Delhi

East Delhi

CC/864/2014

RAMAKANTGIRI - Complainant(s)

Versus

SHARYA INFRA. - Opp.Party(s)

10 Dec 2015

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. 864/2014    

 

1	RAMAKANT GIRI S/O LATE SH. GANESH GIRI	….Complainant
2.	MRS. SARVESH GIRI W/O SH. RAMAKANT GIRI BOTH R/O H.NO.A-292 A, GALI NO.2, MEET NAGAR, DELHI - 110094
Versus
	SHOURYASHUBHAM INFRASTRUCTURE PVT. LTD. (FORMERLY KNOWS AS AURA INFRASTRUCTURE PVT. LTD.). (THROUGH ITS MANAGING DIRECTOR/MNAGER) REGISTERED OFFICE: 78-B, GROUP D-2, JANTA FLATS, KONDLI, GHAROLI, MAYUR VIHAR-111, DELHI - 110096	……OP

 

Date of Institution: 16.09.2014

Judgment Reserved on: 03.02.2023

Judgment Passed on: 06.02.2023

                  

CORUM:    

 

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)

Sh. Ravi Kumar (Member)

 

Order By: Ms. Rashmi Bansal (Member)

JUDGEMENT

The present complaint has been filed by the Complainants against the OP for allotting a flat not approved by the competent authorities by misrepresenting  the Complainants and praying for possession of the flat if map/plan is approved or in the alternative for refund of the consideration paid by him to the OP with interest, if map/plan is not approved, along with compensation for causing physical, mental and emotional distress due to deficiency in service on the part of OP, unfair trade practice and litigation cost.

1. The brief facts of the complaint are that they were approached by OP for allotment of the flat in its newly launched project namely “Aura Chimera” at Raj Nagar Extension, Ghaziabad. It was assured by the OP that the above said project is free from all legal encumbrances and is as per approved plan from competent authority i.e. Ghaziabad Development Authority. The Complainants based on the assurances of the OP, booked a two bedroom flat and was allotted flat number G – 608 on 6^thfloor in the said project on 31.07.2007 for the basic sale price of Rs. 40,83,200/-  which was to be paid as per the schedule attached with the agreement dated 31.07.2007, and which was signed/executed between the OP through its authorized signatory and the Complainants at the registered office of OP at Delhi.

 

2. The Complainants submit that as per agreement, the OP has assured that the possession of the said flat would be handed over to the Complainants by April, 2009 with the grace period of three months subject to delay of non-availability of construction materials.

 

3. The Complainants got sanctioned a loan of Rs.7,00,00/-  from Diwan Housing Finance Corporation Ltd. (hereinafter referred as DHFL), for the payment to be made to the OP and the first installment of loan of Rs.1,00,000/-  was even disbursed by the DHFL which was paid by the Complainants’ to the OP, however, the rest of the loan amount of Rs. 6 lakhs was not disbursed by the DHFL as upon enquiry it was told to the Complainants that the disbursal has been put on hold for want of approved map/plan from GDA for 6^th floor. Since payment was due, therefore, the Complainants have made further payments out of their own pocket and till the date of filing complaint a total amount of Rs.  3,12,480/- stands paid to the OP.  

 

4. It is further submitted by the Complainants that despite their several requests and letters dated 22.04.2009 and 23.06.2010, OP failed to provide any information w.r.t. the approved plan in respect of the 6^thfloor of the above said project and instead of giving reply to the above stated letters of the Complainants, the OP sent demand letter dated 03.04.2012 and reminders dated 14.05.2012 and 07.06.2012 to the Complainants. Finding no other alternative, the Complainants sent a legal notice dated 12.06.2012 to the OP, calling upon him to withdraw the demand letters and reminders and also to provide the approved plan/map of GDA for 6^thfloor w.r.t. the above said project as well as for paying damages with interest. OP also sent a notice dated 16.06.2012 asking the Complainants for payments. The Complainants submits that notice dated 16.06.2012 did not utter a single word regarding the approved map/plant in respect of the 6^th floor in the above said project. The Complainants gave reply dated 26.06.2012 to the notice dated 16.06.2012 thereby again asking the OP to provide the approved map/ plan from GDA for 6^thfloor as well as the date of completion of the above said project, but the OP has not provided the same.

