, the learned counsel for the O.Ps. that complainant has not paid the installment as per the repayment schedule.  There was a delay in making the payment of the amount.  It is true that the documents were executed by the parties, which includes the buyers agreement, giving out all the terms and conditions for allotment of the floor, for payment of the installments, charging the interest for delayed payment and for delay in delivering of possession.  Since, there were some unavoidable circumstances and certain reasons which were beyond the control of the O.Ps. and the possession of the flat could not be delivered to the complainant in time.  However on one pretext or the other the possession was not delivered and now by taking the shelter of this Commission, the complainant seeks refund of the amount and infact this amount has already been invested for making all developmental activities.  As per terms and conditions of the agreement, the O.Ps. was bound  to deliver the possession of the apartment within 36 months.  The answering O.Ps. has not committed any breach of agreement. The complainant has no right to demand the refund as builder has not refused to complete the developmental work and offer possession of floor in question to the complainant.    The answering O.Ps. will offer the possession of the flat to the complainant after its completion.   Thus, the complainant was not entitled for the refund as prayed for.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, floor was purchased by the complainant for a cost of Rs.39,49,000/- against which an amount of Rs.31,03,419/-  had been paid.  Buyer agreement  is also not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 36 months in all respects complete  subject to some reservation.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 9 years had expired, the possession of the floor has not been delivered by O.Ps.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps.   It is the normal trend of the developers/O.Ps. that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly,  the delivery of possession or completion of the project is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite parties  and thus, complainant is well within his legal rights to get the refund of the amount of Rs.31,03,419/-  (Thirty One lac Three thousand four hundred and nineteen Only)   which he had already deposited with the O.Ps.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.31,03,419/-  (Thirty One lac Three thousand four hundred and nineteen Only)   alongwith interest @ 6%  per annum from  May, 2016 till realization.   In case, there is a breach in making payment within the stipulated period  of  30 days, in that eventuality, the complainant would further be entitled to get the interest @ 9% per annum, for the defaulting period.   The complainant is also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/-  (Twenty Five Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

 

June 13th, 2022     Suresh Chander Kaushik,                   S.P.Sood

                             Member                                              Judicial Member                                 

S.K.(Pvt.Secy)