District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 195/2022.
Date of Institution:06.04.2022.
Date of Order:25.08.2023.
Gita Nandan Dixit S/o Shri B.C.Dixit, R/o H.No.396, Sector-16, Ist floor, Faridabad, Haryana.
…….Complainant……..
Versus
M/s. RPS Infrastructure Limited, through its Directors, 1117-1120, Ist floor, Tower-B, DLF Towers, Jasola District center, New Delhi – 110 025.
.. …Opposite party…..
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
PRESENT: Sh. Rohan Khanna, counsel for the complainant.
Sh. Mukesh Kumar, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant had purchased a booked booked flat No. SB-11-0703 in tower Sapphireberry-11 in SAVANA with opposite party for total price of Rs.21,43,320/- out of which a sum of Rs.9,58,452/- was paid initially at the time of booking by the original buyer Mrs. & Mrs. Jindal and thereafter the payments were made in manner in terms of receipts hereby annexed with the complaint with total sum standing paid to opposite party coming to Rs.19,80,646/-. The complainant was endorsed by the opposite party as substituted buyer in place of original buyer vide letter dated 06.11.2007. In terms of agreement to sell the said plot was incumbent to deliver possession of flat within 36 months of execution of the Buyer’s agreement which was very clearly been stated in para No. 14 of the buyer’s agreement that was by 2010 bill date had not delivered the possession of the bought flat despite receiving payment of Rs.19,80,646/- with Rs.1,62,674/- only remaining balance to be paid at the time of delivery of possession. The complainant had made payment of installments as per schedule of the agreement and was ready and willing to pay the balance price.The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) handover the possession alongwith the occupation certificate to the complainant.
b) Injunction on the opposite party restraining it to raise any undue bills/charges during pendency of the present complaint.
c) with any other order of relief in alternative which this Hon’ble Commission may deem fit and proper be also passed in the interest of Justice.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the complainant had not approached thisHon’ble Commission with clean hands and had concealed the material fact that the complainant failed t remit the due instalments despite repeated reminders/demand lettrs dated 03.06.2013, 16.07.2013, 10.10.2013, 16.04.2014, 18.09.2014, 09.06.2015, 18.08.2015, 26.03.2016 and 07.10.2015 having been sent by the opposite party which compelled the opposite party to cancel the allotment of the unit in question i.e. Unit No. SB-11-0703, hereinafter reerred to as the said “Unit”. On 07.05.2016 as per terms of allotment subsequent to cancellation of allotment as above, a refund letter had been issued to the complainant on 17.08.2016. In terms of letter dated 17.08.2016, a sum of Rs.18,33,763/- was refundable after deducting a sum of Rs.3,10,000/- being forfeited amount equivalent to 15% of basis sale price. The balance amount was refundable as per the terms and conditions of allotment/buyer’s agreement dated 05.11.2007 and after completion of necessary formalities. The complaint was barred by law of limitation as the allotment of unit in question was cancelled by the opposite party vide cancellation letter dated 07.05.2016 and vide letter dated 17.08.2016. the complainant was asked to complete the formalities for refund of his amount of Rs.18,33,763/- after forfeiture of the earnest money amounting to Rs.3,10,050/- but the complainant failed to come forward to initiate the process of refund hence, his right to receive any amount from the opposite party after a pase of around 6 years was extinguished. Opposite party 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 party–M/s. RPS Infrastructure Limited with the prayer to: a) handover the possession alongwith the occupation certificate to the complainant. b)Injunction on the opposite party restraining it to raise any undue bills/charges during pendency of the present complaint. c) with any other order of relief in alternative which this Hon’ble Commission may deem fit and proper be also passed in the interest of Justice.