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.190/18

Manish Dev

S/o Rameshwar

R/o House No.193-L,

Aram Bagh, Paharganj

Central, Delhi.…..COMPLAINANT

Vs.

1. M/s MahaLuxmi Realtech Private Limited

Through Director/Authorised Signatory

Regd. Office 42, G.F.

Jungpura, Bhogal

New Delhi-110014.

2. Also at Corporate Office

C1/C2, Mahaluxmi Metro Tower

Sector-4, Vaishali, Ghaziabad

Uttar Pradesh-201010.                      …..RESPONDENTS

Date of Institution-28.08.2018

            Date of Order-10.11.2023

                                                O R D E R

RITU GARODIA-MEMBER

1.  The complaint pertains to deficiency of service on part of OP relating to unit booked by complainant.

2. The complainant booked a flat in a group housing residential project namely ‘MIGSUN ROOF’ situated at 45 & 51 Raj Nagar Extension, Sikrod, Ghaziabad, Uttar Pradesh. He was allotted a two BHK flat bearing No. SUN 3-1105 MIGSUN. A Builder-Buyer agreement dated 12.8.2017 was executed between the parties.  The Complainant opted for a construction linked plan and had paid Rs.1,76,000/- to OP.

3. It is alleged that the official of OP had assured the complainant to provide facilitation of loan from financial situation. Even in the letter dated 12.8.2017, the complainant had opted for a flat in Seventh Pay Commission Scheme Payment Plan.  However OP failed to facilitate the loan.  He was assured that if he surrenders/cancels the flat, the amount paid by the complainant will be refunded. 

4. The complainant prays for refund of Rs.1,76,000/- along with interest @12%, Rs.20,000/- for compensation and Rs.10,000/- towards litigation cost.

5. The complainant has filed receipt dated 10.8.2017 and 11.08.2017, copy of allotment letter, tripartite agreement, confirmation letter and NOC to Indiabulls Housing Finance Ltd and legal notice dated  16.03.2018.

6. Notice was issued to OP but none appeared.  OP was proceeded ex-parte. 

7. Complainant has filed evidence by way of affidavit and annexed correspondence with OP.

8. We have considered the pleadings and material on record. The receipt dated 10.8.2017 and 11.08.2017 shows that OP has received Rs.1,76,000/- from the complainant in respect of unit no. SUN3-1105 at MIGSUN ROOF situated at Sikrod, Ghaziabad.  The allotment letter dated 12.08.2017 shows that the aforesaid unit was allotted to the complainant.

9. The complainant has also filed two letters dated 12.08.2017 issued by OP to Indiabulls Housing Finance Ltd.  One letter is titled Permission to Mortgage/NOC and another is titled as Confirmation for cancellation charges in “Migsun Roof.’  The complainant has also filed a copy of tripartite agreement between the OP builder, Indiabulls Housing Finance Ltd. And himself.  This agreement is duly signed by the complainant and OP but the signature of the financer is missing.

10. The correspondence between the parties have been placed on record. OP in its e-mail dated 05.10.2017 has informed the complainant in the following manner:

“As our 7^th pay plan approval is in process, we assure you that there will not be any penalty for delay because of the same.”

11. The complainant sent a letter dated 11.12.2017 to OP. The relevant portion of is as follows: “
12.  

So, Now I want to refund my security money Rupees 1,76,000/- from Mahluxmi Realtech Pvt. Ltd. as soon possible.”

The complainant also sent an e-mail dated 18.12.2017 to OP for taking necessary action w.r.t the aforementioned letter.

12. OP vide termination letter dated 09.01.2018 cancelled the booking for non-payment of dues. The complainant sent a legal notice dated 16.03.2018 requesting for refund.

