Case No.CC/333/18

Date of Institution:-17.08.2018

Order Reserved on :-13.05.2024

           Date of Order :-20.05.2024

IN THE MATTER OF:

1. Sh. Narayn Singh

S/o Late Sh. DharmpalBasioya

2. Mrs. Pritam Singh

W/o Sh. Narayan Singh

Both R/o H.No. 2040, Pillanji,

KotlaMubarakpur, New Delhi – 110003.

          …..Complainants

VERSUS

1. Fair Wealth Housing Pvt. Ltd.

A-31 to A-323, 3^rd Floor,

Building No. 5, Somdatt Chamber-I,

Delhi – 110066.

2. VipualGauba

Director of Fair Wealth Housing Pvt. Ltd.

A-31 to A-323, 3^rd Floor,

Building No. 5, Somdatt Chamber-I,

Delhi – 110066.

… Opposite Parties

O R D E R

Per R. C. YADAV , MEMBER

1. The present complaint has been filed under section 12 of Consumer Protection Act, 1986 (in short CP Act) against Opposite Parties(in short OP) alleging deficiency of service. Brief facts of the case are that OP had launched a residential housing project “Breeze Homes” at Bhiwadi, Rajasthan.  The OP through its official had approached the complainant and induced him to buy a residential plot measuring 930 sq. ft./180 sq. yd.  in the said project.  The complainant has applied for a residential plot admeasuring 930 sq. ft. in the said project by way of coupons. The original coupon are annexed as Annexure-A. The complainant has paid Rs.1,00,000/- (Rupees One Lakh) by way of cheque bearing no. 819341 drawn on SBI which was duly encashed in the OP bank on 13.11.2017.  Copy of bank passbook is annexed as Annexure-B. The OP had assured the complainant that they will also provide the loan facility to the complainant and as per instructions of the OP, the complainant had arranged TDS certificate from its bank but after one week the OP flatly refused that no loan facility will be provided to the complainant. The  complainant is paying income tax return regularly and on timely. The copy of TDS certificate is annexed as Annexure-C.  The complainant has requested the OP for refund of deposited money but OP has not returned the deposited money to the complainant. The complainant has sent a legal notice on 18.06.2018 for refund of Rs.1,00,000/- (Rupees One Lakh) with the interest @ 15% p.a.  The OP has not responded the said notice. Copy of the legal notice is annexed as Annexure-D.  The complainant has prayed for refund of Rs.1,00,000/- (Rupees One Lakh)alongwith Rs.2,00,000/- (Rupees Two Lakh) for mental agony and Rs.50,000/- towards cost of litigation.
2. Notice was issued to OP.   The OP has filed reply and taking several preliminary objections that complainant had entered with the OP into the booking scheme through the draw of units for commercial purpose  and not for their own use.  Therefore, this Commission has no jurisdiction to entertain this complaint.  The OP has stated that in his reply Para ‘8’ that after the participation in the scheme Monsoon Kismat Bonanza, complainant got shortlisted through the draw and get the 7% of the discount on the BSP on the booking of a unit in the project. It was the duty of the complainant to choose the payment plan and proceed further for the payment of the unit, but complainant neither shown any interest to choose any payment plan for the proposed unit nor interested to make any further payment for booking the unit in the project.  The OP has prayed to dismiss the complaint and pass any other order as deem fit  and in favour of answering OP in the interest of justice.
3. In response to the written statement, the complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
4. Both the parties have filed affidavit of evidence as well as written arguments in support of their respective case.
5. On 13.05.2024 the case was fixed for final arguments. We have heard from the complainant and none was present for OP. The OP was directed to address oral arguments within 07 working days. Hence, the case was reserved for order.
6. We have carefully considered the material on record and thoroughly perused the documents placed on record by the complainant.
7. It is the case of the complainant that he had applied for a residential plot admeasuring 930 sq. ft. in the OP’s housing project “Breeze Homes” at Bhiwadi, Rajasthan by way of coupons. The complainant has paid Rs.1,00,000/- (Rupees One Lakh) by way of cheque bearing no. 819341 drawn on SBI which was duly encashed in the OP bank on 13.11.2017.  The OP had assured the complainant that they will also provide the loan facility to the complainant and as per instructions of the OP, the complainant had arranged TDS certificate from its bank but after one week the OP flatly refused that no loan facility will be provided to the complainant. The  complainant is paying income tax return regularly and on timely. The complainant has requested the OP for refund of deposited money but OP has not returned the deposited money to the complainant. The complainant has sent a legal notice on 18.06.2018 for refund of Rs.1,00,000/- (Rupees One Lakh) with the interest @ 15% p.a.  The OP has not responded the said notice.  The OP has given false assurance and representation about the land all required approvals and clearances for the said project had already obtained.
8. The complainant has paid his hard earned money with hope to get the possession plot in question alongwith sanction loan of the plot as promised by the OP. But the OP refused to help the complainant for granting loan to the complainant which clearly shows deficiency in service and unfair trade practice on part of the OP.
9. It is also the case of complainant that he has paid Rs.1,00,000/- (Rupees One Lakh)as per terms and conditions. But despite booking of payment and false assurance for the sanction of loan amounts to deficiency in service and unfair trade practice on the part of the OP. The OP has not denied the booking of the plot in their written statement. The OP has stated that the case of a contractual in nature and this case should not come to the Consumer Commission for redressal. As far as the plea of Arbitrator clause between the parties is concerned, the same is not relevant as Section 3 and Section 100 CPC do not bar in filing of such complaint, despite their having Arbitration clause between the parties.  The OP was under obligation to handover the flat on payment of booked amount and in case it was not possible then it should have refunded the amount as claimed by the complainant. Non-delivery of possession of flat on receipt of money within a reasonable time amounts to deficiency in service and unfair trade practice.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512” is the authority on this point.

10. We are satisfied that this act on part of the OP constitute deficiency in service and also unfair trade practice.
11. Accordingly, we allow the complaint and direct the OP to refund Rs.1,00,000/- (Rupees One Lakh)to the complainant alongwth an interest @ 6% p.a. from the date of booking of plotalongwith Rs.50,000/- (Rupees Fifty Thousand) as lumpsum for mental agony and litigation charges within 45 days from date of receipt of order failing which OP shall be liable to pay entire amount alongwith interest@ 9% p.a. till realization.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announce in the open Court on 20.05.2024.