Case No.CC/533/2016

Date of Institution:-15.11.2016

Order Reserved on :-09.04.2024

           Date of Order :-08.08.2024

IN THE MATTER OF:

Sh. YogendraKhare

S/o Sh. Vijay Kumar Khare,

R/o C-8, House No. 8826,

VasantKunj, New Delhi – 110070.

Through SPA Sh. ShalendraKhare

S/o Sh. Vijay Kumar Khare.

          …..Complainant

VERSUS

1. M/s. Pareena Infrastructure Pvt. Ltd.

Through its Director,

Sh. VirenderVerma,

Regd. Office at :

Flat No.2, Palm Apartment, Plot No. – 13B,

Sector-6, Dwarka, New Delhi.

2. Sh. VirenderVerma, Director,

M/s. PareenaInfrastyructure Pvt. Ltd.

Regd. Office at :

Flat No.2, Palm Apartment, Plot No. – 13B,

Sector-6, Dwarka, New Delhi.

… Opposite Parties

O R D E R

Per R. C. YADAV , MEMBER

1. The brief facts of the case are thatOP-1 is a company registered under the Indian Companies Act, 1956 whereas the OP-2 is the director of OP-1 and has been responsible for the day to day affairs of the company. The complainant has booked a space unit in the upcoming project of the OP-1 in Sector-99A, Gurgaon and paid Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand) vide cheque no. 000752 drawn on ICICI bank.  The OP has assured the complainant that licence no. 10/2013 dated 12.03.2013 has been obtained by the OP.  The OP-1 and OP-2 had confirmed receipt of the above amount Rs.7,50,000/- dated 30.07.2013 and further the complainant allotted a customer ID COB-296/2013.   The OP-1 and OP-2 sent a letter to the complainant and asked to pay further payment of Rs.8,77,246/-.  The complainant has requested the OP to provide the licence and building plan and other relevant documents to the complainant. The complainant visited the office of OP-1 and OP-2 on 11.07.2015 and informed the OP that he was no more interested in seeking space in the upcoming project of the OP.  The complainant sent a legal notice dated 01.08.2016 to OP-1 and OP-2 for refund of his deposited money. The OP-1 and OP-2 neither replied to the legal notice nor refunded deposited money.  The complainant has prayed for refund of Rs.7,50,000/- with interest and Rs.7,50,000/- for mental harassment and Rs.1,50,000/- towards litigation charges.
2. Notice was served to OPsand OPs entered its appearance and filed written statement taking several preliminary objections that the complainant has filed the complaint in October, 2016 seeking refund of money paid in February, 2013 is wholly time barred under the provisions of Section 24A of the Consumer Protection Act, 1986 as the same claim has been preferred much after the period of limitation of two years prescribed in the aforesaid provision of law.  The OP has stated that this forum has no jurisdiction to entertain or try the present complaint. The cause of action has arisen in only with regard to the office of OP-1 at Gurugram. The complainant has filed old documents which clearly show that the complainant dealt with the Gurugram office of the OP-1 only. Hence, this forum has no jurisdiction to entertain or try the present complaint.  The OP has stated that the present case involves complicated question of facts and it cannot be adjudicated in the summary jurisdiction vested in this Forum and the same should be relegated to be tried by a civil court as per settled law on the subject by the Hon’ble Supreme Court of India and in that view of the matter also, the present complaint deserves to be rejected by this Forum.  The OP has stated that the complainant is not entitled to seek any refund of the booking amount paid to the OP-1 in view of clause 4 of the indicative terms and conditions attached to the application for registration dated 29.07.2013 duly signed by the complainant providing that in case of cancellation, the earnest money paid stands forfeited by OP-1and in that view of the matter nothing is payable to the complainant by OP-1.
3. In response to the written statement, the complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
4. Both the parties have filed affidavit of evidence as well as written arguments in support of their respective case.
5. On 09.04.2024, the case was listed for final arguments, we have heard the Ld. Counsels for both the parties and submitted that the matter may be decided on the basis of material on record. Hence, the case was reserved for order.
6. We have carefully considered the material on record and thoroughly perused the documents placed on record.
7. It is the case of the complainant that hehad booked a space unit in the upcoming project of the OP-1 in Sector-99A, Gurgaon and paid Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand) vide cheque no. 000752 drawn on ICICI bank.  The OP has assured the complainant that licence no. 10/2013 dated 12.03.2013 has been obtained by the OP.  The OP-1 and OP-2 had confirmed receipt of the above amount Rs.7,50,000/- dated 30.07.2013 and further the complainant allotted a customer ID COB-296/2013.   The OP-1 and OP-2 sent a letter to the complainant and asked to pay further payment of Rs.8,77,246/-.  The complainant has requested the OP to provide the licence and building plan and other relevant documents to the complainant. The complainant visited the office of OP-1 and OP-2 on 11.07.2015 and informed the OP that he was no more interested in seeking space in the upcoming project of the OP.  The complainant sent a legal notice dated 01.08.2016 to OP-1 and OP-2 for refund of his deposited money. The OP-1 and OP-2 neither replied to the legal notice nor refunded his deposited money.
8. It is also the case of the complainant that he paid Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand) to the OP-1 as per terms and conditions but despite receipt of money, the OP has not provided licence and building plan. 
9. It is the case of the complainant that when he did not get the project details, he asked for refund of his deposited money but the same has not been refunded despite repeated requests and correspondences with the OPs.  It is the case of this conduct amounts to deficiency in service and unfair trade practice.The OP-1 was under obligation to provide the project details on payment of booked amount and in case it was not possible, it should have been refunded as claimed by complainant. Non-delivery of possession of space unit on receipt of booking amount within a reasonable time amounts to deficiency in service and unfair trade practice.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512” is the authority on this point.

10. As far as the plea of Arbitrator clause between the parties is concerned, the same is not relevant as Section 3 and Section 100 CPC do not bar in filing of such complaint, despite having their Arbitration clause between the parties.
11. In the end, it is clear from the records that the complainant has paid money for booking of space unit with the OP, as demanded by the OP and despite receipt of the booking amount, the details of project was not handed over to the complainant. The OP has not refunded the booking amount to the complainant despite repeated requests.
12. We are satisfied that this act on part of the OP constitutes deficiency in service and also unfair trade practice.
13. Accordingly, we allow the complaint of the complainant and direct the OP-1 and OP-2 jointly or severally to refund Rs.7,50,000/- (Rupees Seven Lakh Fifty Thousand)to the complainant alongwth an interest @ 6% p.a. from the date of deposited moneyandRs.2,00,000/- (Rupees Two Lakh) as lumpsum for mental harassment and litigation charges within 45 days from the date of receipt of the order failing which OP shall be liable to pay entire amount alongwithinterest @ 9% p.a. till realization.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announce in the open Court on 08.08.2024.