District Consumer Disputes Redressal Commission ,Faridabad.

Consumer Complaint  No. 278/2020.

 Date of Institution:28.08.2020.

Date of Order: 17.03.2023.

Sanjay Chandak S/o Shri Narayan Das r/o 521/2^nd  Floor, Kanishka Residency, Sector-35, Amarnagar, Faridabad, Haryana – 121003 Age 51 years,

                                                                   …….Complainant……..

                                                Versus

1.                M/s. ORS Infrastructure Pvt. Ltd., through its Directors/Authorized Signatory At: UGF-33, City Mall, Sector-12, Faridabad, Haryana – 121006.

2.                Rajender Prasad Gupta S/o late Om Parkash Gupta Diector of M/s. ORS Infrastructure Pvt. Ltd. At: H.No. 40, Sector-7A, Faridabad, Haryana  - 121006.

3.                Devender Gupta S/o late Sh. Om Parkash Gupta Diector of M/s. ORS Infrastructure Pvt. Ltd. At: H.No. 39, Sector-7A, Faridabad, Haryana – 121006.

4.                Mukesh Gupta S/o Rajender Prasad Gupta Authorized Signatory of M/s. ORS Infrastructure Pvt. Ltd., At: H.No. 40, Sector-7A, Faridabad, Haryana – 121006.

                                                                   …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.

Indira Bhadana………….Member.

PRESENT:                   Sh.  B.B.Garg,  counsel for the complainant.

                             Sh. Kumud Sachdeva, counsel for opposite parties.

ORDER:  

                             The facts in brief of the complaint are that  the complainant came into allurement of authorized representative and booked one flat in their project Royal Residency, Sector-89, Faridabad on 09.05.2010 in the joint name with his wife i.e. Mrs. Neelima Chandak wife of Mr. Sanjay Chandak and deposited Rs.3,50,000/- as booking amount (details as per below table):

Vide receipt NO. PR/03/227/05/10 dated 09.05.2010 issued by the office of opposite party signed by the Authorized Signatory and assured that the possession to be delivered within time as per assurance.  Accordingly various documents and receipts were issued by the opposite party in favour of the complainant and allotted a flat measuring super area 1200 sq. ft. bearing No. 904, Tower B-2 vide allotment letter dated 18.07.2010.  On the very next day i.e. 19.07.2010 Flat Buyer Agreement was also executed between the parties for the said flat signed by authorized representative of the opposite party and the allottee.  As per the demand of opposite party complainant had deposited a sum of Rs.15,13,740/- out of which Rs.13,63,740/- was admitted by the opposite party vide letter No. RR/227/05/10 dated 20.06.2012 and another amount of Rs.1,50,000/- had been deposited by the complainant in cash in respect of car parking ad club membership on dated

12.11.2011, which was received by the opposite party and issued a receipt on company letter head on dated 12.11.20211.  In reference of the above said flat complainant had also taken a loan from LIC Housing Finance Ltd. amounting to Rs.15,00,000/- in 2011.  In this regard, opposite party had also issued a NOC letter to LIC Housing Finance Ltd. on 11.11.2011.   To clear the loan taken by the complainant for the above said flat which needs to be paid and closed to clear its burden, complainant had to pay an interest amount of Rs.91,883/- and loan closing charges of Rs.3,379/-.  At the time of execution of Flat Buyer Agreement of the above said flat, complainant was assured by the opposite party that the possession of the above said flat would be delivered within 36 months as per the agreement.  Believing on such version kept waiting, complainant did  not enquire about the progress of the above said project under the belief that one day complainant would switch over to his self owned house.  After some time when the complainant visited the project site to check the development/progress of the project but was surprising shocked that the project was  totally incomplete and the same was lying vacant, only digging work was in progress and asked about the same to the opposite party but no satisfactory reply was provided by the opposite party, which raised a doubt in the mind of complainant about the project.  After the lapse of the period of 36 months as promised by the opposite party  and also mentioned in their flat buyer agreement under clause-28, complainant made an enquiry  numerous time with the opposite party to know the status of the project, while personally visited at the site but surprised to see that the project was totally incomplete and the same was lying vacant and asked about the same but of no use except the vague assurances given by the opposite party and kept on promise to handover the possession next year and ever afterwards on various occasions the complainant asked for possession of the above said flat in question but the opposite parties