 

5. The Complainants filed the RTI dated 18.06.2012 for obtaining the status about the 6^th floor in the above said project and received the reply dated 20.07.2012 from Ghaziabad Development Authority that the above said project is approved only up to ground + 5^th floor. The OP again raised a demand of Rs.29,39,011/- vide notice dated 06.05.2013 and also levied and interest of Rs. 15,89,803/-. Finding no response from OP about the approved plan/map, the Complainants once again filed another RTI dated 30.04.2014, with GDA, seeking information, whether the ground +6^th floor in the above mentioned project is approved from GDA and whether flat number G – 608 in the above said project is approved or not. The GDA vide its reply dated 26.06.2014 stated that the project is approved up to ground +5^th floor only. The Complainants submit that the OP has cheated them by making false statement as the flat allotted to him was not even approved by the GDA and miserably failed in providing the good and proper service to the Complainants as till the date of filing the complaint the OP failed to provide approved plan/map with respect to the 6^th floor in the above stated project which resulted in non- disbursal of the loan amount by the DHFL in favour of the Complainants and he had to pay back the principle amount and interest thereon to the DHFL which  is more than the principle amount. The Complainants alleged that OP had played fraud upon the Complainants and cheated them by giving false assurances that the above said project is a GDA approved project. The said act of the OP has caused a great amount of mental agony, physical pain, financial losses and emotional distress and harassment to the Complainants due to deficiency in it’s services.

 

6. Upon notice on 25.09.2014, 06.07.2015, and 10.08.2015, OP failed to appear despite service, and as such, he was proceeded ex-parte on 04.11.2015. To prove his claim the Complainants has filed his ex-parte evidence, additional evidence and written arguments along with all the documents marked as exhibits.
7. In support of their claim, the Complainants have filed:     
   1. The copy of the price list, allotment letter dated 31.07.07 and agreement dated 31.07.2007, Ex. CW1/1.(colly);
   2. Copy of letter of offer cum acceptance dated 31.07.2007/ DHFL, Ex. CW1/2;
   3. Copy of both letters dated 22.04.2009, and 23.06.2010, Ex. .CW1/3.(colly);
   4. Copies of notices and reply dated 12.06.2012, 16.06.2012, and 26.06.2012, Ex.CW1/4.(colly), Ex. CW1/5.(colly) and Ex. CW1/6.(colly);
   5. Speed post receipts dated 14.06.2012, Ex.CW1/7;
   6. Copy of the RTI application dated 18.06.2012 and its  reply dated 20.07.2012, Ex. CW1/8 and EX.CW1/9 respectively;
   7. The copy of the final notice dated 06.05.2013, Ex. CW1/10;
   8. The copy of RTI application dated 30.04.2014 and its reply dated 26.06.2014, Ex. CW1/11 and Ex. CW1/12.

 

8. The Complainants has also filed additional affidavit for placing on record the payment made to OP vide receipts, Ex. CW1/X  receipts number 00005799 dated 28.05.2007, amounting to Rs.70,000/-; receipt number 00006255 dated 31.07.2007 amounting to Rs. 30,000/-; receipt no. 00006432 dated 23.08.2007 amounting to Rs. 1,00,000/-; receipt no. 00007155 dated 14.11.2007 amounting to Rs. 1,12,480/-  total amounting to Rs. 3,12,480/-.

 

9. The Complainants has also filed the statement of account of the payment made to DHFL showing that the loan amount of Rs.1,00,00/- has been disbursed to the OP on 22.08.2007 and the interest paid by the Complainants is @ 15.90% p.a. on the said loan amount and has paid an amount of Rs.1,49,488/-  as interest only, to DHFL till 23.05.2018, in addition to the principal amount, Ex. CW1/Y.

 

10. The Commission has carefully gone through the records and the documents placed on record by the Complainants.

 

11. The receipts on record of the payments made to the OP by the Complainants show that Complainants have paid total amount of Rs. 3,12,480/- to the OP. These receipts also establish that OP has received the above stated amount. It is clear out from the facts of the case that OP has misrepresented and falsely assured the Complainants about that allotment of the flat at 6^th floor which was not even approved by the competent Authority i.e. Ghaziabad Development Authority and thus cheated the Complainants by keeping him dark and also have received the consideration for the same and further failed in his commitment for the delivery of the flat to the Complainants. The mala-fide on the part of the OP is evident from the fact that it has not taken any steps to rectify its mistake and to offer another  flat to the Complainants in place of flat at 6^th floor despite knowledge that the 6^thfloor was not approved by the competent authorities, instead, kept demanding for the more payments from the Complainants. The OP also failed to provide the approved map/plan of the project despite repeated demand from the Complainants. There is nothing on record to say, if OP has made any further offers to the Complainants or made any attempt to cancel the allotment on the failure of the approval of the concerned flat or attempted to refund the money of the Complainants if the 6^th floor was not approved.

