District Consumer Disputes RedressalCommission ,Faridabad.
Consumer Complaint No. 392/2020.
Date of Institution: 23.10.2020.
Date of Order:30.08.2022.
Seema aged about 45 years W/o late ShriSatishTuteja, r/o House No. 5J/50, NIT, Faridabad – 121001. …….Complainant……..
Versus
1. SRS Retreat Services ltd. Marketing office: SRS Tower, 124-126, Ist floor, Near Metro station MewlaMaharajpur, G.T.road, Faridabad- 121003 through its Director/Principal Officer.
Registered office:
SRS Tower 721, 722, 727, 7th floor, Near Metro Station Mewla Maharajpur, G.T.Road, Faridabad – 121003. Contact No. 0129-6101111. 0129-6101112.
2. Hihtech Construction Co. Pvt. Ltd. Site address: High-tech Affordable Homes, Sector-87, Faridabad through its Director/Managing Director/authorized signatory.
Corporate address:
A-52, Second floor, Free Complex, Industrial Area, Ph-2, Okhla, New Delhi, - 110020.
Contact No. 7291845845, 7291846848 email: high tech group @ yahoo.com.
…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. R.K.Nangia, counsel for the complainant.
Sh. Parveen Gupta, counsel for opposite party No.1.
Sh. M.S.Chauhan, counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that on the assurance of opposite party No.1, the complainant had booked a flat in the said project on dated 21.10.2014 and paid Rs.20000+Rs.80000 i.e. Rs.100000/- only against the booking amount. Opposite party No.1 issued a separate receipt No. 308-309 dated 21.10.2014 in favour of the complainant. On 23.07.2015 the opposite party No.1 issued information letter regarding draw of lots for allotment of affordable flats in their project “SRS Hightech Affordable Homes, sec. 87, Faridabad”. Through said letter the complainant was informed and invited for the raw of lots for allotment of affordable flats for the aforesaid affordable Housing colony which shall be conducted on 5th august 2015 at “SRS Banquet, near SRS Multiplex, sector-12, Faridabad. On 12.08.2015 the opposite party No.1 informed to the complainant by issuing letter in which allotted flat No. 1503, tower No. A5, type c, carpet area 483.65 sq. ft. and balcony area 97.46 and the total cost for the above said flat Rs.19,83,321/- to the complainant. Thereafter, opposite party No.1 demanded 25% of the price of the flat i.e. Rs.5,14,463/- after adjusting the booking amount of Rs.1,00,000/- final demanded amount Rs.4,14,463/-. On 10.10.2015 the complainant issued cheque of demanded amount (Rs.4,00,000/-) to the opposite party No.1 against the abovesaid flat and after encashment of the aforesaid cheques the opposite party No.1 issued separate receipts on dated 28.10.2015 by mentioning wrong unit No. A1/03/AF87/308.Opposite party No.1 illegally changed the unit number of the flat allotted to the complainant. The complainant was allotted flat No. 1503, tower No.A5, type C and the opposite party No.1 after receiving the demanded amount had illegally changed the Unit No. from flat NO. 1503, tower No.A5, type C to flat No. 308, tower A1, type A. After that the complainant approached to the opposite party No.1 several times for asking why her unit was changed illegally to which the opposite party No.1 had no answer and since the complainant had given her hard earned money for the above said flat, the complainant had no option except to take the illegally changed flat form the opposite party No.`1. On 24.12.2015 the opposite party No.1 executed an Buyer’s agreement and according to the agreement’s clause No. 3.6. construction and possession clearly mentioned that “possession of flat shall be offered within a period of four years. On 24.08.2018 the opposite party No.2 sent a letter (information against change of license No 146 of 2014 SRS Hightech affordable Homes completely transfer to Hightech construction co. Pvt. Ltd., against Memo No. 3113 dated23.01.2018 for Affordable Group Housing Project at sector-87, Faridabad) informing that the project/license No. 146 of 2014 dated 02.09.2014 was granted to SRS Retreat services ltd. &Hightech construction Co. Ltd., for development of affordable group housing colony over area measuring 5.00694 acres in Sector-87, Faridabad and now said project/license had been completely transferred in favour of the opposite party No.3 (Hightech construction co. Pvt. D Ltd.) Reg. address Hightech affordable Homes, sector-87, Faridabad) against memo No. 3114 dated 23.01.2018. The complainant several times visited the opposite parties to know that what time should be taken in completion of the said project, the opposite parties did not give any reply satisfactory and at last the complainant opposite parties and demanded her deposited amount back with interest and on which the opposite parties assured the complainant that they would return the same within short period but till date the opposite party No.2 did not make the payment of said amount which the opposite parties extorted form the complainant under the garb of aforesaid agreement.The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) refund Rs.5,00,000- with interest @ 18% p.a. from the date of payment tillrealization, paid nu the complainant to the opposite parties.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs.55,000/ - as litigation expenses .
