Delhi

New Delhi

CC/255/2021

Rakesh Garg - Complainant(s)

Versus

M/S. Ridge View Developers Pvt. Ltd. - Opp.Party(s)

28 Sep 2022

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

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

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.255/2021                               

IN THE MATTER OF:

 

 

Smt.RakeshGarg,

W/o Sh. Ramesh Kumar Garg,

R/o AK-23, Shalimar Bagh,

New Delhi-110088.                                                       ....Complainant

 

VERSUS

 

M/s Ridge View Developers Pvt. Ltd.

9, Kasturba Gandhi Marg,

New Delhi-110001,

(A Private Limited Company, through its M.D./ Chairman)....Opposite Party

 

 

Quorum:

 

Ms.PoonamChaudhry, President

ShriBariqAhmad, Member

Ms. AdarshNain, Member

 

                                                                                                        Dated Institution:- 02.12.2021                                                                                                                                                                           Date of Order   : - 28.09.2022

O R D E R

POONAM CHAUDHRY, PRESIDENT

 

1. The present complaint has been filed under Section 35(1) of the Consumer Protection Act, 2019. Briefly stated the facts of the case are that the opposite party represented to the public at large in the year 2005-2006 that it is developing residential projects/ township in the city of Agra, Uttar Pradesh and soon all the requisite sanctions as well as approval from the appropriate authorities shall be obtained. Relying upon representations made by the opposite party, the complainant made a booking in respect of a plot measuring 300 sq.yds. and deposited an amount of Rs. 3,37,500/- vide receipt no. 10281 dated 01.04.2005 as advance against the opposite party’s P &F Project.
2. It is further alleged that as per the terms of payment plan and Advance registration form, the allotment of the plot was to be made within a period of 6 months from the date of registration and OP undertook to give possession of the same within 2 years of the booking after completion of project and obtaining completion certificate etc. from the concerned authorities.
3. It is also alleged that after waiting for more than 2 years, for allotment of the plot. The Complainant requested the opposite party to cancel the booking and process refund of the amount deposited with it. However despite requests of the complainant OP did not do so.
4. It is also alleged that till date no allotment, no agreement to sell has been entered into between the parties and the opposite party is illegally holding the hard earned money of the complainant and is constantly reaping monetary benefits out of it.
5. It is also stated that the opposite party has committed unfair trade practice by taking payment without any development which is evident from the fact that the opposite party despite taking an amount of Rs. 3,37,500/- in year 2005, failed to allot a plot to complainant.
6. It is also alleged that the complainant is a consumer and Opposite Party dealing in the construction of Housing scheme is a service provider and can be treated as seller of goods, thus by not giving possession or refunding the amount along with interest is “deficiency in service”, which attracts various provisions of the Consumer Protection Act, 2019.
7. It is further alleged that earlier a complaint no. 806 of 2012 was filedwhich was dismissed in default for non-appearance. It is also alleged that it is a well settled law that dismissal of suit for non appearance of parties cannot act as a bar in filing fresh suit/complaint subject to the fact that the cause of action and limitation period to file a suit/complaint should be continuing and provided that the complaint was not dismissed on merits. In the present case, the cause of action is still continuing as till date neither the amount paid by the complainant is refunded to him nor a plot is allotted to him and as such, the present complaint is within the limitation. It is further stated that no other similar complaint has been filed or is pending.
8. It was prayed that opposite party be directed to Refund the amount deposited i.e. Rs.3,37,500/- with interest @18% per annum compounded annually, from the date of respective deposits till the date of actual realization of amount and pay compensation for causing mental harassment, mental agony, and humiliation for preventing the complainnt from utilizing his hard earned money for more than 16 years and order as to costs of the present complaint along with litigation expenses, in the interest of justice. Any other order which this Commission deems just and proper may also be passed in favor of the complainant and against the Opposite Party.
9. Notice of the complaint was issued to OP.
10. OP filed written statement contesting the case alleging inter alia that the present complaint is barred by limitation as the booking amount was paid in the year 2005 and subsequently neither any builder buyer agreement was signed nor was any payment made. It was also stated that despite demand for the balance payments and communication for signing of the builder buyer agreement complainant never came forward. The booking amount thus stood forfeited in favour of the Opposite Party.
