District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.064/2019.
Date of Institution: 06.02.2019.
Date of Order:30.08.2022.
Dhruv Dev Sharma, son of Shri N.L. Sharma, r/o House No.1, Gali No. 26B, Molarband Extension, Badarpur, New Delhi. …….Complainant……..
Versus
1. SRS Real Estate Limited, SRS Multiplex, top floor, sector-12, Faridabad.
2. Director, town & country Planning, Haryana (Service to be effected through opposite party No.3).
3. Senior Town Planner, HUDA, Faridabad.
4. District Town & country Planner, Palwal.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh. Sagar Bhatia, counsel for the complainant.
Sh. Parveen Gupta, counsel for opposite parties Nos.1& 2.
Sh. Deen Dayal, Assistant on behalf of opposite party No.3.
Sh. Gajender Singh, clerk appeared on behalf of opposite party No.4
ORDER:
The facts in brief of the complaint are that the complainant submitted Booking application with the opposite party for a commercial unit in aforementioned Housing Project and paid booking amount of rs.51,000/-. Thereafter the opposite party informed the complainant that commercial unit No. PH/07/Shop/141/031 admeasuring 141 sq. ft. in covered area was allotted to the complainant and further, called upon the complainant to execute Builder Buyer agreement. Upon allotment of unit, the opposite party raised demand of Rs.1,48,750/- vide letter dated 28.05.2015 towards 15% of basic sale price of the unit. Accordingly, the complainant paid an amount of R s.1,50,000/- to the opposite party for which payment receipt No. 123571 dated 04.06.2015 was issued by the opposite party. Thereafter the opposite party called upon the complainant for execution of Builder Buyer agreement in respect of allotted unit. Accordingly, Builder Buyer agreement was executed between the parties to the complainant on 26.08.2015. as per clause 4(a) of Builder Buyer Agreement, the opposite party had to complete the construction and development of the said complex within four years from the date of execution of the agreement. Further, as per clause 4(f) of the agreement, the opposite party was liable to refund the deposited amount in case of non-confirmation of allotment including abandonment of the project by developer. After execution of Builder Buyer Agreement, the opposite party issued demand notices towards the sale price of the unit and the complainant made vide receipt No. 17267 dated 09.12.2015 for Rs.75,000/- and receipt No. 129430 dated 24.02.2016 for Rs.23,625/-. After February 2016, there was no demand of basic sale price from the opposite party which made complainant suspicious about the progress of the construction of the project. The complainant visited the construction site in the month of September/October 2016 and to astonishment of the complainant, there was no construction work at the site. On enquiry to thesite office and customer care of the opposite party, no satisfactory reply was given regarding non-construction of project. In the year 2017,the opposite party did not start the construction work of the project giving apprehension that the amount deposited by the complainant and other buyers in the project had been mis-utiized by the opposite party and cheated the buyers. Despite making numerous requests to the customer care of the opposite party for refund of the amount as the opposite party could not start the construction but the customer care refused to accept the request for refund.Recently, the complainant had come to know that the opposite party had already abandoned the aforementioned housing Project and now, director General, town and country Planning, Haryana, had cancelled the Licence No. 70 of 2014 granted to the opposite party for construction and development of aforementioned Affordable Housing Project at Sector-7, Palwal. Despite making payment towards Basic sale price as demanded by the opposite party, in respect of allotted unit, the opposite party did not start, the construction and now the project had been abandoned, therefore, the complainant requested the customer care of the opposite party refund the amount of rs.2,99,625/- as deposited towardsthe allotted unit alongiwth interest at the rateof 18% p.. from the date of deposit of each installment till actual payment. The officials of opposite party refused to acknowledge the written request for cancellation of allotment and refund of deposited amount and also refused that amount forcing the complainant for litigation. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) Refund an amount of rs.2,99,625/- alongwith interest at the rate of 10% per annum from the date of deposit of installment till realization..
b) pay Rs.50,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs.30,000/ - as litigation expenses .
