Delhi

North East

cc/324/2013

Shri Yatendra Sharma - Complainant(s)

Versus

Samiah House - Opp.Party(s)

11 Oct 2019

ORDER

 

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 324/13

 

In the matter of:

 

	Shri Yatendra Sharma S/o Late Shri Roopchand Sharma R/o C-9/2, Yamuna Vihar Delhi-110053	Complainant
	Versus
1                         2	Samiah House 805, 8th Floor, Matrix Tower Sector-132, Noida, U.P   Also at:- G-74, 1st Floor, Samiah Place, Sarita Vihar Road, Shaheem Bagh New Delhi-110025   Samiah Lake City NH-74, Kashipur Road, Rudrapur Distt. Uddam Singh, U.K.   Asian Townsvillee Forms Ltd. First Floor, Saidulazab New Delhi-110030 Near Red Onion Restaurant   Also At:-   Through Director Shri C.M. Bhando S/o Late Sh. Satyapal Bhando R/o C-15, JVTS Garden Society Chatterpur New Delhi-110074	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

22.10.2013 11.10.2019 11.10.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts giving rise to the present complaint as made by out by the complainant are that the complainant had booked a 200 sq.yd plot at NRI Lake City, Rudrapur project of OP1 through OP2 on 11.10.2006 and paid a sum of Rs. 7,76,000/- in 6 tranches by way of cheques between October 2006 to October 2007 to OP1 and the said payment was duly acknowledged receipt of by OP1 as well vide issuance of receipt numbers 1594, 1595, 1830, 1993, 2230 and 2615. In addition, complainant also claimed to have paid Rs. 60,000/- in cash to OP2 at the time of booking of the said plot in the said project. However, when the complainant personally visited the project site in 2008, he found no sign of plot there or any development there and tried to contact both OPs but got satisfactory reply from none except OP1 having asked the complainant to approach OP2 regarding the said plot but all in vain. The complainant sent reminders to OPs in July 2013 and made personal visits to their offices seeking refund of his deposited amount of Rs. 8,36,000/- with both OPs but was not heard on the account. Lastly, complainant issued legal notice dated 19.08.2013 through his counsel on both the OPs demanding refund of Rs. 8,36,000/-. The said notice was though replied by OP1 vide reply dated 17.01.2014 through its counsel denying the allegations but the same was unsigned. As a last legal recourse, complainant was constrained to file present complaint before this Forum praying for issuance of directions against the OPs to refund Rs. 8,36,000/- with interest @ 24% p.a.  alongwith compensation of Rs. 5,00,000/-for mental harassment and agony and Rs. 22,000/- towards litigation expenses.

Complainant has attached receipt issued by OP1 acknowledging payment of Rs. 7,76,000/-, copy of payment statement updated till 31.03.2011 with value of plot as 200 sq. yd. at the rate of Rs. 6150 per sq. yd. amounting to Rs. 12,30,000/-, copy of legal notice by complainant to the OPs dated 19.08.2013 with postal receipt and track report and reply thereto by OP1 dated 17.01.2014.

2. Notice was issued to the OPs on 21.11.2013.  Both OPs entered appearance in February 2014. OP1 filed its written statement in which it took the preliminary objection that the complainant vide the present complaint is trying to get unlawful benefits with malafide intension without any grievance against OP1 which was always ready to comply with the terms and conditions of the agreement of the flat but the complainant broke the same. OP1 contended that complainant had never approached it for cancellation of the booked flat and it is not privy to any communication between complainant and OP2. The OP1 admitted the factum of the complainant having booked a 200 sq. yd. plot with it on its Lake City, Rudrapur Project site on 11.10.2006 and also admitted to have received a sum of Rs. 7,76,000/- from the complainant in consideration thereof. However, OP1 denied any knowledge of Rs. 60,000/- allegedly having been paid by the complainant to OP2. OP1 denied complainant’s visit to the project site in 2008 or him having contacted officials of OP1 regarding the said plot or any reminder/e-mail/visit made by the complainant in this regard. Lastly OP1 prayed for dismissal of the present complaint under Section 26 of CPA.

OP2 filed its written statement in which it denied having received any money (Rs. 60,000/-) from the complainant qua the project of OP1 or being liable to refund any money to the complainant. OP2 submitted that OP1 had never given it any plot specifically for the complainant but acknowledged that OP1 had issued allotment letter dated 06.11.2007 to the complainant informing him that the license for the project has been granted to OP1 and infrastructure is being developed at the project site intimating the complainant that the said plot has been allotted to him subject to terms and conditions of Allotment Agreement. In this regard OP2 further submitted that OP1 had agreed to provide 6 plots to OP2 for people booking plots through OP2 but the same were never provided to it by OP1 and in fact OP1 has adjusted 15 plots out of 21 plots towards providing flats instead of plots to the clients of OP2 but the remaining 6 plots out of 21 plots were yet to be allotted to the clients of OP2, complainant being one of them. OP2 further mentioned that OP1 had made changes in the project and its scheme for which it was a mere via media between OP1 and its clients and denied having harassed the complainant in any manner and stated that it was trying to get the plot from OP1 for the complainant and therefore urged that no cause of action in terms of deficiency of service or negligence has arisen against it in favour of the complainant.

