Haryana

StateCommission

CC/706/2017

NATHI RAM - Complainant(s)

Versus

RAMA KRISHANA BUILDWELL PVT. - Opp.Party(s)

DEVINDER KUMAR

08 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:08.11.2017

                Date of final hearing:20.03.2024

                                                Date of pronouncement:08.04.2024

 

Consumer Complaint No.706 of 2017

 

IN THE MATTER OF

 

Nathi Ram son of Shri Jagmal Singh aged about 45 years, R/o Village Uchana, Tehsil & District Karnal.

                                                                             .….Complainant.

Through counsel Mr. Devinder Kumar, Advocate

Versus

 

1.    Rama Krishna Buildwell Pvt. Ltd., Site Office: B44, Devine City, Gannaur, Sonepat, Haryana through its Managing Director.

….Opposite party No.1

Through counsel Shri Pardeep Solath, Advocate

 

2.    Jaspal Singh son of Shri Randhir Singh, R/o Village Uchana, Tehsil & District Karna.

….Opposite party No.2

Through counsel Shri P.S. Bedi, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. Devinder Kumar, counsel for the complainant.

Mr. Pardeep Solath, counsel for opposite party No.1.

Opposite party No.2 proceeded against ex-parte vide order dated 09.03.2020.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    Previously in the year, 2016 complainant filed a complaint before learned District Commission, Sonepat which was disposed off. Thereafter, complainant also filed an appeal before this Commission against that order, according to which learned District Commission has no pecuniary jurisdiction to entertain that complaint and order passed by learned District Commission was set-aside, appeal before this Commission was dismissed as withdrawn with permission to file afresh complaint.

2.                The brief facts giving rise for the disposal of the present complaint are that opposite party No.1 (“OP No.1”) is a company engaged in development of real estate projects in Haryana and other parts of India, having its corporate office in Delhi. OP No.2 and one Shri Naresh Kumar son of Shri Deep Singh booked a flat with OP No.1 in its project under the name & style “Presidia height” Devine City, Gannaur (Sonepat) by paying an amount of Rs.3,14,370/- through cheque No.405229 dated 19.06.2012. OP No.1 allotted a Unit No.1/403 on 4^th Floor in the said project vide receipt dated 03.07.2012. Thereafter, vide letter dated 06.07.2012, OP No.1 confirmed the booking of flat and also assured that the flat will be delivered within two years from the date of booking. It was alleged that OP No.1 through letter dated 17.07.2012 directed OP No.2 to deposit an amount of Rs.4,71,555/- and that upon receipt of this amount Builder Buyer’s Agreement will be issued. On 20.08.2012, Naresh Kumar approached OP No.1 with the request to change the name of second applicant (transfer of his ½ share from his name to in the name of present complainant-Nathi Ram). However, the request was accepted by OP No.1 with the directions to deposit a sum of Rs.4,71,555/- and the same was paid by complainant vide cheque No.3294443 dated 20.08.2012. Total amount of Rs.7,85,925/- had been paid by the complainant and OP No.2 to OP No.1, but it failed to execute the Builder Buyer’s Agreement.

3.                It was further alleged that during the pendency of the complaint before learned District Commission, OP No.1 has placed on records the registration form signed by OP No.1 and Naresh Kumar. However OP No.1 has not supplied the copy of that registration form to previous allottees, only then complainant came to know that the size of the flat was 1497 sq. ft. and basic sale price was Rs.31,43,700/-. According to registration form, construction of the flat was to be completed within a period of two years from the date of booking. It was further alleged that OP No.1 failed to start construction and to give the possession within two years, so the complainant served legal notice dated 30.04.2016 & 02.07.2016 upon OP No.1 with the request to refund the deposited amount, but the same was not replied by OP No.1. It was further alleged that complainant also visited the site of project, but surprisingly there was not construction. Thus, there was deficiency in service on the part of the OPs. The complainant prayed that OP No.1 be directed to refund the amount deposited by him i.e. Rs.3,97,962/- (being 50% share towards the flat) with interest @ 18% p.a. from the date of deposits till realization; to pay an amount of Rs.3,00,000/- as compensation on account of harassment; to pay an amount of Rs.55,000/- on account of litigation expenses.

