District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No.59/2020.
Date of Institution: 24.01.2020.
Date of Order:30.08.2022.
Ashish Kumar Gupta, s/o ShriTrilok Chand Gupta, r/o B-34,Shankaracharya Marg, Adarsh Nagar, Delhi – 110033. …….Complainant……..
Versus
1. M/s. SRS Real Estate Limited, through its Director/Managing Director, SRS Multiplex, Ssector-12, Faridabad.
2. District Town Planner (DTP) Faridabad, room No. 116, ground floor, HSVP Complex, sector-12, Faridabad.
3. Senior Town Planner (STP) Faridabad, Room No. 116, ground floor, HSVP complex, sector-12, Faridabad.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: AmitArora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. Rajvir Sharma, counsel for the complainant.
Sh. Parveen Gupta, counsel for opposite party No.1.
Sh. DeenDayal, Assistant on behalf of opposite parties Nos. 2 &3.
ORDER:
The facts in brief of the complaint are that the applicant was allotted flat bearing No. 1401, tower A-4, Palm Homes, sector-7, Palwal, Haryana by the opposite party No.1 consisting of 2 bed room and having an area of 489 sq. feet. The Builder-Buyer Agreement was executed on 25.05.2015. The opposite party No.1had committed to handover the ready to live constructed flat within four years of the allotment. The total cost of the flat as demanded by the opposite party No.1 was Rs.15,81,978/- including EDC/IDC. The applicant accepted the cost and had paid Rs.8,15,775/- out of the total demand of Rs. 15,81,978/- vide cheque No. 885959 dated 07.01.2015 of Rs.20,000/-, cheque No. 885984 dated 04.12.2015 of Rs.1,97,747/ and cheque No. 885965 dated 25.05.2015 of Rs.3,75,495/- and cheque No. 885971 dated 17.10.2016 of Rs.2,23,633/- all cheque drawn at ICICI Bank, Model town, Delhi and were paid to the bankers of the opposite party No.1 by the banker of the applicant. Despite receipt of half of the value of the flat from the applicant andhaving more the four years been passed the opposite party No.1 didn’t even started construction of the flats. The opposite party No.1 failed, ignored and deliberately neglected to perform its part of the obligation of timely construction and handing over the possession of the flat to the applicant in terms of its assurance, commitment and contract. The opposite party No.1only kept of xtending fake promises and false assurances regarding issue of offer of possession soon in respect of the said flat, however, all such promise & assurances failed to materialize and despite the applicant having paid more than half of the value of the said flat and having acquired a valuable legal possessory right in the said flat and having become a flat buyer of the said flat, the opposite party No.1 did not bother to do the needful. The only intention of the opposite party No.1 was tokeen on dragging handing over the possession of the flat to the applicant despite receiving the half of the amount and despite the fact of having received half of the value of the flat the construction of the flat had not even been started. The opposite party No.1 had no intentions to do the needful and it was only a ploy to somehow keep the applicant waiting endlessly for the allotment& possession of the flat as the opposite party No.1 at present had neither the intention to start construction work nor had the funds to do the same. It was submitted that the opposite party No.1 being builder was bound to construct, finish, complete all pending works of the uncompleted flats, either pre occupation certification or post occupation certificate, at par with other completed flats of the project and hand over the possession of the flat the applicant within four years of the allotment/booking of the flat. The applicant had been made to run form pillar to post and to make numerous visits to the office of opposite party No.1 to either get the possession of the flat or get his money back however he was neither given possession of the flat nor refunded his money. The only intention of the opposite party No.1 was to cheat and dupe the applicant of his hard-earned money.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) Refund the entire deposit of Rs.8,15,775/- made by the applicant at time towards part payment of the flat to the applicant alongwith interest @ 18% p.a. from the date of deposit.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs.25,000/ - as litigation expenses .
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1refuted claim of the complainant and submitted that there was no cause of action which might had ever accrued to the complainant at any point of time to file any complaint against the opposite parties in the facts and circumstancesof the present case inasmuch as the complainant was a successful allottee in the draw of lots and he was allotted flatNo. 1401, Type-a intower-A-4 in project namely “SRS Palm Homes”, Sector-7, Pawal (being developed under the affordable Housing Policy 2013 of the government of Haryana). It was submitted that the payment plan duly accepted by the complainant was time linked and not construction linked and hence, possession had no link with the stage of construction. Further the company was bound to offer possession within a period of four years from the date of allotment letter i.e. the year 2019. Thus, even otherwise the claim for possession and surrender on the ground of alleged non-construction or non-grant of possession was premature. Opposite party No.1denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite parties Nos.2 & 3 put in appearance through counsel and filed written statement wherein Opposite parties Nos.2 & 3 refuted claim of the complainant and submitted that the present complaint was not maintainable against the answering opposite party as the complainant was not a consumer as defined in Section2(1)(d) of the consumer Protection Act, 1986. No agreement in whatsoever manner had been executed by the complainant with the answering opposite party. The complainant purchased the flats from opposite party No.1 on the terms and conditions mutually agreed by them and as mentioned in the Flat Buyers Agreement execute by and between the complainants and opposite party No.1. The answering opposite parties were not a party to said agreement . The payment of the flat had also been made directly by the complainant to opposite party No.1. The grievance of the complainant was also against opposite party No.1. Hence, the answering opposite party had unnecessarily been impleaded as party in the instant complaint. The main grievance of the complaint was that he had booked the flat with opposite party No.1 in the project named as “Affordable Group Housing Project” situated at Sector-7, Palwal being developed by opposite party company and despite t\part payment of the sale consideration money of the flat paid by the complainants to opposite party company, the opposite party company had failed to deliver the possession of the same to the complainant within the stipulated period, as mentionedin the flat Buyers agreement executed by them with opposite party company. The complainant had made a complaint against the opposite party company that despite part payment of sale consideration money of the flat paid by the complainant to opposite party company, the opposite party company had failed to deliver the possession of the same to the complainant within the stipulated period and the complainant had also sent a legal notice through his counsel to the opposite party.Opposite party company had submitted application for grant of license under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter called as act of 1975), to develop a Affordable group Housing colony in the office of the answering opposite parties.Accordingly, License No.70 of 2014 dated 25.07.2014 was granted toSRS Real Estate Ltd. to develop the Affordable group Housing colony on the land measuring 10 acres in Sector -7, Palwal which was cancelled upon non compliance of terms and condition of license. Accordingly, license No. 70 of 2014 was cancelled vide order dated21.08.2018. the order dated21.08.2018 was also postedon the website of the department.
