DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.549/2012

Mr. Rajender Prasad Garg,

S/o Mr. Lakshmi Chand Marg,

R/o H.No.602E, 21/13, Teachers Colony,

Mehrauli, New Delhi-110030                                         ….Complainant

Versus

M/s VXL Realtors Pvt. Ltd.

Through its Director Sh. Harpreet Singh

Ajit Singh House, 5^th Floor, 12,

DDA Community Centre, Yusuf Sarai,

New Delhi-110049                                                         ….Opposite Party

                                                  Date of Institution        :17.10.12      Date of Order      : 31.10.18   

Coram:

Sh. R.S. Bagri, President

Ms. Naina Bakshi, Member

Ms. Kiran Kaushal, Member

ORDER

Naina Bakshi, Member

 Briefly stated, the case of the complainant is that the complainant booked a flat in the project of OP namely “ VXL Eastern Heights, Indirapuram, Ghaziabad (U.P.) vide application No.VXL/ EH/498/06-07 dated 06.03.2006 for area admeasuring 900 sq. ft. with an initial payment of Rs.1,46,250/- which was paid by the complainant vide receipt No.2140 dated 08.05.2006 against the total consideration of the flat was Rs.16,33,125/-. It is stated that the flat No. 404, 4^th Floor in Block-C was allotted to the complainant measuring a combined super area of 1005 sq. ft. approx. It is submitted that as per the allotment letter the possession of the flat was to be handed over to the complainant within 36 months from the date of booking and after receiving full and final payment i.e. by the end of November, 2009. It is submitted that on 29.08.17 the complainant received a demand letter from the OP in which it was written that “ we are pleased to inform you that as per the latest approval of the project by the appropriate authority, we have re-allotted the flats. As per the allocation, your new flat file no. is B-6/102, instead of flat No.D-807”.  OP informed that inspite of their best efforts due to certain compelling circumstance which were beyond the control, they could not meet the deadline i.e. November, 2009 and the plan has been submitted with the concerned department in U.P. Govt. and they are hopeful that the approval will be received within next couple months, which could enable them to start the construction and they can hand over the possession by December, 2010. It is submitted that till today the OP has not issued any possession letter or handed over the flat to the complainant. The complainant again received a letter dated 24.05.10 from the OP regarding the demand of EDC and IDC and other charges against the  Flat No.C-9-10/404 at Eastern Height, Ghaziabad (U.P.) and OP has demanded the charges of external development, Internal Development, Fire Fighting Charges, External Electrification Charges and Area Difference to a total amount of Rs.2,85,415/-.  After receiving the letter the complainant met with the officials of OP but the complainant did not receive any satisfactory reply. The complainant sent a legal notice on 11.08.12 which was duly received by the OP but OP has not given the possession of the flat.  Hence, pleading deficiency in service and unfair trade practice on the part of the OP, the  complainant has filed the present complaint for the following reliefs:-

1. Direct the OP to handover the possession  of the flat or either refund the amount deposited  by the complainant i.e. Rs.10,15,272/- alongwith interest @ 18% p.a.
2. Direct the OP to pay to the complainant a compensation of Rs.8,00,000/- for their deficiency in service, gross negligence, unprofessional attitude and unfair trade practice which has caused loss of business, financial crisis, monetary loss, mental agony, trauma and harassment to the complainant.
3. Direct the OP to pay to the complainant towards litigation charges of Rs.55,000/-.

OP in the written statement has inter-alia pleaded that the present complaint is not  maintainable because the Forum has not got territorial jurisdiction as the site of the subject flat is located at Ghaziabad (UP). It is submitted that the complainant has not paid the required cost price/money of the flat and not even paid the installment of payment as per the payment schedule provided by the OP. The complainant is a habitual defaulter in making the payment of installment even though the OP had given ample opportunities to pay the balance amount and many times restored the cancellation of the flat allotted to the complainant. Therefore, the complainant is not entitled for the relief sought by him as the complainant cannot take benefit of its own wrong.  It is further submitted that the complainant has not made the payment of installments as per the demand letter which was issued as per the constructions raised by the OP but the complainant did not bother to make the payment and due to this act of the complainant and some other allottee/s, the project suffered a lot and some other allottee/s also suffered due to non payment by the allottees.  It is submitted that the installment as per schedule was not paid by 7^th of the month it became due. The developer will charge 18% interest p.a. on the delayed payment for the period of delay, however, if the same remains in arrear for more than two consecutive months, the allotment will automatically stand cancelled without any prior intimation to the allottee/s will has/have no lien on the unit.  In such cases 20% of the basic cost of the value of the flat deposited stands forfeited and the balance amount, if any, will be refunded without any interest.  OP has prayed for dismissal of the complaint.

Complainant has filed a rejoinder reiterating the averments made in the complaint.

Complainant has filed his affidavit in evidence. On the other hand, affidavit of Sh. Prabhjit Singh, AR/Director of the OP has been filed in evidence.

Parties have filed their respective written arguments. 

We have heard the arguments on behalf of the parties and have also gone through the file very carefully.

Undeniably the registered office of the OP is in Yusuf Sarai, New Delhi which falls within the territorial jurisdiction of this Forum. Hence, this Forum has the territorial jurisdiction to entertain the complaint.

Admittedly, the Complainant  booked a flat in the project of OP namely “ VXL Eastern Heights, Indirapuram, Ghaziabad (U.P.) vide application No.VXL/ EH/498/06-07 dated 06.03.2006 for area admeasuring 900 sq. ft. with an initial payment of Rs.1,46,250/- which was paid by the complainant vide receipt No.2140 dated 08.05.2006 against the total consideration of the flat was Rs.16,33,125/-.  Complainant has filed various receipts on the record to show that he has deposited a total amount of Rs.10,15,272/- with OP.  We mark the receipts as Annexure-1 for the purposes of identification.  The complainant has sent a legal notice dated 01.08.12 to the OP which was replied by the OP on 11.08.12. We mark the same as Annexure-3 & Annexure-4 respectively but the OP neither handover the possession of the flat to the complainant nor returned the money.

With the expiry of deadline of handing over the possession of the flat to the complainant by the OP, the OP itself became responsible for all the consequences. OP is malafidely shifting the blame on the complainant. . We hold that OP was in breach of contract in its failure to perform its obligation of handing over the possession. 

The OP has befooled the public at large including the complainant for which OP is guilty of deficiency in service and unfair trade practice, when OP was not in a position to start  the project, the OP was duty bound to refund the full amount to the complainant alongwith interest but the OP has failed to do so.

In view of the above discussion, we allow the complaint and direct the OP to refund Rs.10,15,272/- alongwith interest @ 8% per annum from the date of filing of the complaint till realization, Rs.50,000/- for mental torture and harassment undergone by the complainant including cost of the litigation within a period of 30 days from the date of receipt of copy of this order failing which OP shall become liable to pay Rs.10,15,272/- with interest @ 10% p.a. from the date of filing of the complaint till realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 31.10.18.