DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-WEST
GOVT. OF NCT OF DELHI
CSC-BLOCK-C, POCKET-C, SHALIMAR BAGH, DELHI-110088.
CC No: 253/2018
D.No.________________________ Dated: _________________
IN THE MATTER OF:
SHOBHNA GROVER,
W/o SH. SAURABH GROVER,
R/o C-114 (GROUND FLOOR), INDER PURI,
NEW DELHI-110012.… COMPLAINANT
Versus
1. M/s. UNIQUE DEVELOPERS PVT. LTD.,
567, NIMRI COLONY, DELHI-110052.
ALSO AT: 174-B, SAINIK FARMS,
LANE No. W-7A, NEW DELHI-110052
2. COSY MARKETING PVT. LTD.
(THROUGH ITS DIRECTORS/AR)
WZ-92D, GROUND FLOOR,
RAJA GARDEN, NEW DELHI-110027. … OPPOSITE PARTY(IES)
CORAM:SH. M.K. GUPTA, PRESIDENT
SH. BARIQ AHMED, MEMBER
Date of Institution: 10.04.2018
Date of decision: 08.08.2019
SH. BARIQ AHMED, MEMBER
ORDER
1. The complainant has filed the present complaint against OPs under
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Section 12 of the Consumer Protection Act, 1986 thereby allegingthat OP-2 approached and convinced complainant to invest in project of OP-1 and relying on the false representations made by the promotorsof OP-2 as well as of OP-1 about the rights and title of plot of land for residential use measuring 7837.97 sq. mts. situated at plot no. GH-6 (Corner) Group Housing Scheme, village, Ratlya, the Sangner, Jaipur that the same has been purchased by OP-1 and wherein they have constructed residential complex namely “NRI premium suits” and the complainant in the year 2009 agreed to purchase the ownership rights of the flat furnished in all respects bearing unit no. 612 on 6th floor in the said residential complex having approx. total super built up area of 540 sq. ft. for a total consideration of Rs.9,50,000/-. Thereafter, at the time of booking on 06.10.2009, the complainant gave a cheque bearing no. 291637 of Rs.1,00,000/- drawn on HDFC Bank Ltd. and further all the payments were made as per the demand and the complete consideration amount has been paid to OP-1 including the registration charges and all the payments have been realized by OP-1 and the same have been acknowledged by OP-1 from time to time and further a payment of Rs.16,146/- was made towards maintenance charges inspite of the fact that the project was still under construction and the complainant paid a sum of Rs.63,911/-
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towards stamp charges for registration of the said property and theactual charges towards the same was Rs.40,800/- only. After making the complete payment, a flat buyer agreement dated 28.01.2012 was entered into between OP-1 and the complainant wherein it was agreed by OP-1 in clause 24 of the agreement that the possession of the said apartment is likely to be delivered by 29.12.2012 and it was also agreed that if there is a delay in delivery of possession beyond 29.12.2012 which is attributable to the negligence of OP-1 then in that event they shall pay to the allottee @ Rs.5/- per sq. ft. per month for the period of delay in offering the possession. The complainant further alleged that immediately after the conclusion of the flat buyer agreement the promotor OP-1 introduced the complainant to OP-2 and insisted to enter into a lease agreement dated 26.08.2012 by which OP-2 was to take the possession of premises in question wherein both OP-1 & OP-2 assured that OP-2 will pay a fixed monthly lease money of Rs.7,000/- till the existence of the lease agreement. Thereafter, on repeated insistence of OP-1 and OP-2, the complainant entered into a lease deed on 26.08.2012 at New Delhi with OP-2 wherein he assured to pay a sum of Rs.7,000/- per month as lease money till the subsistence of the lease agreement. However, till date no payment has ever been made by OP-2 in this regard to the
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complainant and inspite of having assured that OP-1 will be giving the possession latest by 29.12.2012 have failed to give the possession till date and a delay of about five years and still the possession has not been handed over. The complainant further alleged that the complainant went to the site to see the construction work and it was found that construction work has been completely stopped andOP-1 after taking the complete consideration is deliberately not finishing the construction work and is not adhering to the penalty clause 24 of the agreement. The complainant further alleged that on much insistence from the complainant side, a sale deed dated 22.01.2016 was executed between the complainant and OP-1 and the same was registered and the commitment as made in the flat buyer agreement dated 28.01.2012 was not made and no possession so far has been handed over to the complainant and the complainant is running from pillar to post to meet the executives of OPs, however, there is no response from them. The complainant further alleged that OP-1 and OP-2 together with dishonest intention entered into a criminal conspiracy to cheat and defraud the complainant by not handing over the peaceful possession of the flat as well as not paid the committed assured rent as agreed by them. The complainant further alleged that the complainant sent a legal notice on 06.05.2017 to OPs which was duly received by OPs
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but instead of refunding the amount OP told complainant that themoney has been forfeited and threatened the complainant of dire consequences.
