Delhi

New Delhi

CC/195/2020

Suresh Kumar Manjani - Complainant(s)

Versus

M/S. Pivotal Infastructure Pvt. Ltd. - Opp.Party(s)

13 Dec 2022

ORDER

 

 

 DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC.195/2020

                        

In the matter of:

 

1. SH. SURESH KUMAR MANJANI

          S/O KHEMCHAND MANJANI

          R/O FLAT NO. 1101, GTM TOWER-II

          VALLEY VIEW ESTATE, GWAL PAHARI,

          FARIDABAD ROAD, GURUGRAM

 

2. DEEPIKA MANJANI

        W/O SURESH KUAMR MANJANI,

           R/O FLAT NO. 1101, GTM TOWER-II,

          VALLEY VIEW ESTATE, GWAL PAHARI,

          FARIDABAD ROAD, GURUGRAM

 

3. DIVESH MANJANI

         S/O SURESH KUMAR MANJANI

           R/O FLAT NO. 1101, GTM TOWER-II,

          VALLEY VIEW ESTATE, GWAL PAHARI,

          FARIDABAD ROAD, GURUGRAM                             ..... COMPLAINANTS

 

VERSUS

 

1. M/S PIVOTAL INFRASTURCTURE PVT. LTD.

       2nd FLOOR, OM SHUBHAM TOWER,

        NEELAM BATA ROAD, SECTOR-70

         NIT FARIDABAD-12007

 

 

2. ANSAL BUILDWELL LTD.

        118, UFF, PRAKASH DEEP, 07,

       TOLSTOY MARG,

           NEW DELHI.                                                                           ..OPPOSITE PARTIES

 

 

Quorum:

Ms. Poonam Chaudhry, President

  Shri Bariq Ahmad , Member

                                                                                                                          Dated of Institution : 21.12.2020                                                                                                                                                                              Date of Order         : 13.12.2022

O R D E R

BARIQ AHMED, MEMBER.

1. The present complaint has been filed u/s 35 of the Consumer Protection Act, 2019 (CP Act 2019) on 21.12.2021. The facts of the case in brief are that the Opposite Party resulting in delay in the construction of the project being developed by i.e. ROYAL HERITAGE, FARIDABAD EYE (hereinafter referred to as the said project), at sector 70, Faridabad, Haryana ) and its delivery of possession along with occupancy certificate. The complainant was induced by the advertisement of the OP to apply for flat and made payment of Rs. 71,54,546/- (Rs. Seventy One lakhs fifty four thousand five hundred forty six) for flat no. 1001, in the Tower named 'Sidhi' on the 19th floor as consideration for sale for the same.
2. It is stated that in furtherance to the booking, the Flat -Buyer agreements were executed with OP No-1 with the condition that booking units / flats would be delivered by 2015 owing to the brand value of O.P. No. 2 which by then had engaged in the construction of various projects. It is further stated the complainants entered into an "APARTMENT BUYER AGREEMENT/ BUILDER BUYER AGREEMENT" on 21.08.2012.
3. The complainants were allotted Unit bearing Flat Number 1001 in the Tower named 'Sidhi' on the 19th floor having a Super Area of 2525 Sq. ft.
4. It is further stated that as per clause 13 of the abovementioned agreement and the Payment Plan provided, the Opposite parties were to offer the possession of the Unit to the complainants within a period of execution of 36 months from the date of Execution of the Agreement or from the date of getting various sanction from the Concerned Authorities, for starting the construction of the project, whichever is later.
5. It is further stated that the agreement was signed between the Complainants and the Opposite parties on 21.08.2012 and it is discernible that the Opposite parties have miserably failed to abide by the said agreement. That by any stretch of calculation, the said period of 36 months is long over during the year 2015 to 2020 as the Agreement was of 21.08.2012 and the Opposite parties have till date not delivered the Possession of the unit in the said project to the complainants despite taking the hard -earned monies of the complainant.
6. It is further stated that the complainants have made a payment of Rs. 71,54,546/- (Rupees Seventy-one lakh fifty four thousand five hundred and forty six only) for Flat no. 1001, 19th floor, `Sidhi`, Tower, in the abovementioned project as consideration for sale of the same. That the same was made through 9 installments. The first installment was made on 01.09.2012 for an amount of Rs.7,00,000/- (Rupees Seven Lakhs only) at the time of booking/ Allotment. That the last payment was made on 25.11.2015 for an amount of Rs. 6,81,750/- after which the Opposite parties have not shown any progress in the development of the project and have abandoned their duty to provide possession to the complainants who has diligently paid each and every installment as per timeline of the payment plan.
7. It is further stated that the complainants wrote several times to the Opposite Parties requesting to waive off the interest outstanding as on 10.10.2020. However, the Opposite parties being completely at fault by way of an eye wash and without any communication sent the complainants a Demand letter ('Intimidation of Due Installment) dated 17.09.2020 which was received by the Complainant on 07.10.2020 wherein the complainants were asked to pay Rs. 40,31,591/- including service tax. That despite having collected more than 70% of the total consideration from the complainant, the Opposite Parties are yet to handed over the possession of the said Residential space which is delayed for more than 5 years now. It is also alleged that complainant visited the OP’s several times and also wrote many letters to OP for handing over the flat and its registry. It is also stated that considerable time having lapsed and OP failed to meet its promise. Thus, complainant sent legal notice to OP. It is also alleged that total amount of Rs.71,54,540/- has been paid by complainant to OP till 25.11.2015 and more than 7 years have elapsed since then. The complainant entitled to refund the entire sale consideration so paid along with interest at the rate of 24%. The complainant also claimed a compensation each of the complainant by paying an amount of Rs. 5,00,000/- on account of harassment, mental agony, hardship, financial risk by the acts and omission of both the OP’s
8. It is also stated that complainant is within the period of limitation. It is further stated that this Commission has pecuniary / territorial jurisdiction as complainant and OP’s work at gain at New Delhi and the OP has its corporate office at TOLSTOY MARG, New Delhi. The claim has been filed with following prayers: -