13.  Hon’ble National Commissioner in  Deepti Shailesh Pant and Ors. V/s D.B. Developers vide RP No.2536/2014 decided on 24.02.2021 has upheld the Order passed by the district Commission as follows:

“4. Parties led their evidences before the District Forum. The District Forum after hearing the parties and perusing the record allowed the Complaint and held as under:

3. The Complainant filed registered agreement dated 28.03.2005 executed in between the Complainant and the Opponent as Exh. (7) on the record for the booking of the flat No. 404, which fact is admitted by the Opponent in the written statement. After perusal of which, it is crystal clear that the Complainant has paid the amount of  Rs.1,00,000 to the Opponent, as a booking amount. The entire proceedings reveal that the Complainant paid the amount of Rs.1,00,000 for the booking of the flat No. 404, but till today, the opponent had not given the possession of the said flat nor refund the booking amount to the Complainant. The Opponent has not filed any single document for demanding the money as per payment schedule of the clause of agreement. Also there is no any intimation letter issued by the Opponent to the Complainant regarding construction work. Therefore, in our opinion, without any reason by retaining the amount of Rs.1,00,000 is itself deficiency in service on the part of the Opponent. Hence the Complainant is entitled to get back the amount of Rs.1,00,000 from the Opponent.

14. The State Consumer Disputes Redressal Commission, Chandigarh  in  Suresh Mishra Vs. Geetu Constructions Private Limited and Ors. vide Complaint Case No.51/2020 decided on 21.05.2021   has observed:
15.  

The allegations levelled by the complainant, have gone unrebutted, as the opposite parties chose not to put in appearance, despite deemed service, as a result whereof they were proceeded against ex parte. It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon'ble National Commission, in Emaar MGF Land Limited and Another v. Krishan Chander Chandna, IV (2014) CPJ 589 (NC) : First Appeal No. 873 of 2013, decided on 29.9.2014. In the present case also, in case, the development/construction activities are being undertaken or complete at the project site, then it was for the opposite parties, who could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken and almost complete at the site or not but, as stated above, they even failed to put in appearance despite deemed service, what to speak of contesting the allegations levelled by the complainant, by way of filing written reply and evidence. As such, in the absence of rebuttal to the allegations made by the complainant, the opposite parties have attracted an adverse inference, that they have nothing to say in their defence.

6. From the peculiar circumstances of this case, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainant, to whom it was made, was entitled to rely upon it and he may act in reliance on it. The complainant is thereby involved in a disadvantageous contract with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true. All the facts established that from the very inception there was intent to induce the complainant to enter into the contract by way of signing application form, referred to above, and also intent to deceive him, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.

15. The facts in this case are quite clear and not subject to dispute. OP received a sum of Rs 1,76,000 from the complainant. This transaction is substantiated by the allotment letter, which explicitly designates a specific unit number to the complainant. Moreover, the complainant, in a sworn affidavit, attested that the OP had assured him of facilitating a loan.

16. A key piece of evidence is the tripartite agreement, which was appropriately signed by authorized representatives of the OP. This agreement and the allotment letter were executed on the same day, establishing a link between the two. This connection supports the conclusion that the OP had indeed promised to facilitate a loan through Indiabulls Housing Finance Ltd. for the complainant. OP's confirmation letter to both Indiabulls Housing Finance Ltd. and the complainant rested on the expectation of approval for the "7th pay plan." However, as per the information available, such approval was not obtained. Consequently, the complainant's contention that he did not receive the loan approval appears to be valid.

17. Remarkably, OP has failed to make an appearance or offer a counter-argument to challenge the complainant's assertion. In the absence of a rebuttal from OP, it is reasonable to conclude that the OP deliberately made false representations with the intent to deceive the complainant.

18. Hence, we find OP guilty of deceptive trade practices and direct it to:

1. Refund Rs.1,76,000/- along with 9% interest from the date of deposit till realisation.
2. Pay Rs.20,000/- as compensation for mental agony and physical inconveniences.
3. Rs.5,000/- towards litigation expenses.

19. File be consigned to record room.  Order be uploaded on the website.