Before the District Consumer Disputes Redressal Commission, Rohtak
Complaint No. : 687.
Instituted on : 05.12.2022.
Decided on :08.01.2024.
Sanjay Kumar S/o Sh. Amrit Singh previously residing at B-312/30, PreetVihar Colony, Rohtak Now Permanent resident of: B-13, Sector35, Suncity, Rohtak.
………..Complainant.
Vs.
- M/s JOP International Ltd., 45/77, Punjabi Bagh(W), New Delhi through its Director.
- M/s JOP International Ltd., Project JOP Palm Sector-28, Near Baba Mast Nath University, Rohtak through its Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER
Present: Sh.Sandeep Singh, Advocate for the complainant.
Sh.Pankaj Kaushik, Advocate for opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT :
1. Brief facts of the case as per the complainant are that the complainant had purchased a 3BHK flat from Manveer Singh s/o Sh. Yashwant Singh R/o H.No.1276-77/21, Prem Nagar, Rohtak, on 23.07.2011 giving an amount of Rs.300000/- to the first buyer Bhagat Singh, which was duly endorsed by the respondents in favour of applicant on receipt of previous owner vide receipt No.JOP/Palm/022. The complainant again paid the next demanded instalment on 06.05.2013 of Rs.389415/- vide cheque no.037818 dated 30.04.2013 and a receipt no.JOP Palms/022/01 was issued by the respondents in favour of complainant. The respondents had assured and promised that the condition related to the flat will be signed at the time of allotment which lateron proved to be false assurance and promised as the construction at the site was still not started. The complainant was constrained to stop the further payment as the development at the site was not moving as per the schedule nor the respondents are obeying the guidelines issued by the concerned department for development of housing project which were elaborated in the license sanctioned by the Town and country planning department. Complainant visited the site in the month of October 2015 and he was shocked to see negligible development with regard to the construction and requested the respondents to refund his deposited amount alongwith the interest. The complainant does not want to continue with the project and intends to withdraw from the project thus want to get his money refunded alongwith the prescribed rate of interest. Complainant also served a legal notice on the respondents but the opposite parties failed to refund his deposited money alongwith interest. Hence this complaint and it is prayed that opposite parties may kindly be directed to refund the deposited amount of Rs.689415/-alongwith interest @ 18% p.a. from the date of deposit, to pay Rs.50000/- as special penalty and litigation expenses to the complainant.
2. Notice of the present complaint was issued to the opposite parties who appeared and filed their written statement submitting therein that complainant purchased the prospective allotment/interest of one namely Manveer Singh, the same being acquired by making a payment of Rs.300000/-. It is further submitted that the complainant was duly informed vide offer letter dated 09.03.2013 that respondent had obtained license of the project in reference from Haryana Town Planning Authority and in order to secure the allotment of a 3BHK unit in the project in reference a further payment of Rs.389415/- is required to be paid by the complainant by 31.03.2013 out of the basic cost for the unit in question i.e. Rs.2675000/-. More notably, through the same letter, the complainant was undoubtedly informed that the complainant has already made a payment of Rs.300000/-. Vide the same letter the complainant was informed that such payment of Rs.389415/- was not mandatory to be paid and the complainant was given an option to seek refund, if he wishes not to take allotment in the project in reference, or wait for allotment in subsequent desirable project of the respondent/opposite party. But the complainant as per his own will, despite having an option to refund, paid an amount of Rs.389415/- on 30.04.2013 and showed his interest towards prospective allotment in the project in reference. Since the complainant was interested in allotment in the project in reference, opposite party vide its letter dated 09.04.2014 demanded the third installment as per the construction linked installment plan amounting to Rs.275766/-. But due to the reasons best known to the complainant, neither any payment was received, nor any communication thereof, was received in this regard. Opposite party also sent letters dated 23.04.2014, 12.05.2014, 14.06.2014 and 29.07.2014 requesting the complainant to pay the balance amount in order to ensure allotment of a desirable unit as per the complainant’s specification. But complainant failed to deposit the said amount. Consequently being left with no option, opposite party cancelled the prospective allotment and forfeited an amount of Rs.267500/- out of the total amount paid by the complainant as processing charges vide letter dated 15.10.2014. It is also submitted that complainant should be directed to take possession after clearing the dues and remaining charges as per the terms agreed between the parties. All the other contents of the complaint were stated to be wrong and denied and opposite parties prayed for dismissal of complaint with costs.
3. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, document Ex.C1 to Ex.C5 and has closed his evidence on 01.08.2023. On the other hand, ld. counsel for the opposite party tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R11 and closed is evidence on dated 03.10.2023.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present case it is not disputed that the complainant had deposited a total amount of Rs.689415/- with the opposite parties on account of installments of flat which is proved from the receipts Ex.C1 to Ex.C2 but the opposite parties have not given the possession of the flat to the complainant after availing sufficient time. The contention of ld. Counsel for the complainant is that the opposite parties have not started or completed the construction work even after passing so many years and are utilizing the hard earned money of the complainant, which amounts to deficiency in service on their part. On the other hand, contention of ld. counsel for the opposite parties is that complainant failed to deposit the due amount which is violation of terms and conditions of the agreement. Hence there is no deficiency in service on the part of opposite parties.
6. After going through the file and hearing the parties it is observed as per letter Ex.R2 issued by the opposite parties to the complainant, they have demanded an amount of Rs.389415/-, which has been deposited by the complainant as is proved from the receipt Ex.C1. As per letters Ex.R3 to Ex.R8, opposite party sent letters to the complainant to deposit the due installment. But the same has not been deposited by the complainant on the plea that there was no development at the site as per schedule and as promised by the opposite parties and there was negligible development with regard to construction when he visited the site in the month of October 2015. We have also observed that opposite parties have not placed on record any document/photograph etc. to prove that upto which extent the construction work has been done by the opposite parties till date or how much construction work was completed at the site by the opposite parties at the time of payment of installments by the complainant. The respondent’s officials have not placed on record any document to prove that the project had completed all the formalities required for the construction. However, at the time of arguments 3 documents have been placed on record by the opposite party. Out of the three letters only one letter has been delivered to the complainant’s address. One more document i.e. detailed report of construction work going on the site is given by the Vidhan Sabha Petitioner Committee. As per this report, some work of different blocks was started and some was in progress. This report was issued in the year 2014. But no report regarding completion of work from 2014 to 2023 is placed on record by the opposite parties. Moreover, opposite parties also failed to deliver the possession of flat to the complainant despite the fact that they have received an amount of Rs.689415/- from the complainant and they are utilizing the huge amount of the complainant for their personal gain without providing any service to the complainant. Hence there is deficiency on the part of opposite parties. In this regard we have placed reliance upon the judgments of Hon’ble Supreme court of India placed on record by ld. Counsel for the complainant decided on 07.04.2022 in Civil Appeal no.6044 of 2019 titled as Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor whereby Hon’ble Supreme Court has held that : “A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate-a consumer can pray for refund of the money with interest and compensation- Consumer could also ask for possession of the apartment with compensation-consumer can also make a prayer for both in the alternative-Position is similar to the mandate u/s of the RERA Act-Freedom to choose the necessary relief is of the consumer and it is the duty of the Courts to honour it.” We have also placed reliance upon the order dated 02.04.2019 in Civil appeal no.12238 of 2018 titled as Pioneer Urban Land & Infrastructure Ltd. Vs. GovindanRaghavan, order dated 11.10.2022 in Civil Appeal No.4913 of 2015 titled as M/s Ashoka Investment Co. Vs. M/s United Towers India(Pvt.) Ltd. andjudgment dated 11.01.2021 of Hon’ble Supreme Court of India in Civil appeal no.5785 of 2019 titled as IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Others.whereby Hon’ble Supreme Court has held that : “The allottees cannot be made to wait indefinitely for possession of the apartments allotted to them, nor can they be bound to take the apartment in other Phase of the project”. The law cited above are fully applicable on the facts and circumstances of the case. Hence the opposite parties are also liable to refund the deposited amount alongwith interest @12% p.a. to the complainant.
7. In view of the aforesaid law which is fully applicable on the facts and circumstances of the case, we hereby allow the complaint and direct the opposite parties to refund the amount of Rs.689415/-(Rupees six lac eighty nine thousand four hundred and fifteen only) alongwith interest @ 12% p.a. from the date of their respective deposits with the opposite parties till its actual realization and also to pay a sum of Rs.25000/-(Rupees twenty five thousand only) as compensation on account of deficiency in service &harassment and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
08.01.2024.
................................................
Nagender Singh Kadian, President
…………………………….
TriptiPannu, Member.
………………………………….
Vijender Singh, Member.
