Delhi

New Delhi

CC/275/2018

SH. SUNIL KUMAR VATS - Complainant(s)

Versus

M/S. ARJUN KKR DEVELOPERS LTD. - Opp.Party(s)

19 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.275/2018

IN THE MATTER OF:

 

Sh. Sunil Kumar Vats

S/o Sh. Jagdish Prasad Vats,

R/o 417E, Shastri Marg,

East Babarpur, Shahdara,

Delhi-110032                                                                 ....Complainant

 

 

VERSUS

 

1. M/s Arjun KKR Developers Limited

Through its Director/Authorized Person

Office At:

1^st Floor Shopping Arcade,

Hotel Connaught, 37, Shaheed Bhagat Singh

Marg, New Delhi-110001

Also At:

Roorkee- Haridwar Highway,

Adjacent Roorkee Engineering College

Roorkee (Uttrakhand)

2. Mr. Ramesh Kakkar

Through Jail Superintendent

Jail No.4,

Director/Authorized Person of

M/s Arjun KKR Developers Limited

Tihar, New Delhi-110001 ....Opposite Parties

 

Quorum:

 

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

Sh. Shekhar Chandra, Member

 

                                                                                                                               Date of Institution:-13.07.2018                                                                                                                                                                       Date of Order   : -  19.05.2023.

 

 

ORDER

 

POONAM CHAUDHRY, PRESIDENT

 

 