ignored the same on one pretext or another.  The same promises were repeated again and again by the opposite party and the complainant was in hope of the booked flat was likely to be delivered but now complainant had lost his faith as there was no development towards the possession of the flat till now.  By lying and cheating opposite party had taken amount on false assurances/promises made by opposite party though it was well within their knowledge that neither had completed 50%  of construction work at the site nor they had renewed the license and deposit EDC charges for the project to the Govt. Authorities which also comes within the ambit of unfair trade practice as conducted by the opposite party.  When the complainant demanded the refund to the opposite party because the complainant had lost his faith that the project would not be able to complete in next 10 years then the opposite party also threaten the complainant as said “We are builders, we have big connections we can do whatever we want to.”  The complainant also written a complaint on CM window vide registration number CMOFFN/N/2020/04539 and also to DCP Central Police Station on dated 23.07.2020 about the wrong doings of opposite party but no action taken till date. The complainant sent legal notice  dated 10.08.2020 to the opposite parties but all in vain. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint.  The complainant has prayed for directions to the opposite parties to:

a)                refund the amount of Rs.16,09,002/- alongwith interest @ 12% p.a. from the date of receipt of payments till realization.

 b)                pay Rs. 1,00,000/- as compensation for causing mental agony and harassment .

c)                 pay Rs. 22,000 /-as litigation expenses.

2.                Opposite parties  put in appearance through counsel and filed written

statement wherein Opposite parties refuted claim of the complainant and submitted that  the Flat Buyer’s Agreement in question dated 19.07.2010 entered into between the parties – complainant and ORS Company itself acknowledges that the companies, viz., Triveni Ferrous Infrastructure Pvt. Ltd. and Ferrous Alloys Forgings Pvt. Ltd. (subsequently having changed the name to Maximal Infrastructure Pvt.Ltd.) were the owners who obtained license from the Director General, Town & Country Planning, Haryana for the purpose of developing a Group Housing Colony on the land in question.  The company- ORS (referred to as “Developer” in the Flat Buyer’s agreement dated 19.07.2010) entered into an agreement dated 01.09.2008 with the said owners as well as General Power of Attorney was executed by the owners in favour of the ORS Company – Developer.  The said agreement dated 01.09.2008 had been specified pointed out and referred to be in the flat buyer’s agreement dated 10.02.2009 executed between the parties herein.  The two agreements i.e dated 01.09.2008 between the owners and the developer – ORS company; and the second agreement between the complainant and ORS company, from back to back contracts and it was only in case the license was renewed by the licensee from time to time from the State authorities that the development activity could be carried on and concluded.   Despite the said settlement having been entered into between the two rival groups of the owners inter se, the ORS Company was apprehensive about the intentions of the Owners and it took steps to avail of the State Government’s Policy notified on 18.02.2015 by which they could be given an independent right to develop on the basis of their beneficial interest.  In this behalf, the ORS Company immediately filed an application with the Director-General, Town & Country Planning, Haryana by depositing the necessary fee, etc.  However, due the re-emergence of the dispute between the owners interese, a contempt petition (Civil) O. 34/2016 in

 W.P.(Crl.)5/2015 was filed the Hon;ble Supreme Court of India, which had been decided vide judgement dated 24.04.20.  Vide aforesaid jugement it had been held that Mittal group had deliberately and willfully not fulfilled their obligations under the aforesaid Memorandum of Settlement dated 04.05.2015 and they as such had rendered themselves liable for the action under the contempt of Courts Act.  In this behalf, it was important to stat that the two rival groups of M/s. Triveni Ferrous Infrastructure Pvt. Ltd. viz., the Seth Group and the Mittal Group had developed various disputes between themselves which it culminated into protracted litigation right up to the Hon’ble Supreme Court of India and a Memorandum of Settlement was entered into between the two rival groups.

