District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 595/2022.
Date of Institution:02.11.2022
Date of Order:24.07.2023.
Vaibhav Chadha S/o Shri Kulbhushan Chadha R/o Bungalow plot NO.5, E/27, NIT, Faridabad – 121001.
…….Complainant……..
Versus
1. M/s. Orris Infrastructure Pvt. Ltd. Registered office at RZ-D-5, Mahavir Enclave, New Delhi – 110 045 through its Director.
2nd address
Marketing Officer: Plot NO.5, Efgh, Ground Floor, Tapasya Building, Sector-126, Noida, UP – 201301.
2. M/s. Green Bay Infrastructure Private Limited, Registered Office at RZ-D-5, Mahavir Enclave, New Delhi – 110 045 through its Director.
2nd address
TS-06, Sector-22D, Yamuna Express Way Industrial Area, Gautam Budh Nagar, Uttar Pradesh.
…Opposite parties
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Ankur Gosain, counsel for the complainant.
Sh.Olson Nair, counsel for opposite party NO.1.
Opposite party No.2 ex-parte vide order dated 13.03.2023.
ORDER:
The facts in brief of the complaint are that being allured by the offer of the opposite party, the complainant made a booking for a plot in the said project of opposite party No1 and sum of Rs.4,00,000/- was paid by the complainant for provisional registration/allotment by way of cheque bearing No. 000014 dated 31.05.2013 drawn on Bank of Baroda, Sector-16, Faridabad in faovur of the opposite party, upon which a tentative plot No. A-34, Block-a, measuring 153 sq. yds. Was allotted to the complainant. Thereafter a total sum of Rs.7,01,600/- was made by the complainant to the opposite party No.1 as part payment in respect of the above said plot. At the time of booking , the complainant was informed that the construction of the plot would be completed within a time period of three years. Upon such inducement of the opposite party No.1 the complainant agreed to buy a flat in “Golf Homes” project of opposite party No.1 and a flat bearing NO. T-1/302, 3rd floor in Tower-T-1 Golf Homes, having approximate super area of 154.59 sq. meter was allotted to the complainant vide allotment letter dated 10.07.2014 and the payment of Rs.11,01,600/- (including taxes) which was previously made by the complainant as part payment of the plot IN “CurioCity” was adjusted towards the payment of the above said flat bearing NO.T-1/302 vide receipt bearing No. GH/CV/00041 dated 10.07.2014. An agreement Buyer Confirmation dated 31.07.2014 was also executed between the complainant and opposite party No.2 and as per the said agreement the total sale consideration price of said flat was agreed as Rs.49,62,592/-. As per clause 10.1 of the apartment buyer agreement dated 31.07.2014, the construction of the building was to be completed and the possession of the flat was to be handed over to the allottee within a period of 42 months + grace period of 6 months from the date of allotment. After the execution of the apartment Buyer Confirmation dated 31.07.2014 the complainant had made a payment of Rs.5,78,140/- in lieu of the above said flat. A total sum of Rs.16,79,740/- had been paid by the complainant to the opposite parties till date. As per the apartment buyer agreement dated 31.07.2014 the possession was to be handed over to the complainant latest by July 2018. Now time period of more than 4 years had lapsed from the actual due date for delivery of possession but the opposite parties had failed to deliver the possession of the above said flat to the complainant. The complainant had visited the office of the opposite parties Nos.1 & 2 several times in the year 2022 and asked the opposite party various time to hand over the possession of the allotted flat to the complainant but the opposite parties paid no heed to the genuine request of the complainant. The complainant also wrote an email dated 17.10.2022 asking about the status of the Golf Homes project and about the delivery of the possession of his allotted flat but no reply was received from the opposite party, instead on 18.10.2022 it was informed ot the complainant telephonically that the Golf Homes project of the opposite parties had become scrap hence opposite parties were unable to provide the possession of the flat to the complainant. The complainant was shocked to hear this and asked for refund of the amount already paid by him alongwith interest @ 18% p.a. upon which the opposite parties stated that they can only refund principal amount that also upon the condition that the complainant would give the undertaking to the opposite parties that he would not claim any other amount form the opposite parties. 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 the amount of Rs.16,79,740/- alongwith interest @ 18% p.a. from the date of payment made by the complainant to the opposite party, till the refund in made to the complainant jointly & severally.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 50,000 /-as litigation expenses.
