DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.368/2021
Sh. Sanjay Sen Choudhury &
Smt. Kiran Sen Choudhury
F-3/G-14, Southend Appts, Charmwood Village
Surajkund Road, Faridabad
Haryana-121009. .…Complainants
VERSUS
M/s VXL Realtors Pvt. Ltd.
5th Floor Ajit Singh House
12 DA Community Centre
Yusuf Sarai, New Delhi-110049. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Adv. Sh. Prayag for complainant.
Present: exparte.
ORDER
Date of Institution:10.12.2021
Date of Order :28.10.2024
President: Ms. Monika A Srivastava
Complainant has filed the present complaint seeking direction to the OP to release possession of the flat with all quality parameters, interest @18% per annum on Rs.10,32,262/- from the date of payment till possession of the flat; compensation of Rs.5 per sq. ft. per month which amounts to Rs.6,93,450/- from the agreed date of possession till the time of filing of the complainant; Rs.25,00,000/- for mental tension and Rs.25,000/- as cost of litigation.
- Complainants booked one flat No.C-8A/101 in VXL Eastern Heights, Ghaziabad measuring 1005 sq. ft super area with preferential location (charges extra) and car parking covered (charges extra) by paying Rs.2,01,000/-. A letter of allotment was given on 12.12.2007 stating the cost of the flat as Rs.19,09,125/-. Copy of the allotment letter is annexed as annexure-1.
- Complainants paid a sum of Rs.10,32,262/- from 22.07.2006 till 13.12.2007. Copy of the acknowledgment of cheques is annexed as annexure-2.
- It is further stated that as per the letter of allotment dated 12.12.2007 the possession of property was to be given by December 2009 excluding grace period of three months. It is further stated that OP vide letter dated 07.11.2009 informed that possession will be handed over by December 2010 however, they failed to deliver the possession in spite of repeated follow ups, personal visits and phone calls. Copy of the letter dated 07.11.2009 is annexure-3.
- It is further stated that complainants visited the office of the OP on 14.01.2012 informing them about their new address by delivering a letter but OP has not bothered to communicate with the complainant which goes to show that the intention of the OP was to extract money from the complainants and to cheat. Copy of the letter is annexed as annexure-4.
- It is further stated that as per the letter of allotment OP is liable to pay Rs.5 per sq. ft. per month for the period of delay to the flat owner i.e. the complainants which has also not been paid by the OP. It is stated that even after 12 years from the committed date, OP has not delivered the possession which shows their malafide intention and unfair trade practice. Legal notice sent by the complainants is annexed as annexure-5 along with the postal receipts.
- OP was proceeded exparte. Complainant has filed his evidence and written arguments.
- Complainant has placed on record receipts showing payment of Rs.1,65,000/-, Rs.1,65,000/-. Rs/50,000/-, Rs.47,000, Rs.2,03,000/-, Rs.1,65,000/- , Rs.2,475/-. Complainant has also placed on record receipts of Rs.82,192/-, Rs.1,30,000/- and Rs.45,875/-. Complainant has also placed on record allotment letter wherein the completion time of the unit is provided in Clause 2 as “Project completion time is 24 months from the date of this allotment i.e. December 2007. The developer will provide the possession of the flat/unit to the allottee during the month of December 2009 subject however to force majeure, regular and timely payments by the allottee (s), availability of the essential materials of approval etc.”
- Clause 5 of the said agreement deals with possession and sub-clause e states as under:-
“In case of delayed possession of the unit to the allottee/s subject to force majeure or other circumstances, a grace period of three months shall be given to the developer on account of normal delay and after this grace period the developer shall pay to the allottee/s compensation @ Rs.5 per sq. ft. per month for the period of delay.”
- Complainants have also placed on record letter sent by OP dated 07.11.2009 wherein they have informed the complainant “regarding the status of your flat, please note that the complaints have been submitted that the concerned Department in UP Govt. we are hopeful that the approval should be with us in the next couple of months which would enable us to start the construction, so that we can hand over the possession to you by December, 2010.”
- Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor D’Lima (2018) 5 SCC has held that a person cannot be made to wait for possession forever and in Wg. Cdr. Arifur Rehman Khan Vs. DLF Southern Home Pvt. Ltd. 2020 SCC OnLine SC 667 decided on 24.08.2020 it was held “a failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service.”
- This commission has gone through the entire material on record. It is seen that the complainants have made the payment of Rs.10,55,542/- to the OP and that the OP has neither delivered the possession nor refunded the amount therefore, the OP is directed to refund the entire amount of Rs. 10,55,542/- to the complainants with interest @9% per annum from December 2007 till realisation within three months from the date of pronouncement of order failing which OP would be liable to pay interest @12% per annum till realisation. OP is also liable to pay a sum of Rs.50,000/- to the complainants for causing harassment to the complainants in keeping their money for a long period of time without any fruitful result.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
