CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.227/2018
MAYANK SHARMA
S/o Sh. R.N. SHARMA
R/o HOUSE NO. 336,
FIRST FLOOR, SECTOR-17A,
GURUGRAM, HARYANA - 122001…..COMPLAINANT
Vs.
M/s. ARUN DEV BUILDER LTD.
THROUGH ITS DIRECTOR(S),
REGD. OFFICE AT:-
BLOCK F-1211, BIPIN CHANDRA PAUL MARG,
NEAR C.R. PARK, MAIN ROAD, MARKET NO. 2,
CHITRANJAN PARK,
NEW DELHI-110019.…..RESPONDENTN/ OP
Date of Institution-08/03/2018
Date of Order- 29/06/2022
O R D E R
RASHMI BANSAL– Member
Complainant has filed the present complainant against OP praying for the refund of Rs.2,00,000 /- with interest @18% paid from the date of booking, rent @ Rs. 3000/- per month from the date it fallen due, along with the compensation of an amount of Rs. 50,000/- for causing mental and physical harassment, Rs. 25,000/- towards litigation expenses and for any other further relief in the interest of justice.
It is the case of the complainant that he has booked a unit in OP’s project "Arun Dev City" at Roorke Road, Haridwar with scheme that with booking a flat, rent
amount of Rs. 3,000/- p.m. will be given to buyer till possession and the possession was supposed to be handed over within three years from the date of booking. Complainant applied for allotment of the unit admeasuring 525 sq. ft., vide Registration No. 55207 on 25.08.2007 through application form dated 25.08.2007, Ex. CW1/1. That the total price of the unit was Rs. 6,25,275/-. Complainant deposited the required booking amount of Rs. 2,00,000/- (Rs. 50,000/- vide cheque No. 268816 dated 25.08.2007 (drawn on HDFC Bank & Rs. 1,50,000/- vide cheque No. 330596 dated 07.12.2007 drawn on Deutsche Bank) against receipts bearing no. ADC-HRD/55207/1/97 dated 31.08.2007 for amount of Rs. 50,000/- and another ADC -HRD/55207/2/216 dated 07.12.2007 for amount of Rs. 1,50,000/-, Ex. CW1/2. The copy of the bank account statement of the complainant showing debit of Rs. 2,00,000 /- in favour of OP is Ex. CW-1/3. The balance amount was to be paid by the complainant at the time of the allotment/possession of the said unit in the above said project i.e. in year 2011. OP has also started making payment of Rs. 3,000/- p.m. into the complainant's bank account. This is submitted by complainant that even after an year OP did not start construction of above said project. Upon enquiry, it was informed by OP that there has been a dispute between the contractor and the OP, and the new contractor will be appointed very soon and then the construction will start within next two-three months, however, the construction work was not started. Meanwhile OP stopped making monthly payment to the complainant. It was revealed by OP’s office that OP did not take required approvals from the competent authority, due to which the construction work is stopped and he also came to know that there are no chances in future too for these approvals, therefore, amount of Rs. 3,000/- will also not be given to the complainant. The complainant shocked to know this and filed refund request dated 04.11.2011, Ex. CW1/4, with OP for return of his booking amount of Rs. 2,00,000/- and also called OP several times but OP kept on seeking time on one
pretext or another despite constant follow up. Again, reminder dated 21.06.2014, Ex. CW-1/5, was sent to OP for refund of booking amount but OP did not refund the same. upon for persuasion by complainant OP’s officials assured him the refund but again sought time for 2-3 months citing demonetization and other reasons. At last, complainant filed a written complaint vide DD No. 28 B dated 03.01.2018 against the OP before the Police Station C.R. Park, but his money was not refunded by OP. A legal notice dated 14.08.2018, was duly served upon the OP, Ex. CW1/7, which was not responded by OP. Complainant submits that complainant committed deficiency in services as he has not given the possession of the unit nor refunded the booking amount, and prays for refund of his money along with other reliefs.
Upon notice, OP failed to appear, despite service and, as such, was proceeded ex - parte, vide order dated 06.12.2018.
To prove his claim, the complainant, along with the complaint, CW -1/8, filed his self-attested affidavit, ex – parte evidence, CW 1/9.
We have heard learned counsel for the complainant and have gone through the evidence, written arguments submitted on his behalf and record of the case carefully.
The documents filed by the complainant show that the complainant has paid total amount of Rs. 2,00,000/- to OP. The receipts placed on record also establish that the OP has received the above stated amount. It is made out from the facts of the case that the OP was not able to meet his commitment for the delivery of the flat to the complainant within time and the possession of the flat in question is not given to complainant till date, nor the rent of Rs. 3000/- per month was paid to complainant as per promise of OP. Moreover, there is nothing on record to say, if OP has raised any further demand with the complainant, or made any attempt to cancel the allotment on the failure of the complainant to deposit further amount.
Since the OP is proceeded ex – parte, thus, all the averments made in the complaint are deemed to have been admitted by the OP and the evidence led by the complainant stands unrebutted; for which an adverse inference is to be drawn against them as there is no denial/rebuttal to averments/evidence of the Complainant.
It is significant to note that the booking was made in August 2007 and the present complaint was filed in October 2018 but till filing of the complaint, OP has neither given possession of the flat in question to the complainant nor has refunded the amount paid by complainant, which gives rise to a continuous cause of action.
In Satish Kumar Pandey & Anr. v. M/s Unitech Ltd. 2015 (3) CPJ 440 (NC), the Hon'ble National Commission held in Para-17, “It is now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum.”
Same view was taken in in "Navin Sharma (Dr.) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 by Hon'ble NCDRC that unless or until the Complainants get possession of the flats, complete in all respects, they have got continuous cause of action.
Hon'ble Supreme Court in Meerut Development Authority v. M.K. Gupta IV (2012) CPJ 12, held that in such a case the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the flat.
The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In Fortune Infrastructure v. Trevor D'Lima [Fortune
Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 : (2018) 3 SCC (Civ) 1] , Hon'ble Supreme Court held that a 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.
Upon considering all the facts, circumstances and documents on record, this commission is of considerate view that by not providing the possession of the flat to the complainant, despite receiving the consideration for the same, the OP has deprived the complainant his right of getting possession of the above stated property and thus committed deficiency of service and indulged in unfair trade practice. Further, retention of Rs. 2,00,000/- with him, as paid by complainant, for all these years through from date of deposit till date of order, and non-payment of the rent @ Rs. 3000/- per month OP has also caused financial loss to the complainant. Accordingly, the complaint filed by the complainant is allowed and following directions are issued to the OP:
- To refund the entire amount deposited by the complainant, i.e. Rs. 2,00,000/- (Rupees Two Lakh) along with interest, on account of financial loss suffered by the complainant for depriving him of the utilization of the said amount during the period it remained with the OP, calculated at the rate of 10% per annum from the respective dates of deposit till realization;
- To pay rent @ Rs. 3000/- per month due with effect from the date OP stopped payment;
- To pay Rs. 50,000/- (Rupees Fifty Thousand only) as compensation for the mental agony and harassment etc. suffered by the complainant;
- To pay 15,000/- towards litigation costs and other expenses;
The compliance of this order shall be made by the OP within a period of 90
days from the date of passing of the order, failing which the entire amount shall carry the further interest @12% p.a. from 91st day of the date of order till the date of actual realisation by the complainant.
The complaint stands disposed of accordingly. Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
The order be uploaded on the website www.confonet.nic.in.
The order contains 6 pages and bears my signature on each page.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
