DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 227/2018
Mohd. Akhlaq
S/o Mohd. Ashfaq
R/o, R-270, Street No-12
Ramesh Park, Laxmi Nagar,
New Delhi-110092 ….Complainant
Versus
M/S Senior Builders Limited
Through Its Managing Director
Corporate Office: B-109, Defence Colony,
New Delhi-110024
….Opposite Party
Date of Institution : 03.08.2018
Date of Order : 20.07.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
1. Complainant has requested to pass an award directing the Senior Builders Ltd. – SBL (hereinafter referred to as OP) to issue offer of allotment of plot in question and registry thereof or to allot another plot of land equal in all respect in any other project in favour of the Complainant; (ii) to award compensation of Rs. 4,00,000/- towards the mental harassment & agony; (iii) to award an interest @18% per annum on the deposited amount of Rs.5,00,000/-; & to award litigation charges Rs. 50,000/- or any other order that this Commission deems fit.
2. Brief facts of the case are as under:-
The Complainant had booked a residential plot of land in a project named as “SBL City” at Sector-2, Sonepat, Haryana. As promised, the allotment had to be made by October, 2005. The Complainant had booked a plot admeasuring 360 sq. yard for Rs. 18,90,000/- and made an advance payment of Rs.5,00,000/- through Cheque No.726282 dated 08.04.2005 to the OP as advance payment. As a result of said payment, the Payment receipt dated 08.04.2005 was issued by the OP informing the Complainant that its application had been accepted and a unit measuring 360 sq. yards had been allotted provisionally. A copy of said receipt is annexed as Annexure P-2. After waiting for many months, the Complainant alongwith broker visited the office of the OP. It was informed that the OP had applied for L.I.O. in the Authority concerned and duration of obtaining the L.I.O. was 90 days. Hence at last, the Complainant had to wait. The OP gave a new time for the project as 31.08.2007 vide its letter dated 08.07.2007. The copy of said letter is enclosed as Annexure P-4.
3. When the Complainant after a long wait, asked for registry of said plot or L.I.O, the OP did not offer any response. After 13 years, from the date of deposition of advance amount of Rs.5,00,000/- a legal notice was issued. No response was received. The Complainant maintains that this amounts to deficiency in service on behalf of the OP. The Complainant has also relied upon the ratio of Hon’ble Supreme Court in the case of M/s Fortune Infrastructure Vs Trevor Dlima vide judgement date 12.03.2018, where it is observed as under:-
“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 of service on the part of the appellants and accordingly the issue is answered.” Hence the complaint.
4. OP, on the other hand, was issued notice on 01.10.2018 after satisfying that the case is not time-barred as held in number of cases by Hon’ble National Commission. None appeared on behalf of OP on 18.01.2019, 26.02.2019, 02.04.2019. On 23.04.2019 OP was proceeded exparte as none appeared on the said date on behalf of OP. Despite service of notice, the OP did not bother to join the proceedings. No reply etc was filed in this Commission. Hence, OP was proceeded exparte on 23.04.2019.
5. Complainant filed exparte evidence as well as Written Arguments. Oral arguments were addressed by the counsel for Complainant and concluded.
6. The Commission has gone into the material placed before us. As stated above, the Complainant advanced the copy of judgement in the case of Juliet V. Quadros Vs Malti Kumar decided on 07.12.2004 asserting the point that case is not time barred as no transaction was shown by the Complainant from 08.07.2007 when OP gave a new time line for the project till the filing of this complaint. The Hon’ble National Commission in above quoted judgement stated as under:-
“Dealing with first point of Limitation, first, this point has been very comprehensively dealt with in the order passed by the District Forum. It is not in dispute that till date neither possession has been given nor money has been refunded ….., hence as rightly held by the District Forum, the cause of action continuous and we are in full agreement with this. Since this was a continuous cause of action in the above facts and circumstances, it cannot be said to be barred by limitation.”
7. From the above, it is vividly clear that case is filed within limitation. It is also noticed that no agreement seems to have been signed for the purchase/sale of the said plot-land. There appear two documents which establishes that the parties have reached an agreement for the sale/purchase of the land. Payment Receipt is exhibited as Annexure P-2 indicating that an amount of Rs. 5,00,000/- was received by OP- Company for 360 sq. yards land. The said amount is paid through Cheque as mentioned therein. Another document is a certificate issued by OP for the project at Sonepat City (SBL City, Sonepat) stating that said project is due to be launched shortly (latest by 31.08.2007). In case, there is any further delay in launch of this project after 31st August, they would refund full amount of advance deposit by 01.09.2007. It is sort of assurance on behalf of OP to its booking holders. In a way, it can be safely assumed that the Complainant and OP had an agreement for the plot in question. It is further stated that the OP’s counsel was given Copy of complaint & accompanying documents on 26.11.2018 and he chose to not file reply etc, His silence leads us to conclude that the OP is in agreement with the averments of the Complainant.
8. This Commission, after considering the material on record, is of the view that OP is found deficient in service and accordingly direct OP to offer the plot of land of equal measurement at the proposed site (SBL City) or at the equally located site of same measurement or alternatively, the refund the amount of Rs. 5,00,000/- deposited with OP for advance booking of the plot in question alongwith interest @6% per annum from the date of deposition of said amount and Rs. 50,000/- as compensation towards mental harassment and mental agony etc. The above mentioned order should be given effect within three months from the receipt of this order failing which interest on the said amount shall be levied @9% per annum till its realization.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