 

12. Since the OP is proceeded ex-parte, thus, all the averments made in the complaint, are deemed to have been admitted by OP and the evidence led by the Complainants stand unrebutted for which an adverse inference, is to be drawn against OP, as there is no denial/rebuttal to the averments/evidence of the Complainants.

 

13. It is significant to note that the booking was made in 2007 and the present complaint was filed in 2014 but till filing of the complaint, OP has neither given the possession of the flat in question to the Complainants, nor has refunded the amount paid by the Complainants or cancelled the allotment of the said flat, which gives rise to a continuous cause of action.

 

14. In Satish Kumar, Pandey and another versus M/s Unitech Ltd 2015 (3) CPJ 440 (NC), Hon’ble national commission held in para 17, “it is now settled legal position that failure to deliver possession being a continuous wrong. It constitutes a recurrent cause of action and there for so long as the possession is not delivered to him, the buyers can always approach of consumers forum.”Further, it has been also well settled that the Complainants cannot be expected to wait for an indefinite time period to get the benefits of the hard-earned money that they have spent in order to purchase the property in question as held by Hon'ble Supreme Court of India  in Fortune Infrastructure v. Trevor D’ Lima, (2018) 5 SCC 442. 

 

15. The misrepresentation on the part of the OP with respect to the approval of the map/plan for the 6^th floor, allotting the said flat to the Complainants without approval, receiving the consideration and retaining the hard earned money of the Complainants establish that OP was deficient in providing its services to the Complainants and has indulged in unfair trade practice as the OP had given false assurance to the Complainants with respect to the said project and allotment of the said flat in question that has caused absolute mental agony, harassment, physical pain and financial losses to the Complainants.

 

16. Upon considering all the facts and circumstances and documents on record, this commission is of considerate view that by allotting the flat in the project which was not approved by the competent authorities and receiving consideration for the same  by misrepresentation, the OP has deprived the Complainants, their rights since 2007 and thus committed deficiency of service and has been involved in unfair trade practice. Further retention of Rs. 3,12,480/-   with it, as paid by the Complainants, for all these years through from the date of deposit still the passing of order, the OP has also caused financial losses to the Complainants. the said act of OP also caused Complainants to suffer financial loss to the tune of Rs. 1,49,488 towards the loan of 1,00,000/- taken by them only for the payment made to the OP and interest of Rs. 1,49,488/- paid to DHFL upon such amount at the rate of 15.90% p.a. Accordingly, the complaint filed by the Complainants is allowed and following directions are issued to the OP;

 

1. To refund the entire amount deposited by the Complainants to OP, i.e., Rs. 3,12,480/- along with interest, on account of financial loss suffered by the Complainants for depriving them of the utilization of the said amount during the period it remained with the OP, calculated at the rate of 12% per annum from the 15.11.2007  till its realization;   
2. To pay Rs.1,49,488/- as paid by the complainants to DHFL as interest for loan with interest at the rate of 10% per annum from 23.05.2018, the date of complete payment till realization by the Complainants;    
3. To pay an amount of Rs.1,00,000/-  as compensation for causing mental agony, harassment, physical pains and emotional distress suffered by the Complainants; 
4. To pay an amount of Rs.30,000/- towards litigation costs and other expenses;

 

17. The compliance of this order shall be made by the OP within a period of one month from the date of receiving of the order, failing which the entire amount shall carry the further interest at the rate of 12%, per annum from  31st day of the order till the date of actual realization by the Complainants.

 

18. The complaint stands disposed of accordingly. Copy of the order be given to the parties as per CPA, 1986.    

 

19. Before parting with the situation, this commission also deems it appropriate to issue show cause notice to the OP as to why an FIR be not lodged against it for misrepresentation, fraud and cheating played upon the Complainants and the public at large. The registry is directed to open a separate file with the copy of the complaint and related documents for issuing show cause to the OP and for further proceedings Thereafter, the file be consigned to record room after uploading the order on website.     

 

20. The consumers complain could not be decided within the statutory period due to heavy pendency of court cases.

 

21. The order contains 11 pages and each beers our signature on each page. 

Announced on 06.02.2023