Delhi

East Delhi

CC/9/2022

MANISHWAR JHA - Complainant(s)

Versus

RUDRA BUILDWELL CONSTRUCTION - Opp.Party(s)

26 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.9/2022

  

	MANISHWAR JHA S/O SHRI BINDESHWAR JHA, R/O C-101, RANJIT VIHAR – II, SECTOR 23, DWARKA, DELHI – 110077	….Complainant
Versus
	RUDRA BUILDWELL CONSTRUCTION PVT. LTD. REGISTERED OFFICE AT: 314, F/F, POCKET D, MAYUR VIHAR, PHASE-II, DELHI – 110091 EAST DELHI THROUGH ITS MANAGING DIRECTOR	……OP

 

Date of Institution	:	17.01.2022
Judgment Reserved on	:	26.05.2023
Judgment Passed on	:	26.05.2023

                       

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

Order By: Shri S.S. Malhotra (President)

 

 

 

JUDGMENT

1. By this judgment the Commission shall dispose off the present complaint filed by the Complainant against OP w.r.t. deficiency in  service in not starting the project within time and in not handing over the possession of the booked flat to the complainant and then by not even refunding the paid amount to the complainant
2. Brief facts as stated by the complainant in the complaint are that he is allottee of a residential flat i.e. 3 BHK Flat with super area measuring 1369 sq. ft. having Flat No.D0603, which was allotted to him in the residential project of OP called Kendriya Bhandaran Nigam Officers Welfare Society herein after called as KBNOWS. 
3. It is further submitted that OP is a Pvt. Ltd. Company having its office at Mayur Vihar, Delhi and complainant is a consumer of OP and in the year 2012 when the complainant was searching a residential accommodation, he came across the advertisement published by the OP, w.r.t. allotment of Plot/Flat by claiming that he is developing a project called Sukhda Vihar Project in Greater Noida and accordingly complainant booked one Flat in it.  However, subsequently the OP approached the complainant stating that the project at Sukhda Vihar is not running well and as such he offered that complainant can take Flat in the another project called KBNOWS which is being constructed at Plot No.5B, Sector 16, Greater Noida and also assured that the previously paid amount would be adjusted in the subsequent KBNOWS Project but for that complainant has to pay Rs.51,000/- to become a member of KBNOWS which was given and ultimately complainant became member of KBNOWS and he was allotted the membership number 88 and he initially deposited Rs.51,000/- to become member and subsequently Rs.1,00,000/- and in overall in total he has paid Rs.35,28,255/- to the OP.  It is further submitted that the amount paid in Sukhda Vihar Project was adjusted by OP in KBNOWS project and it was assured to the complainant that all the necessary sanctions/ permissions are already in place from the concerned authorities and therefore all the seven demands for payment raised by OP from time to time were paid.  It is further submitted that certain additional wood work in the subject flat and one additional parking was also sought by the complainant and for that he paid another Rs.2,00,000/- to OP receipt of which is Annexure-C6 and complainant till date has paid Rs.37,79,253/- and the ledger account is placed on record as Annexure-C5.   It is further submitted that the deadline of completion of the project was 27 months as mentioned in clause 10 of the Agreement but despite taking the rigorous follow up with the OP and visiting the site of construction it was observed that there was no further development on the project site and accordingly complainant realized that OP is not competent to finish the construction of the project including of the flat of the complainant. It is further submitted that OP suddenly raised further/ eighth demand allegedly on the pretext of the increase in area and when the complainant protested and asked for the proof as to how much area had actually been increased and demanded the layout plan thereof, OP failed to supply the information, although he kept on pursuing the OP to inform the status of the construction and completion of his flat.  The OP ultimately sent an email Annexure-C7 to the Complainant thereby asking him to execute an agreement to sub lease with possession and accordingly complainant reached to the project site and made necessary enquiries but was shocked to see that flats are still not complete and when asked about the Occupation Certificate/Completion Certificate, the official of OP started fobbing him off.  With great difficulty and follow up complainant finally got a draft copy of the agreement to sub lease with possession but it was specifically written in the agreement document that the complainant cannot transfer title, rather it was mentioned that allottee would have no right to sell, transfer, assign the unit without clearing all the dues of the OP and without execution of registration of tripartite sub lease deed.  After going through, the complainant made further enquiries and came to know that OP has already been included in the list of defaulting builders by Greater Noida Authority and default was more than Rs.38 Crores and ultimately complainant lost all faith in the project of the OP and now seeking for refund of his amount as he cannot wait any more for the said flat and he ultimately sent an e-mail on 15.11.2021 requesting refund of the paid amount along with interest but OP has not even bothered to reply the said email and no amount has been refunded till date.  After mentioning various deficiencies and unfair trade practice on the part of OP, the complainant has filed the present complaint that OP be directed to refund the entire amount of Rs.37,79,253/- paid by the complainant along with interest @ 18% p.a., a sum of Rs.5,00,000/- towards compensation and Rs.1,00,000/- as litigation charges.       
4. Complainant has filed all the Annexure as mentioned in the complaint along with Builder Buyer Agreement and Ledger Account in the complaint. 
5. The OP was served but it did not appear and was accordingly proceeded Ex-parte vide Order dated 29.07.2022. 
6. Complainant has filed his Ex-parte evidence and has reaffirmed and reiterated the contents of the complaint.  Complainant has also filed its Written Submissions.   
7. The Commission has heard the arguments of the complainant and perused the record.  No arguments were put forth by the OP in their defense on legal points, if any being ex-parte. 
8. In fact the version of the complainant which is duly supported with the documents has gone unrebutted and even otherwise documents speak for themselves w.r.t. having made an amount of Rs.37,92,253/- to the OP, which OP has not refunded to the complainant despite seeking refund.  OP has also not been able to show that he has completed the project.  Law is well settled:

Hon'ble Supreme Court of India in Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan, (2019) 5 SCC 725 vide its order dated 02.04.2019 has held that

6.4/ 6.8 “A perusal of the apartment buyer agreement dated 08.05.2012 reveals strong incongruities between the remedies available to both the parties…….. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the Agreement dated 08.05.2012 are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.”     

• Further para 10’ “Appellant – Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent – Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent – Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.”      

9. Coming to the facts of the present case, read with the law, as enumerated above, the Complainant has been able to prove that there is deficiency on the part of OP, firstly in not completing the project in time and then in not refunding the amount so taken from the Complainant and complainant is entitled to get the refund of the paid money with interest. 
10. Therefore, the Commission hereby orders as follows:

• OP would refund Rs.37,79,253/- to the Complainant with interest @ 11% p.a. from the date of each deposit till realization. 
• OP would also pay Rs.75,000/-  to the Complainant towards compensation. 
• OP would also pay Rs.25,000/- to the Complainant towards litigation charges. 

This order be complied with within 30 days from the date of receipt of the order and if this order is not complied as directed, then OP would pay interest @ 15% p.a. on the all amounts including compensation and litigation charges.  

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 26.05.2023.