Delhi

East Delhi

CC/508/2013

VIVSVAN - Complainant(s)

Versus

NITISHREE INFRA. - Opp.Party(s)

05 Sep 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

                                                CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CASE NO-508/13

In the matter of:

Sh. VIVSVAN,

S/O Sh. RAJ KUMAR SINGH AGED ABOUT 24 YEARS,

R/O SE-88, SHASTRI NAGAR,

PS KAVI NAGAR, GHAZIABAD

Complainant

 

Vs

 

NITISHREE INFRASTRUCTURE LTD.,

(PREVIOUSLY KNOWN AS SHOURYA TOWERS PVT. LTD,)

(THROUGH ITS MANAGING DIRECTOR)

REGISTERED OFFICE:78-B, SECTOR D/2,

GROUP II, DDA FLATS, KONDLI, GHAROKI,

MAYUR VIHAR PHASE III, DELHI-96.

 

AND ALSO AT MARKETING OFFICE D-III,

SECTOR-5, NOIDA.

 PIN 201301

Opposite Parties

 

                                                                                 DATE OF ADMISSION-11/07/2013

                                                                                DATE OF ORDER         -12/09/2015

 

SH. N. A. ZAIDI, PRESIDENT

This complaint has been filed with the allegation that the respondent launched the attractive plan and lay out of the project in Alstonia when Commercial Shop to be constructed in NCR/Delhi. The complainant being in need of a shop to carry his business for self employment and livelihood got the shop booked with the respondent  after making of payment of Rs.2,75,000/- on 05/12/2006. The area of 300 Sq ft @ Rs.6,105/- per sq ft. The total cost of shop was Rs.18,31,500/- and discount of Rs.15,000/- was given and net basic price was Rs.18,16,500/-. The respondent never issued any demand letter to the complainant when the complainant was always ready to pay the balance cost of the shop. Despite request, the respondent could not start the construction and no progress report was ever disclosed to the complainant. The complainant sees no hope to get the property from the respondent as they have not yet started the construction. He is facing hardship to earn his livelihood for want of proper shop. The complainant requested for refund of the deposited amount but same has not been refunded. The complainant has prayed for the refund of Rs.2,75,000/-with 18% interest from the date of the deposit till the payment has made to the complainant. The compensation of Rs.1 lakh and Rs.50,000/- as cost of litigation.

            Respondent filed the written statement, wherein they raised the plea of limitation. The complainant did not make any payment nor made any demand for return of the deposited amount before filing this complaint. The complainant himself has not paid the further payment. This is admitted in Para 2 of the written statement that project Alstonia has gone delayed due to circumstances beyond the control of the respondent. They offered to provide the shop to the complainant at Aura Ghimera NH-58, Raj Nagar Extn., Ghaziabad at the prevailing rate of the project and also ready to give a commercial plot at Shaurya Puram   project at villege Shahpur, Bamheta, NH-24, Ghaziabad by adjusting the amount already paid by the complainant. Rest, all the allegations have been denied.

            Complainant filed his affidavit. Mr. Harendra Kr. Sharma affidavit has been filed on behalf of respondent.

            Heard the Ld. Counsels for the parties and perused the record.

            The main issue before us, is as to whether there is any deficiency on the part of the respondent in fulfilling obligation under the contract entered with the complainant. The respondent has admitted that the shop was booked by the complainant by depositing 15% of the total cost i.e. Rs. 2,75,000/-through Annex. – 1 filed along with the complaint. This has not been challenged that this shop was not booked by the complainant for earning his livelihood, as such, section 2 D of the Consumer Protection Act is not an impediment in seeking the relief by the complainant. The respondent in their written statement, preliminary objection para-2 have categorically admitted this fact that the project in Alstonia got delayed due to circumstances beyond the control of the respondent and they have made an offer to the complainant to provide him a shop at Aura Ghimera NH-58, Raj Nagar Extn., Ghaziabad at the prevailing rate of that project. In alternative, they also offered the commercial plot at Shaurya Tower, villege, Shahpur, Bamheta, NH-24, Ghaziabad on the prevailing rate of project. They further pleaded that the amount already paid is liable to be adjusted. We are not to take any such offer into consideration, as this forum is only to evaluate, if there is any deficiency on the part of the respondent. It is for the respondent to prove that they made this offer to the complainant prior to the filing the reply in this complaint. In the affidavit of Sh.Harindra kr. Sharma there is not an iota of evidence that any such offer was ever made. This fact clearly establishes that the project in which the complainant has booked his shop to carry out the business for the purpose of earning his livelihood, never took off. This fact has also not been denied that the respondent has ever asked the complainant to make any further deposit. The above facts clearly indicates that it is the respondent who has failed in his obligation and not the complainant about whom the respondent has taken the plea that he has not deposited the amount when the project has not started and no demand was raised by the respondent. Complainant has made the statement on oath that he was always ready to deposit the balance amount.

            The respondent has taken the plea of limitation on the ground that booking was made on 05/12/2006 and this complaint has been filed in the year 2013. The counsel for the complainant argued that in view of the self admission of the respondent that the project in which they accepted the deposit of the complainant never took off and they could not started the project. There is no evidence from the side of the respondent that they ever intimated the complainant regarding their inability to complete the project nor they have ever offered him any alternative place. It is for the first time in the written statement that they have offered alternate sites on the prevailing market rate. This shows that the respondent were aware that the cause of action with regard to rights of complainant, is continuing.

            In these circumstances the cause of action shall be deemed to be continuing till the delivery of possession. The plea of limitation raised by the respondent thus has no legal force and rejected accordingly.

            The complainant in this case has prayed for the refund of the amount with 18% interest from the date of the deposit. In this case the complainant has issued notice on 11/06/2013 and filed this complaint on 15/06/2013. The complainant was inactive with regard to his own rights for such a long period. Taking all the circumstances into consideration we direct the respondent to refund to the complainant Rs.2,75,000/- with 9% interest from the date of the filing this complaint till it is finally paid. We further award the compensation of Rs.20,000/-which shall also include the cost of this limitation. Let all the amount be paid within 45 days, failing which the complainant shall be entitled for 9% interest on the amount of compensation & costs as well.

            Copy of this order be supplied to both the parties.

 

SUBHASH GUPTA                          POONAM MALHOTRA                       N.A.ZAIDI

     (MEMBER)                                              (MEMBER)                              (PRESIDENT)