DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 176/2021

QUORUM:

Order By: Ms. Rashmi Bansal (Member)

JUDGMENT

By the present judgment the Commission shall disposes of the complaint of the complainant against OP for deficiency in service on its part in not handing over the possession of the flat booked by it in time. 

1. It is the case of the complainant that he has booked a residential unit with OP’s project ‘Sikka, Karnam Greens’, NOIDA Expressway, UP for a total consideration of Rs.  34,40,800/ and as per the terms and conditions of the builder buyer agreement and flat agreement dated 10.10.2012, the flat has to be given within 36 months from the date of excavation of the project, which period may vary for 6 months i.e. latest by 7.09.2014. A total consideration of  Rs.  32,50,290/- excluding interest in the sum of Rs.1,24,748/- out of total consideration of Rs.  34,40,800/- has been paid to the OP   till date of filing of complaint, however, OP failed to complete the construction and handover the possession of the stated unit to the complainant within the stipulated time period, which has caused mental agony and harassment to the him. The actual construction of the project started in the year 2011 and the project was not complete till the end of 2020, and there is no sign of possession even now. Complainant submits that he was regular in his payment as and when demanded by OP and the last payment was made by him on 31.03.2014 and the same were duly accepted by OP against receipts. It is also submitted that a long time had lapsed, but despite several calls to customer care and marketing department, no satisfactory answer was given by OP instead he has been given false statement that construction is in full swing and the unit shall be handed over within a stipulated time. Complainant’s email dated 04.03.2021 seeking information about the status of construction, tentative/completion date, and statement of account was not answered by OP.
2. Complainant submits that as per builder buyer agreement time was the essence of the contract and it was incumbent upon the OP to handover the said flat as per the timeline set out in the builder buyer agreement. It is further submitted that there was no violation of any terms and condition of the said agreement on his part and there was no event which could have hampered the construction of the project, therefore, the delay caused in completion and handing over the flat is deliberate on the part of OP as  almost a period of 114 months have lapsed from the date of excavation and 101 month from allotment of the same in the name of the complainant and despite clearing almost 95% of the payment of the said flat there is no much progress in the said Tower. Complainant submits that OP failed in its duty to handover the possession and has duped him with his hard-earned money and is indulged in unfair trade practice and therefore liable to handover the possession of the subject flat, along with compensation for delay and causing him mental agony and harassment with cost of the litigation.
3. Upon notice OP did not appear and was proceeded ex parte vide order dated 19.04.2022.
4. The complainant has filed ex parte evidence and in support of his case has filed Copy of the flat allotment agreement dated 10.10.2012, builder, buyer agreement, copy of invoices issued by OP.
5. Before deciding the matter on merits of the case, this is informed by the complainant that during the course of proceedings,  RERA  Gautam Budh Nagar vide its order dated 30.07.2021 has passed the order with respect to the complaint filed by the complainant before it directing OP to handover the possession of the unit to the complainant along with OC/CC till latest by 31.12.2021 and make the registry of the unit. RERA has also directed OP to pay interest for the delayed period and to adjust the payment made by the complainant. Therefore, the only grievance of the complainant to be decided is with respect to the compensation for deficiency in service by OP and the litigation cost.
6. Since OP failed to appear therefore, all the contention of the complainant remained uncontroverted and deemed to be admitted by the OP.
7. Hon'ble Supreme Court  in Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243 has held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a "service" as defined by Section 2 (o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.
8. Also in Fortune Infrastructure & Anr. v. Trevor D'Lima & Ors., (2018) 5 SCC 442, Hon'ble Supreme Court   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. The documents on record establish that the complainant has availed services of the OP for construction of flat for a consideration and to that extent, the complainant is a consumer and the OP is a service provider and if OP failed to deliver the said unit within stipulated time then as per settled principle of law, there is deficiency in service on the part of OP and OP is liable for its deficient services.    
10. Since OP failed to handover the possession of the flat within a stipulated time to the complainant and thus committed deficiency in services, therefore, is directed to pay an amount of Rs.50,000/-  towards compensation for causing him hardship, mental agony and harassment along with Rs.20,000/-  towards litigation cost without any interest.  
11. The above stated order be complied with within 30 days from the date of the order by OP failing which the entire amount, i.e., Rs.  70,000/-  shall carry an interest @ 9%  p.a. till actual date of realisation by the complainant.
12. The copy of the order be given to the parties as per CPA rules and file be confined to record room.   
13. Pronounced on 10.10.2023.