Delhi

StateCommission

CC/13/389

ARSHAD SIDDIQUI - Complainant(s)

Versus

M/S R.S. BUILDWELL PVT. LTD. - Opp.Party(s)

18 May 2016

ORDER

IN THE STATE COMMISSION: Delhi

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 18.05.2016

 

Complaint Case No. 389/2013

 

 

        In the Matter of:

                Arshad Siddiqui

          S/o Mrs. K. Khaleeq Siddiqui

          4/963, Saukhat Manzil

          Doodhpur, Civil Lines

          Aligarh, UP.

         

          currently residing at

          10, Ohio Avenue

          Newton, MA. USA 02464

                  

          Through his Power of Attorney Holder

          Mr. Mohammad Asad Siddiqui

          Son of Mr. M. Khaleeq Siddiqui

          Resident of 507- Amir Nishan

          Opposite National Colony

          Doodhpur, Civil Lines

          Aligarh, UP- 202001

 

……Complainant     Versus   M/s R.S. Builtwell Pvt. Ltd. B-98, Abul Fazal Apartments 22, Vasundra Enclave Delhi-110096   Also At Samiah House B-1/64, Commercial Complex Sector, 50 Noida                                                                                  …….Opposite Party

CORAM

  Justice Veena Birbal, President

  Salma Noor, Member

 

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

Salma Noor, Member

1.             This is a complaint u/s 12 of the Consumer Protection Act, 1986.

2.             Briefly stated the facts for this complaint are that the OP, a builder, floated a residencial projext “Singapore Residency” on Plot No. F 406, Sector-36, RHO I, Greater Noida, Gautam Budh Nagar, UP and advertised for sale of flats in the print media and through their authorized brokers/agent.

3.             Allured by the offer of the OP builder given verbally as well as its brochure, the complainant booked a fully furnished 3 bedroom dwelling unit flat in the said project. An agreement to Sell was executed between the complainant and OP on 10.04.2006 with the condition of delivery of possession by March 2008 as per para 8 of the agreement. The complainant paid entire sale consideration amount of Rs. 64,53,626/- (Rupees Sixty Four Lac Fifty Three Thousand Six Hundred and Twenty Six only) i.e. Rs. 10,03,626/- (Repees Ten lac Three Thousand Six Hundred and Twenty Six only) from his own savings and for the rest he took loan from Axis Bank and for that a tripartite agreement was signed between the complainant, OP and Axis Bank.

4.             A per Clause 8 of the Agreement to Sell dated 10.04.2006, the OP was required to deliver the possession of the flat by March 2008 and as per Clause 9 of the said agreement any delay in delivery of the flat would attract interest @ 18% per annum on the amount paid by the allottee for the period of delay.

5.             The provisional allotment letter was issued by the OP on 10.04.2006 whereby one unit of 3 BR, DD, Kitchen, 3 toilets and 3 balconies under Category A 2 of area 1898 Sq. Ft. Tree Tower, Flat No. A2-604 was allotted to complainant. Thereupon, a subsequent more specific/final allotment letter was issued by the OP on 27.12.2010 in which the cost of the flat was unilaterally increased from Rs. 64,53,626/- to Rs. 66,96,709/-.

6.             It is alleged by the complainant that even 2 years after the agreed delivery date, delivery of the flat was not in sight and he wrote various letter and e-mails to OP for delivery of flat. Finally OP wrote a generic letter dated 27.01.2012 to all allottees promising that the apartment shall be ready in 6 months time which reads as under:

                “(i) the corrected and revised drawing were released by the Greater Noida Industrial Development Authority as late as 31.02.2007.

                “(ii)  To rectify this major issue, drawing was revised and there was no option but to construct the “Double Basement” to accommodate all the cars…….”

                “(iii) You are requested to pay for the electric connection charges to enable us to ……. Charges for electric connection and power back up are ……. Rs. 1500000.00 for 3 BHK apartments.”

7.             The case of the complainant is evident that OP was not serious on his promise of giving delivery by March 2008 because drawings were finalized in December 2007. The double basement was added to the drawings later and additional electric charges were added against the earlier promise of OP as it is visible from the Agreement to Sell dated 10.04.2006.

8.             Thereafter, complainant visited the site and the visit revealed that the flat would not be ready for possession in the given time frame by the OP since the possession of the flat was not in sight and OP was not willing to abide by the terms and conditions of the agreement dated 10.04.2006 and having no option left complainant sent a legal notice to OP on 15.01.2013 demanding refund of the entire amount paid along with interest @ 18% p.a. The OP replied to the notice on 12.02.2013 (Annexure 9 page 59) stating that the flat is ready for possession and the complainant was advised to pay the remaining balance amount due and take the possession of the said flat. According to the complainant the statement of the OP is belied from the fact that the construction of the flat is nowhere near completion and therefore the question of handing over the possession just does not arise. The complainant then sent a letter to OP dated 11.05.2013 stating his case and giving notice to refund the entire amount paid by him along with interest @ 18% or legal proceedings will follow.

9.             As OP has failed to hand over the physical possession of the flat and not refunded the entire amount along with agreed interest complainant has filed the present complaint with the following prayers:

“(i) Refund the amount of Rs. 64,53,626/-(Rupees Sixty Four Lac Fifty Three Thousand Six Hundred and Twenty Six Only) paid by the complainant to the Opposite Party as sale consideration of the Flat with 18% interest from the date of deposit of the aforesaid amount till the realization of the same.