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Geeta Nanda Dixit, Ex.C-1 – Buyer’s agreement, Ex.C-2 – letter dated 23.2021, Ex.C-3 – postal receipt,, Ex.C-4 – agreement to sell, Ex.C-5 – demand notice, Ex.C-6 – letter dated 12.11.2007, Ex.C7 – Company master data, Ex.C-8 – letter dated 08.06.2012,, Ex.C-9 – demand notice, Ex.C-10 – credit advice, Ex.C-11 – letter dated 04.08.2011, Ex.C-12 to 20- receipts, Ex.C-21 - calculation, Ex.C-22 to C-24 – receipts, Ex.C-25 – calculation, Ex.C-26 to 27 – receipts, Ex.C-28 – photocopy of cheque of 39,966/-, Ex.C-29- photocopy of cheque amounting to Rs.99,000/-, Ex.C-30 to 33 – receipts, Ex.C-34 – calculation, Ex.C-35 – receipt, Ex.C-36 – letter dated -6.11.2007,, Ex.C-37 – receipt,, Ex.C-38 - Customer ledge report, Ex.C-39 – customer ledge report, Ex.C-40 – credit advice,, Ex.C-41 – credit note, Ex.C-42 - letter dated 04.08.2011 regarding demand for payment of enhance external development charges, Ex.C-43 – receipt, Ex.C-44 –photocopy of cheque, Ex.C-45 – photocopy of cheque, amounting to Rs.9,08,452/-, Ex.C-46 – photocopy of cheque amounting to Rs.1,38,966/-, Ex.C-47 - letter dated 25.5.2011 regarding fixation of external development charges for urban estate, Faridabad,
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party Ex.R/A – affidavit of Rajesh Jain, Authorized Representative, RPS Infrastructure Ltd. 1117-1120, 11th floor, Tower-B, DLF Towers, Jasola District Centre, New Delhi, Ex.RW/1 – Certificate of Incorporation, Ex.RW/2 – resolution, Ex.RW/3 (colly) letter dated 03.06.2013, Ex.RW.4(colly) –Reminder letter dated 16.07.2013, Ex.RW/5 – letter dated 17.08.2016 regarding cancellation of allotment of flat bearing No. SB-11-0703 in SB-11 Tower, RPS SAVANA, RPS City, Sector-88, Faridabad, Ex.RW/6 – Buyers agreement, Ex.RW/7 – Application Form, Ex.RW/8 – letter dated 25.09.2006, Ex.RW/9 – letter dated 19.10.2007, Ex.RW/10 – application Form, Ex.RW/11 – letter dated 06.11.2007, Ex.RW/12(colly) – Form LC-V.
6. In this case, the complainant had purchased flat No. SB-11-0703 in tower Sapphireberry-11 in SAVANA with opposite party for total price of Rs.21,43,320/- out of which a sum of Rs.9,58,452/- was paid initially at the time of booking by the original buyer Mrs. & Mrs. Jindal and thereafter the payments were made in manner in terms of receipts Ex.C-12 to
C-20, Ex.C-22 to C-24, Ex.C-26 to 27,, Ex.C-30 to C-33 – receipts, Ex.C-35 with total sum standing paid to opposite party coming to Rs.19,80,646/-. In terms of agreement to sell plot was incumbent to deliver possession of flat within 36 months of execution of the Buyer’s Agreement which very much clearly been stated in para No. 13 of the Buyer’s agreement that was by 2010 but till date had not delivered the possession of the bought flat despite receiving payment of Rs.19,80,646/- with Rs.1,62,674/- only remaining balance to be paid at the time of delivery of possession.
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 party because the Buyer’s Agreement was made to the complainant on 05.11.2007 vide Ex.C1 and he has waited for more than 15 years to see the project to be completed and the offer of possession of flat was not given to him. The counsel for the complainant has placed on record authority in case titled 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 The complainant had been waiting for completion of the project in which allotted unit is located for more than 8 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 party is directed to refund the deposited amount to the complainant without any deduction alongwith interest @ 6% p.a. from the date of respective dates of deposit till its realization. Opposite party is also directed to pay Rs.5500/- as compensation for causing mental agony & harassment alognwith Rs.5500/- as litigation expenses 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: 25.08.2023 (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.