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the name of opposite party No.1 company had already changed to opposite party No.2 Hightech construction Co. Pvt. Ltd. Vide transfer of license No. 146 of 2014 dated 01.09.2014 for granted for setting of affordable group housing coly over were measuring 4.00694 acres in sector-87, Faridabad and all the liability of the existing developer should be owned by new entity. The shareholding pattern of the company hadalready changed as existing at the date of application for transfer and in principal approval for such change under the policy had been granted in favour of Hightech construction co. Pvt. Ltd, and as such the directors had been changed.. it was further submitted that at the time of change in shareholding and director pattern, objections were invited form the then allottees and public at large via public notice issued in newspaper having large circulation and detailed procedure was followed for the such change. It was sub mitted that no objection as received form the complainant at the time of transfer of license and hence, was thereby stopped form alleging that the license was applied for transfer secretly. It was submitted that the complaint had been filed against the opposite party No.1 entity which at present do not exist. Opposite party No.1 were sold their ownership right or title or project to opposite party No.2 and DTCP had issued new licence in favour of opposite party No.2 vide license No.1 46 of 2014 dated 1.9.2014 and in according to that license opposite party No.2 was responsible for handover the possession of flat, hence all the liability of existing developer should be owned by new entity. Opposite party No.1denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2refuted claim of the complainant and submitted that the complainant had booked a flat in the said project on 21.10.2014 and paid Rs.20,000/- + 80,000/-i.e. Rs.1,00,000/- only against the booking amount. Opposite party No.1 issued a separate receipts NO. 308-309 ated21.10.2014 in favour of the complainant. It was submitted that on 10.10.2015 the complaint issuedcheques of demanded amount of Rs.4 lahs to the opposite party No.1 against the above said flat and after encashment No.1 against the above said flat and after encashment of the aforesaid cheque the opposite party No.1 issued receipt on dated 28.10.2015. Opposite party No.2 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 Retreat Services Ltd., with the prayer to :a) refund Rs.5,00,000- with interest @ 18% p.a. from the date of payment till realization, paid nu the complainant to the opposite parties.b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .c) pay Rs.55,000/ - as litigation expenses .
To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit ofSeema, Ex.C-1 & 2- Receipts,, Ex.C-3 – letter dated 23.07.2015, Ex.C-4 – letter dated 12.08.2015 regarding intimation about draw of lots-cum-demand letter,Ex.C-5 – receipt, Ex.C-6 – Allotment letter/Buyer’s agreement,, Ex.c-8 – legal notice,, Ex.C-9 to c-12 – postal receipts.
7. Despite availing several opportunities, evidence on behalf of opposite party No.1 has not been filed. Accordingly, evidence on behalf of opposite party No.1 has been closed vide order dated 26.08.2022.