2. On these allegations the complainanthas filed the complaint praying for direction to OP-1 to pay penalty amount as per clause 24 of buyers agreement @ 540 sq. ft. x Rs.10/-= Rs.5400/- per month for a period of 63 months which comes to Rs.3,40,200/-, OPs to handover the possession or refund the total consideration amount paid for purchasing the property for a sum of Rs.9,50,000/- alongwith pendente-lite interest @ 12% to be paid by OP-1 and OP-2 to pay the rent/assured amount of Rs.7,000/- per month as per lease agreement dated 26.08.2012 till date which comes to Rs.7,000/- x 63 months= Rs.4,41,000/-. The complainant also sought compensation of Rs.50,000/- for causing mental harassment and has also sought Rs.5,500/- as cost of legal notice fee and OP-1 to refund/adjust the maintenance amount of Rs.16,146/- as the case may be and OP-1 to return excess amount of Rs.23,111/- paid towards stamp duty and has also sought litigation expenses.
3. OPs have been contesting the case and filed the joint written statement and submitted that the complainant has not made payments towards installments of the apartment to OPs on time and this is the actual reason for delay in giving possession to the
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complainant and OPs also sent many demand letters on different dates to make payment of installments of the said apartment. OPsfurther submitted that there is no cause of action arose in favour of the complainant and against OPs. OPs further submitted that in sale deed dated 22.01.2016, sale consideration amount of flat in question was Rs.7,50,000/- whereas the complainant is praying for refund of Rs.9,50,000/- as total sale consideration amount, thus the complainant is claiming relief on wrong amount and the complaint is liable to be dismissed and the complaint is not maintainable in view of the fact that the entire complaint is based on falsehood and concealment on vital issues. OPs further submitted that OPs are ready to give possession of the flat to the complainant but complainant was not showing interest. OPs further submitted that initially the husband of the complainant approached to OPs to purchase the flat in question in his name, later on, the husband of the complainant requested OPs to replace his name with his wife namely Mrs. Shobhana Grover in all records of the flat in question.
4. The complainant filed rejoinder and denied the submissions of OPs. The complainant submitted that in the Flat Buyer Agreement dated 28.01.2012 it is clearly mention in the payment clause that the total consideration sale price of the flat shall be Rs.9,50,000/- and the documents filed clearly shows that a total amount of
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Rs.9,50,000/- has been paid towards cost of the flat and towards cost of furniture and fixtures to be fixed in the said flat. Thecomplainant further clarified that Rs.7,50,000/- was paid through cheques and on specific demands made by OP, the complainant paid a sum of Rs.2,00,000/- in cash towards furniture and fixtures for which no receipt was issued by OP.
5. In order to prove her case, the complainant filed her affidavit in evidence and the complainant also filed written arguments. The complainant also placed on record copies of receipts no. 152 dated 21.10.2009 for a sum of Rs.1,00,000/- through cheque no. 291637 dated 06.10.2009 drawn on HDFC Bank, Mumbai, receipt no. 314 dated 28.01.2012 for a sum of Rs.2,50,000/- through cheque no. 001221 dated 28.01.2012 drawn on HDFC Bank, Inder Puri, Delhi, receipt no. 343 dated 02.12.2013 for a sum of Rs.1,00,000/- through cheque no. 261780 dated 11.10.2013 drawn on HDFC Bank, receipt dated 02.07.2015 for a sum of Rs.1,00,000/- through cheque no. 931610 dated 01.12.2012 drawn on HDFC Bank issued by OP-1, copy of flat buyer agreement executed between the parties on 28.01.2012 alongwith copy of key features of NRI premium suites, copy of common facilities, copy of special payment plan, copy of site plan of flat signed by both the parties, copy of lease agreement executed on 26.08.2012 between the complainant and OP-2, copy of sale deed executed on 22.01.2016 having
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endorsement signed by both the parties that the complainant paidan amount of Rs.1,00,000/- by means of cheque no.291637 dated 06.10.2009, Rs.2,50,000/- by means of cheque no.001221 dated 28.01.2012, Rs.1,00,000/- by means of cheque no.162092 dated 03.09.2012, Rs.1,00,000/- by means of cheque no.261780 dated 11.10.2013, Rs.1,00,000/- by means of cheque no.831610 dated 01.12.2012 and all cheques drawn on HDFC Bank and also paid Rs.1,26,700/- as transfer from HDFC Bank, copy of e-registration fee receipt dated 22.01.2016 of Rs.7,810/- issued by Govt. of Rajasthan, copy of fee receipt dated 22.01.2016 of Rs.40,800/- issued by Registration & Stamps Department, Rajasthan, Ajmer and copy of legal notice dated 06.05.2017 sent by the complainant through his counsel to OPs by Regd. AD/Courier alongwith postal receipts and tracking receipts.
