Haryana

StateCommission

CC/607/2017

GAURAV JINDAL AND ANOTHER - Complainant(s)

Versus

SAMAR ESTATES PVT.LTD. - Opp.Party(s)

VIKAS JAIN

15 Jan 2020

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.607 of  2017

Date of the Institution:26.09.2017

Date of Decision: 15.01.2020

 

1.      Gaurav Jindal S/o Shri Lalit KumarJindal, aged 37 years;

 

2.      Smt. Leela Jindal W/o Shri Lalit Kumar Jindal, aged 59 years;

 

Both residents of House No.370, Ground Floor, Sector 11, Panchkula, Haryana, through their General Power of Attorney Shri Lalit Kumar Jindal S/o Late Shri Gopi Ram Jindal, r/o H.No.370, Ground Floor, Sector-11, Panchkula.

 

                                                                   .….Complainants

Versus

1. M/s Samar Estates Private Limited,  through its Managing Director, having its Registered Office at # 254, NAC, Manimajra, Chandigarh 160101.

 

2^nd Address: House No.87, Sector 7 Panchkula.

3^rd Address: ESS VEE Apartments, Sector 20, Panchkula.

 

 

2. Vinod Bagai,  Director, M/s Samar Estates Private Limited, having its office at House No.87, Sector 7, Panchkula.

 

3. Virinder Bagai, Director, M/s Samar Estates Private Limited, having its office at House No.87, Sector 7, Panchkula.

 

4. Sunita Bagai, Director M/s Samar Estates Private Limited, having its office at House No.87, Sector 7, Panchkula.

 

 

2^nd Address

 

Office of M/s Ess Vee Apartments, Samar Estates, Neark GH0-94, Sector-20, Panchkula.

 

                                                .….Opposite Parties

CORAM:   Mr. Harnam Singh Thakur, Judicial Member.

Mrs Manjula, Member.

 

Present:-    Mr.Kunal Kapoor, Advocate for the complainant.

Mr.Tarun Gupta, Advocate for opposite parties.

 

O R D E R

MANJULA, MEMBER:

 

          The brief facts giving rise for the disposal of the present complaint are that  they (complainants) booked a apartment No.104 Tower F Ist Floor  in ESS Vee Apartments (Phase II) with opposite parties. The total price of the flat was Rs.67,70,000/-.  They opted construction linked installments payment plan. They paid Rs.56,92,409/- to O.Ps.     Flat buyers Agreement dated June 13th, 2011 was executed between the parties.   As per clause 32 of buyers agreement, the possession of the apartments will be handed over to the complainants within a period of 36 months from the date of commencement of construction.   The opposite parties were required to handover the possession of the apartments by 14.01.2015. The construction work has not been completed by the opposite parties within the stipulated period.   There was deficiency in service and unfair trade practice on the part of the O.Ps. The complainants prayed that developer be directed to refund the deposited amount, i.e. Rs.56,92,409/- alongwith interest at the rate of 12% p.a; Rs. 1,50,000 as unfair trade practices; Rs.1,50,000/- as compensation  and Rs.1,10,000/- as litigation expenses.

2.                Notice of the complaint was issued against the O.P. Nos.1 and 2 and the reply was filed, wherein the O.Ps. stated the roof slab upto Top Floor  of Tower F, has been casted.  Internal plaster work of the booked apartment has also been completed upto 10^th Floor and finishing works are going on and to be completed upto March, 2019.    The status of construction has been duly informed by O.Ps. vide letters dated 01.09.2011, 01.02.2012, 23.06.2013, 02.09.2013, 28.01.2014, 26.02.2014, 21.04.2014, 24.10.2014, 23.01.2015 and 01.04.2016  while raising demand for payment of due installments.   The total price of the apartment was Rs.67,70,000/-. The complainants opted construction linked payment plan.  As per the agreement, the complainants did not deposit the installments in time.   As per the agreement, OP has credited an amount of Rs.5,07,150/- alongwith interest @ 12% p.a. in the ledger account maintained by the answering respondent.     Rs.270.00 crore were still overdue from the buyers of Pocket A.  Thus there was no deficiency in service and unfair trade practice on the part of the O.Ps. O.Ps denied  the remaining contents of the complaint and prayed for dismissal.

