Haryana

Panchkula

CC/290/2020

ASHWANI KUMAR SINGLA. - Complainant(s)

Versus

M/S SAMAR ESTATES PVT.LTD. - Opp.Party(s)

VISHAL MADAAN & SANJEEV KASHYAP

17 Mar 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                       

Consumer Complaint No	:	290 of 2020
Date of Institution	:	22.09.2020
Date of Decision	:	17.03.2022

 

 

1.     Ashwani Kumar Singla s/o Sh. Hari Om Singla

2.     Smt. Rajni Singla w/o Sh. Ashwani Kumar Singla

        Both resident of House No.451, Sector-15, Panchkula

                                                                           ….Complainants

Versus

M/s Samar Estates Pvt. Ltd. through its Managing Director Sh. Vinod Bagai son of Sh. Nand Lal Resi cum office #87, Sector-7, Panchkula.  

….Opposite Party

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

For the Parties:   Sh.Vishal Madaan, Advocate, counsel for the complainant.    

                        OPs already ex parte vide order dated 10.11.2021.

ORDER

(Per Dr. Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that the Opposite Party(hereinafter referred as OP) have floated a group Housing Scheme of residential flats named as “Ess Vee Apartments” on the project land in Sector-20, Panchkula. On the allurement of the OPs of the above housing scheme project, the complainants had booked the 3 BHK flat having super area of 1725 Sqft. With the OP in July 2011 by paying booking amount of Rs.6,77,000/- vide receipt no.1190 dated 05.07.2011. The flat No.G-204 was allotted by the OP on the basic sales price of Rs.67,70,000/- alongwith service tax.  As per clause 32 of the flat buyer agreement, the construction was to be completed within 36 months from the date of commencement of construction which was already started at the time of booking of flat. As per demand raised by the OP, the complainants had made the following payments to OP:-

Sr. No.	Receipt No.	Receipt Dt.	Amount (Rs.)	Cheque No.	Cheque Dt.
1	1190	05.07.2011	6,77,000	986396	05.07.2011
2	1850	31.03.2013	10,15,500
3	2048	09.07.2013	5,00,000	000005	08.07.2013
4	2207	07.12.2013	,6,00,000	310453	07.12.2013
		Total	27,92,500

        The complainants had paid Rs.27,92,500/- to OP but the construction in project was going on with slow pace therefore the complainant requested the OP to expedite the pace of construction but the OP have made huge investment on the 3^rd phase of project.  Due to diversion of funds, the OP could not complete the construction and speed of project become slow. The complainant approached many times to OP for completion of project but in December 2014, the complainant and other allottees have stopped making further payment to the OP. There were several complaints filed before  Haryana Real Estate Regulatory Authority at Panchkula against the OP in which OP have made false assurances  to the Hon’ble HRERA Authority  as well as to allottees to deliver the possession in extended period but OP have failed to start the construction despite several assurances made before the Hon’ble HRERA Authority , therefore, the Hon’ble HRERA Authority have decided all the complaints against OP with single order in the bunch matters vide order dated 09.10.2019. The Hon’ble HRERA Authority have further suspended the RERA license of the project “Ess Vee Apartments” in the complaint no.2807 of 2019 due to huge delay in completion of project and debarred OP from further selling the flats in project and assets of project. The complainants has got served the legal notice dated 13.08.2020 posted on 17.08.2020 to the Op through their counsel with the direction to the OP to refund the deposited amount with interest to the complainant but OP neither replied to the notice nor refund was made to him. Due to the act and conduct of the OP, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.

2.             Notice was issued to the OP through registered post which was not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OP; hence, it was deemed to be served and thus, due to non appearance of OP, he was proceeded ex-parte by this Commission vide its order dated 10.11.2021.

3.             To prove his case, the ld. Counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-9 in evidence and closed the evidence by making a separate statement.

4.             We have heard learned counsel for the complainant and gone through the entire record available on record, minutely and carefully.

