Versus
- Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Sector D-2, Group-II, Gharoli, Mayur Vihar, Phase-3, Delhi-110096, through its authorized representative.
- Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., B-111, Sector-5, Noida-201301, U.P., through its Authorized Representative. 201301
- Nitishree Infrastructure Ltd./Shourya Towers Pvt. Ltd., Surya Enclave, Amritsar Bypass Road, Near Trinity College, Jalandhar, through its Authorized Representative. 144009.
- Novena Builders & Developers Pvt. Ltd., C/o. Shaurya Towers Pvt. Ltd., Surya Enclave, Amritsar Bypass Road, Jalandhar, through its Authorized representative.
Second Address:
Novena Builders & Developers Pvt. Ltd., C/o. Shaurya Towers Pvt. Ltd., House No.582-583, Rishi Nagar, Income Tax Colony, Urban Estate, Jalandhar, through its Directors, Vikas Koachar.
…..Opposite parties
Complaint Under Section 35 of the Consumer Protection Act, 2019 (As amended upto date).
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Varun Jain, Advocate.
For OPs : Exparte.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Briefly stated, the facts of the case are that the complainant purchased flats/residential dwelling units of the OPs in their project known as “SHOURYA GREENS” for his self-occupation/residence foreseeing the future needs and expansion of his family. The officials of OP1 to OP3 approached the complainant in 2005 with representation that OP1 to OP3 are developing mega housing project namely “Shourya Green” regarding which tenders were floated by the Improvement Trust, Jalandhar to develop 16.52 acres of land, possession of which was given to the OPs by the Trust. The OPs were required to construct the flats as per approved plan by the Trust and to obtain completion certificate from the trust and further to deliver the possession of the constructed flat.
The complainant further stated that the OPs represented that the entire area of 16.52 will be developed in short period and they will also provide all the basic facilities like main access road, street lights, sewer lines, storm waterline, electrical line etc. On the basis of representations made by the OPs, the complainant applied for allotment of a residential apartment/flat No.G3.402 and G1.601 under the scheme of Shourya Greens, Surya Enclave, Jalandhar for self occupation and accordingly, allotment of flats was made vide letter dated 05.05.2010. The basic price of flat No.G3-402 was Rs.18,77,175/- having super built area of 1545 sq. ft at the rate of Rs.1215/- per sq. ft. The OPs also demanded Rs.77,250/- as compulsory E.E.C & F.F.C and I.F.M.S charges including optional charges of Rs.50,000/-. As such, the total price of flat No.G3-402 was Rs.20,04,425/-, out of which the complainant paid Rs.18,75,000/- vide cheque No.184967 dated 26.04.2010 (through the amount of Rs.18,75,000/- regarding flat No.G1-601 was also paid through same cheque which was for Rs.37,50,000/-) and amount of Rs.1,29,425/- was only payable, out of which, a sum of Rs.2175/- was towards payment plan and amount payable at the time of possession was Rs.1,27,250/-. According to the complainant 93% of the basic sale price of flat No.G2-403 was paid at the time of allotment.
The complainant further stated that the basic sale price of flat No.G1-601 was Rs.19,01,475/- having super built area of 1565 sq. ft. at the rate of Rs.1215/- per sq. ft. The OPs also demanded Rs.78,250/- as compulsory E.E.C & F.F.C and I.F.M.S charges including optional charges of Rs.50,000/-. As such, the total price of flat No.G3-603 was Rs.20,29,725/-, out of which the complainant paid Rs.18,75,000/- vide cheque No.184967 dated 26.04.2010 (though the amount of Rs.18,75,000/- regarding flat No.G3-402 was also paid through same cheque which was for Rs.37,50,000/-) As such, a sum of Rs.1,54,725/- was only payable, out of which a sum of Rs.26,475/- was towards payment plan and amount payable at the time of possession was Rs.1,28,250/-. In this manner, about 92% of the basic sale price of flat No.G3-603 was paid by the complainant at the time of allotment. Further Rs.37,50,000/- stood already paid under both the flats. On 22.05.2010, the OPs entered into agreement with regard to the flats but the OPs failed to complete the construction of the flat or to deliver the possession till date. The complainant further stated that he approached OP1 to OP3 many times to know the status of the construction and completion of project but they made lame excuses on one pretext or the other and represented that there is some technical issue with the Improvement Trust and construction would be completed once the same is resolved. Finding no other option the complainant kept on waiting as he had already paid huge amount of the flat and remaining was to be paid at the time of handing over of the possession. The complainant further stated that he came to know that OP1 to OP3 have entered into some Joint Venture Agreement with OP4 for the purpose of developing the portion of the project as per powers allotted to OP4 due to which the OPs were to start the construction. Further the trust vide its letter dated 07.12.2014 asked the OPs to get approval for water and sewerage supply, in order to construct/complete the flats. The revised drawings were pending for approval, the OPs had not completed the construction nor had obtained the completion certificate. Even the construction is incomplete, flooring has not been laid down and kitchen work etc. has not been completed. The complainant approached the OPs number of times for completion of the project and for handing over the possession of the flats but they delayed the matter on one pretext or the other. However, they represented that the work is in progress and the company is in need of money for further development and assured the complainant to carry on the development work in short period and the complainant should make payment.
