Delhi

East Delhi

CC/559/2013

PRAVEEN HIRA - Complainant(s)

Versus

NITI SHREE INFRA. - Opp.Party(s)

21 Oct 2013

ORDER

DISTRICT CONSUMER DISPUTES RERESDSAL FORUM (EAST)

GOVT OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC NO.559/13

 

Sh. Praveen Hira,

S/o. Late Sh. B.R. Hira,

 

Smt. Sadhana Hira,

W/o. Sh. Pravin Hira

 

Both R/o. 1/19, DDA Flats,

Naraina Vihar,

New Delhi-110028.

                                                                                               Complainant

                                                      Vs

 

1.M/s. Nitishree Infrastructure Ltd.,

Represented by

Sh. Anil Kumar Jain (Chairman)

 

Having its Registered Officer at

78 B Sector D-8, DDA Flats,

Group-II, Kondli Gharoli,

Mayur Vihar Phase-III,

Delhi-110096.

 

              And

Having its Corporate Office at

B-111, Sector-5,

Noida-201301 (UP),

Gautam Budh Nagar.

 

2. Shourya Towers Private Limited,

Represented by

Shri Anil Kumar Jain

Having its Registered Officer at

78 B Sector D-8, DDA Flats,

Group-II, Kondli Gharoli,

Mayur Vihar Phase-III,

Delhi-110096.

 

            And

Having its Corporate Office at

B-111, Sector-5,

Noida-201301 (UP),

Gautam Budh Nagar.

Opposite Parties

    

                                                 DATE OF ADMISSION-24.07.2013

DATE OF ORDER        -02.02.2016

 

O R D E R

 

SH.N.A ZAIDI,PRESIDENT

This complaint has been filed with the allegation that Complainant No.1 is a retired person and his wife, the complainant No.2 herein, lured by the advertisement of respondent in a leading newspaper regarding residential township, ShouryaPuram at NH-24 mentioning therein that they have obtained the requisite permission from Ghaziabad Development Authority booked a plot by paying the initial amount of Rs.3,50,000/- vide Cheque Nos.657983 and 468840 on 25.10.2005. They promised to hand over the possession of the plot by May, 2008. The respondent issued a demand letter dated 05.04.2006 for a sum of Rs.1,62,251/-. The complainants visited the office of the respondent at Delhi and deposited a cheque of Rs.1,60,000/-. Other demand letters were issued on 05.04.2006 and 16.01.2007 asking for Rs.1,91,366/-. This amount was also deposited on 23.01.2007 and the original allotment letter dt.23.01.2007 regarding Plot No.G-1257 was issued. Thereafter on 23/06/2009 they saw report about dispute over the land over which this said residential township was planned. The respondent gave a proposal for shifting of complainants booking to some other project after September, 2009. As there was no progress & seeing no alternative, he requested to shift his booking to Aura Abode at Raj Nagar Extension or refund the amount. An amount of Rs.8,58,866/- was adjusted towards booking of Flat No.A-1/705 in another project on 05.09.2009 with a promise to deliver the possession byDecember, 2011. The allotment letter was also issued on 16.09.2009 and an Agreement was also entered for delivery of possession by December, 2011. Despite promise the respondent has failed to deliver the possession to the complainants. A legal notice was also issued, but no reply was given. The complainants have prayed for refund of Rs.7,01,366/- with 24% interest and compensation of Rs.3,00,000/-.

Respondent filed their written statement wherein plea of jurisdiction has been taken as the project is situated at Behmetta, Ghaziabad. The plea of limitation has also been taken. The contract entered between the parties, provides the right and complete freedom to sell, lend, exchange or alienate the immovable plot as per the option of the complainants. It was a contract for purchase of plot of land, as such it is not maintainable before this Forum. The respondent is willing to allot an alternate unit to the complainants in its nearby project on agreed BSP and charges or in some of its other duly approved projects and it is also willing to adjust the amount already paid by the complainants in such alternative flat subject to approval and availability in another project of the company.  On account of regulatory approvals the project Aura Abode is delayed, hence there is only delay in construction of the project.

The parties to this complaint have filed on record affidavit in evidence in support of their respective cases.

Heard and perused the record.

