Chandigarh

DF-I

CC/63/2021

Suraj Dhaka - Complainant(s)

Versus

M/s Royal Empire - Opp.Party(s)

Rakesh Bajaj

19 Oct 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/63/2021
Date of Institution	:	28/01/2021
Date of Decision	:	19/10/2021

 

Suraj Dhaka s/o Sh. Rakesh  Dhaka r/o H.No.3218, Sector 28-B, Chandigarh.

… Complainant

V E R S U S

1. M/s Royal Empire, 909, Sector 9, Panchkula, Haryana through its authorized signatory/Manager/Officer-in-charge/Director Sales & Marketing/M.D.

Second Address :

M/s Royal Empire, near Varindavar Garden, Peermuchalla, Dhakoli, Tehsil Dera Bassi, Distt. SAS Nagar through its authorized signatory/Manager/ Officer-in-charge/Director Sales & Marketing/M.D.

2. Mr. Jiwan Garg, MD of M/s Royal Empire, F-Block, Royal Empire, Peermuchalla, Zirakpur 140603, District SAS Nagar, Mohali, Punjab.
3. Mr. Prince Garg son of Sh. Jiwan Garg, Partner/ Director of M/s Royal Empire, Flat No.101, F-Block, Royal Empire, Peermuchalla, Zirakpur 140603, District SAS Nagar, Mohali, Punjab.

… Opposite Parties

CORAM :	SHRI RAJAN DEWAN	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                               

ARGUED BY	:	Sh. Rakesh Bajaj, Counsel for complainant
	:	OPs ex-parte.

Per Rajan Dewan, President

1.     Briefly stated allegations are, OPs floated a scheme ‘Royal Empire’ at Peermuchhalla, Zirakpur, Tehsil Dera Bassi, District SAS Nagar, Punjab. On being applied, OPs allotted flat No.104, Block Q with covered area of 1490 sq. ft. and super area of 1800 sq. ft. to the complainant vide allotment letter dated 15.7.2010.  Agreement to sell dated 15.7.2010 was also executed for a total consideration of ₹14,00,000/- which was paid by the complainant vide two cheques of ₹5,00,000/- and ₹9,00,000/-. As per agreement, OPs agreed to deliver possession of the flat to the complainant within 18-21 months from the date of booking, but, they failed to do so, till date, despite requests which caused a lot of mental and physical harassment to the complainant. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, the complainant has filed the instant consumer complaint.
2.     Registered notice was sent to OP-1 which was presumed to have been served. Since none appeared on behalf of OP-1, therefore, vide order dated 16.8.2021 of this Commission, it was proceeded against ex-parte.
3.     Registered notices sent to OPs 2 & 3 were returned with the report ‘unclaimed’ which tantamount to refusal. Since refusal is valid service and none appeared on their behalf, therefore, vide order dated 16.8.2021, OPs 2 & 3 were proceeded against ex-parte.
4.     Complainant led evidence by way of affidavit and documents.
5.     We have heard the learned counsel for the complainant and gone through the record of the case.
6.     Ex.C-1 is a copy of the allotment letter dated 15.7.2010 vide which OPs allotted flat No.104 in Block-Q in their project “Royale Empire” situated at Peermuchhalla, Zirakpur, District Mohali to the complainant. Ex. C-2 and Ex.C-3 are copies of receipts dated 2.7.2010 and 13.7.2010 issued by the OPs whereby they acknowledged receipt of ₹5,00,000/- and ₹9,00,000/- totaling ₹14,00,000/- from the complainant. Ex.C-4 is the copy of the agreement to sell dated 15.7.2010 executed between the complainant and OPs. As per the said agreement, the total cost of the flat in question was ₹14,00,000/-, which stood paid. The complainant has also filed his duly sworn affidavit in support of his contentions.
7.     It has been argued by the learned counsel for the complainant that the OPs had agreed to offer possession of the flat within 18-21 months, but, they have failed to do so despite lapse of more than a decade. He has drawn our attention to clause 7 of the agreement which reads as under :-

“7.  The possession of the completed Flat is likely to be offered by the First Party within 18-21 months from the date of booking, however, subject to timely payment by the Second Party, availability of the construction materials, etc. or any change of policy by the Government/Local Authority, etc. Furthermore, compensation as specified by the regulatory authorities shall be paid by the First Party for the delay in offering the possession of Flat.”

It is clear from the afore-extracted clause that the OPs were bound to offer possession within a period of 18-21 months from the date of booking, but, they failed to do so. 

8.     Further, as per clause 12 of the agreement, OPs had agreed to compensate the complainant for the period of delay as under :-

“12. The Flat shall be handed over to the second party within 18 to 21 months from the date of agreement. However, in the event of delay in handing over of the flat under justifiable reasons, to the Second party, the first party shall be liable to pay Rs.3.50 per sq. ft. x 1800 sq. ft. = 6300/-per month as compensation for the delay to the second party.”

The agreement was executed between the parties on 15.7.2010. We are approaching the end of year 2021 and the said period had already expired long back on 15.04.2012. However, till date OPs have not offered possession to the complainant. The agony and wait of the complainant to enjoy the comforts of his flat is going on till date. 

9.         On the other hand, in order to rebut the allegations of the complainant, it was obligatory for the OPs to have filed their written reply alongwith some cogent evidence. However, what to talk of rebutting the allegations, OPs did not put in appearance before this Commission and chose to be proceeded against ex-parte. This act of the OPs draws an adverse inference against them and proves that they have nothing to say in their defence qua the allegations made by the complainant. In the absence of anything to the contrary, the allegations of the complainant go unrebutted and uncontroverted.
10.         It is not out of place to mention here that while purchasing a flat/plot, purchasers have to shell out their entire savings and also take loans from their family members, relatives and friends or financial institutions. In some cases, in the absence of timely delivery of possession by the builders, purchasers perforce have to live on rent which multiplies their agony. In the present case also, on account of delay in actual delivery of possession within the stipulated period, complainant had to unnecessarily undergo mental agony, hardship and financial loss. Therefore, we are of the view that delayed compensation @₹6,300/- per month is on very lower side and is not commensurate to the ongoing misery and harassment of the complainant.
11.         Recently in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020, the Hon’ble Supreme Court awarded simple interest @6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. We are bound by the precedent of the Hon'ble Supreme Court. Therefore, we hold that in addition to agreed penalty @ ₹6,300/- per month, after expiry of stipulated date of delivery of possession, complainant is also entitled to simple interest @ 6% per annum on the entire amount deposited, from 16.04.2012 till delivery of possession of the unit, complete in all respects.
12.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under :-

1. to immediately deliver actual physical possession of the flat in question, to the complainant, complete in all respects, after obtaining occupation and completion certificates from the competent authorities;
2. to pay compensation @ ₹6,300/- per month, as per Clause 12 of the agreement, and also pay interest @6% p.a. on the entire deposited amount, w.e.f. 16.04.2012, till delivery of actual physical possession as per clause (i) above.
3. to pay an amount of ₹50,000/- to the complainant as compensation for causing mental agony and harassment to him;
4. to pay ₹11,000/- to the complainant as costs of litigation.

13.     This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(ii) &  (iii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining directions.
14.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
19/10/2021	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rajan Dewan]
hg	Member	Member	President