Chandigarh

DF-II

CC/489/2020

Kumar Prabhakar - Complainant(s)

Versus

M/s TGB Realty Pvt. Ltd. - Opp.Party(s)

Narender Yadav & Vineet Yadav

02 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	489/2020
Date of Institution	:	22.09.2020
Date of Decision	:	02.11.2023

 

                       

             

 

1.   Kumar Prabhakar s/o Sh.Shri Sidheshwar Prasad

 

2.   Pushpa Sinha w/o Kumar Prabhakar

 

Both r/o Flat No.D-5/21, Second Floor, DLF Valley, Sector 3, Pinjore, Kalka Urban Complex, Panchkula.

 

Working at –Winshuttle Software (India) Pvt. Ltd., 1^st Floor, Tower F, DLF Building, Chandigarh Technology Park, Chandigarh

                   ...  Complainants.

Versus

1.   M/s TGB Realty Pvt. Ltd., H.No.470, Sector 15-A, Near Gate No.2, Noida, UP-201301 through its Director Dalip Kumar Nagdev.

 

2.   Amit Handa, Additional Director, 11/395, Sunder Vihar, Outer Ring Road, Delhi-110087.

 

3.   Raman Kumar, Director, 11/395, Sunder Vihar, Outer Ring Road, Delhi-110087.

 

4.   Dilip Kumar Nagdev, Director, H.No.470, Sector 15-A, Near Gate No.2, Noida, UP-201301.

…. Opposite Parties

BEFORE:
	SHRI AMRINDER SINGH SIDHU,	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
Present:-
	Sh.Narender Yadav, Counsel for the complainant None for the OPs.

    

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.      The complainant has filed the present complaint pleading therein that being allured by the advertisements, they booked the unit vide application dated 08.08.2014 by paying Rs.5.00 lakhs in the project of the OPs known as TGB Neelgagan situated on Plot No.3-GH, Sidharth Vihar, NH-24, Ghaziabad (UP) under code GH Jan 2014 and he was allotted the flat No.H-602, on 6^th Floor, Tower H, TGB Neelgagan NH-24, Ghaziabad (UP) vide allotment letter (Annexure C-3). The total price of the unit was Rs.50,81,250/- and he deposited in all a sum of Rs.15.00 lakhs through three cheques in the sum of Rs.5.00 each on 08.08.2014, 04.09.2015 & 16.01.2016. An agreement dated 16.05.2016 was executed between the parties and the OPs-builder inserted illegal clauses in the said agreement (Annexure C-5).  As Clause 5(1) of the agreement, the possession was to be delivered within 42 months from the date of its construction, but the same has not been delivered till date.  It has been averred that the OPs have given false promises and assurances with a motive to cheat and extract the money from them.  Being lost faith upon the OPs, the complainants requested the OPs to refund the deposited amount but to no effect. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to refund the deposited amount along with interest, compensation for mental agony and physical harassment as well as litigation expenses.
2.      After service of notice upon the OPs, they appeared before this Commission and filed their written version. The OPs took various preliminary objections regarding jurisdiction, maintainability of the complaint, cause of action, limitation etc. On merits, it has been admitted that the complainant had booked the unit in question and deposited a sum of Rs.15.00 lakhs. It has further been stated that the agreement clearly provides for the construction of the project within 42 months from the date of commencing the construction but the same was estimated to be completed by June, 2018 but never the clear assurance.  It has further been stated that said Clause clearly provides for the force majeure event and as such the OPs are entitled for the benefit of the same as the Nagar Nigam, Ghaziabad had created a garbage mountain near to the project site due to which no flats being sold and as such the dreams of the OPs are shattered for building up a society with the name and style of the subject project.  It has further been stated that the OPs are suffering from huge losses for non-selling of flats and as such no customer was interest in taking booking at the project of the OPs. It has further been stated that due to the act of the Nagar Nigam, Ghaziabad, the project become jeopardized and the same is a ‘force majeure” event as the same is beyond the control of the OPs. The OPs filed CWP No.9589/2018 before the Hon’ble Allahabad High Court, which is pending for adjudication.  It has further been stated that the agreement was signed on 16.05.2016 and the period of 42 months expired in the year 2020. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, the OPs prayed for dismissal of the complaint.
3.      The complainants filed replication to the written reply of the Opposite Parties controverting their stand and reiterating their own.
4.      The parties filed their respective affidavits and documents in support of their case.
5.      We have heard the Counsel for the complainant and have gone through the documents on record.
6.      The only issue involved in the present case is whether the complainant is entitled to refund of the deposited amounts on account of the failure of the OPs to deliver the possession of the unit or not?
7.      In order to find out answer to the above mentioned issue, it is necessary to discuss the following facts and circumstances of the case.
8.      The facts with regard to the booking of the flat in question with the OPs vide application dated 08.08.2014 (Annexure C-2) for a net price of Rs.50,81,250/- and deposit of Rs.15,00,000/- by the complainant vide three different installments through cheques and issuance of the allotment letter dated 27.08.2015 have not been disputed between the parties. It is also not in dispute that as per Clause 5(1) of the agreement, the possession of the unit was handed over within 42 months from the date of commencing of the construction or by October, 2018.
9. The submission of OPs is that the complaint is barred by limitation. However, the Hon’ble National Commission in “Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr.” 2016(2) CLT 457 has also held that unless or until the Complainants get possession of the flats, complete in all respects, they have got continuous cause of action.   So in view of availability of recurring cause of action in favour of complainant till refusal, certainly the complaint is not barred by limitation and submission of Counsel for OPs to the contrary has no force and the same is rejected accordingly.
10.      Undisputedly, the OPs have failed to deliver the possession of the unit in question to the complainant within the stipulated period as per the terms and conditions of the agreement and even today they are not in a position to deliver the same to the complainant.     The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed as under:-

“The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

11.      The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

     “15. 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. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

12.      Keeping in view the facts and circumstances of the case, we are of the considered view that the complainant cannot be made to wait for an indefinite period and the OPs who are not in a position to develop the project have no right to retain the hard earned money of the complainant.     A buyer to have a comfortable life and having paid his/her hard earned money to have a house, are not supposed to wait indefinitely for possession. Thus, the complainant cannot be made to wait indefinitely for the possession of the flat allotted to him and the complainant is entitled to seek the refund of the amount paid along with compensation.
13.      It is submitted that the Hon’ble National Commission in the case titled as  Surendra Kumar Tyagi Vs. Jagat Nursing Home & Hospital, IV (2010) CPJ 199 (NC) has held that the compensation  should be comensaure with loss and injury suffered by the complainant. The Consumer For as are not meant  to enrich the consumers, at the hands of the service providers, by awarding unfair, unjust and excessive compensation.
14.      In the light of above observations, the present complaint deserves to succeed against the OPs.  Accordingly, the present complaint is partly allowed with following directions to the OPs to:-

1.   refund Rs.15,00,000/- (Rupees Fifteen Lakhs only) along with interest @ 9% p.a. from the dates of respective deposits till the date of its actual payment to the complainant.

            The above said order shall be complied with by the OPs jointly and severally within a period of 90 days from the date of receipt of copy of this order.

15.      The pending application(s) if any, stands disposed of accordingly.
16.      Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission 02/11/2023
	Sd/- (AMRINDER SINGH SIDHU) PRESIDENT
	Sd/- (B.M.SHARMA) MEMBER