District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No.370/2021.
Date of Institution: 03.08.2021.
Date of Order: 27.10.2022
Poonam Narula W/o Vijay Narula R/o 5-E/17 B.P.N.I.T, Faridabad. Aadhar No.247287815974.
…….Complainant……..
Versus
1. M/s. Puri Construction Pvt. Ltd. Through its Directors/Authorized Signatory/Principal Officer ShriArjunPuri.
2. Mr. ArjunPuri (Director/authorized signatory of M/s. Puri Constructions Pvt. Ltd.)
3. Mr. Mandeep Singh Oberai (Director/authorized signatory of M/s. Puri Constructions Pvt. Ltd.)
4. Mr. ChitranjanSaproo(Director/authorized signatory of M/s. Puri Constructions Pvt. Ltd.)
A// r/o office at 407B, Tolstoy Marg, New Delhi – 110 001.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
Indira Bhadana…………..Member
PRESENT: Sh. Ashok Muthreja, counsel for the complainant.
Sh. Amit Sain Aggarwal, counsel for opposite parties.Nos.1 to 4.
ORDER:
The facts in brief of the complaint are that the complainant had booked a commercial unit in the project launched by the opposite parties and accordingly the opposite parties had allotted a commercial unit bearing NO. B-219 in their project “81-High Street”, situated at Sector-81, Faridabad, Haryana measuring 325 sq. ft. @ 8500/- per sq. ft. to the complainant for the total sale consideration of sum of Rs.27,62,500/- vide a letter dated 22.09.2015 duly issued by the opposite parties. Earlier the complainant had booked a residential flat/unit No. C-4/1202, in the project (Pranayaam) launched by the opposite parties in Sector-82 & 85, Faridabad, for which the complainant had paid a sum of Rs.10,41,000/- to the opposite parties and the aforesaid amount of Rs.10,41,000/- was transferred/adjusted in the account of aforesaid commercial unit No. B-219 vide a letter dated 13.10.2015, duly issued by the opposite parties. The opposite parties through their authorized signatory had also executed a builder buyer agreement with his client on 03.11.2015. Thereafter the complainant paid an around Rs.6,50,000/- to the opposite parties time to time against the part sale consideration of the aforesaid commercial unit/shop bearing NO. B-219, thus the opposite parties had received in all Rs.17,00,000/- approx. from the complainant till 2016 and the opposite parties promised to hand over the possession of the shop/unit within two years but till date the opposite parties had not handed over the possession of the said shop to the complainant despite several visits to the office of the opposite parties and requested for handing over the possession of the said unit, but the opposite parties made one pretext or the other and falsely told the complainant that the opposite arties had applied for occupation certificate with the authorities which was pending and this was the reason the complainant had not paid the remaining amount to the opposite parties. In the first week of March 2020 when the complainant visited to office of the opposite parties situated at the project site at Faridabad, then the opposite parties told the complainant that the opposite parties had received Occupation Certificate and the unit was ready for possession, for which the complainant had to pay the balance sale considerations amount and accordingly the complainant was asked to come alongwith the balance sale consideration amount and for taking possession of the commercial unit No. B-219. Upon which the complainant told the representative of the opposite parties that rather the opposite parties had to pay the compensation to the complainant for the delayed period in offering the physical possession and to adjust the same in the balance sale consideration amount but the opposite parties flatly refused for the same. Unfortunately on 22.03.2020 there was a total lock down declared by the Government of India due to Covid 19 Pandemic situation and the complainant being an old aged lady could not contact or visit to the office of opposite parties till January, 2021. The complainant was shocked to receive a demand letter from the opposite parties against Maintenance charges for the period 01.01.2021 to 31.01.2021 i.e Rs.3,453/- as maintenance charges, which had been deposited by the complainant under protest on 19.03.2021. Although the same was illegal and arbitrary because neither the opposite parties had handed over the possession of the said unit to the complainant nor had handed over the possession of the said unit to the complainant nor had paid the compensation amount to the complainant for the delayed period of not delivering the possession within time as per the terms and conditions of allotment letter. Since the opposite parties had not handed over the possession to the complainant within the stipulated period i.e.48 months from the date of allotment nor had informed the complainant about obtaining the occupation certificate from the concerned department and as such the demand of maintenance from the complainant was illegal, unjustified and arbitrary, thus the opposite parties had committed wrong and illegal act.The complainant sent legal notice dated 20.08.2020 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) pay Rs.15/- per sq. ft on the deposited amount of not delivering the possession of the aforesaid commercial unit No. B-219, measuring 325 sq. ft. or to adjust the same in balance sale consideration amount or in the alternative the opposite parties be directed to refund the entire deposited amount alongwith interest @ 24% p.a. from the dte of deposit till its actual realization.
b) pay Rs.2,00,000/- to the complainant for financial loss.
c) pay Rs.25,000/- as compensation for causing mental agony and harassment .
