Delhi

StateCommission

CC/1090/2016

DAVINDER KAUR & ANR. - Complainant(s)

Versus

TDI INFRASTRUCTURE LTD. - Opp.Party(s)

SANDEEP SHARMA

10 May 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing: 10.05.2018

                                                                                                              

                                                                   Date of decision:14.05.2018

 

Complaint No.1090/2016

 

IN THE MATTER OF:

 

Smt. Davinder Kaur

R/o 178, Sector-3, Type III,

Sadiq Nagar,

New Delhi-110049

 

Sh. Charanjit Singh Sohta,

R/o 178, Sector-3, Type III,

Sadiq Nagar,

New Delhi-110049….Complainant

VERSUS

 

M/s Adel Landmarks Limited

Registered Office at B-39,

Ground Floor,

Friends Colony (West),

New Delhi-110065

 

Also at,

          B-292, Chandra Kanta Complex,

          Shop No. 8, Near Metro Pillar No. 161,

          New Ashok Nagar, Delhi-110096                                   ....Opposite parties

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER

 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

 

Present:       Ms. Richa Mittal, Counsel for the Complainant

                   None for the Opposite Parties 

 

PER:           ANIL SRIVASTAVA, MEMBER (G)

JUDGEMENT

1.           Smt. Davinder Kaur and Sh. Charanjit Singh Sohta, wife and husband, resident of Delhi, have filed a complaint before this Commission, for short complainants, under Section 17 of the Consumer Protection Act 1986 (the Act) against M/s Adel Landmarks Limited, hereinafter referred to as opposite parties, alleging deficiency of service on the part of the OP in not delivering possession of the flat booked by them and praying for the relief as under:

 

1. Direct the respondent to give a complete refund of the amount paid by the complainants.
2. Direct the respondent to pay interest @ 24% p.a. on the amount paid by the complainants.
3. Direct the respondent to pay the amounts of Rs. 10,00,000/- being the compensation for the mental agony and harassment.
4. To award the cost of the proceedings of Rs. 1,00,000/- in favour of the complaints and against the Respondent.
5. To direct the respondent to pay an amount of Rs. 75/- per sq. mt. per month in accordance with the Agreement, as damages for the delay caused in giving the possession of the unit.
6. Such other and further orders which this Hon’ble Forum deems fit and proper in the facts and circumstances of this case be passed in favour of the complainants.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           The complainants on the assurance of the opposite parties regarding their project at ERA DIVINE COURT HIGH RISE Sector 76, Faridabad, booked a flat by paying an amount of Rs. 50,000/- on 08.10.2011. Further an amount of Rs. 1,50,000/- was paid by the complainant on 17.10.2011, and Rs. 3,25,698/- on 14.12.2011. On 26.12.2011 the Buyers’ Agreement was executed and in furtherance thereto further payment of Rs. 1,94,979/- was made. As per the agreement the flat of the size of 1005 sq. ft. (93.96 Sq. Mrs. Bearing number A 2, 1304 in Era Divine Court High Rise at Sector 76, Faridabad was earmarked for a total sale consideration of Rs. 20,50,000/-. Further payments were made as per the terms of the agreement.
4.           The opposite parties had undertaken to deliver the possession of the property within 36 months from the signing of the agreement. In the event of delay, the complainant in terms of clause 10.2 of the agreement were entitled for the compensation @ Rs. 75/- Sq. Mr. per month. The relevant clause of the agreement clause 10.1 laying down the period within which the possession was to delivered and clause 10.2 laying down the compensation to be paid in the event of delay are indicated below:

10.1

It is understood and agreed between the parties that based on present plans and estimates and subject to all just exceptions, the Developer contemplates to give/offer possession of Unit to Allottee(s) within 36 months/year from the date commencement of construction of that particular tower where the Unit is located (with a grace period of 6 months). The said delivery date is subject to force majeure events or governmental action/inaction or due to failure of Allottee(s) to pay in time the price of the said Unit along with other charges and dues in accordance with the schedule of payments or any other activity of Allottee(s) deterrent to the progress of the Complex/Project/Residential Colony.

 

1.  

However the Allottee(s) is entitled to Rs. 75/ Sq. Mt. per month for the delay in offering possession beyond the above said period. That the Allottee(s) shall take possession of the Unit within 30 days from the date of issuance of final notice of possession failing which the Allottee(s) shall be deemed to have taken possession of the Unit on 30^th day of such notice. In such case the Developer shall not be responsible for any encroachment in the Unit occasioned due to failure of the Allottee(s) to take possession within the stipulated time.

5.           Later the complainant visited the site and they were disappointed as the construction work in the project stopped without any intimation to any of the allottees causing hardship to them, both mental and financial. The complainant would suffer more on account of the delay as they may have to pay the escalation charges. The complainant thereafter sent a legal notice to the OP demanding the possession of the flat or refund of the amount with interest. Worse came when the OP in response to the said notice issued a notice to the complainant demanding additional amount of Rs. 50,000/-.
6.           Left with no choice the complainants have filed this complaint before this Commission for the redressal of his grievances. OPs were noticed but when no appearance was made despite service of notice they were ordered to be proceeded ex-parte vide proceedings recorded on 10.04.2017. The complainants have also filed their evidence by way of affidavit. 
7.           The matter was listed for final hearing on 10.05.2018 when the ld. Counsel for the complainant appeared and advanced her arguments. No appearance was made on behalf of the OP. I have perused the records of the case and given a careful consideration to the subject matter.
8.           The ld. Counsel for the complainant stressed the point that despite he having made the payment as required and despite the agreed time having elapsed, the OP have not adhered to the terms of the agreement in handing over the physical possession of the flat which they were under an obligation to do so.
9. The ld. Counsel for the Complainant has alleged deficiency in service and unfair trade practice on the part of the OPs in not handing over the possession of the flat in question within the time, resulting in the financial loss and mental agony to the complainant. In that view of the matter the inevitable conclusion is that there was gross “deficiency”, as defined in Section 2(1)(g) of the Act, on the part of OP in its failure to deliver possession of the subject flat to the complainants in terms of the agreement to sell. It is a trite law that where possession of property is not delivered within the stipulated period, the delay so caused is not only deficiency in rendering of service, such deficiencies or omissions tantamount to unfair trade as defined, under Section 2(r) (ii) of the act, as well. (See: Lucknow Development Authority vs. M.K. Gupta-(1994) 1 SCC 243).
10. Having bestowed our anxious consideration to the facts at hand, we are of the opinion, that the complaint deserves to be accepted.
11. Possession of the flat as of now appears no where near a possibility. The complainant has made an alternate prayer for refund of the amount deposited by him. In this view of the matter we order refund of the amount deposited by the complainant with simple interest @ 10% from the date of deposit till realisation.
12. Ordered accordingly. Let a copy of this order be forwarded to the parties to the case free of cost as statutorily required. File be consigned to records.

 

 

                                                                                                                          (ANIL SRIVASTAVA)    

                                                                                                             MEMBER (GENERAL)