DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No.437/13

Kartar Singh Nagar

S/o Late Natthu Singh

Vikram Singh Nagar

S/o Shri Karatar Singh Nagar

Both are R/o H. No. 184

Khichripur Village

Delhi-110091.                                                              .…Complainant

                                                VERSUS

Vardhman Techno Build Pvt. Ltd.

B-6 & 7/19, Safarjung Enclave

DDA Local Shopping Complex

New Delhi-110019.                                                      ….Opposite Party

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Date of Institution:07.08.2013

Date of Order       :18.12.2023

Member: Shri U.K.Tyagi

          Complainants have requested to pass an award directing M/s Vardhman Techno Build Pvt. Ltd. (hereinafter referred to as OP) (i) either to handover the complete possession of the said food court or alternatvely to return the amount of Rs.4.90 along with interest @25% per annum from 02.03.2011 (ii)to pay compensation of Rs.3,00,000/-for mental agony, harassment etc. (iii) to pay Rs.25,000/-as litigation charges etc.

Brief facts of the are as under:-

          The complainant alongwith his son, complainant No.2  applied for booking of food court and kitchen comprising of 1000 Sq. Ft. in Vardhman SNG Plaza at Gr. NOIDA project of OP.  The complainants paid a sum of Rs.1,00,000/- vide cheque No.380420 dated 12.04.2010 drawn on SBI to OP.  OP assured the complainants that possession of said premises would be given in one and half years.  The complainants made payment of Rs. 1,00,000/- vide cheque No.380750 dated 17.05.2010. Thereafter complainant paid Rs.1,40,000/- vide cheque No.296276 dated 04.08.2010 and further Rs.1.50 Lakh on 02.03.2011 vide cheque No.870878 dated 05.02.2011 drawn on SBI to OP.

          The complainants visited site many times but there was no progress in construction work as promised by OP.  The OP also did not till the time line of completion of project.  On 28.05.2013, the complainants came to know that OP was planning to cancel the booking of food court in said plaza.  The OP was trying to misappropriate the valuable deposits with them,  When complainant tried to contact, the OP avoided and further threatened to cancel the booking.  There was no hope of any settlement, the complainant got legal notice served on 11.06.2013.  There was no response to it also.  As such, the OP failed to give possession and short of assured service.  Hence the complaint. 

          OP, on the other hand filed written statement interalia raising preliminary objections.  It was alleged by the OP that the complainant could not be allowed to take advantage of their own wrongs/omissions and defaults in making payment as per schedule due to which, previous booking was cancelled.  The OP also assailed the complainant on the ground of territorial jurisdiction as site of project was in Gautam Budh Nagar (UP).  Therefore, the provision of Section 16 to 20 of CPC 1908 would apply.  It was also maintained that there was no alleged deficiency in service on part of OP-1.

          It was also alleged that since the price of booked unit had appreciated, hence, the present complaint was filed.  The complainants from the inception of booking, were negligent and committed repeated defaults in making payment as per terms of allotment.  It was stated that total price of the said unit was Rs.24,24,500/- as booking was done at Basic Sale Price of Rs.4500/- Sq. Ft. and open space price 1000 Sq. Ft. besides other charges like IFMS, maintenance, registration, EDC/IDC/ Power back up etc.  The complainant paid approx. Rs.3,90,000/- and service tax which is about 15% of the price of unit booked.  However, the OP is entitled to forfeit the advance/earnest money but very fairly agreed to refund the amount but complainants intentionally did not come to office to comply with formalities for refund.  In the absence of same, cheque could not be issued.  It was also alleged by OP that no legal notice had been served upon the OPs.  Despite default of the complainants, the building was being completed.  It was submitted to dismiss the complaint.

          Both the parties filed evidence-in-affidavits.  Written statement is on record so is rejoinder.  OP failed to file the written submission despite many opportunities.  The complainant filed their written submissions as well as his counsel addressed the arguments.  Since it is old case, so case cannot be kept pending. Hence, it was considered appropriate to conclude the arguments in the absence of OP. 

          This Commission has gone into the entire material placed on record.  Due consideration was given to the arguments.  It is noted that complainants had stated vide its complaint that they had paid to the tune of Rs.4.90 Lakh for the unit at food court of OP’s project.  It was found from the record that the complainants had enclosed the following detail of payment/cheques.

          In addition to above, also enclosed photocopy of cheque No.380420 for Rs.1,00,000/- but no receipt of the same was found enclosed with the complainant.  The complainant also failed to enclose the Bank statement to prove that the amount of Rs.4.90 Lakh was paid as against the contention of OP of receiving the amount of Rs.3.90.  Accordingly, the receipts of Rs.3.90 was found annexed with the complaint.  Moreover, issuance of cheque cannot be stated to have made the payment to the other party.  In such circumstances, the amount of Rs.3.90 for which receipts duly accepted by OP, would be considered to have made the payment.  Accordingly, the complainants are entitled to get the amount of Rs.3.90 Lakh.

          The complainants had not mentioned the total price of the unit booked by them.  To this extent, complainants had not knocked the door of this Commission with clean hands.  The OP had stated that the complainants had failed to make the balance payments with delayed interest and OP company was within rights to cancel the said booking.  It was also maintained by OP that they had all requisite clearances and permission to raise construction from Development Authority i.e. Gr. NOIDA.  It was further stated vide its reply that OP though could forfeit the amount paid by complainants as advance/earnest money and further contended that the OP was ready and agreed to refund the amount complainants intentionally did not come to office to comply with the formalities for payment of refund due to which the cheque could not be issued. To which, the OP had not produced any evidence. As maintained by OP that they were very fairly agreed to refund the deposited amount.  At the same time, no sincere effort seems to have been made.  Since the said deposited amount of Rs.3.90 Lakh was received through cheques, therefore the said amount could have sent either through cheques or RTGS.  But no such effort was taken by the OP.  Hence, OP is deficient in service to this extent.

After having considered the facts and circumstances of the case and discussion held above, this Commission is of the considered view that there was deficiency on the part of OP not to issue cheques to the tune of Rs.3.90 Lakh i.e. deposited amount for which receipts have been found enclosed with the complaint.  Accordingly, OP is directed to pay the amount of Rs.3.90 Lakh alongwith interest @ 4% per annum from the date of filing the complaint here in this Commission i.e. 07.08.2013 within three months failing which interest shall be levied @ 5% per annum till its realisation.

File be consigned to the record room after giving copy of the order to the parties as per rules.