District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.39/2021.
Date of Institution: 21.01.2021.
Date of Order: 25.07.2022.
1. Smt. Sonu Sharma W/o Dr. Jitender Kumar Sharma.
2. Dr. Jitender Kumar Sharma S/o Shri Laxmi Narayan Sharma, Both R/o E-1581, Sainik Colony, Sector-49, Faridabad. …….Complainants……..
Versus
M/s. SRS Real Infrastructure Pvt. 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 Neema jail) Service be also effected through Jail Superintendent, Neema 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.
PRESENT: Sh. Dhiraj Adhana, counsel for the complainant.
Sh. Parveen Gupta, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that based on the above representation of opposite party, complainants booked a plot No. B-31 measuring 200 sq. yards in their project SRS Residency Panchkula, Village Bhood, Sub Tehsil Rajpur Rani for total sale consideration of Rs.11,00,000/- vide application NO. 3024 dated 29.07.2015. At the time of allotment complainants had paid an amount of Rs.1,10,000/- through cheque No. 585691 dated 29.07.2015. The opposite party had sent the payment plan on dated 25.09.2015 to the complainants. In this regard a allotment letter/buyer agreement was executed between the opposite parties and the complainants on 27.02.2016. The complainants had paid the following amount to the opposite party and opposite party had duly acknowledge the receipts in favour of the complainants:-
i) Receipt No. 9898 dated 31.07.2015 for Rs.1,10,000/-.
ii) Receipt No. 10514 dated 3.10.2015 for Rs.1,65,000/-
iii) Receipt No.11641 dated 01.03.2016 for Rs.1,65,000/-
iv) Receipt No. 12587 dated 11.05.2016 for Rs.1,10,000/-
v) Receipt No. 13423 dated 09.08.2016 for Rs.1,10,000/-
vi) Receipt No. 14565 dated 18.02.2017 for Rs.1,10,000/-
vii) Receipt No. 15059 dated 29.05.2017 for Rs.1,10,000/-
As per the terms and conditions of the said agreement, the physical possession of the said plot was to be handed over to the purchaser within 3 years from the date of execution of this agreement commitment of development of water, electricity, roads, temple, park. The complainants visited their site then they shocked and surprised that after allotting the plot nos. in the said project, the development and progress activities on the plots were not updated to the complainants till the last payment of 7th installment. Even there was no visit offered/arranged and no communication made to the complainants till date to witness the existence of the allotted plot in the project. Regarding this complainants sent several email to the opposite parties, but no fruitful result came out. As such it was clear that the opposite parties were playing fraud on the complainants by enjoying their hard earned money. The complainant sent a legal notice dated 24.12.2020 to the opposite party but all in vain. 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) release the amount of Rs.8,80,000/- alongwith interest @ 18% p.a. from the date of withhold.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs.21,000/ - 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 27.02.2016 and terms and conditions attached thereto. It was submitted that as per aforesaid Building Buyer Agreement opposite party had to deliver possession of plot 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 the complainants 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 complainants in the complaint was outset the scope of the agreement. The subject matter land was presently lying under provisional attachment of Income Tax Department. Immediately on release from attachment, complainant might after payment of balance consideration get the sale deed for the plot executed and registered. 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 Infrastructure Ltd. with the prayer to : a) release the amount of Rs.8,80,000/- alongwith interest @ 18% p.a. from the date of withhold. b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .c) pay Rs.21,000/ - as litigation expenses .
To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Dr. Jitender Kumar Sharma, S/o Sh. Laxmi Narayan Sharma,, Ex.C-1 – Request for allotment of plot, Ex.C-2 letter dated 25.09.2015, Ex.C3 – agreement,, Ex.C-4 to C-10- receipts, Ex.C-11 – email, Ex.C-12 – legal notice, Ex.C-13 – postal receipt, Ex.C-14 – letter dated 11.02.2016.
Shri Parveen Gupta, counsel for opposite party has made a statement that the written statement filed by opposite party may be read as evidence on behalf of opposite party and closed the same. Accordingly, evidence on behalf of the opposite party has been closed vide order dated 04.07.2022.
6. In this case, complainants booked a plot No. B-31 measuring 200 sq. yards in their project SRS Residency Panchkula, Village Bhood, Sub Tehsil Rajpur Rani for total sale consideration of Rs.11,00,000/- vide application NO. 3024 dated 29.07.2015 vide Ex.C1. At the time of allotment complainants had paid an amount of Rs.1,10,000/- through cheque No. 585691 dated 29.07.2015. The opposite party had sent the payment plan on dated 25.09.2015 to the complainants. In this regard a allotment letter/buyer agreement was executed between the opposite parties and the complainants on 27.02.2016. The complainants had paid the following amount to the opposite party and opposite party had duly acknowledge the receipts vide Ex.C4 to C-10 in favour of the complainants:-
i) Receipt No. 9898 dated 31.07.2015 for Rs.1,10,000/-.
ii) Receipt No. 10514 dated 3.10.2015 for Rs.1,65,000/-
iii) Receipt No.11641 dated 01.03.2016 for Rs.1,65,000/-
iv) Receipt No. 12587 dated 11.05.2016 for Rs.1,10,000/-
v) Receipt No. 13423 dated 09.08.2016 for Rs.1,10,000/-
vi) Receipt No. 14565 dated 18.02.2017 for Rs.1,10,000/-
vii) Receipt No. 15059 dated 29.05.2017 for Rs.1,10,000/-
As per the terms and conditions of the said agreement, the physical possession of the said plot was to be handed over to the purchaser within 3 years from the date of execution of this agreement commitment of development of water, electricity, roads, temple, park. The complainants visited their site then they shocked and surprised that after allotting the plot nos. in the said project, the development and progress activities on the plots were not updated to the complainants till the last payment of 7th installment. E
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 parties because as per agreement, plot No.B-31 was allotted to the complainant in 27.02.2016 and he has waited for more than 5 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 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. 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 deposited amount to the complainants 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:25.07.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