d) payRs.33,000/-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 present complaint was hopelessly time barred as the unit was cancelled in the year 2016 and the last payment was made in February, 2016 and opposite parties sent numerous reminder and ultimately the allotment was cancelled in 2016, hence the complaint which has filed in 2020, was hopelessly time barred. The complainant had switched/swapped the unit from a residential project; Pranayam to a commercial unit in the project; 81 High Street, situated at Sector-81, Faridabad after going through and accepting the terms of the booking contained in the application form dated 14.09.2015 which was in its possession even prior to making any payment of booking amount which were similar in nature to the terms of Buyers Agreement. Thereafter the complainant was issued allotment letter
dated 22.09.2015. The complainant had not come before this Hon’ble Forum with clean hands and had concealed various facts including the issuance of cancellation letter after sending of several demand notes and reminders and was also guilty of misrepresentation, hence, the complainant was not entitled to any relief. The complainant had not disclosed the facts mentioned in above paras before Hon’ble Commission, hence the complaint be rejected on this ground only. 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 Puri Construction Pvt Ltd. with the prayer to :a) pay Rs.15/- per sq. ft on the deposited amount of not delivering the possession of the aforesaid commercial unit No. B-219, measuring 325 sq. ft. or to adjust the same in balance sale consideration amount or in the alternative the opposite parties be directed to refund the entire deposited amount alongwith interest @ 24% p.a. from the date of deposit till its actual realization.b)pay Rs.2,00,000/- to the complainant for financial loss. c) pay Rs.25,000/- as compensation for causing mental agony and harassment .d)pay Rs.33,000/ -as litigation expenses .
To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Shri PoonamNarula Ex.CW-1 – letter dated 22.09.2015
regarding allotment of a shop NO. B-219, Ex.C-2 – letter dated 13.10.2015 regarding confirmation of unit Swap and subsequent allotment,Ex.C-3 – Buyer’s agreement, Ex.C-4 – Tax invoice, Ex.C-5 – transaction details, Ex.C-6 – legal notice, Ex.C-7 to C-10 – postal receipts,, Ex.C-11 – reply to legal notice.
On the other hand counsel for the opposite parties strongly agitated and opposed. As per the evidence of the opposite parties, Ex. RW1/A – affidavit of Shri Dheeraj Kumar having his office at 4-7b, Ground floor, Tolstoy House, 15 &17, Tolstoy Marg, New Delhi,, Ex.R-1 – Resolution, Ex.R-2(colly) - application for provisional allotment of shops/office, Ex.R-3 – letter dated 22.09.2015 regarding allotment of a shop NO. B-219 in the project 81-High Street, Ex.R4 (colly) – payment schedule, Ex.R-5 – Occupation certificate.
6. In this complaint, the complaint was filed by the complainant with the prayer to pay Rs.15/- per sq. ft on the deposited amount of not delivering the possession of the aforesaid commercial unit No. B-219, measuring 325 sq. ft. OR to adjust the same in balance sale consideration amount OR in the alternative the opposite parties be directed to refund the entire deposited amount alongwith interest @ 24% p.a. from the date of deposit till its actual realization. The complainant had booked a commercial unit in the project launched by the opposite parties for her livelihood.
7. During the course of arguments, Shri Amit Sain Aggarwal, counsel for opposite parties had made a statement that “We are ready to refund the deposited amount to the complainant as per Buyer’s Agreement.”
8. After going through the evidence led by both the parties and written submission given by the complainant as well as the opposite parties, the Commission is of the opinion that as per letter dated Jan. 20,2021 vide Ex.C4 opposite parties are demanding charges CAM Charges from the complainant. There is no question of delay or time barred in this complaint arise because the
continuous nature of the complaint. Opposite parties have already made the agreement with the complainant and opposite parties have taken the handsome amount from the complainant and they never offered the possession of the said unit to the complainant till date.
Counsel for the complainant has placed on record the order passed by the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No. 3206 of 2012 decided on 22.01.2020 in case titled Mohinder Singh & Anr. Vs. Swatantra Land & Finance Pvt. Ltd. In which it has been mentioned that the order of the State Commission is apparently is based on conjectures and surmises, Hon’ble Supreme Court has held in various judgements that where the sale deed is required to be executed and the possession is required to be handed over and if that is not done, the cause of action continues till the needful is done. This Commission, in the case of DLM Enclave & Anar. Vs. Naresh Batham being revision petition No. 2984 of 2013 relying on the findings of Hon’ble Supreme Court in the case of Meerut Development Authority Vs. Mukesh Kumar has clearly held that even if the complaint has been filed with a delay of twelve years from the date of agreement and nine years from the last payment, if the possession is not given and sale deed is not executed the cause of action is a continuing one.”
Ratio of these authority is applicable to the facts of the present case
9. After scrutiny of the evidence led by both the parties as well as the above judgement passed by the Hon’ble National Consumer Disputes Redressla Commission, New Delhi, we are of the opinion that the complaint is allowed. Opposite parties are directed to refund the deposited amount to the complainant alongwith interest @ 9% p.a. from the respective dates of deposit as per Buyer’s Agreement.. Opposite parties are directed to pay Rs.5500/- as compensation on account of mental tension, agony and harassment alongwith Rs.5500/- as litigation expenses to the complainant. Compliance of this order be sent to the parties concerned free of cost. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 27.10..2022 (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.