The complainant further stated that in the last quarter of 2020, OP4 through its director Vikas Kochhar demanded another sum of Rs.50,000/- for each flat on the pretext that the final touches are to be made and after that they will hand over the possession and will execute sale deed of the flat. Then the complainant paid Rs.50,000/- through NEFT/IMPS on 15.12.2020 against flat No.G3-402 and Rs.50,000/- vide NEFT/IMPS dated 04.02.2021 against flat No.G1-601 towards payment for further work pending in the flat G3-402 and flat No.G1-601. However, despite that the OPs failed to complete the construction and hand over the possession of the flats to the complainant. Only basic work has been done. The complainant further stated that he purchased the said flats for his personal occupation along with other buyers but their dreams have been shattered as the OPs have failed to hand over the possession and execute the sale deed in their favour which amounts to deficiency in service and unfair trade practice on the part of the OPs due to which the complainant has suffered mental agony and harassment and is entitled to compensation. In the end, the complainant has prayed for issuing direction to the OPs to refund the deposited amount of Rs.38,68,566/- along with interest @24% per annum as well as compensation of Rs.5,00,000/- besides litigation expenses of Rs.75,000/-.
2. Upon notice, none appeared on behalf of OP3 and OP4 despite service and as such, OP3 and OP4 were proceeded against exparte vide order dated 04.10.2022.
Initially, Sh. Gagandeep Singh, Advocate appeared and filed memo of appearance on behalf of OP1 and OP2 on 13.12.2022 but thereafter, none turned up on behalf of OP1 and OP2 nor regular power of attorney and written statement was filed on behalf of OP1 and OP2. As such, OP1 and OP2 were proceeded against exparte vide order dated 30.01.2023.
3. In exparte evidence, the complainant tendered her affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of allotment letter of flat no.G3-402, Ex. C2 is the copy of allotment letter of flat No.G1-601, Ex. C3 is the copy of receipt of flat No.G3-402, Ex. C4 is the copy of receipt of flat No.G1-601, Ex. C5 is the copy of account statement of flat No.G3-402, again Ex. C5 is the copy of account statement of flat No.G1-601, Ex. C6 is the copy of Buyer’s Agreement of flat No.G3-402, Ex. C7 is the copy of Buyers Agreement of flat No.G1-601, Ex. C8 is the copy of statement account w.e.f. 01.04.2010 to 30.04.2010, Ex. C9 is the copy of statement of account for 01.04.2020 to 31.03.2021, Ex. C10 is the copy of receipt of Rs.50,000/- dated 05.02.2021, Ex. C11 is the copy of receipt through NEFT, Ex. C12 is the copy of statement of account w.e.f. 01.04.2021 to 01.20.2021, again Ex. C12 is the copy of receipt through NEFT, Ex. C13 is the copy of judgment dated 11.06.2019 in case title Kapil Jindal Vs Nitishree Infrastructure and others and closed the evidence.
5. We have heard the exparte arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed produced on record by the complainant.
6. From the allegations made in the complaint and the exparte evidence led in support thereof, which has gone unrebutted on the file, it has been established that the complainant vide allotment letter dated 05.05.2010 Ex. C1 was allotted a residential flat No.G3-402 having basic sale price of Rs.18,77,175/- measuring super build area of 1545 sq. ft. @ Rs.1215/- per sq. ft. Further as per allotment letter Ex. C1, the complainant was to pay E.E.C. and F.F.C. charges of Rs.54,075/- as well as I.F.M.S. charges of Rs.23,175/- to the OPs and as such, the total price of then unit payable was Rs.20,04,425/-. Further as per Ex. C1, under the column of payment details it has been mentioned that the complainant had paid Rs.18,75,000/- including Rs.2175/- being payment plan and as such, remaining amount of Rs.1,27,250/- was to be paid by the complainant at the time of possession. The complainant paid a sum of Rs.18,75,000/- to the OPs vide receipt Ex. C3. A Flat Buyer Agreement dated 22.05.2010 Ex. C6 was executed between the parties.