3. Rejoinder to the written statement of OP1 was filed by the complainant in rebuttal to defence taken by it and reiterated his grievance in the complaint and alleged that OP1 being a builder and service provider to the complainant failed to comply with its duties / obligations towards the complainant and therefore deficient in service. The complainant urged that the cause of action was a continuous one since OP1 had not allotted the said plot nor had refunded the deposited amount paid with respect thereto and prayed for the relief claimed.
4. Rejoinder to the written statement of OP2 was filed by the complainant in rebuttal to the defence taken therein in which the complainant submitted that he had paid a sum of Rs. 60,000/- in cash to OP2 at the time of booking the said plot in October 2006 but is denying its liability towards the complainant despite admitting that OP1 had adjusted 15 plots out of 21 plots towards providing flats instead of plots to the clients of OP2 but the remaining 6 plots out of 21 plots were yet to be allotted to the clients of OP2, complainant being one of them. The complainant reiterated and reaffirmed the contents of his complaint.
5. Evidence by way of affidavit was filed by the complainant in which he exhibited the original receipt nos 1830, 1993, 2230 and 2615 issued by OP1 in his favour, copy of payment statement, copy of legal notice dated 19.08.2013 issued by him to OPs alongwith postal receipts and track report, copy of reply dated 17.01.2014 by OP1 to the complainant and original allotment letter dated 06.11.2007 issued by OP1 to the complainant. The said documents were exhibited as CW1/A to CW1/H.
6. Evidence by way of affidavit was filed by OP2 through its AR denying receipt of any money from the complainant and exhibiting the allotment letter dated 06.11.2007 as exhibit R2/1.
7. Written arguments were filed by complainant and OP2 in reassertion and reiteration of their respective grievance/defence. OP1 stop appearing after 2014.

However, its written statement is already on record and shall be duly considered as per the settled law passed by Hon'ble National Commission in Bank of India Vs N V Deoras 1997 (3) CPR 63 (NC) that even if OP is absent, commission / Forum must consider averments in version before passing orders. Therefore the pleadings of OP1 shall be taken into consideration while passing orders.

8. We have heard the arguments addressed by the counsels of the complainant as well as OP2 and have scrutinized the documentary evidence placed on record and giving anxious consideration thereto.

During the course of oral arguments a specific query was put by this Forum to both the parties to furnishing of proof of payment/receipt of Rs. 60,000/- claimed to have been paid in cash by the complainant to OP2 but no proof or the same has been placed on record with respect thereto. In this regard both counsels furnished a joint hand written note duly signed by them admitting no record of Rs. 60,000/- received by OP2 or found in its office. The same was taken on record supported by oral submission that the prayer for relief therefore shall be limited to the amount paid to OP1 i.e. Rs. 7,76,000/-.

Undisputedly, the payment of Rs. 7,76,000/- was made by complainant to OP1 with respect to 200 sq.yd plot booked by him with OP1’s NRI Lake City Rudrapur Project between October 2006 to October 2007 and the same was acknowledged by OP1 by way of issuance of receipts. Even an allotment letter dated 06.11.2007 was also issued by OP1 in favour of the complainant with respect to the said plot. However neither any Builder Buyer Agreement nor any Allotment Agreement or Sale Deed ever saw the light of day since 2007 by which time the complainant had paid more than 60% of the total value of the said plot (Rs.12,30,000). However the project failed to take off or develop from October 2007 till filing of the complainant in October 2013 for 6 long years and OP1 unjustly enriched itself without either giving possession on completion or refunding the deposit in failure to do the former. This inability was also confirmed by OP2 in its written statement of OP1 having made changes in the said project and its scheme and that no possession / allotment was given by it to the complainant. The Hon'ble National Commission in recent judgments Rahul Bhargava Vs Ansal Housing and Construction Ltd III (2019) CPJ 119 (NC) held the builder deficient in service for having failed to give allotment of flat for 7 years for which complainant cannot be made to wait indefinitely thereby entitling him to seek refund with compensation. The Hon'ble National Commission in Surinder Kumar Sarna Vs Parsvnath Developers Ltd III (2019) CPJ 178 (NC) held the builder deficient in service for non completion / construction of flat / project and not being in a possession to even offer an alternative flat in the project thereby entitling the complainant to refund with compensation in form of simple interest.

In light of the afore cited judgments and after due appreciation of the facts and documentary evidence placed before us, we partly allow the complaint only against OP1 and direct OP1 to refund Rs. 7,76,000/- alongwith interest @ 6% from the date of filing of the complaint till realization to the complainant. We further direct OP1 to pay compensation of Rs. 20,000/- inclusive of litigation charges to the complainant payable by OP1. No directions against OP2 in view of lack of proof of payment and joint statement made by both complainant and OP2 in this regard admitting the same.

9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on 11.10.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member