11. It was also alleged that complainant was liable to be dismissed as the complainant had filed a previous complaint in the year 2012 bearing Complaint case no. CC/806/2012 which was dismissed on 15.01.2019. Against the order of dismissal the only remedy is appeal.
12. It was also alleged that the complainant was bad for non-joinder of the necessary parties, as the project was of the company launched by Taneja Developers and Infrastructure Limited and the OP had the rights of development, marketing, etc. therefore Taneja Developers and Infrastructure Limited is a necessary party.
13.  It was also alleged that complainant does not falls within the ambit of the Consumer definition as defined in the Consumer Protection Act 2019, since the complainant is an investor as such the complaint was not maintainable. It was prayed that Complaint was liable to be dismissed .
14. The complainant thereafter filed rejoinder reiterating therein the averments made in the complaint and denying all the allegations made in the written statement. Both parties thereafter filed their evidence by way of affidavits.
15. We have heard the Ld. Council for parties and perused the record. We shall first decide the objections raised by OP.
16. An objection has been taken by OP that this Commission does not have territorial jurisdiction as the subject pertaining to property is situated at Agra, U.P. In this regard it is to be noted that Section 34 (2) of the Consumer Protection Act provides that complainant can be instituted at the place where complainant or OP reside or works for gain. In the present case OP has its office within the jurisdiction of this Commission. We thus reject the said contention of OP.
17.  Another objection was taken by OP that Complaint was barred by principles of rejudicate as previous Complaint on same cause of action was dismissed on 15/01/2019.  In this regard it has been  held by Hon’ble Supreme Court in Civil Appeal no. 557/2016  titled Indian Machinery Company Vs. M/s Ansal Housing and Construction Ltd. that “the only question that has arisen in this appeal is whether a second complaint to the District Forum under the Consumer Protection Act, 1986 is maintainable when the first complaint was dismissed for default or non-prosecution.  Further held There is no provision parallel to the provision contained in Order 9 Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9 Rule n8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9 Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.
18.  As regards the contention of OP that complaint is not maintainable as no allotment was made it has been held in appeal no. 344/2019 titled Vibhor Vaibhav Infrahome Pvt. Ltd. and another Vs. Azam Ali and others “that when the booking of the flat was made by the complainant it was the duty of the opposite party to have issued an allotment letter. However, in spite of several requests, the OPs did not issue any allotment letter and insisted for further payment. Clearly, there is no substance in the argument of the appellant that the complainant is not a consumer of the appellant, because there is no allotment letter and no builder buyer agreement. It was the responsibility of the appellant to have issued the allotment letter after booking was made by the complainant, however, the same was not issued by the OPs. As there was no allotment letter issued and the money paid only remains as booking amount, the complainants are entitled to refund of the same.”
19.  It is also to be noted that no evidence was brought on record by OP to show that complainant booked the plot for business in real estate. In this regard it has been filed in by Hon’ble Supreme Court in Sai Everest Developers Vs. Harbans Singh Kohli, 2015 SCC online NCDRC 1895, that:- “the OP should establish by way of documentary evidence that the complainant was dealing in real estate or in the purchase and sale of the subject property for the purpose of making profit”. Thus as no evidence was brought on record by OP to prove the said contention we are of the view that the same is without any merit.
20. We accordingly hold that the complainant is a consumer in terms of Section 2(7) of the Consumer Protection Act, 1986.
21. It was also alleged that Complainant was bad for non-joinder of Parties. In this regard it is to be noted that complainant had alleged that complainant booked a plot in the project of OP and paid booking amount to OP. OP had admitted the said fact in its reply. We thus reject the sad contention of OP.
22.  We thus hold OP guilty of deficiency of service and unfair trade practices and direct OP to refund the amount of Rs. 3,37,500/- (Rupees Three Lakh Thirty Seven Thousand Five Hundred) to complainant with interest @ 12% p.a. from the date of deposit till realization within 4 weeks of the date of receipt of order, failing which OP will be liable to pay interest @ 18% p.a. till realization.

Copy of the order be provided to all parties free of cost.

The order be uploaded on the website of the Commission.

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

 

 

(POONAM CHAUDHRY)

President

 

        (BARIQ AHMAD)                                                                           (ADARSHNAIN)

            MEMBER                                                                                             MEMBER