3.                When the complaint was posted for recording evidence of the parties, One of the complainant-Lalit Kumar Jindal-CW-1 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-7 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps had also tendered the affidavit of Mr.Vinod Bagai Ex.RA and further tendered the documents Ex. R-1 to R-5 and  closed his evidence.

5.                The arguments have been advanced by Mr. Vikas Jain, the learned counsel for the complainants as well as Sh.Tarun Gupta, the learned counsel for the opposite parties.  With their kind assistance the 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 parties, 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 has already deposited, alongwith the interest? 

7.                While unfolding the arguments, it has been argued by Vikas Jain, the learned counsel for the complainants that as far as the executing the buyers agreement  is concerned it is not in dispute.  It is also not in dispute that the basic price of the flat was Rs.67,70,000/-.  A total sum of Rs.56,92,409/- 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 flat, the possession complete in all respect was to be delivered to the complainants by the O.Ps.  within 36 months subject to some reservations.  The period within which, the possession of the flat was to be delivered had already expired despite depositing the amount of Rs.56,92,409/-.  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.                On the other hand, it has been argued by Sh.Tarun Gupta, the learned counsel for the O.Ps. that the amount which the complainants had paid, was not paid as per the repayment schedule.  There was a delay in making the payment of the amount.  The total cost of flat was Rs.67,70,000/-.  The complainant had paid total amount of Rs.56,92,409/-.  It is true that documents agreement were executed between the parties, which includes the buyers agreement, which contains all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession. As per the agreement, O.Ps. have credited an amount of Rs.5,07,150/- alongwith interest @ 12% p.a. in the ledger account maintained by the answering respondents.     Further argued that Rs.270.00 crore were still overdue from the buyers of Pocket A. Since there were a unavoidable circumstances and there was certain reasons which were beyond the control of the O.Ps, the possession of the flat could not be delivered to the complainants in time.  However on one pretext or the other the possession was not taken and now by taking the shelter of this Commission, the complainants seeks refund of the amount and infact this amount has already been invested for making all developmental activities.  As per terms and conditions of the agreement, the O.Ps. were bound  to deliver the possession of the unit within 36 months.  The answering O.Ps. have not committed any breach of agreement. The complainants have no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainants.    The answering O.Ps. will offer the possession of the flat to the complainants after completion of development work. Thus, the complainants were not entitled for the refund.  He has placed his reliance upon the authority of Haryana Real Estate Regulatory Authority, Panchkula titled as Monika Mittal Vs. M/s Samar Estates Pvt. Ltd. decided in complaint No.1167 of 2019 on 28.06.2019.

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.67,70,000/- out of which an amount of Rs.56,92,409/- (Fifty Six Lacs Ninety Two Thousand Four Hundred And Nine) had been paid.  Buyer agreement  is also not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 36 months complete  subject to some reservation.   To the utter surprise of this Commission and  a matter of concern that inspite of the fact that period of more than 9 years had expired, the possession of the flat has not been delivered by O.Ps.  The authority relied upon by the counsel for the respondent titled Monika Mittal M/s Samar Estates Pvt. Ltd. is not applicable to the present case because the facts and circumstances of the above said case is different from the present case.   As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps. It is the normal trend of the developers/O.Ps. that they 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, the complainants are well within their legal rights to get the refund of the amount of Rs.56,92,409/- (Fifty Six Lacs Ninety Two Thousand Four Hundred And Nine) which they had already deposited with the O.Ps.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainants for investing a huge amount and the possession has not been delivered within the stipulated period and under the constraint circumstances, the complainants had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission has to deal with the developers/O.Ps. strictly for misusing the funds of the individuals. 

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.Ps. are directed to refund of the amount of Rs.56,92,409/- (Fifty Six Lacs Ninety Two Thousand Four Hundred And Nine)  alongwith interest @ 9%  per annum from  the date of respective deposits till realization.   In case, there is a breach in making payment within the stipulated period  of  45 days, in that eventuality, the complainants would further be entitled to get the interest @ 15% per annum, for the defaulting period.   The complainant is also entitled  of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.20,000/-  (Twenty Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 25 and 27 of the C.P.Act  would also be attractable. 

 

 

15th January, 2020            Manjula                                 Harnam Singh Thakur                                                      Member                                 Judicial Member                            

 

S.K.(Pvt.Secy)