Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 270.
Instituted on : 04.05.2017.
Decided on : 16.10.2018.
- Santosh Malik w/o Sh. S.P.Malik R/o H.No.B-1/307 1st Floor Janakpuri New Delhi.
- Himanshu Malik s/o Sh. S.P.Malik R/o H.No.B-1/307 1st Floor Janakpuri New Delhi.
- Archana Malik d/o Sh.S.P.Malik R/o H.No.B-1/307 Ist Floor Janakpuri New Delhi.
- Mukta Rajput d/o Sh.S.P.Malik now wife of Mr. Vijay Rajput R/o H.No.B-1/307 Ist Floor Janakpuri New Delhi now residing at A-1/51 1st Floor Safdarjung Enclave New Delhi.
- Gitanjali Handa d/o Sh.S.P.Malik Now wife of Mr. Brijesh Handa R/o H.No.B-1/307 Ist Floor Janakpuri New Delhi now residing at J-37 Jor Bagh Lane, B.K.Dutt Colony, New Delhi.
………..Complainant.
Vs.
- M/s M2M Buildtech (P) Ltd. Office at D-43, Sector-6 Noida-201301(U.P.) through its Managing Director/Chairman.
- M/s M2M Buildtech (P) Ltd. Branch office at Kheri Sadh on Delhi Road Main Road, Tehsil Sampla District Rohtak through its Principal Officer.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
SMT. SAROJ BALA BOHRA, MEMBER.
Present: Sh.S.S.Gehlawat, Advocate for the complainant.
Sh.Lalit Kaushik, Advocate for the opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that father/husband of the complainant namely S.P.Malik had applied for a residential flat with the respondents and had paid an amount of Rs.500000/- through cheque No.239614 dated 20.02.2013 drawn on SBI Bank and OPs had issued a receipt No.MBI/12-13/355 dated 25.02.2013 to the complainant. That the respondents promised the complainant to refund advance registration amount alongwith interest of 36% p.a. in case respondents fail to allot a residential flat within three years of advance registration and to raise construction for the above said project. That the respondents have neither started the construction work nor allotted any flat to complainant till date. That respondents did not release the above said amount despite the repeated representations and reminders of the LRs of the complainant. Hence, this complaint and the complainants has prayed for directing the respondents to make the payment of Rs.500000/- alongwith interest besides compensation qua mental harassment etc. and cost of litigation as explained in relief clause.
2. On notice, opposite parties appeared and filed their written reply submitting therein that the deceased S.P.Malik has deposited the amount of Rs.500000/- vide receipts dated 25.02.2013 and the complainant has filed the complaint on July 2017 i.e. after the expiry of statutory period of 2 years. That the complainant is not a consumer as the flat was not required by the complainant for his personal use, the present complaint is time barred by limitation. That there was no agreement between the parties for completion of work within three years. That the total value of the flat in dispute is more than 20 lakhs i.e. value of the jurisdiction of this Court. That this Forum has no territorial jurisdiction as the registered office/head office of the OPs is at Gurgaon. There is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C7 and closed his evidence. On the other hand, ld. counsel for the opposite parties made a statement that the reply already filed be read as affidavit in evidence, tendered document Ex.R1 and has closed his evidence.
5. We have heard ld. counsel for the parties and have gone through the material aspects of the case.
6. The objection as to commercial purpose was taken during the pendency of the complaint but OP failed to place any cogent evidence or material which could prove that the flat was purchased for commercial purpose. Regarding the objection of pecuniary jurisdiction, the total relief claimed is less than Rs.20 lacs. So this objection is turned down. Regarding the objection of territorial jurisdiction, the office of opposite parties is situated at Rohtak and the flat in dispute is also situated at Rohtak, so this Forum has territorial jurisdiction to entertain the case. On the offer of the opposite parties, late S.P.Malik paid Rs.500000/- which was accepted by the opposite parties. Hence the complainant is a consumer.
7. After perusal of the documents placed on record by both the parties we come to the conclusion that the respondents have received an amount of Rs.500000/- from the S.P.Malik father/husband of complainant on 25.02.2013 as per receipt Ex.C1. A letter Ex.C6 vide memo No.LC2848-PA(B)-2013/57687 issued by the department on dated 18.11.2013 and on that day the letter of intent for grant of license for setting up of residential group housing colony over an area measuring 7.418 acres falling in revenue estate of village Kheri Sadh, Sector 27A, Rohtak has been granted to the complainant. It means that on dated 18.11.2013 the respondents have no licence to built up a residential premises because the amount had already been received on 25.02.2013. This fact itself shows a great deficiency in service on the part of respondents. Moreover on the date of receiving the amount from the complainant the respondents have no any licence or L.O.I with them. The perusal of para no.15 of the preliminary objections of the written statement itself shows that the respondents have changed their project from Group Housing Society to “Deen Dayal Jan Awas Yojana”. It is also admitted in this para that licence is still under process for the said Deen Dayal Jan Awas Yojana. Meaning thereby, till date the respondents have no any licence to built up any group housing society or residential premises. So the act of opposite parties itself is not only a grave deficiency in service, such deficiencies or omission tantamounts to unfair trade practice.
8. We have also placed reliance upon the law of Hon’ble National Commission, New Delhi in III(2018)CPJ 374(NC) titled as Emaar MGF Land Vs. Gagan Gupta and TDI Infrastructure Ltd. Vs. Aditya Tomar. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it is observed that OPs are liable to refund the amount deposited by the father/husband of the complainants alongwith interest and compensation.
9. In view of the above, complaint is allowed and we hereby direct the opposite parties to refund the amount of Rs.500000/-(Rupees five lacs only) which shall be paid by opposite parties alongwith interest @ 12% p.a. from the date of payment to the opposite parties till its realization and shall also pay a sum of Rs.25000/-(Rupees twenty five thousand only) as compensation on account of deficiency in service and litigation expenses to the complainants in equal share with interest within one month from the date of decision.
10. 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:
16.10.2018.
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Nagender Singh Kadian, President
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Ved Pal, Member.
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Saroj Bala Bohra, Member.