1. The present complaint has been filed under Section 12 of the Consumer Protection Act,1986  (in short CP Act) against Opposite Parties (in short OP) alleging deficiency of services.
2. Briefly stated the facts of the case are that the complainant booked a residential plot measuring 300 sq. yards in project of OP ARJUN CITY Scheme at Roorkee, Uttranchal vide application No. ACR/01-54 One Sanjay Tyagi paid a sum of Rs.1,10,625/- (Rupees One Lakh Ten Thousand Six Hundred Twenty Five) vide cheque No.738135 dated 08.07.2006 vide receipt No. 363 dated 11.10.2006 and also paid the second installment for  a sum of Rs.1,03,125/- (Rupees One Lakh Three Thousand One Hundred Twenty Five) vide cheque No. 737997 dated 16.07.2006 vide receipt No.364 dated 11.10.2006 and third installment for a sum of Rs.2,99,250/- (Rupees Two Lakh Ninety Nine Thousand Two Hundred Fifty) in case vide receipt No.1162 dated 30.06.2007 and hence paid a total sum of Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand).
3. The opposite party/respondent allotted a plot bearing No. A-112 to Sanjay Tyagi, in Arjun City, Roorkee, Uttranchal on the basis of draw measuring 300 sq. yards, vide letter No. AHPL/Admn/Estate/07(08).
4. The company later on reduced the size of the plot to 250 sq. yards instead of 300 sq. yards, allotted to Sanjay Tyagi and the rate was fixed @ Rs.2921/- (Rupees Two Thousand Nine Hundred Twenty One) per sq. The total cost was Rs.6,60,263/- (Rupees Six Lakh Sixty Thousand Two Hundred Sixty Three).
5. That thereafter, the complainant purchased the said plot from  Sanjay Tyagi with the consent of the opposite party/respondent and OP transferred the said plot in the name of the complainant and made endorsement on the receipt of amount paid by Sanjay Tyagi and transferred the same in the name of the complainant and issued a certificate to this effect in favour of the complainant.
6. It is alleged the opposite party/respondent has failed to develop the aforesaid township and plots and failed to handover the possession of developed plot to the complainant after repeated request and demands of the complainant. The complainant visited at the offices of the respondents as well as the address of the aforesaid township, but did get any satisfactory reply.
7. It is also alleged that the complainant has faced a great mental and physical tortures, harassments, mental pain and agony and financial loss due to illegal and unwarranted acts and activities of the respondents. There is a great deficiency in the services of the respondents, as the respondents have not developed the abovesaid township and has failed to deliver the possession of the developed plot within a period of 9 months from the date of registration and also failed to refund the amount alongwith interest @ 24% per annum to the complainant, hence the respondents are liable to compensate the complainant to the tune of Rs.5,00,000/- (Rupees Five Lakh Only).
8. The complainant served a legal notice upon the respondents the same has duly been served upon the respondent No.2 on 21.04.2018 through Jail Superintendent Jail No.4, Tihar Jail, New Delhi, but despite the same the respondents neither gave any reply to the said legal notice nor returned the consideration amount  of Rs.6,60,623/- (Rupees Six Lakh Sixty Thousand Six Hundred Twenty Three) to the complainant alongwith interest and compensation.  It is alleged that Forum has got the jurisdiction to entertain, try and adjudicate the present complaint.
9. It is prayed that respondent be directed to handover the possession of developed plot in the aforesaid township area measuring 250 sq. yards or return the consideration amount of Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand)  interest @ 24% per annum till realization with damages of Rs.5,00,000/- (Rupees Five Lakh) and litigation expenses, in the interest of justice. Respondent be directed to pay compensation of Rs.1,00,000/- (Rupees One Lakh) for mental torture, pain and agony and Rs.20,000/- (Rupees Twenty Thousand) as litigation charges.
10. Notice of the complaint was issued to OP. OP entered appearance on 05.03.2020 and sought time to file written statement. On the date of hearing of  12.03.2020 counsel for OP again sought time to file written statement on the date of hearing of 05.01.2023. as none has appeared for OP, OP was proceeded exparte.
11. Complainant filed his evidence by affidavit reiterating the averments made in the complaint. Complainant relied upon the payment receipts, allotment letter, legal notice.
12. We have heard the Ld. Counsel for complaint and perused the material on record.
13. Complainant had moved an application for amendment which was allowed vide order dated 01.11.2018.
14. From the unrebutted evidence of complainant, it has been proved that complainant booked a plot in the project of OP. It was contended on the behalf of the complainant that OP was deficient in providing its services. It was also submitted that complainant had paid Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand) but OP failed to deliver the property within 9 months from the date of registration. As regard deficiency in services, Hon’ble Supreme Court has held in Arifur Rahman Khan and Ors. V. DLF Southern Homes Pvt. Ltd. And Ors. 2020(3) RCR Civil 544 that the failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated time frame, amounts to deficiency.
15. It was also held in Lucknow Development Authority Vs. M.K. Gupta, 2 1994(1) SCC 243 by Hon’ble Supreme Court that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. Person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
16. It is to be noted Section 2 (47) of the Consumer Protection Act, 2019, defines ‘unfair trade practices’ in the following words: “unfair trade practice” means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice” and includes any of the practices enumerated therein. The Hon’ble Supreme Court held in above case of Lucknow Development Authority Vs. M.k. Gupta, 1994(1) SCC 243, that when possession is not handed over within the stipulated period, the delay so caused is not only deficiency of service but also unfair trade practice.
17. It is also pertinent to note Hon’ble Supreme Court also held in Fortune Infrastructure and Anr. Vs. Trevor D’Lima and Ors.2018(5) SCC 442 that a person cannot be made to wait indefinitely for possession of flat and they are entitled to seek refund of the amount paid by them along with compensation.

Thus as the services of OP were deficient, the complainant was justified in claiming refund of the amount deposited by him with compensation.

18. We are further of the view that the cause of action being the continuing one as the amount advanced by complainant was not refunded neither possession of the plot was handed over to him, the complaint is within the period of limitation.
19. We thus, hold that OP/ Arjun KKR Developers Limited was guilty of deficiency in services. We accordingly direct OP/Arjun KKR Developers Limited to refund the amount Rs.5,13,000/- (Rupees Five Lakh Thirteen Thousand) to the complainant along with interest @ 9% p.a. from the date of each deposit till realization within a period of 4 weeks from the date of receipt of order, failing which OP will be liable to pay interest @ 12% p.a. ftill realization. We also award Rs.1,00,000/- (One Lakh) as compensation for mental agony caused to complainant and Rs.25,000/- (Rupees Twenty Five Thousand) as cost of litigation

A copy of this order be provided/sent to all parties free of cost. The order be uploaded on the website of this Commission.

File be consigned to record room along with a copy of the order.

 

Poonam Chaudhry

(President)

Bariq Ahmad                                                                  Shekhar Chandra

                                                       (Member)                                                                          (Member)