Case No.CC/518/2015

Date of Institution:- 09.09.2015

Order Reserved on :-23.10.2024

           Date of Order :-12.11.2024

IN THE MATTER OF:

Ms. PromilaKumari

137/21, Raj Nagar, Street No.1,

Gurgaon – 122001 (Haryana)

            …..Complainant

VERSUS

VVA Developers Pvt. Ltd.

Regd. Office at:

422, Ansal Chamber-II,

BhikajiCama Place, New Delhi.

Also at:

440, Vipul Trade Centre,

Sector-48, Sohna Road,

Gurgaon – 1220018Haryana.

… Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The brief facts of the case are thatthe complainant had booked a unit with OP’s one of project named as “VVA-Town One-Aspen Heights” at Sector-27, Revenue Estate of Bhiwadi, Tehsil, Distt. Alwar, Rajasthan.  The complainant has paid Rs.2,00,000/- (Rupees Two Lakh) vide receipt dated 17.08.2013 in respect of the said project. Copies of payment for booking are annexed as Annexure C-1. The complainant has received a demand letter dated 14.02.2014 for the payment of Rs.1,65,028/- against her booking in the above said project and same has been paid by the complainant on 01.03.2014 vide receipt no. AH-0046/13/114 as per the demand of OP.  Copy of demand letter dated 14.02.2014 and receipt dated 01.03.2014 are annexed as Annexure C-2.  The OP has allotted an apartment bearing A2-1902, measuring 1025 sq. ft. in the above said project through a provisional allotment letter dated 15.04.2014 issued by OP.  Copy of provisional allotment letter dated 15.04.2014 in annexed as Annexure C-3.  The complainant has paid Rs.2,43,351/- (Rupees Two Lakh Forty Three Thousand Three Hundred Fifty One) to the OP on 14.05.2014 vide cheque no. 000008 as per the demand of OP. Copy of payment detail dated 14.05.2014 is annexed as Annexure C-4.  The OP has not informed regarding development in the said project to the complainant till December, 2014.  The complainant was not satisfied with the project and intimated the cancellation for her booking and asked for refund to the OP.  The complainant has submitted her cancellation request dated 13.12.2014 which was duly accepted by the OP.  Copy of cancellation request and other document is annexed as Annexure C-5.   The OP has demanded the NOC from the broker and the same has been provided by the complainant to OP on 16.12.2014.  Copy of NOC is annexed as Annexure C-6.   The OP has assured the complainant that refund will be reimbursed within four months from date of cancellation request.  The complainant has visited the OP to inquire about her refund status, the OP has assured the complainant for early payment but no payment was paid by the OP.  The complainant has paid total consideration Rs.6,08,379/- (Rupees Six Lakh Eight Thousand Three Hundred Seventy Nine) to the OP and the complainant was struggling for refund of her money for last 9 months but the OP has never updated about the status of refund. The complainant has suffered mental agony and harassment. Hence, this complaint.  The complainant has prayed for refund of her booking amount Rs.6,08,379/- (Rupees Six Lakh Eight Thousand Three Hundred Seventy Nine) with interest @ 18% p.a. alongwith Rs.2,00,000/- (Rupees Two Lakh) for mental agony and harassment.
2. OP has filed written statement taking preliminary objections thatthe complainant realizing the slowdown in the entire real estate market and windfall profit expected by her could not be achieved and has filed the present complaint alleging for refund of money. Hence, there is no deficiency in service and unfair trade practice on part of the OP. The OP has stated that complainant has booked an apartment her benefit hence this case does not fall in the jurisdiction of Consumer Commission. Hence, the complaint is liable to be dismissed.
3. The complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
4. Both the parties have led evidence as well as filed written arguments in support of their case.
5. On 23.10.2024, the case was listed for arguments and none have appeared for the parties. Written arguments are on record.  Hence, the case was reserved for order.
6. We have carefully considered the material on record and thoroughly perused the documents placed on record.
7. It is the case of the complainant thatshe had booked a unit with OP’s one of project named as “VVA-Town One-Aspen Heights” at Sector-27, Revenue Estate of Bhiwadi, Tehsil, Distt. Alwar, Rajasthan.  The complainant has paid Rs.2,00,000/- (Rupees Two Lakh) vide receipt dated 17.08.2013 in respect of the said project. The complainant has received a demand letter dated 14.02.2014 for the payment of Rs.1,65,028/- against her booking in the above said project and same has been paid by the complainant on 01.03.2014 vide receipt no. AH-0046/13/114 as per the demand of OP.  The OP has allotted an apartment bearing A2-1902, measuring 1025 sq. ft. in the above said project through a provisional allotment letter dated 15.04.2014 issued by OP.  The complainant has paid Rs.2,43,351/- (Rupees Two Lakh Forty Three Thousand Three Hundred Fifty One) to the OP on 14.05.2014 vide cheque no. 000008 as per the demand of OP.  The OP has not informed regarding development in the said project to the complainant till December, 2014.  The complainant was not satisfied with the project and intimated the cancellation for her booking and asked for refund to the OP.  The complainant has submitted her cancellation request dated 13.12.2014 which was duly accepted by the OP.  The OP has demanded the NOC from the broker and the same has been provided by the complainant to OP on 16.12.2014.  The OP has assured the complainant that refund will be reimbursed within four months from date of cancellation request.  The complainant has visited the OP to inquire about her refund status, the OP has assured the complainant for early payment but no payment was paid by the OP.  The complainant has paid total consideration Rs.6,08,379/- (Rupees Six Lakh Eight Thousand Three Hundred Seventy Nine) to the OP and the complainant was struggling for refund of her money for last 9 months but the OP has never updated about the status of refund. The complainant has suffered mental agony and harassment. Hence, this complaint.`
8. It is the case of the complainant that when he did not get the possession of apartment, she asked for refund of her deposited money but the same has not been refunded despite repeated requests and correspondences with the OP.  It is the case of this conduct amounts to deficiency in service and unfair trade practice. The OP has not denied the booking of the flat in their written statement stating that it is a matter of record and need no reply. As far as the plea of Arbitrator clause between the parties is concerned, the same is not relevant as Section 3 and Section 100 CPC do not bar in filing of such complaint, despite having their Arbitration clause between the parties. The OP was under obligation to refund her booking amount as claimed by complainant. Non-delivery of possession of apartment on receipt of money within a reasonable time amounts to deficiency in service and unfair trade practice.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512” is the authority on this point.

9. In the end, it is clear from the records that the complainant has paid money for the apartment with the OP, made the payment as demanded by the OP and despite receipt of the amount, the possession of the apartment was not handed over to the complainant.  
10. We are satisfied that this act on part of the OP constitutes deficiency in service and also unfair trade practice.
11. Accordingly, we allow the complaint and direct the OP to refund Rs.6,08,379/- (Rupees Six Lakh Eight Thousand Three Hundred Seventy Nine)to the complainant alongwth an interest @ 6% p.a. from the date of deposited moneyandRs.3,00,000/- (Rupees Three Lakh) as lumpsum for mental agony and litigation charges within 45 days from the date of receipt of the order failing which OP shall be liable to pay entire amount alongwithinterest @ 9% p.a. till realization.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announced in the open Court on 12.11.2024.