Chandigarh

DF-II

CC/33/2023

SHAILAJA MAHAJAN - Complainant(s)

Versus

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

MUNISH GOEL

19 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	33/2023
Date of Institution	:	17.01.2023
Date of Decision	:	19.03.2024

 

                                 

                    

 

1.    Mrs.Shailaja Mahajan w/o Sh.S.K.Mahajan r/o H.No.5185, Modern Housing Complex, Manimajra, Chandigarh -160101.

 

2.    Mr.Siddhaarth Mahajan s/o Sh.S.K.Mahajan r/o H.No.5185, Modern Housing Complex, Manimajra, Chandigarh -160101 through his attorney Sh.S.K.Mahajan s/o late R.R.Mahajan r/o H.No.5185, Modern Housing Complex, Manimajra, Chandigarh -160101.

                           ...  Complainants.

Versus

M/s Rudra Buildwell Infra Pvt. Ltd., H-56, Sector 63, Noida 201301 through its Chairman/Managing Director/Director/ Partner/Manager/Authorized Signatory.

…. Opposite Party

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Munish Goel, Counsel of complainant OP exparte.

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.         The complainants have filed the present complaint alleging therein that they booked a flat with the OP by paying Rs.4,18,196/-  on 24.08.2023 and thereafter paid Rs.2,43,103/- on 07.10.2013 to the OP.  Vide allotment letter dated 30.12.2013 (Annexure C-4), the complainants were allotted Flat No.807, 9^th Floor, 2BHK+2 Toilets having 1050 sq. ft. in Block C in the project of the OP known as Victoryone Amra situated in Plot No.GH-05/C located at Sector 16, Great Noida, District Gautam Nagar, UP for total price of Rs.37,82,250/- and the payments were to be made as per construction link plan.  As per clause 15(A), the possession was to be handed over after completion of development/construction at the site within 30 months and further within extended period of 6 months thereof.  The complainants made the total payment of Rs.38,86,384/- to the OP as detailed in para 10 of the complaint, against receipts Annexures C-4 to C-14. In April, 2021, the OP initiated some Rera Dispute before the U.P. Rera Authorities and on payment of the outstanding due amount of Rs.2,80,000/- to the OP on 25.06.2021, the OP had withdrawn the said rear complaint and assured to deliver the possession of the unit as assured in the allotment letter. The complainants visited the site of the OP in the month of May, 2022 but they were surprised to see that the OP has not provided the amenities as mentioned under ‘specification” till May, 2022. The complainants approached the OP many times for getting the actual and physical possession of the unit but the same has not been handed over to the complainants till date despite service of the legal notice dated 05.09.2022 ((Annexure C-17).  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OP, the complainant has filed this complaint seeking directions to the OP to  complete the site and provide all the amenities as mentioned in the allotment letter and to hand over the actual and physical possession of the flat after obtaining the occupation and completion certificate along with interest @ 12% on the deposited from the date of possession being due i.e. 30.12.2016 till the date of its actual and physical possession of the flat, along with compensation and litigation expenses.
2.     Despite due service, the Opposite Party failed to put in appearance and as a result thereof it was ordered to be proceeded against exparte vide order dated 17.02.2023.
3.        We have heard the Counsel for the complainants and gone through the documents on record.
4. In exparte evidence, the complainants have tendered detailed affidavit reiterating the averments made in the complaint along with the documents in support of their case.  It is observed from the allotment letter dated 30.12.2013 that (Annexure C-4) that the complainants were allotted Flat No.807, 9^th Floor, 2BHK+2 Toilets having 1050 sq. ft. in Block C in the project of the OP known as Victoryone Amra situated in Plot No.GH-05/C located at Sector 16, Great Noida, District Gautam Nagar, UP for a total price of Rs.37,82,250/-.  The complainants paid a sum of Rs.38,86,384/- towards the unit in question to the OP.  As per clause 15(A) of the said allotment, the possession was to be handed over after completion of development/construction at the site within 30 months and further within extended period of 6 months thereof i.e. 30.12.2016.  The complainants have specifically deposed in the affidavit that the OP has failed to deliver the actual and physical possession of the unit in question along with the occupation and completion certificate despite their repeated requests so far, which itself amounts to deficiency in service as also unfair trade practice on the part of the OP.
5.        The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed as under:-

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/ apartments, invites offers and collects money from the buyers. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

              The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed as under:-

“The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

                The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

“15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there  was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency in service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency in services, then the question is what compensation the respondents/complainants is entitled to?”

16 to 21.         xxxxxx

22.          …….. In light of the above, the damages other than consequential loss have to be measured at the time of the breach. However, the aforesaid rule is flexible which needs to be assessed in facts and circumstances of individual case……..”

6.        Hence, the act of the OP to collect the money before getting all the necessary approvals for the project and not handing over possession of the unit in question within the stipulated period certainly proves deficiency in service and its indulgence in unfair trade practice. 
7.        Moreover, the OP did not appear to contest the case and preferred to proceed against ex-parte. Non-appearance of the OP shows that they have nothing to say in their defence against the allegations made by the complainant. Therefore, the assertions of the complainants have gone un-rebutted & un-controverted.
8.        In the light of above observations, the present complaint is partly allowed with following directions to the OP to handover the actual and physical possession of the unit in question complete in all respects to the complainants. As per Clause 15(C) of the allotment letter, the OP is also directed to pay compensation to the complainants @ Rs.10 per sq. ft. of super area per month for the period of delay of three months from January to March, 2017 and Rs.15/- per sq. ft.  on the saleable/leasable area per month from 01.04.2017 till the date of its actual realization to the complainants.
9.         The above said order shall be complied by the OP within a period of 90 days from the date of receipt of its copy.
10.        The pending application(s) if any, stands disposed of accordingly.
11.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced 19.03.2024	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (B.M.SHARMA) MEMBER