8. As per evidence on behalf of opposite party No2., Ex.RW1/A – affidavit of dr. Surinder Kumar Vashisth, director of M/s. High-tech Construction Company Pvt. Ltd.,New Delhi,, Ex.R-1 (colly) – copy of letter 30.01.2019, ex.R-2 – letter regarding request for change of allotment for application No. 486,, Letter dated 3.10.2015 regarding change of unit No. A1/A/1503 to A1/a/308, Ex.R-4 – letter dated 24.06.2018 regarding change of licence No. 146 of 2014 SRS Hightech Affordable Homes completely transfer to Hightech construction co. Pvt. Ltd. Against memo No. 3114 dated 23.01.2018 for affordable group Housing Project at setor-87, Faridabad.
9. It is evident form Ex.C-1, the complainant had booked a flat in the said project on dated 21.10.2014 and paid Rs.20000+Rs.80000 i.e. Rs.100000/- only against the booking amount. Opposite party No.1 issued a separate receipt No. 308-309 dated 21.10.2014 in favour of the complainant. It is evident from letter dated 23.07.2015 vide Ex.C-3 regarding the draw of lots for allotment of affordable flats for the aforesaid affordable Housing colony which shall be conducted on 5thAugust 2015 at “SRS Banquet, near SRS Multiplex, sector-12, Faridabad. As per letter dated 12.08.2015 informed to the complainant by issuing letter in which allotted flat No. 1503, tower No. A5, type C, carpet area 483.65 sq. ft. and balcony area 97.46 and the total cost for the above said flat Rs.19,83,321/- to the complainant. Opposite party No.1 demanded 25% of the price of the flat i.e. Rs.5,14,463/- after adjusting the booking amount of Rs.1,00,000/- final demanded amount Rs.4,14,463/-. It is evident from letter dated 10.10.2015, the complainant issued cheque of demanded amount of (Rs.4,00,000/-) to the opposite party No.1 against the abovesaid flat and after encashment of the aforesaid cheques the opposite party No.1 issued separate receipts on dated 28.10.2015 by mentioning wrong unit No. A1/03/AF87/308.Opposite party No.1 illegally changed the unit number of the flat allotted to the complainant. The complainant was allotted flat No. 1503, tower No.A5, type C and the opposite party No.1 after receiving the demanded amount had illegally changed the Unit No. from flat NO. 1503, tower No.A5, type C to flat No. 308, tower A1, type A. After that the complainant approached to the opposite party No.1 several times for asking why her unit was changed illegally to which the opposite party No.1 had no answer and since the complainant had given her hard earned money for the above said flat, the complainant had no option except to take the illegally changed flat form the opposite party No.1. As per Ex.C6 the opposite party No.1 executed an Buyer’s agreement and according to the agreement’s clause No. 3.6. construction and possession clearly mentioned that “possession of flat shall be offered within a period of four years. On 24.08.2018 the opposite party No.2 sent a letter (information against change of license No 146 of 2014 SRS Hightech affordable Homes completely transfer to Hightech construction co. Pvt. Ltd., against Memo No. 3113 dated23.01.2018 for Affordable Group Housing Project at sector-87, Faridabad) informing that the project/license No. 146 of 2014 dated 02.09.2014 was granted to SRS Retreat services ltd. &Hightech construction Co. Ltd., for development of affordable group housing colony over area measuring 5.00694 acres in Sector-87, Faridabad and now said project/license had been completely transferred in favour of the opposite party No.3 (Hightech construction co. Pvt. D Ltd.) Reg. address Hightech affordable Homes, sector-87, Faridabad) against memo No. 3114 dated 23.01.2018. The complainant several times visited the opposite parties to know that what time should be taken in completion of the said project, the opposite parties did not give any reply satisfactory and at last the complainant opposite parties and demanded her deposited amount back with interest and on which the opposite parties assured the complainant that they would return the same within short period but till date the opposite party No.2 did not make the payment of said amount which the opposite parties extorted form the complainant under the garb of aforesaid agreement.
10.. After going through the evidence led by the parties, the commission is of the opinion that the complainant has paid the money to opposite party No.1 Rs.5,00,000/- as per Ex.Ex.C1 , C2, C5 & C6. The delay is on the part of the opposite parties because the possession of the flat was made to the complainant in 21.10.2018 and he has waited for more than 2 year 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.
11. 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.