2. Opposite parties Nos.1& 2 put in appearance through counsel and filed written statement wherein Opposite parties Nos.1& 2refuted claim of the complainant and submitted that there was no cause of action which might had ever accrued to the complainant at any point of time to file any complaint against the opposite parties in the facts and circumstances of the present case inasmuch as the complainant was a successful allottee in the draw of lots and he was allotted shop Unit No. PH/07/Shop/141/031 in project namely “SRS Palm Homes” Sector-7, Palwal (being developed under the affordable Housing Policy 2013 of the government of Haryana). It was submitted that the payment plan duly accepted by the complainant was time linked and not construction linked and hence, possession had no link with the stage of construction. Further the company was bound to offer possession within a period of four years from the date of allotment letter i.e. the year 2019. Thus, even otherwise the claim for possession and surrender on the ground of alleged non-construction or non-grant of possession was premature. Opposite partiesNos.1& 2denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite parties Nos. 3 & 4 put in appearance through counsel and filed written statement wherein Opposite parties Nos.3& 4 refuted claim of the complainant and submitted that the present complaint was not maintainable against the answering opposite party as the complainant was not a consumer as defined in Section2(1)(d) of the consumer Protection Act, 1986. No agreement in whatsoever manner had been executed by the complainant with the answering opposite party. The complainant purchased the flats from opposite party No.1 on the terms and conditions mutually agreed by them and as mentioned in the Flat Buyers Agreement execute by and between the complainants and opposite party No.1. The answering opposite parties were not a party to said agreement . The payment of the flat had also been made directly by the complainant to opposite party No.1. The grievance of the complainant was also against opposite party No.1. Hence, the answering opposite party had unnecessarily been impleaded as party in the instant complaint. The main grievance of the complaint was that he had booked the flat with opposite party No.1 in the project named as “Affordable Group Housing Project” situated at Sector-7, Palwal being developed by them. However, presently at site they had not started the construction activity as yet and the complainant had no hope of getting the possession of flat in near future. The complainant had prayed before this Hon’ble forum to direct opposite party No.1 to refund the amount paid by him for the purchase of the flat with interest. Opposite party No.1 submitted application for grant of license under the provisions of the Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter called as act of 1975), to develop their 10 acres land, situated in sector-7, Palwal, into Affordable group Housing colony in the department of the answering opposite party. The case was examined by the department in accordance with the provisions of the Haryana Development & Regulations of Urban Areas Act of 1975 and as per Affordable Housing Policy dated 19.08.2013. Lincense No.70 of 2014 was granted to develop the Affordable group Housing colony, for an area of 10 acres in Sector-7, Tehsil &Distt. Palwal. It was also pointed out that the licensee/developer i.e. opposite party No.1 were required to comply with the terms and conditions for grant of license as agreed on the LC-IV and the bilateral agreement executed by the colonizer ad Director, Town & country Planning deptt. Haryana, Chandigarh. The licensee had not deposited the amount of 371.25 lacs against original EDC as on 17.04.2018 and also not complied with the other terms and conditions of the license despite show cause notices issued to them and grant of opportunity of personal hearing. Accordingly, license No. 70 of 2014 was cancelled vide order dated 21.08.2018. The order dated 21.08.2018 was also posted on the website of the department. The following actions had been taken in compliance of the cancellation order as mentioned above:-
i. A public notice might be issued in the newspapers, informing the general public about the cancellation of license and that the administration of this license colony had been taken over by the directorate of town & country Planning, Haryana.
ii. Senior town Planner, Faridabad had been directed to take over Administration of this licence colony on behalf of department and to put up a Board at site indicating that the administration of this licenced colony had been taken over by the department of town and country Planning.
iii) Senior Town Planner, Faridabad had also been directed to maintain the details of the account of the allottees. The allottees had been advised to deposit the balance installments with STP, Faridabad, who had tbeen directed to maintain the account of each and every flat holder.
iv. The license had been directed under Section 10 (A) of the act of 1975 to deposit all outstanding due son account of EDC and also to give the information of sold and unsold property within a period of 15 days so that unsold properties can be disposed off to recover the govt. dues.
v. Deputy commissioner, Palwal had been requested to recover the above said outstanding dues as arrears of land revenue in accordance with the order dated 21.08.2018 In order to restrict creation of further third party rights on the instant licences area, he had also been requested to ensure that no sale deed against the licenced land was executed/registered in future.
vi. The committee constitute under the Chairmanship of Administrator, HSVP, Faridabad , STP, Faridabad would be member secretary and DTP, Palwal, XWN, HSVP, Palwal would be the members of the committee, which could take over the colony for carrying out further necessary action.
vii) Decision had been made to debar the present directors of all the companies of opposite party No.1 from grant of any further licence in the State of Haryana .Opposite party No.3 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite parties– SRS Real Infrastructure Ltd. with the prayer to :a) Refund an amount of Rs.2,99,625/- alongwith interest at the rate of 10% per annum from the date of deposit of installment till realization. b) pay Rs.50,00,000/- as compensation for causing mental agony and harassment . c) pay Rs.30,000/ - as litigation expenses .
