Haryana

StateCommission

A/200/2018

M/S TDI INFRASTRUCTURE LTD. AND ANOTHER - Complainant(s)

Versus

NAVEEN KUMAR - Opp.Party(s)

MUNISH GUPTA

19 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

Date of Institution:15.02.2018                      

    Date of final hearing:19.05.2023

        Date of pronouncement:31.05.2023

                                                                    

FIRST APPEAL No.200 of 2018

 

IN THE MATTER OF:                                       

 

M/s TDI Infrastructure Ltd., Customer Support Centre, Vandana Building, Upper Ground Floor, 11 Tolstoy Marg, Cannaught Place, New Delhi-1010001 through their authorized representative Shri Tejinder Rathee son of Shri DP Rathee, R/o House No.3280, Sector-15, Sonepat.

…Appellant

 

Through counsel Mr. Munish Gupta, Advocate

 

 

Versus

 

 

Naveen Kumar son of Ashok Kumar, R/o House No.1491, Sector-15, Sonepat.

 

…Respondent

 

Through counsel Mr. Abhimanyu Antil, Advocate

 

 

CORAM:   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. Munish Gupta, Advocate counsel for the appellant.

                   Mr. Abhimanyu Antil, counsel for the respondent.

 

 

 

 

 

 

O R D E R

 

S.C. KAUSHIK, MEMBER:

 

                   Delay of 69 days in filing of the present appeal is hereby condoned for the reasons stated in the application for conodonation of delay.

2.               Present appeal is preferred against the impugned order dated 31.10.2017 in Consumer Complaint No.20 of 2017, passed by the learned District Consumer Disputes Redressal Forum, Sonepat (now learned ‘District Commission’) vide which the complaint filed by the complainant-respondent was allowed and the present appellant-opposite party (‘OP’) was directed as under:-

“     In our view, the respondent has been able to prove that the circumstances were beyond their control and the possession of the said flat could not be delivered within 36 months from the date of agreement. In our view, the ends of justice would be fully met, if some directions are given to the respondent to give rest to any further future litigation in between the parties. Accordingly, we direct the respondent to refund the deposited amount to the complainant alongwith interest at the rate of 09% per annum from the date of filing of the present complaint till its realization.

     As far as the original buyer’s agreement placed on record by the respondent concerned, the Assistant of this Forum if hereby directed to return the same to the learned counsel for the respondents after due receipt and after keeping photo copy of the same on the case file.”

 

3.                Brief facts of the complaint filed before learned District Commission are that the complainant applied for a flat with the OP in their housing project and on 04.10.2011, OP booked a flat measuring 1075 sq. ft. for total cost of Rs.16,00,000/-. Complainant had paid an amount of Rs.15,97,871/- to the OP on different dates as per demand of OP. Possession of the said flat was to be delivered within a period of three years  from the date of execution of buyer’s agreement, but OP failed to do so. Complainant also served legal notice dated 12.07.2016 upon the OP, but they failed to deliver possession of the flat within the prescribed period of three years. Thus, there was deficiency in service on the part of OP.

4.                Upon notice, OP appeared before learned District Commission and filed its written version and submitted therein that the area of flat which was allotted to the complainant was 1075 sq. ft. tentatively and basic cost of the flat was agreed as Rs.1488.72 per sq. ft. which comes to Rs.16,00,000/- besides service tax i.e. Rs.51,480/-. Basic cost exclude EDC, EFSC, Car parking, maintenance etc. and after including the said amount under the heads as mentioned above, the total cost of flat exceeds Rs.20,00,000/-. It was further submitted that flat buyer’s agreement was executed on 13.09.2012 and possession of the said flat was to be delivered within 36 months, but due to some force majeure conditions such like; timely fall in the real estate, numerous allottees did not deposit the installments in time and secondly, there was shortage of labour & building material especially sand etc. OP failed to deliver the possession within stipulated period. It was further submitted that OP never denied to offer the possession of flat in question to the complainant. Finally, it was submitted that there was no deficiency in service on the part of OP and prayed for dismissal of the complaint.

5.                After hearing, learned counsel for the parties, learned District Commission allowed the complaint as mentioned above in para 2^nd (Supra).

6.                Aggrieved from the impugned order, OP-appellant (M/s TDI Infrastructure Ltd.) has preferred the present appeal for setting aside the impugned order passed by learned District Commission.

 7.                  Arguments have been advanced by Mr. Munish Gupta, Advocate, learned counsel for appellant and Mr. Abhimanyu Antil, Advocate, learned counsel for respondent. With their kind assistance the entire records as well as original record of learned District Commission including whatever evidence have been led on behalf of the parties had also been properly perused and examined.

8.                  As per the appellant-OP, possession of the flat in question could not be delivered within the stipulated period of 36 months i.e. from the date of execution of Flat Buyer’s Agreement due to some force majeure conditions as due to timely fall in the real estate, numerous allottees did not deposit the installments in time as well as shortage of labour & building material etc., which were beyond the control of appellant-OP. Thereafter, demonetization in November, 2016 was also a big reason for not delivering the flat in question within time.

9.                  However, it is admitted fact that on 04.10.2011, the present respondent-complainant booked a residential flat measuring 1075 sq. ft. for total cost of Rs.16,00,000/- in the housing project of present appellant-OP. It is also admitted that respondent-complainant had paid an amount of Rs.15,97,871/- to the appellant-OP on different dates as per their demands and possession of the said flat was to be delivered within a period of three years from the date of execution of buyer’s agreement, but the appellant failed to do so.

10.       As such, there was a clear breach of terms and conditions of the Flat Buyer’s Agreement on behalf of the appellant-OP. It is the normal trend of the developers that a developer would collect their hard-earned money from the unsuspecting individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard earned money is not completed.  Resultantly, completion of the project and the delivery of possession is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in services on the part of appellant-OP. So, respondent-complainant is well within his legal rights to seek refund of the amount which he had deposited with the appellant-OP. Thus, learned District Commission rightly observed that present appellant-OP was deficient in service. Impugned order dated 31.10.2017, passed by learned District Commission, Sonepat is well reasoned, based on facts, as per law and there is no need to interfere with it.  Hence, the present appeal stands dismissed while upholding the order passed by the learned District Commission.

11.                The statutory amount of Rs.25,000/- deposited at the time of filing of the present appeal be refunded to the appellant against proper receipt, identification and due verification, as per rules.

12.                A copy of this order be provided to all the parties free of cost as mandated by provisions of the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for perusal of the parties.

13.                Application(s), pending, if any, stand disposed of in terms of the aforesaid order.

14.                File be consigned to record room alongwith a copy of this order.

 

Pronounced on 31^st May, 2023

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III       

 

R.K