District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 245/2022.
Date of Institution:10.05.2022.
Date of Order:24.03.2023.
Hari Nath Srivastava aged about 55 years S/o late Shri Ganga Ram Srivastava R/o H.No.773, Baba Faridpuri, West Patel Nagar, New Delhi – 110 008. Aadhaar No. 3272 2837 3584.
…….Complainant……..
Versus
M/s. SRS Real Estate Ltd. SRS Multiplex, Top Floor, Sector-12, Faridabad through its Director/Authorised Signatory Mr. Anil Jindal (now Mr. Anil Jindal is in judicial custody at Neemka Jail service be also effected through Jail Superintendent, Neemka Jail Faridabad.
…Opposite party
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. Udham Singh , counsel for the complainant.
Sh. Parveen Gupta, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant booked a flat No. PH/PWL/07/0080 in their project SRS Palm Home, Sector-7, Palwal for total sale consideration of Rs.16,58,507/- vide application No. 1743 dated 09.10.2014. The opposite party had sent the payment plan to the complainant. In this regard a allotment letter/buyer agreement was executed between the opposite party and the complainant. The complainant had paid the following amount to the opposite party had duly acknowledge the receipts in favour of complainants:-
i) Rs.20,000/- on dated 9.10.2014 vide cheque No. 653665.
ii) Rs.80,000/- on dated 25.05.2015 vide cheque No. 298490.
iii) Rs. 4,28,710/- on dated 24.06.2015 through Indiabulls.
iv) Rs.3,14,627/- on dated 8.09.2015 vide cheque No. 628118.
As per the terms and conditions of the said agreement, the physical possession of the said flat was to be handed over to the purchaser within 3-1/2 years from the date of execution of this agreement. The complainant visited their site then they shocked and surprised that after allotting the flat in the said project, a single construction work had not done by the opposite parties. On 7.10.2016 the opposite parties issued a demand letter to the complainant for deposit of the remaining amount of Rs.5,10,909/-. Even approaching to their office situated at SRS Tower Mathura Road, Faridabad, their office found closed at 3rd floor and no representative was available for contact and for any communication on updates of said project. 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) to release the amount of Rs.8,43,337/- alongwith interest @ 18% p.a. from the date of withhold.
b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 51,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the transaction/relationship between the parties was governed by Builder Buyer Agreement dated 09.10.2014 and terms and conditions attached thereto. It was submitted that as per aforesaid building buyer agreement opposite party had to deliver possession of flat within 42 months from the date of execution. It was submitted that the time for offer of possession had yet not arrived. It may also be noted that the cost of paid by complainant to opposite party was pertained to the cost of raw land and development of internal roads and was exclusive of all other costs that might be incurred by opposite party in development of the colony, It was submitted that grievance raised by the complainant in the complaint was outset the scope of agreement. 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–SRS Real Estate Limited with the prayer to: a) to release the amount of Rs.8,43,337/- alongwith interest @ 18% p.a. from the date of withhold. b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 51,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW-1/A – affidavit of Hari Nath Srivastava, Ex.CW-1/A – payment plan, Ex.CW-2 – Type-B, Ex.C-3 – letter dated 09.04.2015, Ex.C-4 – payment plan, Ex.C-5 – demand letter dated 14.11.20915,, Ex.C-6 – receipt, Ex.C-7 – Allotment letter for residential flat,, Ex.C-8 – letter dated 25.04.2015 regarding allotment of flat No. in Affordable Group Housing Project, Ex.C-9 – Loan Sanction letter,, Ex.C-10 (colly) (1-5) – Terms and conditions, Ex.C-11 colly (1/2), Ex.C-12 – letter dated 07.10.2016 regarding reminder for demand, Ex.C-13 – receipt,, Ex.C-14 – Acknowledgement,, Ex.C-15 – demand letter dated 14.11.2015, Ex.C-16 – statement of Hari Nath.
Learned counsel for the opposite party made a statement that the written statement already filed on behalf of opposite party, the same may be read as evidence on behalf of opposite party and closed the same. Accordingly, the evidence on behalf of opposite party had been closed vide order dated 10.02.2023.
6. In this case, the complainant booked a flat No. PH/PWL/07/0080 in their project SRS Palm Home, Sector-7, Palwal for total sale consideration of Rs.16,58,507/- vide application No. 1743 dated 09.10.2014. In this regard a allotment letter/buyer agreement was executed between the opposite party and the complainant. The complainant had paid the following amount to the opposite party had duly acknowledge the receipts in favour of complainants:-
i) Rs.20,000/- on dated 9.10.2014 vide cheque No. 653665.
ii) Rs.80,000/- on dated 25.05.2015 vide cheque No. 298490.
iii) Rs. 4,28,710/- on dated 24.06.2015 through Indiabulls.
iv) Rs.3,14,627/- on dated 8.09.2015 vide cheque No. 628118.
As per the terms and conditions of the said agreement, the physical possession of the said flat was to be handed over to the purchaser within 3-1/2 years from the date of execution of this agreement. More than a period of 8 years had already been lapsed but the opposite party
had failed to provide the possession of the said plot to the complainant.
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 Builder Buyer Agreement was made on 09.10.2014 and he has waited for more than 8 years to see the project to be completed and offer of possession of the allotted plot to him. So that unilateral clause about the cancellation by the allottee debar him from seeking refund is not binding in view of the ratio of laid down in the following cases:
1) Ram Vilas “Sharma & 23 others Vs. M/s. Gold Souk Infrastructuress Private Ltd. in consumer case No. 421 of 2018 passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi referred the authority passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II(2019) CPJ 29 (SC)……….In the circumstances, we are of the view that the orders passed by the SCDRC and by NCDRC for refund of moneys were justified.”
ii) 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 and is entitled to seek refund of the amount paid by him alongwith compensation. The complainant had been waiting for completion of the project in which allotted unit is located for more than six 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 the deposited amount to the complainant with compensation in the form of simple interest @ 6% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- 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: 24.03.2023 (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.