6. On the other hand, on behalf of OPs Sh. Monish Sharma, AR of OPs filed his affidavit in evidence which is as per the case of OPs taken in the written statement. OP also filed copies of demand letters dated 20.09.2013, 29.11.2013, 20.03.2014, 23.08.2014 (2) and 22.10.2014 sent by OPs to the complainant, copies of reminder letters dated 23.08.2014 & 22.10.2014 sent by OPs to the complainant alongwith courier receipt and copy of letter dated 20.01.2012 sent by Sh. Saurabh Grover to OPs regarding transfer
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of NRI Premium Suites-Jaipur in the name of his wife i.e. the complainant. OPs have also filed written arguments.
7. The complainant also filed her additional affidavit in evidencethereby stating that she visited the property in question in the month of December-2018 and found that none of the structures are complete,even the installation of lift (s), electric connections approaching road, surrounding area etc. is still to be completed. The complainant further stated that it is difficult for anyone including the complainant to reside. The complainant in support of her version place on record various photos (25 nos.) of the site.
8. OP-1 also filed additional evidence by way of affidavit of Sh. Monish Sharma and filed various photographs of the building.
9. During course of arguments, Ld. Counsel for the complainant relied on following case law/authority:
i) SLP (C) no.(s) 1795/2017 in case entitled Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra decided by Hon’ble Supreme Court on 25.03.2019.
ii) Civil Appeal No. 3207-3208 of 2019 in case entitled Marvel Omega Builders Pvt. Ltd. & ANR. Vs. Shrihari Gokhale & ANR. decided by Hon’ble Supreme Court of India on 30.07.2019.
iii) Consumer Case No. 1805 of 2018 in case entitled Rajvir Singh Rana & ANR. Vs. Pioneer Urban Land & Infrastructure Ltd. decided by Hon’ble National Commission on 24.07.2019.
iv) Consumer case no. 2524 of 2017 in case entitled Amit Soni & Anr. Vs. M/s. Umang Realtech Pvt. Ltd. & Anr. decided by Hon’ble National Commission on 03.01.2019.
v) Consumer Case No. 1702 of 2016 in case entitled Shalabh Nigam Vs. Orris Infrastructure Pvt. Ltd. & Anr. decided by Hon’ble National Commission on 06.05.2019.
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10. This forum has considered the case of the complainant as well as OP in the light of evidence, documents and photographs placed on record as well as written arguments of the parties. The various photographs of the building from inside as well as outside including common areas placed on record by the complainant show that the photographs were taken on 26.05.2019 and these photographs further show thatstill finishing work is not complete in the flat as well as in the building and the common areas where the building is located. Furthermore, the complainant has placed on record copy of photograph showing that installation of lift is not complete and lift installation work is in progress. Accordingly, in these circumstances the complainant was justified in refusing to take possession of the flat which is in semi-finished stage.
11. On the other hand, OP has failed to prove any document to show that the construction of the project has been completed within stipulated time.OP-1 has failed to prove as to what payments were required to be made by the complainant and the payments received by OP-1 as per schedule IV filed alongwith copy of sale deed clearly shows that the payments were made by the complainant in time and thus OP-1 cannot contend that delay in delivering the possession of the flat is mainly on account of delay in making the payment by the complainant and thus there is no justification in this defence of OP-1. Furthermore, OPs have also failed to allege
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and place on record completion certificate/occupancy certificate in respect of the property in question issued by any competent authority and it shows that the property including the flat in question was not fit for occupation.
12. Accordingly, we hold OP-1 guilty of deficiency in service. Accordingly, OP-1 is directed as under:
i) To pay/refund to the complainant an amount of Rs.7,50,000/- deposited towards booking of the flat alongwith interest @ 10 % p.a. w.e.f. the date of deposit till the date of this order and the complainant to return original sale deed to OP-1 and to execute cancellation of sale deed.
ii) To pay to the complainant an amount of Rs.40,000/- as compensation towards mental agony and harassment caused to the complainant.
iii) To pay to the complainant an amount of Rs.10,000/- towards litigation cost.
13. The above amount shall be paid by OP-1 to the complainant within 30 days from the date of receiving copy of this order failing which OP-1 shallbe liable to pay interest on the entire awarded amount @10% per annum from the date of receiving copy of this order till the date of payment. If OP-1 fails to comply with the orderwithin 30 days from the date of receiving copy of this order, the complainant
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may approach this Forum u/s 25/27 of the Consumer Protection Act, 1986.
14. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005. Thereafter file be consigned to record room.
Announced on this 8thday of August, 2019.
BARIQ AHMED M.K. GUPTA
(MEMBER) (PRESIDENT)
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UPLOADED BY :- SATYENDRA JEET