7. Further the complainant vide allotment letter dated 05.05.2010 Ex. C2 was allotted a residential flat No.G1-601 having basic sale price of Rs.19,01,475/- measuring super build area of 1565 sq. ft. @ Rs.1215/- per sq. ft. Further as per allotment letter Ex. C2, the complainant was to pay E.E.C. and F.F.C. charges of Rs.54,775/- as well as I.F.M.S. charges of Rs.23,475/- to the OPs and as such, the total price of then unit payable was Rs.20,29,725/-. Further as per Ex. C2, under the column of payment details it has been mentioned that the complainant had paid Rs.18,75,000/- including Rs.26,475/- being payment plan and as such, remaining amount of Rs.1,28,250/- was to be paid by the complainant at the time of possession. The complainant paid a sum of Rs.18,75,000/- to the OPs vide receipt Ex. C4. A Flat Buyer Agreement dated 22.05.2010 Ex. C7 was executed between the parties. However, on the demand of OP4, the complainant paid Rs.50,000/- vide receipt dated 15.02.2021 Ex. C10 and also paid a sum of Rs.50,000/- to said Vikas Kochhar on 15.12.2020 through NEFT as mentioned in receipt Ex. C11. Further statement w.e.f. 01.04.2021 to 11.12.2021 Ex. C12 shows that the complainant deposited Rs.18,566/- with the OPs on 13.09.2021. As such, in all the complainant paid a sum of Rs.38,68,566/- in all to the OPs with regard to both residential flats.
8. It is also in evidence that the OPs have not issued possession letter in favour of the complainant with regard to flats in question despite receipt of amount of Rs.38.68,566/- and rather they have not chosen to contest this case and have been proceeded against exparte. In this regard, reference can be made to 2021(3) CLT 309 in Gaurav Prehar Vs Altus Space Builders Pvt. Ltd. And others in which the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh has made the following observation:-
“(i) Consumer Protection Act, 2019, Sections 2(42), 47 & 49(2) -Housing constructions – Pleadings - Ex-parte - Adverse inference –Held - The whole purpose of pleadings is to give fair notice to each party of what the opponent’s case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ-The purpose is to eradicate irrelevancy-The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted-OP was proceeded against exparte-Thus, all the averments made in the compliant are deemed to have been admitted by it and the evidence led by the complainant stands unrebutted; for which an adverse inference is to be drawn against OP-complaint partly allowed”
The complainant has consistently pleaded that the OPs had failed to hand over the possession of the flats even till the date of filing the present complaint. As such, the act and conduct of the OPs amounts to deficiency in service on their part.
9. In this regard, reference can be made to Ireo Grace Realtech Pvt. Ltd. Vs Abhishek Khanna & another (2021) 3 SCC 241, the Hon’ble Supreme Court has held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them.” Further reference can be made to Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others Vs DLF Southern Homes Pvt. Ltd. & others (2020) 16 SCC 512, whereby the Hon’ble Supreme Court of India has held that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency.” Further, it has been held by the Hon’ble Supreme Court that “in case of gross delay in handing over possession by builder beyond contractually stipulated period, flat purchaser is entitled to just and reasonable compensation for such delay and such compensation not constrained by terms of rate which is prescribed in an unfair bargain.
As such, after appreciating the documents on record, this Commission is of the view that the complainant is entitled to compensation for deficiency of service and unfair trade practice on the part of the OPs. The provisions of the Consumer Protection Act enable a Consumer to claim and empower the Commission to redress injustice done to the complainant. The amount of compensation can be determined by taking into facts and circumstances of each case and also mitigating circumstances that may arise in favour of the OPs as well. Reference can be made to 2020(3) Apex Court Judgments 27 (S.C.) in DLF Home Developers ltd. (Earlier known as DLF Universal Ltd.) & another Vs Capital Green Flat Buyers Association Etc.
In these circumstances, the OPs are liable to be directed to refund the amount of Rs.38,68,566/- received from the complainant by way of receipts Ex. C3, Ex. C4, Ex. C10, Ex. C11 as well as Ex. C12 towards the price of the flats in question besides the composite costs of Rs.50,000/-
10. As a result of above discussion, the complaint is partly allowed with an order that the OPs shall refund the amount of Rs.38,68,566/- along with interest @9% per annum from the respective dates of deposit till realization within 30 days from the date of receipt of copy of order, failing which the complainant shall be held entitled to further interest @3% on the said amount from the date of order till date of actual payment. The OPs shall further pay a sum of Rs.50,000/- (Rupees Five Thousand only) as composite costs to the complainant. Liability of the OPs shall be joint and several. Compliance of order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
11. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Sanjeev Batra) Member President
Announced in Open Commission.
Dated:16.09.2024.
Gobind Ram.
