In nutshell, brief facts of the present complaint is that the OPs published an advertisement in various News Papers to deposit a handsome money to book a flat/floor at their site namely Unihomes Township Projects, Sector 16 , Ambala City. Accordingly, the complainants booked a Flat with OPs and paid a sum of Rs.13,18,416/-  and the OPs promised to issue Buyer’s Agreement Letter after deposit of booking amount but they did nto issue the same.  The complainants were surprised on knowing that no construction was started by the OPs at the site despite receiving of booking amount in October, 2012. They approached the OPs and requested to start the construction work but despite lapsing of two years they did not start the same.  As per assurance the possession was to be handed-over within 24 months from the date of receiving of first installment but it did not yield any fruit. The complainants made repeated requests to the OPs to refund the deposited amount alongwith interest besides compensation for causing physical harassment and mental agony and cost of litigation but to no avail. Hence, the present complaint.

2.                     Upon notice, Ops appeared through counsel and tendered joint reply raising preliminary objections qua complaint is not maintainable being false & frivolous, no locus standi, cause of action and jurisdiction of this Forum. It has been further submitted that the complainant shave been defaulters of making payments and they never made payments regularly. The complainants did not sign the Buyer’s Agreement which was sent to them alongwith covering letter dated 23.10.2012 for due signatures. They have never approached the OPs for any kind of grievance regarding construction work and the possession of the flat was to be given as per terms and conditions of the agreement. The OPs are not bound to handover the possession of the unit within 24 months from the date of deposit of first installment.

 So, there is no deficiency in service on the part of OP No.3 and prayed for dismissal of the present complaint.

 3.                    To prove his version complainant tendered affidavit as Annexure C-X with documents as Annexure C-1 to C-3. On the other hand, Counsel for the OPs tendered affidavit Annexure R-A alongwith documents Annexure R-1 and Annexure R2.

4.                     We have heard learned counsel for the parties and carefully gone through the case file.

5.                     During the proceedings of the case the learned counsel for the complainants made a statement that he does not claim the possession of the flat as the same has not been constructed by the OPs and prayer for refunding the installments alongwith interest and cost assessed by this Forum be made.

6.                     Keeping in view the above statement there is no need to discuss the case further on the point of pecuniary jurisdiction of this Forum because the relief sought by the complainant is less than Rs.20 lacs. It is a settled principle of law that the complainant being a master of his case can relinquish his right at any stage. It is an admitted fact that only Rs.13,18,416/- has been deposited with the OPs by the complainants.

7.                In view of above discussion it is clear that the OPs are not in a position to handover the possession of the flat in complete manner to the complainants. The OPs had to commence the construction in October, 2012 as per agreed schedule but till today nothing has been done and even there is no evidence on the case file to show that the Ops have ever taken any step to construct the same in future. In this way non delivery of possession tantamounts to unfair trade practice as well deficiency in service on the part of OPs as they failed to deliver the possession of the unit within stipulated period of 24 months nor any explanation has been given as to why the work has not been completed within 24 months. The complainant cannot be made to wait for indefinite period for delivery of actual physical possession of the unit. The OPs have no right to retain the hard earnest money of the complainant deposited towards the price of the unit.  On this point reliance can be taken from case law titled as Guddi Vs.Ubber Buildcon Private Ltd. 1 (2018) CPJ (UT Chandigarh). In this case law Hon’ble State Commission has accepted the complaint of the complainant by relying upon the case law titled as UOI Vs. Tata Chemical Limited (SC) 1 (2015) SLT  11.

8.                The fact and circumstance clearly states that we have no option but to accept the statement made by learned counsel for the complainants during the proceedings of this complaint and therefore, we have concluded that they are entitled for the refund of the amount of Rs.13,18,416/- alongwith @ 9 % per annum from the respective dates of the deposit onwards besides cost of proceedings to the tune of Rs.10,000/- . It is ordered accordingly. The Ops are directed to comply with the above said directions within thirty days from receipt of copy of the order. Copy of the order be sent to the parties concerned, free of costs, as per rules. File after due compliance be consigned to record room.

Announced on: 30.01.2018                                 

                 (D.N. ARORA)                                                                                                                                                                            President                                                                       

                                                                                (ANAMIKA  GUPTA)

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