1. Pass an order directing the OP No. 1 and OP No. 2 to given refund of the entire sale consideration so paid by the complainants till date for the unit booked by the Complainants in the project "ROYAL HERITAGE-FARIDABAD EYE" within a period of three months.
2. Directed both O.P. No. 1 and OP No. 2 to pay interest calculated @ 24 % compounded quarterly on the amount deposited by the Complainant from the expiry of 36 months from the execution of the flat buyer agreement
3. Directed both OP No. 1 and OP 2 to compensate each of the Complainants by paying an amount of Rs. 5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused by the acts and omissions of both the OPs.
4. Opposite parties may be directed to pay Rs. 5,00,000/- as litigation expenses to the complainant due to OP'S actions/ omissions.
5. Pass such other order/orders which this Hon’ble Commission may deem fit and proper in the interest of justice.

9. Despite the service of notice, none had appeared on behalf of OP, hence, the OP was proceeded ex-parte vide order dated 23.08.2021.
10. The complainant no1 filed his ex-parte evidence of Sh. Suresh Kumar Manjani, by way of affidavit wherein he has corroborated the contents of the complaint. The complainant has relied on the documents namely copy of brochure, copy of application form, copy of payment plan, copy of payment made through cheque in their corresponding acknowledgment receipt issued by the OP, copy of cheque, copy of Apartment Buyer Agreement/ Builder Buyer Agreement dt. 21.08.2012, copy of receipts and letter of OP dated 17.09.2020 of intimation of the Due installment for the flat of Rs. 40,31,591/-
11. We have heard Ld. Counsel for complainant and perused the record.
12.  In his ex-parte evidence, the complainant has reiterated the averments and contentions made in the complaint. The complainant deposes that the developer shall make allotment but in case it fails to do so for any reasons whatsoever no claim of any nature, monetary or other would be raised by allottee except that the advance amount to be refunded with interest at the rate 24% per annum.
13. We further of the view that there has been delay in handing over the possession of the flat to the complainants. It is the case of complainants that they have waited for more than 7 years for the allotment of the flat and it is to be noted that the advance registration form and Builder Buyer Agreement provides that flat was to be handed over 36 months from the date of the execution of the Flat Buyer Agreement. As regards the delay caused by the developer in allotment/ handing over possession, Hon’ble Apex Court has held in Calcutta, West International City Pvt ltd. Vs Devasis Rudra, II (2019) CPJ 29SC, as under:-

“ It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed form the date of the agreement. Even according to the developer, the completion certificate was receive on 29^th march, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years in beyond merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.

14. 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’.
15. We have perused the copy of receipts filed by complainants; we are of the view that registration form provides payment of interest at the rate of @ 24% per annum for delay on part of OP in allotment.
16. It is to be noted that 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’.
17. 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’.
18. We are of the view that OP`s did not allot the flat nor refunded the entire amount deposited by the complainant till date which amount to deficiency in services.
19. We thus, hold that OP’S is guilty in deficiency of service. We accordingly direct OP no. 1 and OP no. 2 to refund the amount of Rs.71,54,546/- (Rupees Seventy One lakhs fifty four thousand five hundred forty six only) to the complainant with interest @ 14% per annum from the date of deposit till realization within a period of 2 months. In case of delay in the payment beyond 2 months the OP’s are directed to pay the interest @ 18% per annum from the same period.
20. We also direct OP’s to pay a sum of Rs.2,00,000/- (Rupees Two lakhs only) as compensation towards, harassment, mental agony and pain and further amount of Rs.25,000/- (Rupees Twenty five thousand only) as cost of litigation. The order be complied within the period of 30 days of the receipt of copy of the order.

A copy of the order be uploaded on the Confonent website (www.confonent.nic.in) and also supplied to all the parties / Ld. Counsel free of cost.

File be consigned to record room.

Announced in open Commission on 13.12.2022.

 

 

 (POONAM CHAUDHRY)

President

 

 

                                                  (BARIQ AHMAD)                                                          

Member