4.                Notice of the complaint was issued against the OPs, upon which they appeared and OP No.1 filed its written statement. However, OP No.2 failed to submit its written version and was proceeded against ex-parte by this Commission vide its order dated 21^st November, 2019. OP No.1 in its written version submitted that the complainant was the co-owner (having 50% share) of alleged flat bearing No.A-403 in the project of OP No.1. The flat cannot be cancelled in 50% as the same is one unit which cannot be divided. The complainant has inter-se dispute or arrangement with OP No.2 and as such, should have asked for his share from OP No.2 not from OP No.1. It was submitted that Naresh Kumar and Jaspal Singh submitted a letter on 20.08.2012 for transfer of share/change of name of Naresh Kumar to Shri Nathi Ram regarding the said booked flat, upon which the name was transferred.  As per the payment terms, 20% of the basic price was to be paid at the time of application and thereafter 20% on receiving of LOI and thereafter, 6 installments of 10% were to be paid at the agreed time mentioned in payment terms.  It was further submitted that the complainant himself was a defaulter in making the payments and the flat was already cancelled on 24.12.2013 as per his request dated 07.11.2013.

5.                It was further submitted that complainant had only purchased some share in the booking of flat which was originally done by Naresh Kumar and OP No.2. However, the complainant had purchased the said share only for investment purposes by resale the said unit and to earn profit and thus, the complainant did not fall under the definition of a “consumer”. Moreover, after getting the LOI dated 08.06.2017, OP started development works with full force and OP had to avail the loan for development of project, but there are many persons like present complainant, who failed to make the payments, as such the OP faced big financial burden. Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of OP No.1 and prayed for dismissal of the complaint.

6.                When the complaint was posted for recording evidence of the parties, complainant has tendered in evidence his affidavit as 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-14 and closed the evidence.

7.                On the other hand, learned counsel for OP No.1 has tendered into evidence affidavit of Shri Rajneesh Makhija (Authorized Representative) as Ex.RA alongwith other documents Ex.R-1 to Ex.R-4 and closed the evidence on behalf of OP No.1.

8.                The arguments have been advanced by Mr. Devinder Kumar, learned counsel for the complainant and Mr. Pardeep Solath, learned counsel for OP No.1. With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint have been properly perused and examined.

9.                As per the basic averment raised in the complaint and the including the contentions put forth by the learned counsel, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited, alongwith the interest or not? 

10.              While unfolding his arguments, it has been argued by Mr. Devinder Kumar, learned counsel for the complainant that it is an admitted fact that OP No.2 and one Shri Naresh Kumar son of Shri Deep Singh booked a flat with OP No.1 in its project under the name & style “Presidia height” Divine City, Gannaur (Sonepat) by paying an amount of Rs.3,14,370/- through cheque No.405229 dated 19.06.2012. It is also an admitted fact that OP No.1 allotted a Unit No.1/403 on 4^th Floor in the said project vide receipt dated 03.07.2012. It is also admitted that vide letter dated 06.07.2012, OP No.1 confirmed the booking of flat and also assured that the flat will be delivered within two years from the date of booking. Letter dated 17.07.2012 issued by OP No.1 is also admitted for depositing an amount of Rs.4,71,555/-. It is also admitted that on 20.08.2012, Naresh Kumar approached OP No.1 with the request to change the name of second applicant (transfer of his ½ share from his name to in the name of present complainant-Nathi Ram) and OP No.1 accepted the same and a sum of Rs.4,71,555/- was paid by complainant vide cheque No.3294443 dated 20.08.2012. Thus, a total amount of Rs.7,85,925/- had been paid by the complainant and OP No.2 to OP No.1.

11.              Learned counsel for complainant has argued that OP No.1 failed to start construction and to give the possession within two years, so the complainant served legal notice dated 30.04.2016 & 02.07.2016 upon OP No.1 with the request to refund the deposited amount, which is also an admitted fact, but the same was not replied by OP No.1.  Finally, he argued that there was deficiency in service on the part of the OP No.1 and prayed for refund of the amount deposited by him i.e. Rs.3,97,962/- (being 50% share towards the flat) with interest @ 18% p.a. from the date of deposits till realization.

12.              On the other hand, Mr. Pardeep Solath, learned counsel for OP No.1 has argued that the complainant was the co-owner (having 50% share) of alleged flat bearing No.A-403 in the project of OP No.1. However, the flat cannot be cancelled in 50% as the same is one unit which cannot be divided. He further argued that the complainant has inter-se dispute or arrangement with OP No.2 and as such, should have asked for his share from OP No.2 not from OP No.1. However, it is admitted that Naresh Kumar and Jaspal Singh submitted a letter on 20.08.2012 for transfer of share/change of name of Naresh Kumar to Shri Nathi Ram regarding the said booked flat, upon which the name was transferred.  He further argued that as per the payment terms, 20% of the basic price was to be paid at the time of application and thereafter 20% on receiving of LOI and thereafter, 6 installments of 10% were to be paid at the agreed time mentioned in payment terms.  Moreover, the complainant himself was a defaulter in making the payments and the flat was already cancelled on 24.12.2013 as per his request dated 07.11.2013.