The respondent has raised the plea of territorial jurisdiction as the township Shouryapuram is located at NH-24 Ghaziabad.  They have pleaded that as per the law in the case of Sonic Surgical V/s. National Insurance Company Ltd. 2010(1) SCC 135 the expression “Branch Office” would mean the branch office where the cause of action arose.  Since it is admitted by the complainants that the entire cause of action had arisen in Noida, this Forum at Delhi will not have jurisdiction to entertain the present complaint.  Complainants argued that as per Annexure-1 filed with the WS which was addressed to M/s. SMV Agencies Pvt. Ltd. the information was given regarding the integrated Housing Scheme, the licence was also granted to M/s. SMV Agencies Pvt. Ltd. which is located at Barkhamba Road, New Delhi. This has not been denied that the respondent company has not entered into this Agreement from their Registered Office at 78-B, Group D-2, Janta Flat, Kondali, Gharoli, Mayur Vihar, Phase-II, Delhi-96. Annexure A-1 filed on record by the complainant as annexure to the present complaint also shows that they have their Sales Office at G-55, East of Kailash, New Delhi. The complainants have specifically mentioned that the money had been deposited by them through cheques which had been issued at Delhi and had also been encashed in Delhi. The advertisement through which they attracted the complainant was also published in Delhi. The letter offering the alternative allotment was also delivered to the complainant at Delhi. In these circumstances this cannot be said that the cause of action has not arisen in Delhi.

The second plea which has been taken by the respondent is with regard to limitation.  As per their assertion in the WS the respondents have pleaded in Para 14 their willingness to allot a unit in their nearby project. The complainants have specifically pleaded that this proposal was given by the respondent in the year 2009. The agreement was subsequently entered into between the parties adjusting the above mentioned amount which was deposited in the earlier project on 16.09.2009 and as per this agreement the respondent was under an obligation to deliver the possession of the apartment by December 2011 with a grace period of three months and thereafter Rs.5/- per sq.ft. of the Super Area per month for the entire period of delay with overdue interest at the rate of 20% per annum. This clause gives the complainants a continued cause of action until the respondent delivers the possession to the complainants.  As such the plea of bar of limitation is nothing but taken for the purpose of creating grounds so as to avoid the complainants right to own the property or to get the refund. It is clear from the written statement that the earlier project for which they had collected the amount was not approved and thereafter there was dispute regarding the land as they were not having valid title and this fact forced them to invite the complainant to shift his booking to some other project. The Resondent have not given any evidence on record that the said alternative project is also completed and ready for possession. There is not an iota of evidence that the respondent ever invited the complainants to take the possession in the new project. This clearly shows that the respondent has been indulging in unfair trade practices by getting the deposit in projects which were not legally cleared by the competent authorities and thereafter retaining the money of the complainants in the name of providing the alternate accommodation in other projects. The respondents are continuously using the money of the complainants and the complainants have been deprived of their hard earned money.  As per the terms of the agreement the respondent had promised to pay 20% p.a. as interest on deposit money for the delayed period or Rs.5/- per Sq.ft. as the delayed charges. The Ld. Counsel for the complainants argued that they will settle for 20% p.a. interest. The counsel for the complainants have relied upon the judgement of CC No.229 of 2009 titled Nikhil Garg V/s. Nitishree Infrastructure Ltd. which was in respect of the same project. The Hon’ble National Commission has allowed 18% interest in similar circumstances and also in the cases of S.C. Malhotra V/s. Ansal BuildWell and in Ramesh Kumar Dua V/s. Ghaziabad Development Authority. Keeping in view the Law & agreement, the respondent is directed to pay to the complainant the total amount of Rs. 7,01,366/- to gather with 9% interest thereon from the date of filing of this complaint till paid. The Respondent shall also pay to the Complainant Rs.5/- per sq foot as per the agreement till the date of filing of this complaint. We further award compensation of Rs.30,000/- on account of harassment, mental pain and agony. All the amount if not paid within 45 days from the date of Judgment Complainant shall be entitled for 9% interest till paid.

Let copy of the order be served on both the parties as per rule.

 

(DR.P.N.TIWARI)                        (POONAM MALHOTRA)                    (N.A.ZAIDI)

         MEMBER                                          MEMBER                             PRESIDENT