Counsel for the complainant has made a statement that complaint already filed may be read as his evidence. Accordingly, evidence on behalf of the complainant has been closed vide order dated 24.03.2022.To establish his case the complainant has led in his evidence Annexure C- - application for the booking of commercial plot/shop in Affordable group housing Project,, annx.C-2 – receipt of Rs.51,000/-, Anx.C-3/A – receipt, Annx. C-3 – letter dated 28.05.2015,, annx.C-4 -4 – receipt, Annx.C-5 – Agreement.
Counsel for Opposite parties Nos.1& 2 has made a statement that written statement filed on behalf of opposite parties Nos.1& 2 be read as evidence on behalf of opposite parties Nos.1& 2. Accordingly, evidence on behalf of opposite parties Nos.1& 2 be closed vide order dated 13.07.2022.
Counsel for Opposite parties Nos3 & 4 has made a statement that written statement filed on behalf of opposite parties Nos.3 & 4 be read as evidence on behalf of opposite parties Nos.3 & 4. Accordingly, evidence on behalf of opposite parties Nos.3 & 4 be closed vide order dated 11.04.2022.
7. It is evident from Annexure C1 & C2, the complainant submitted Booking application with the opposite party for a commercial unit in aforementioned Housing Project and paid booking amount of Rs.51,000/-. The opposite party informed the complainant that commercial unit No. PH/07/Shop/141/031 admeasuring 141 sq. ft. in covered area was allotted to the complainant and further, called upon the complainant to execute Builder Buyer agreement. As per letter dated 28.05.2015 vide Annx.C-3 the opposite party raised demand of Rs.1,48,750/- towards 15% of basic sale price of the unit. The complainant paid an amount of Rs.1,50,000/- to the opposite party for which payment receipt No. 123571 dated 04.06.2015 was issued by the opposite party. Vide Annx. C4. Thereafter the opposite party called upon the complainant for execution of Builder Buyer agreement in respect of allotted unit. Accordingly, Builder Buyer agreement was executed between the parties to the complainant on 26.08.2015. vide Annx. C-5. As per clause 4(a) of Builder Buyer Agreement, the opposite party had to complete the construction and development of the said complex within four years from the date of execution of the agreement. Further, as per clause 4(f) of the agreement, the opposite party was liable to refund the deposited amount in case of non-confirmation of allotment including abandonment of the project by developer. After execution of Builder Buyer Agreement, the opposite party issued demand notices towards the sale price of the unit and the complainant made vide receipt No. 127267 dated 09.12.2015 for Rs.75,000/- and receipt No. 129430 dated 24.02.2016 for Rs.23,625/-. After February 2016, there was no demand of basic sale price from the opposite party which made complainant suspicious about the progress of the construction of the project. The complainant visited the construction site in the month of September/October 2016 and to astonishment of the complainant, there was no construction work at the site. On enquiry to the site office and customer care of the opposite party, no satisfactory reply was given regarding non-construction of project. In the year 2017,the opposite party did not start the construction work of the project giving apprehension that the amount deposited by the complainant and other buyers in the project had been mis-utiized by the opposite party and cheated the buyers. Despite making numerous requests to the customer care of the opposite party for refund of the amount as the opposite party could not start the construction but the customer care refused to accept the request for refund.
8. After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite parties because the possession of the flat was made to the complainant in the year 2020. So that unilateral clause about the cancellation by the allottee debar him from seeking refund is not binding in view of the ratio of laid down in the following cases:
1) Ram Vilas “Sharma & 23 others Vs. M/s. Gold Souk Infrastructures Private Ltd. in consumer case No. 421 of 2018 passed by the Hon’ble National Consumer Disputes Redressal Commission New Delhi referred the authority passed by the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra – II(2019) CPJ 29 (SC)……….In the circumstances, we are of the view that the orders passed by the SCDRC and by NCDRC for refund of moneys were justified.”
ii) Ireo Grace Real Tech Pvt. Ltd. Vs. Abhishek Khanna & Others Civil Appeal No. 5785 of 2019 decided on 11.01.2021 in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., the 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 alongwith compensation. The complainant had been waiting for completion of the project in which allotted unit is located for more than six years. He cannot be asked to wait indefinitely to seek possession of his dream house. So, in such a situation, he is held entitled to the
refund of the amount deposited with the opposite party besides interest and compensation.
9. Keeping in view of the above discussions, the Commission is of the opinion that the complaint is allowed. Opposite parties are directed to refund the deposited amount to the complainant with compensation in the form of simple interest @ 6% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 30.08.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
