Haryana

StateCommission

CC/317/2017

NAVEEN KUMAR - Complainant(s)

Versus

PRABHU SHANTI REAL ESTATE PVT.LTD. - Opp.Party(s)

SIKANDER BAKSHI

01 Aug 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.317 of  2017

Date of the Institution:18.05.2017

Date of Decision:  01.08.2022

 

1. Naveen Kumar S/o Sh.Ram Kuwar R/o # 1192, Sector-2, Bahadurgarh.
2. Vinod Kumar S/o Sh.Ram Kuwar R/o # 466, Ward No.16, Bahadurgarh.

                                                                   .….Complainant

Versus

Prabhu Shanti Real Estate Pvt. Ltd. Administrative office 1214, Sector-6, Bahadurgarh 124507, through its Director/M.D.

                                                          .….Opposite Parties

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Mr.Kamal Mor, Advocate for the complainants.

Opposite party already proceeded ex parte.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that they (complainants) booked a flat in the upcoming project of the opposite party (OP) namely “ PDM Hi-Tech Homes (Group Housing Colony)” in Sector 3 A, Bahadurgarh. On 05.11.2012, they paid Rs.5,00,000/- with the OP. On 14.02.2013, an another install was paid.  On 13.06.2013, an agreement  was executed between the parties. The complainants were allotted  apartment No.T3-D7 in Tower T3 on Seventh floor. The total cost of the apartment was Rs.55,80,500/- alongwith taxes and other charges totaling Rs.62,11,387/-.   The complainants made payments as per table:

Sr. No.	Installment payment Date	Amount in Rs.
1	05.11.2012	5,00,000/-
2	14.02.2013	5,00,000/-
3	06.07.2013	5,21,140/-
4	03.10.2013	5,23,899/-
5	20.12.2013	5,18,377/-
6	25.04.2014	5,21,138/-
7	22.05.2015	5,21,142/-
8	22.05.2015	5,21,139/-
9	22.05.2015	5,21,139/-
	Total	46,47,974/-

 

The construction was to be completed within a period of 2 years and 6 months from the date of agreement. As per the agreement, the construction was to be completed till 12.12.2015.   The OPs have already taken more than 80% of the cost no work was going on at site for last two years. The complainants seek refund of the deposited amount, but, OP did not consider the genuine request.  They issued a legal notice on 20.12.2016, but, to no avail. Thus there was deficiency in service on the part of the OP.  The complainant prayed that OP be directed to refund the deposited amount i.e. Rs.46,47,974/- alongwith interest at the rate of 24% p.a from the date of deposit till its realization; Rs.5,00,000/- as compensation on account of mental agony and harassment and Rs.25,000/- as cost of litigation expenses.

2.                Notice of the complaint was issued against the O.P. and the written statement was filed, wherein the O.P. admitted that  complainants booked  an apartment in its project. The complainants had opted construction linked plan. The possession would be delivered within a period of one year.   As per agreement, there was a provision for compensation to be paid to the buyer@ Rs.5/- sq. ft. per month in case the construction was delayed from the stipulated period of 2 ½   years and the respondent undertake to adjust the same out of the installment which was to be paid by the buyer at the time of possession and if the amounts exceeds the installment at the time of the possession the same also will be paid to the allottee.    It was submitted that after booking of the flat the prices of the properties started falling with the change of Govt. at the Central level and further due to demonetization and strict laws against black money so complainants realized that it was not a gainful exercise to pay further installments as agreed upon.  On 13.06.2013 an agreement was entered between the parties. The total cost of the apartment was Rs.62,11,387/-.   The complainants have paid only 75% of the total cost of the booked flat. Other allegations made in the complaint are denied. Thus there was no deficiency in service on the part of the O.Ps.

3.                When the complaint was posted for recording evidence of the parties, one of the complainant-Naveen Kumar in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-4 and closed his evidence.

4.                It is pertinent to mention here that despite availing several opportunities, the OP failed to lead any evidence.  The evidence of OP stands closed by court order  vide dated 15.07.2022 as the complaint pertains to the year 2017 and OP was proceeded against ex parte.

5.                The arguments have been advanced by Mr.Kamal Mor, the learned counsel for the complainants.  With his kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the complainant, the foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to get refund of the amount which they had already deposited, alongwith the interest? 

7.                While unfolding the arguments, it has been argued by Kamal Mor, the learned counsel for the complainants that as far as the execution of the buyers agreement  Ex.C-1 is concerned the same is not in dispute.  It is also not in dispute that complainants have paid Rs.46,47,974/-  (Receipts Ex. C-2 colly) to the OP. It is also not in dispute that the basic price of the apartment was Rs.55,80,500/-.  A total sum of Rs.46,47,974/- had been paid by the complainants to the  O.Ps.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession of the apartment, the possession complete in all respect was to be delivered to the complainant by the O.Ps.  within 30 months subject to some reservations.  The period within which, the possession of the apartment was to be delivered had already expired despite depositing the amount of Rs.46,47,974/-.  In these circumstances the complainants had no other option, but, to seek the refund of the amount alongwith interest, which they had already paid. 

8.                Perusal of the file shows that despite availing several opportunities, the OP failed to lead any evidence.  The evidence of OP was closed by court order vide dated 15.07.2022 as the complaint pertains to the year 2017 and OP was proceeded against ex parte.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, apartment was purchased by the complainants for a cost of Rs.55,80,500/- against which an amount of Rs.46,47,975/-  had been paid.  Buyer agreement  is also not disputed.  As per buyer agreement, the possession of the apartment was to be delivered within period of 30 months complete  subject to some reservation.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 9 years had expired, the possession of the apartment has not been delivered by O.P.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.P.   It is the normal trend of the developers/O.Ps. that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly,  the delivery of possession or completion of the project 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 service of opposite parties  and thus, complainants is well within his legal rights to get the refund of the amount of Rs.46,47,975/-  (Forty Six Lacs Forty Seven Thousand Nine Hundred and Seventy Five Only)   which they had already deposited with the O.P.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.P. is directed to refund of the amount of Rs.46,47,975/-  (Forty Six Lacs Forty Seven Thousand Nine Hundred and Seventy Five Only)  alongwith interest @ 6%  per annum from  the date of respective deposits till realization.   In case, there is a breach in making payment within the stipulated period  of  30 days, in that eventuality, the complainants would further be entitled to get the interest @ 9% per annum, for the defaulting period.   The complainants are also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainants are also entitled of Rs.25,000/-  (Twenty Five Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

 

August 1st, 2022   Suresh Chander Kaushik,                   S.P.Sood

                             Member                                              Judicial Member                                 

S.K.(Pvt.Secy)