DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.09/2022
Ms. Tabassum Quoser
W/o Mr. Ravis Ahmad Bhat
R/o Near Signature Print Press
Sheetal Nath, Barber Shah
Srinagar-190001
Jammu & Kashmir. .…Complainant
VERSUS
Mr. Sikander Khurshid
Manager Director
Delhi Office
Khasra No.50/(0-9) Sikander Apartments 2
Satbari Chattarpur, New Delhi-110074.
Regd. Office
AI-Mahmood Builder (Corporates) Ltd.
Darish Kadal Chowk, Kak Sarai
Srinagar, Jammu & Kashmir-190010.
Residential Address:
Mr. Sikendar Khurshid S/o Khurshid Ahmad Dar
R/o Chinar Colony, Near Masjid Sharief, Baghat
Srinagar-190005
Jammu & Kashmir. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Shri Ravis Ahmad Dar for complainant.
Present: OP is exparte.
ORDER
Date of Institution:11.01.2022
Date of Order :12.11.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking direction to OP to refund amount of Rs.23,50,000/- or immediate possession of the flat booked by the complainant as per the agreement to sell between complainant and OP; Rs.40,000/- per month w.e.f. 01.05.2018 as per the agreement amounting to Rs.17,06,000/- till 31.12.2021; Rs.19,000/- for deficiency in service and unfair trade practice; Rs.5,00,000/- for unrest and mental agony and Rs.1,00,000/- and misleading advertisement.
- Complainant states that in April 2017, OP was selling some residential flats at Sikander Apartment, Satbari, Chhattarpur, Mahrauli, Delhi (South)-110074.
- Complainant got a 2 BHK flat booked with the OP and paid an amount of Rs.23,50,000/- on 09.05.2017 vide a cheque against flat No.B-1 has paid full and final payment with no outstanding dues. It is Annexure TQ-1. OP acknowledged the receipt which is annexure ALM-2 and also issued invoice 1092 which is annexure ALM-3 mentioning the possession date as October 2017.
- Agreement to sell was executed on 09.05.2017 which is ALM-4 and the OP was bound to provide the physical possession of the said residential flat to the complainant by 30.04.2018 which is inclusive of grace period of six months and it was agreed that a penalty amount of Rs.40,000/- per month will be paid by OP till its possession to the complainant thereafter.
- On 01.06.2017, OP handed over a letter annexure ALM-5 to the complainant acknowledging receipt of the whole amount with no dues besides promising to provide all legal documents on time to the complainant.
- It is stated by the complainant that she waited patiently till the date of possession agreed between the parties and on the date of possession she approached the OP at its registered office but the OP express inability to provide the possession on account of non-availability of skilled labour in Chhattarpur, South Delhi.
- OP failed to provide the physical possession on the due date and the complainant sent a notice dated 03.06.2018, annexure TQ-6A followed by another notice dated 03.08.2018, annexure TQ6B asking the OP to provide physical possession of the property along with the penalty/compensation as per terms and conditions of agreement to sell dated 09.05.2017.
- Complainant sent various notices to the OP ranging from 11.09.2018 to 15.04.2021 which are annexed with the complaint seeking possession of the residential flat as well as compensation/ penalty.
- OP responded in August 2018 wherein OP apologised for the unintentional delay and claimed to provide the possession in November/December 2018 but OP did not provide the possession citing the reason as abrogation of Article 370 and lockdown during Covid-19. Meanwhile complainant read an article published in news in October 2019 that the OP was to deliver possession of South Delhi flats on 25.11.2019 however, they were shocked to see that only the structure of the project was constructed by the OP. Complainant sent various complaints to the Integrated Grievance Redressal Mechanism (INGRAM) the, Ministry of Housing and Urban Affairs and J& K Governor’s Integrated Redressal and Monitoring System (JK-IGRAMS).
- In an affidavit dated 16.08.2021 submitted by the OP before a police station it was stated that physical possession of the complainants properties would be provided before 31.12.2021 which is annexed as annexure ALM-10 but the OP did not do so.
- It is stated by the complainant that OP is guilty of unfair trade practice, deficiency in service in not fulfilling his promise and delaying the possession of the residential flat as also denying compensation of penalty amount as per agreement to sell dated 09.05.2017.
- Despite due service OP did not appear and was proceeded exparte. Complainant has filed its evidence as well as written arguments. This Commission has gone through the entire material on record.
It is seen that complainant has paid a sum of Rs.23,50,000/- on 09.05.2017 which is evident from the receipt issued by OP and are annexed as annexure ALM-2 & 3. ALM-3 also depicts that entire amount has been paid and nothing else remains to be paid by the complainant. Agreement to sell is placed on record wherein OP has undertaken to provide physical possession of flat No. B-1 in the aforesaid property by 31.10.2017 and also has a stipulation that in case there is a failure on the part of the OP to do so, he would pay Rs.40,000/- per month from 01.05.2018 to the complainant till possession.
The complainant has placed on record various complaints made by her to authorities as also the affidavit by one Mr. Sikander Khurshid stating to be the MD of OP and acknowledging full payment by the complainant agreeing to adhere all the terms and conditions mentioned in agreement to sell dated 09.05.2017 this affidavit is dated 16.08.2021. Perusal of this affidavit leaves no doubt that complainant had paid Rs.23,50,000/- to the OP for the purchase of a flat in the afore mentioned properties, however the OP has failed to deliver the physical possession. The Hon’ble Supreme Court in Wg. Cdr. Arifur Rehman Khan Vs. DLF has held that complainant cannot be made waited endlessly for the possession of the flat and therefore relying on the said judgment this Commission is of the view that OP is guilty of deficiency in service in not providing the physical possession of the flat and is not paying Rs.40,000/- per month as agreed by it in agreement to sell dated 09.05.2017.
This Commission therefore directs the OP to refund Rs.23,50,000/- with interest @9% per annum from the date of deposit i.e. 09.05.2017 till realization within three months from the date of pronouncement of the order failing which OP would be liable to pay interest @ 12% per annum. OP is also liable to pay compensation of Rs.1,00,000/- to the complainant for having to made the complainant wait endlessly for her property despite taking the entire money in advance.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