5.             Evidently, a flat no.G-204 was allotted in favour of complainants in the Group Housing Scheme, namely, ESS VEE Apartments, floated by the OP on the project land in Sector-20, Panchkula. The application form for allotment of a residential flat as given by the complainants is available on record as Annexure C-2 and the booking receipt amounting to Rs.6,77,000/-issued on behalf of the OP is Annexure C-1. As per averments made in Para No.5 of the complaint and Para No.6 of the Affidavit(Annexure C-A), a total sum of Rs.27,92,500/- has been paid by the complainants to the Op qua the total price of the flat i.e. Rs.67,70,000/-. The details of payments as given in said Paras is as under:

Sr. No.	Receipt No.	Receipt Dt.	Amount (Rs.)	Cheque No.	Cheque Dt.
1	1190	05.07.2011	6,77,000	986396	05.07.2011
2	1850	31.03.2013	10,15,500
3	2048	09.07.2013	5,00,000	000005	08.07.2013
4	2207	07.12.2013	,6,00,000	310453	07.12.2013
		Total	27,92,500

6.             The aforementioned payments stand duly proved by the receipt(Annexure C-1) dated 05.07.2011, Annexure C-3 dated 31.03.2013, Annexure C-4 dated 09.07.2013, Annexure C-5 dated 07.12.2013. The grievances of the complainants are that the OP had diverted the funds, which was collected from various consumers in respect of the Towers in question, in the construction of third phase of the project and as such is not in a position to deliver the possession of the flats to the complainants. It is contended that OP has stopped the construction work at site and thus, is not in a possession to deliver the possession of the flat in question. It is further contended that the complainants were assured the delivery of the possession within 36 months on the date of booking of the flat vide booking receipt(Annexure C-1) and Buyer’s Agreement (Annexure C-6) but the possession of the booked flat has not been delivered so far.

7.             The OP did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against it. The non-appearance of the OP despite notice shows that he has nothing to say in its defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go unrebutted and uncontroverted.

8.             On the other hand, the version of the complainants is fully supported and corroborated by his affidavit Annexure C-A, along with documents Annexure C-1 to C-9. As per Clause 32 of the Apartment Buyer’s Agreement(Annexure C-6), it was assured that the construction of the building would be completed within a period  of 36 months from the date of commencement of the construction. It is the unrebutted contention of the complainant that construction work was under progress when the flat in question was booked with the OP vide receipt(Annexure C-1). Since, there is no version of the OP as to the status of the construction at site or as to the provision made with regard to the basic amenities at site i.e. water, sewerage, roads and electricity etc., we have no option except to conclude that the Op has been deficient while delivering services to the complainants. Even, the legal notice(Annexure C-8 failed to evoke any positive response from the OP. Further, we are clueless as to whether the OP had taken the necessary approvals and sanctions from the Competent Authority prior to raising the construction at site. Therefore, we have no hesitation to conclude that there has been lapse and deficiency in service on the part of OP while rendering services to the complainant; the complainant is entitled to relief.

9.             Coming to the relief clause, it may be mentioned here that as per well settled legal proposition in case laws i.e. Aerostar Helmets Pvt. Ltd. Vs. Adani M2K Project L1p & Ors in CC No.930 of 2018 delivered on 18.11.2020(NC) and another case law CC No.2094 of 2019, Ankur Goyal Vs. M/s Rise Project Pvt. Ltd., decided on 14.10.2020(NC), deposited amount has been ordered to be refunded @9% per annum; therefore, the OP is directed to refund the deposited amount  i.e. Rs.27,92,500/- to the complainants  alongwith interest @9% per annum w.e.f. the  date of each deposit till its realization. Further, the OP is directed to pay a compensation of Rs.25,000/-to the complainants on account of mental agony and harassment. The OP is further directed to pay a sum of Rs.5,500/-  to the complainants as litigation charges.  

10.            The OP shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

 

Announced on: 17.03.2022

 

        Dr.Sushma Garg          Dr.Pawan Kumar Saini          Satpal

                Member                     Member                     President

 

Note: Each and every page of this order has been duly signed by me.

 

                                  Dr.Pawan Kumar Saini 

                                         Member