(ii) Refund the amount of Rs. 29,81,550/- (Rupees Twenty Nine Lac Eighty One Thousand Five Hundred and Fifty Only) paid by the complainant towards the interest to the Bank which he has incurred in availing the loan;

(iii) Pay costs of Rs. 5,00,000/- (Rupees Five Lac Only) towards mental agony and torture and harassment inflicted upon the complainant due to deficiency in service and unfair and restrictive trade practice indulged in by the Opposite Parties;

(iv) Pay litigation costs of Rs. 2,00,000/- (Rupees Two Lac Only); and;

(v) Grant any other relief as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present case”.

10.            The complaint was admitted. Notice was issued to OP for filing written reply and objection to interim application.

11.            Counsel for the OP appeared on 11.09.2013, filed vakalatnama and complaint book along with interim application was supplied to him; his proxy appeared on the next date on 28.10.2013 and prayed for adjournment which was allowed; proxy for the counsel for OP again sought time to file written statement and objection on interim application on 18.11.2013, later on 18.12.2013 and 28.04.2014  when a last opportunity was given. None on behalf of OP had appeared on the next date i.e. 14.11.2014 and on 06.05.2015 OP was proceeded ex-parte and complainant was directed to file ex-parte evidence by way of affidavit which was filed by the complainant on the next date i.e. 03.08.2015. The complainant has also filed written arguments also.

12.            In the ex-parte evidence, complainant has filed his own affidavit wherein he has reiterated the contents of complaint case on oath. He has placed on record power of attorney executed in favour of the complainant i.e. Exhibit CW 1/1. He has also placed on record Agreement to Sell i.e. Exhibit CW 1/2. The complainant has also placed on record the payments being made to the OP i.e. Exhibit CW 1/3. Tripartite Agreement dated 26.09.2006 i.e. Exhibit CW 1/4. Certificates from the Axis Bank detailing the loan amount, in its repayment and interest i.e. Exhibit CW 1/5 (Colly). The complainant has also deposed having paid the bank loan of Rs. 29,451,86/-. He has further deposed as per Clause 8 of Agreement to Sell the OP was required to give possession of the flat by March 2008. As per Clause 9 of the Agreement any delay in delivery attracts interest @ 18% per annum on the amount paid by the allotted for the period of delay. Complainant has also placed on record allotment letter dated 10.04.2006 and 27.12.2010 i.e. Exhibit CW 1/6 and Exhibit CW 1/7. Complainant has also placed on record various letters/emails written by the complainant to OP i.e. Exhibit CW 1/8 (Colly). Complainant has also placed on record letter dated 27.01.2012 of OP i.e. Exhibit CW 1/9. A copy of legal notice executed CW 1/10. Copy of reply of the OP dated 12.02.2013 i.e. Exhibit CW 1/11. Complainant has also placed on record photographs of the site Exhibited CW 1/12 (Colly). The complainant has also placed on record response dated 11.05.2013 sent on his behalf of the OP dated 12.02.2013 i.e. Exhibit CW 1/13. The complainant has stated in the affidavit that OP has not given delivery of possession of the flat nor the amount has been returned with interest. It is stated that there is unfair trade practice on the part of the OP due to which complainant suffered mental and physical harassment.

13.            Evidence produced by the OP has gone unrebutted and unchallenged.

14.            We have heard counsel for the complainant and perused the record.

15.            It is evident from the documents filed by the complaint that amount of Rs. 64,53,625/- was paid by the complainant to the OP and the OP has not challenged this claim of the complainant that he has already paid the above amount to the OP in spite of appearance of his advocate on the first few hearings of this case. The Agreement to Sell signed by the complainant and OP Ex-CW 1/2, the tripartite agreement signed by the parties and Axis Bank Ex-CW 1/5 (Colly), and the statement of transactions issued by Axis Bank and filed along with the complaint establishes the case of the complainant.

16.            The payment of the transaction amount of Rs. 64,53,625/- has been made in 2006 itself. The photographs Ex-CW 1/12 submitted by the complainant make it clear that flat is not ready for possession. In addition, the OP made a false promise that delivery of flat will be given in March 2008 while the drawings of buildings were approved only in December 2007- no building can be completed just in 3 months after drawing were approved in December 2007. This simply reveals that the OP has made fake promise and gave false assurance that amounts to unfair trade practice and deficiency in service.

17.            Under these circumstances, the complainant is entitled for refund Rs. 64,53,626/- along with reasonable interest. In present case in hand according to buyer seller agreement (Clause 9) between the parties, OP has agreed to pay interest @ 18% per annum to the complainant in case of delay on his part. Hence, there is no need to fix any other rate of interest. So far as the assessment of compensation, complainant had a dream of having his own house but it was completely shattered by the OP by merely getting the huge amount. Obviously, this has caused mental agony, harassment and suffering for which we quantify the amount of Rs. 1,00,000/- as compensation.

Under these circumstances, we hereby direct as under:

                (i) The OP shall refund the entire amount of Rs. 64,53,626/- along with interest @ 18% from the date of deposit till realization.

                (ii) The OP shall also pay a compensation of Rs. 1,00,000/- to the complainant along with litigation costs of Rs. 10,000/-.

                (iii) We, further direct that in case the aforesaid amount of Rs. 64,53,626/- along with interest and compensation is not paid within 60 days from the date of receiving of this order, the OP shall pay interest @ 21% after expiry of 60 days up to the date of realization.

                A copy of this order be sent to the parties free of costs as per rules.

                File be consigned to record room.

(Justice Veena Birbal)

President

 

 

(Salma Noor)

                                                                                           Member