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that its bid under the scheme for allotment for the entire plot and deposited the required amount as earnest money to YEIDA. It was further submitted that vide its letter bearing NO. YEA/Property/80/2011, it was communicated its acceptance of the said bid under the scheme and was please to reserve the entire plot and after completing all the statutory compliances, the opposite party vide allotment letter dated 10.11.2011 was allotted the said plot/land. The post completing all the statutory requirements of the said parcel of the land, when the opposite party visited the land for further development, it was surprised and shocked to see that the said land in under farmer agitation who were the erstwhile owner of the land and the said land was acquired by YEIDA for which a batch of writ petitions were filed before the Hon’ble High Court of Allahabad by the farmers against the State of U.P. and YEIDA which inter-alia challenged the acquisition of the land forming the entire plot and consequential relief of status-quo on the possession of the said land acquired under the scheme was till the pendency of the said writ petitions. YEIDA concealed the most important fact form the opposite party i.e. the orders of status-quo passed by the Hon’ble High Court of Allahabad and in complete disregard to aforesaid order, executed a lease deed for the purpose of transferring the said parcel of the land in favour of the opposite party. It was further submitted that due to the aforesaid reasons mentioned herein YEIDA failed to delivery the complete physical possession of the said land where the project was supposed to be developed which further caused delay in completion of the project where the complainant was allotted the plot/flat. Nonetheless, it was pertinent to mention that the opposite party themselves were the victim for actions taken by YEDIA at their own whims and fancy. Opposite party No. 1denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Notice issued to opposite party No.2 not received back either served or unserved. Tracking details filed in which it had been mentioned that “Item Delivery Confirmed”. Mandatory period of 30 days expired. Hence, opposite party No.2 was hereby proceeded against ex-parte vide order dated 13.03.2023.
4 The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties–TM/s. Orris Infrastructure Private Limited with the prayer to: a) refund the amount of Rs.16,79,740/- alongwith interest @ 18% p.a. from the date of payment made by the complainant to the opposite party, till the refund in made to the complainant jointly & severally. b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 50,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Vaibhav Chadha, Ex.C1 – photocopy of Rs.4,00,000/- for booking amount, Ex.C-2 - application form, Ex.C-3 – email dated05.07.2014, Ex.C-4 – email dated 05.07.2014, Ex.C-5 – email dated 05.07.2014, Ex.C-6 – email dated 17.10.2022, Ex.C-7 – letter dated 10.07.2014, Ex.C-8 – letter dated 10.072014,, Ex.C-9 – payment plan, Ex.C-10 – Intimation cum demand letter, Ex.C-11 – letter dated 07.08.2014, Ex.C-12 – intimation cum demand letter, Ex.C-13 to 15 – receipts, Ex. C-16 – statement of account, Ex.C-17 (colly) - statement of account, Ex.C-18 (colly) – statement of Bank of Baroda, Ex.C-19 – Apartment Buyer Communication.
On the other hand, counsel for the opposite party No.1 strongly agitated and opposed. As per the evidence of the opposite party No.1 – affidavit of Shri Akash Sharma , Authorised representative of opposite party NO.1 having its office at J-10/9, DLF, Phase-II, Gurugram, Haryana. Ex.OP1/1 – copy of letter dated 07.07.2014 alongwith the booking form, Ex.OP1/2 – allotment letter dated 10.07.2014 alongwith receipt, intimation cum demand letter., Letter dated 11.7.2014 regarding NO Objection for change of project from Curio city Plots to
Greenbay Golf Homes.
7. In this case, the complainant made a booking for a plot in the project namely “CurioCity” which is being developed by the opposite party No.1 at Plot No. TS-02, Sector-22D, Yamuna Expressway Industrial developments Authority, District Gautam Budh Nagar, Uttar Pradesh and sum of Rs.4,00,000/- was paid by the complainant for provisional registration/allotment by way of cheque bearing No. 000014 dated 31.05.2013 drawn on Bank of Baroda, Sector-16, Faridabad in faovur of the opposite party, upon which a tentative plot No. A-34, Block-a, measuring 153 sq. yds.was allotted to the complainant. Thereafter a total sum of Rs.7,01,600/- was made by the complainant to the opposite party No.1 as part payment in respect of the above said plot. It is evident from Ex. C7,a flat bearing NO. T-1/302, 3rd floor in Tower-T-1 Golf Homes, having approximate super area of 154.59 sq. meter was allotted to the complainant vide allotment letter dated 10.07.2014 and the payment of Rs.11,01,600/- (including taxes) which was previously made by the complainant as part payment of the plot IN “CurioCity” was adjusted towards the payment of the above said flat bearing NO.T-1/302 vide receipt bearing No. GH/CV/00041 dated 10.07.2014. As per Ex.C-19, an agreement Buyer Confirmation dated 31.07.2014 was also executed between the complainant and opposite party No.2 and as per the said agreement the total sale consideration price of said flat was agreed as Rs.49,62,592/-. As per clause 10.1 of the apartment buyer agreement dated 31.07.2014, the construction of the building was to be completed and the possession of the flat was to be handed over to the allottee within a period of 42 months + grace period of 6 months from the date of allotment. The opposite parties had failed to provide the possession of the said plot to the complainant.
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 parties because the allotment letter for plot was made to the complainant in 10.07.2014 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. Opposite parties jointly & severally, are 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: 24.07.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
