District Consumer Disputes RedressalCommission ,Faridabad.

Consumer Complaint  No.211/2020.

 Date of Institution: 22.07.2020.

Date of Order:30.08.2022.

Rajendra Kumar Diwakar aged about 50 years S/o Shri Bhoodeo Prasad Diwakar r/o H.No.F-92, sector-10, DLF, Faridabad. Aadhar No. 225189504281.

                                                                   …….Complainant……..

                                                Versus

1.                SRS Real Infrastructure Limited, SRS Tower, Tower-12, Faridabad through tis director/Authorisd Signatory.

2.                SRS Residency Panchkula, village Bhood, Sub Tehsil Raipur Rani, Panchkula through its authorized signatory.

                                                                    …Opposite parties……

Complaint under section-12 of Consumer Protection Act, 1986

Now  amended  Section 34 of Consumer protection Act 2019.

BEFORE:            AmitArora……………..President

Mukesh Sharma…………Member.

PRESENT:                    Sh. Vinay Singh, counsel for the complainant.

                             Sh. Parveen Gupta, counsel for opposite parties Nos. 1 & 2.

ORDER:

                             The facts in brief of the complaint are that  the complainant had booked a plot No. F-46, measuring 100 sq. yards in their project known as SRS residency Panchkula , village Bhood, Sub Tehsil Raipur Rani, Pnchkulat vide application No. 1960, registration Unit No. P/PKL/BHOOD/0074.  The opposite parties had allotted the said plot in the name of complainant and executed an agreement was signed between the parties on 27.02.2016.  As per the agreement the complainant had paid an amount of Rs.4,40,000/- to the opposite parties time to time as demanded by the opposite parties.  As per the terms of agreement, opposite party had to handover the physical possession of the above said plot to the complainant within 3 years from the date of execution of this agreement, but the opposite parties neither offer nor handover the actual, physical possession of the said plot to the complainant till date.  Thereafter when the complainant  visited to the office of opposite party No.1 and by email requested for offering and delivering the possession of plot as per terms of agreement, the opposite parties not only refused to offer and deliver the possession and the officials of opposite party further threatened the complainant to cancel the booking of plot, hence the complainant informed the opposite parties that he wanted to take refund his deposited amount with interest, as this amount had been extracted by the opposite parties by playing fraud, cheating deception, misrepresentation. Still the opposite parties did not accede to the legitimate request of the complainant and not refunded the amount of Rs.4,40,000/- with interest and damages of Rs.2,00,000/- on account of deliberate, deficient services, causing mental and harassment.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 the deposited amount of Rs.4,40,000./- with interest @ 18% p.a. from the date deposit till actual realization.

b)                 pay Rs.2,00,000/- as compensation for causing mental agony and harassment .

c)                 pay Rs.21,000/ - 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 the broacher relied upon by complainant had not been published/circulated by opposite party and opposite party was not bound by the same.  It was submitted that transaction/relationship between the parties was governed by Builder Buyer agreement dated 27.02.2016 and terms and conditions attached thereto.  It was submitted that as per aforesaid Building Buyer Agreement opposite party had to deliver possession of plot within 42 months from the date of execution. It was submitted that the time for offer of possession had yet not arrived.  It might also be noted that the cost of paid by complainant to opposite party was pertain to the cost of raw land and development of internal roads and was exclusive of all other costs that might be incurred by opposite party in development of the colony.  It was submitted that grievance raised by the complainant in the complaint was outset the scope of agreement.Opposite partiesNos.1& 2denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.

3.                The parties led evidence in support of their respective versions.

4.                 We have heard learned counsel for the parties and have gone through the record on the file.

5.                In this case the complaint was filed by the complainant against opposite parties – SRS Real Infrastructure Ltd. with the prayer to :a)            refund the deposited amount of Rs.4,40,000./- with interest @ 18% p.a. from the date deposit

till actual realization.  b)  pay Rs.2,00,000/- as compensation for causing mental agony and harassment . c)  pay Rs.21,000/ - as litigation expenses .

                   To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit ofRajendra Kumar Diwakar, Ex.C-1 – Application form, AEx.C-2 – agreement, Ex.C-3 to 8– Receipts,

                   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.

6.                It is evident form Ex.C-1,the complainant had booked a plot No. F-46, measuring 100 sq. yards in their project known as SRS residency Panchkula , village Bhood, sub tehsil Raipur Rani, Panchkulat vide application No. 1960, registration Unit No. P/PKL/BHOOD/0074.As per Ex.C-2 the opposite parties had allotted the said plot in the name of complainant and executed an agreement was signed between the parties on 27.02.2016.  As per  the agreement the complainant had paid an amount of Rs.4,40,000/- to the opposite parties time to time as demanded by the opposite parties vide Ex.C-3 to C-9. As per the terms of agreement, opposite party had to handover the physical possession of the above said plot to the complainant within 3 years from the date of execution of this agreement, but the opposite parties neither offer nor handover the actual, physical possession of the said plot to the complainant till date.

7.                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 27.02.2019 and he has

waited for more than 1-1/2 years to see the project to be completed and offer of possession of the allotted plot to him.  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. DevasisRudra – 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. AbhishekKhanna&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.

8.                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                                 (AmitArora)

                                                                                  President

                    District Consumer Disputes

          Redressal  Commission, Faridabad.

                                                (Mukesh Sharma)

                Member

          District Consumer Disputes

                                                                   Redressal Commission, Faridabad.