13.              He further argued that the complainant had only purchased some share in the booking of flat which was originally done by Naresh Kumar and OP No.2. However, the complainant had purchased the said share only for investment purposes by resale the said unit and to earn profit and thus, the complainant does not fall under the definition of a “consumer”. Finally, he argued that there was no deficiency in service on the part of OP No.1 and prayed for dismissal of the complaint.

14.             In view of the above submissions and after careful perusal of the entire record, it stands proved that the OP No.2 and one Shri Naresh Kumar son of Shri Deep Singh booked a flat measuring 1497 sq. ft. at a basic sale price of Rs.31,43,700/-with OP No.1 in its project under the name & style “Presidia height” Divine City, Gannaur (Sonepat) by paying an amount of Rs.3,14,370/- through cheque No.405229 dated 19.06.2012. It also stands proved that OP No.1 allotted a Unit No.1/403 on 4^th Floor in the said project vide receipt dated 03.07.2012 (Ex.C-1) and booking was confirmed by OP No.1 vide letter dated 06.07.2012 (Ex.C-2). It also stands proved that on 20.08.2012 (Ex.C-4), Naresh Kumar approached OP No.1 with the request to change the name of second applicant (transfer of his ½ share from his name to in the name of present complainant-Nathi Ram). Thereafter, the request was accepted by OP No.1 with the directions to deposit a sum of Rs.4,71,555/- (Ex.C-5) and the same was paid by complainant vide cheque No.3294443 dated 20.08.2012 (Ex.C-6). Total amount of Rs.7,85,925/- had been paid by the complainant and OP No.2 to OP No.1, but it failed to execute the Builder Buyer’s Agreement.

15.              According to the complainant, construction of the flat was to be completed within a period of two years from the date of booking, but OP No.1 failed to start construction and to give the possession within two years, so there was deficiency in service on the part of OP No.1. On the other hand, as per OP No.1, complainant himself is a defaulter in making payments due to which OP No.1 faced big financial burden. Since it is admitted that the flat was canceled on 24.12.2013 as per the complainant’s request dated 07.11.2013, but to the utter surprise of this Commission it is quite surprising as to how inspite of the fact that a period of more than 10 years had expired, since cancellation, refund of the payment has not been made to the complainant by OP No.1.  As such, there was a clear deficiency in service on the part of OP No.1. 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, despite cancellation of the flat, the refund of the deposited amount gets delayed as in the present case.  As such, this Commission is of the considered opinion that there is deficiency in services on the part of OP No.1 and complainant is well within their legal rights to seek refund of the amount which he had deposited with the OP No.1. Even otherwise also, there is a strong element of physical and mental agony caused to the complainant for their having invested a huge amount and still being deprived of the refund even after cancellation of the flat and under these constrained circumstances, he had to knock at the door of this Commission for seeking refund of the amount. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

16.              As far as the question of the amount of refund of deposited amount is concerned, it is pertinent to mention here that it is an admitted fact a total amount of Rs.7,85,925/- was deposited against the price of alleged unit and the complainant is having 50% share in the said unit. So, the complainant is entitled to get refund of half of Rs.7,85,925/- which comes to Rs.3,92,962/-(Rs. Three lac ninety two thousand nine hundred sixty two only).

17.              As regards the rate of interest to be awarded, it may be relevant to keep the following factors into consideration. Keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by Nationalized Banks, there has been an increase in lending rate by Nationalized banks. Accordingly, it would, in considered view of this Commission, be just, fair and reasonable to award 9% as the rate of interest to the complainant.

18.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OP No.1 is directed to refund the deposited amount of Rs.3,92,962/-(Rs. Three lac ninety two thousand nine hundred sixty two only) alongwith interest @ 9%  per annum to the complainant from  the date of its deposit till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would be entitled to get the interest @ 12% per annum, for the defaulting period. The complainant is also entitled to a sum of Rs.21,000/- (Rs. Twenty one thousand only) on account of compensation for mental and physical agony.  In addition, the complainants are also entitled to an amount of Rs.11,000/- (Rs. Eleven thousand only) as litigation charges. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

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

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

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

 

Pronounced on 08^th April, 2024

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III