It was further stated that while cancelling the license, following actions had also been ordered to be taken in this case.
i. A public notice might be issued in the newspapers, informing the general public about the cancellation of license and that the administration of this license colony had been taken over by the directorate of town & country Planning, Haryana.
ii. Senior town Planner, Faridabad had been directed to take over Administration of this licence colony on behalf of department and to put up a Board at site indicating that the administration of this licenced colony had been taken over by the department of town and country Planning.
iii) Senior Town Planner, Faridabad had also been directed to maintain the details of the account of the allottees. The allottees had been advised to deposit the balance installmentswith STP, Faridabad, who hadbeen directed to maintain the account of each and every flat holder.
iv. The license had been directed under Section 10 (A) of the act of 1975 to deposit all outstanding due son account of EDC and also to give the information of sold and unsold property within a period of 15 days so that unsold properties can be disposed off to recover the govt. dues.
v. Deputy commissioner, Palwal had been requested to recoverthe above said outstanding dues as arrears of land revenue in accordance with the order dated 21.08.2018 In order to restrict creation of further third party rights on the instant licences area, he had also been requested to ensure that no sale deed against the licenced land was executed/registered in future.
vi. The committee constitute under the Chairmanship of Administrator, HSVP, Faridabad , STP, Faridabad would be member secretary and DTP, Palwal, XWN, HSVP, Palwal would be the membersof the committee, which could take over the colony for carrying out further necessary action.
vii) Decision had been made to debar the present directors of all the companies of opposite party No.1 from grant of any further licence in the State of Haryana .Opposite party No.3 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties– SRS Real Infrastructure Ltd. with the prayer to :a) Refund the entire deposit of Rs.8,15,775/- made by the applicant at time towards part payment of the flat to the applicant alongwith interest @ 18% p.a. from the date of deposit. b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . c) pay Rs.25,000/ - as litigation expenses .
To establish his case, the complainant has led in his evidence
Ex.CW1/A – affidavit of ShriAshish Kumar Gupta,Ex.C-1 – adhaar card, Ex.C-2 –letter dated25.04.2019, Ex.C-3- allotment letter for residential flat dated 25.05.2015, Ex.C-4 – acknowledgement, Ex.C-5 – demand letter,, Ex.C-6 & C7– photocopy of cheques,
Counsel for Opposite party No.1 has made a statement that written statement filed on behalf of opposite party be read as evidence on behalf of opposite party No.1. Accordingly, evidence on behalf of opposite party No.1 has been closed vide order dated 18.07.2022.
Counsel for Opposite parties Nos. 2 & 3 has made a statement that written statement filed on behalf of opposite parties Nos.2 & 3 be read as evidence on behalf of opposite parties Nos.2&3. Accordingly, evidence on behalf of opposite parties Nos.2&3 be closed vide order dated 18.07.2022.
7. It is evident from Ex.C-2 that one flat having super area of 489 sq. feet was allotted bearing No. 1401, Tower A-4, type-A, Floor-14th, Pal Homes, Sector-7, Palwal, Haryana. The Builder-Buyer Agreement was executed on 25.05.2015. Since more than 4 years, there had been no progress at the site and the construction of the project had come to a halt and as no construction work is going on at the site of the opposite party company. The complainant haspaid Rs.8,15,775/- out of the total demand of Rs.15,81,978/- vide cheque No. 885959 dated 07.01.2015 of Rs.20,000/-, cheque No. 885984 dated 04.12.2015 of Rs.1,97,747/- and cheque No. 885965 dated 25.05.2015 of Rs.3,75,495/- and cheque No. 885971 dated 17.10.2016 for Rs.2,23,633/- all cheque drawn at ICICI Bank, Model town, Delhi vide Ex.C4 to C7. Despite receipt of half value of the flat from the complainant, the opposite party failed and neglected to perform its part of the obligation i.e of timely handing over of the possession of the flat to the complainant and despite the fact that the opposite party had not started construction of the flat in question and had failed to hand over the possession of the said flat to the complainant despite numerous requests and visits of the complainant in the office of the opposite party.
8. 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 parties because the possession of the flat was made to the complainant in the year 2019. 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 Infrastructures 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. DevasisRudra – 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. AbhishekKhanna&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 one year. 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.
9. Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite parties are directed to refund 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: 30.08.2022 (AmitArora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
