DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No.270/2021

QUORUM:

Order By: Ms. Rashmi Bansal (Member)

JUDGMENT    

The commission is disposing of the complaint of the complainant alleging deficiency of services on the part of OP in not delivering the possession of the flat, booked by the complainant with OP.

1. It is the case of the complainant that he has booked a flat bearing number 1404, Tower, 14, having super area of approximately 1450 ft.² for a total consideration of Rs.50,00,000/- in a project developed by OP1 by entering into a apartment buyer agreement dated 08.08.2017, stipulating  therein, the time limit within which the possession of the booked unit would be handed over to the complainant within 24 months from the date of signing of the said agreement vide its article 4 and as per agreement an amount of Rs.5,00,000/- i.e. 10% of the total cost was given to OP1 against the receipt issued by OP1.
2. Complainant submits that upon signing and execution of the apartment buyer agreement he made further payment of Rs.5,00,000/- on 14.09.2017 against receipt, total amount of Rs.10,00,000/- paid through his own savings and 38 Lakh by taking loan from OP3towards cost of the flat against the receipts issued by OP1 by furnishing all the requisite documents in original including original flat/apartment buyer agreement original receipts issued by OP1, and thereafter a tripartite agreement dated 14.09.2017 was entered, signed and executed between the complainant, OP1 and OP3. Complainant further states that OP3 has disbursed complete loan amount of Rs.34 lakhs directly into account 60244709170 but despite and after having receiving almost complete amount, the OP1 failed to handover the flat even after a period of four years since the date of booking of the flat. The Bank has also initiated recovery proceedings against complainant. Complainant submits that despite paying almost 90% of the total sale consideration for the flat, neither the construction of the flat is completed, nor the possession thereof has been delivered till date, whereas it had to be delivered within 24 months from 18.08.2017, i.e latest by 08.08.2019 as per apartment buyer agreement which act of OP1 and OP2 amounts to deficiency in service on their part and that has caused him not only the financial loss but also tension, harassment and mental agony for which OP1 and OP2 are liable to compensate him in addition to the refund of entire amount. Complainant also submitted that the above stated Apartment buyer agreement incorporated one-sided unreasonable clauses which constitute unfair trade practice on the part of OP1, viz., delayed payment, levied interest, at the rate of, 18% per annum, in case of delayed beyond 120 days in payment forfeiture of entire amount of earnest money, imposition of holding charges on the super area at the rate of Rs.5 per square feet per month in case of failure to take possession of apartment where OP1 would bear only the liability to pay delayed compensation at the rate of Rs.5/- per square feet of the super area for every month delay in giving the possession beyond 24 months +6 months grace period which amounts to unfair trade practice.
3. Complainant submits that since due to double burden of paying both the EMI and rent for his accommodation, he failed in making the payment of EMI and OP3 has filed a recovery case against him, therefore, the complainant is entitled for refund of the entire amount, including the loan amount along with interest at the rate of, 12% from 09.08.2019 till the date of actual payment made by OP1/OP2 so that the complainant can repay and clear the dues from the OP3. Complainant further submitted that due to default, deficiency and unfair trade practice adopted by OP1 and OP2, the complainant is facing severe hardship and financial burden as he has invested his entire savings and incurred a huge loan liability and also had not been given the possession of the flat for which OP1 and OP2 are solely responsible and under obligation to refund the entire amount of Rs.44,00,000/- cost to the complainant paid towards the sale consideration of the flat along with interest at the rate of 12% per annum compound interest calculated from 09.08.2019 till its actual realisation, a compensation of Rs.1,00,000/- on account of loss suffered due to non-delivery of position of the flat, mental agony, loss of monthly income and legal charges of Rs.25,000/-. The legal notice dated 31.03.2021 was sent by the complainant to OP1 but the same was not replied.
4. Upon notice OP 1, 2 and 3 did not appear. Servicing through publication upon OP1 and OP2 on 05.11.2022 was also done, but none has appeared on behalf of them. Therefore, all the OPs were proceeded ex parte on 19.12.2022.
5. Complainant has filed his ex-parte evidence and has filed true copy of apartment buyer agreement dated 08.08.2017, true copy of acknowledgement receipts dated 25.07.2017, true copy of demand letter dated 14.09.2017 and copy of receipt 19.09.2017 of loan amount showing credit of loan amount into account of OP1, copy of tripartite agreement dated 14.09.2017, copy of legal notice dated 31.03.2021. 
6. The commission has perused the file and documents on record and hurt the argument of the complainant.
7. Since, the OP chose not to appear and contest the complaint case before this commission, therefore all the averments made by the complainant remained unrebutted and are deemed to be admitted by the OPs. The document placed on record by the complainant establish that complainant has booked the flat with OP vide agreement dated 08.08.2017 upon a complete payment of Rs.10,00,000/- in person by himself and dispersal of remaining amount of Rs.34,00,000/- by the OP3 was made to OP1 directly and thus a total amount of Rs.44,00,000/- paid to OP1. Complainant has also placed on record copies of the receipts of the payments made to OP1 and OP2 and copy of receipt of loan amount dated 19.09.2017, showing credit of the loan amount of Rs.34,00,000/- into the account of OP1 . The total amount paid as per documents on record is of Rs.44,00,000/- only. The tripartite agreement vide clause 5 also show that in the event of failure of the builder to complete the project, the builder shall pay the entire money so received by it from the borrower to the OP3. Since the OP1 and OP2 failed to fulfil its obligation for handing over the possession of the flat to the complainant in terms of apartment buyer agreement even after receiving almost entire consideration amount from the complainant which is approximately 94% of the total consideration amount, the act of the OP1 and OP2 in non-delivery of the flat to the complainant amounts to deficiency of service in terms of settled principles of law and he is liable to refund the entire amount to the complainant along with compensation for causing mental agony and harassment and litigation cost with interest. This is also unfair towards the complainant as OP has caused financial loss to the complainant by keeping his hard earned money away from him and thus deprived him from using his own money for such a long duration, which establishes unfair trade practices on the part of OP.
8. In Fortune Infrastructure V/s Trevor D’Lima and Ors. Civil Appeal No. 3533-3534 of 2017, Hon’ble Supreme Court of India has held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him along with compensation. 
9. Considering the facts and circumstances of the case, this Commission is of the firm view that entire amount should be refunded to the complainant as he has been paying EMI and had to pay entire loan amount to the bank.
10. Therefore, this Commission directed OP1 and OP2 to refund entire amount to the complainant i.e. Rs.44,00,000/- with interest at the rate of 12% per annum from 09.08.2019 the date of filing the complaint along with compensation of Rs.70,000/- and Litigation cost of 40,000/-.

The above stated amount be paid to the complainant within 30 days from the date of order, failing which that an amount shall consist of interest at the rate of 18% per annum from 09.08.2019 till date of its final realisation by the complainant.

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

File be consigned to Record Room. 

Announced on 27.02.2024.