                    It was worthwhile to mention that the ORS Company had interest in 5.5. acres and the name of their company  also appears in the aforesaid j judgement.  ORS company was expecting compliance of the order by the aforesaid parties and to raise and complete the construction process after complying with all requisites required under law as after getting renewal of the license NO. 34,35 and 35 of 2007 and other acts by Mittal Group, the competent authority – DTCP shall in compliance of order of Hon’ble Supreme Court of India proceed to bifurcate the Seth Group’s portion of the land in accordance with law and as per the policy and/or the rules and regulations.  The ORS Company was very well concerned for all of its investors.  The ORS company had applied with RERA and had been granted Temporary Id by Haryana RERA.    It was submitted that the complainant had concealed material facts and the above facts were in specific knowledge of complainant as had been dragging the opposite parties before various government authorities prior to institution of present complaint and the opposite parties had always apprised him of the aforesaid scenario and bonafide circumstances making

the opposite parties unable to carry out with their project in the past.  The opposite parties expect to deliver flats to all investors including the complainant. Opposite parties 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 parties– M/s. ORS Infrastructure Pvt.Ltd & Ors. with the prayer to: a)  refund the amount of Rs.16,09,002/- alongwith interest @ 12% p.a. from the date of receipt of payments till realization.  b) pay Rs. 1,00,000/- as compensation for causing mental agony and harassment . c)  pay Rs. 22,000 /-as litigation expenses.

                   To establish his case the complainant  has led in his evidence,  Ex.CW1/A – affidavit of Sanjay Chandok, Ex.C-1 – Acknowledgement of Provisional Registration Application,,  Ex.C-2 – Allotment letter, Ex.C-3 – Flat Buyer’s Agreement, Ex.C-4 – letter dated 20.06.2012, Ex.C-4 – receipt, Ex.C-5 – letter, Ex.C-6 – letter, Ex.C-7 – legal notice, Ex.C-8 – postal receipt.

                   On the other hand counsel for the opposite parties strongly agitated and opposed.  As per the evidence of the opposite parties Ex.RW-1/A -  affidavit of Shri Mukesh Gupta, Authorized Signatory, M/s. ORS Infrastructure Private Limited, Rsident of H.No. 40, Sector-7A, Faridabad, Ex.R-1 – letter dated 9.3.2022, Ex.R-2 – letter dated 07.03.2022, Ex.R-3 – affidavit in compliance of order dated 11.01.2022 of K.Markarnd Pandurang, Director, Town & Country Planning, Haryana, Ex.R-4 – letter dated 18.08.2022, Ex.R-5 –Haryana Real Estate

Regulatory Authority Panchukla,, Ex.R-6 – letter dated 17.01.2022, Ex.R-7 – Manager cheque for Rs.16,62,500/-, Ex.R-8 – undertaking, Ex.R-9 – letter dated 10.12.2021 regarding request for transfer of beneficial rights under policy, Ex.R-10 – order dated 21.02.2022, Ex.R-11 – order dated 09.10.2020,, Ex.R-12 -  letter dated 20.05.2020, Ex.R-13 – Haryana Real Estate Regulatory Authority, Panchkula.

6.                It is evident from Acknowledgement of Provisional Registration Application dated 09.05.2010 vide Ex.C1 that the complainant deposited Rs.3,50,000/- as booking amount (details as per below table):

As  per allotment letter vide Ex.C2 that the opposite party allotted a flat measuring super area 1200 sq. ft. bearing  flat No. 904, 9^th floor, tower B-2 vide allotment letter dated 18.07.2010.  As per Ex..C3 -  on 19.07.2010 Flat Buyer Agreement was also executed between the parties for the said flat signed by authorized representative of the opposite party and the allottee. As per the demand of opposite party complainant had deposited a sum of Rs.15,13,740/- out of which Rs.13,63,740/- was admitted by the opposite party vide letter No. RR/227/05/10 dated 20.06.2012 and another amount of Rs.1,50,000/- had been deposited by the complainant in cash in respect of car parking ad club membership on dated 12.11.2011, which was received by the opposite party and issued a receipt on

company letter head on dated 12.11.20211 vide Ex.C4.  As per Flay Buyer Agreement, possession of the  flat would be delivered within 36 months as per the agreement.  The opposite parties had failed to provide the possession of the said flat to the complainant.

7.                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 of the flat was made to the complainant in 18.04.2010 and he has waited for more than 10 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.

8.                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:  17.03.2023                                           (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.