Case No.CC/487/2022

Date of Institution:-22.12.2022

Order Reserved on :-24.04.2024

           Date of Order :- 30.04.2024      

IN THE MATTER OF:

1. RohitUberoi
2. Monica Uberoi

Both R/o EA-46, Inderpuri,

New Delhi – 110012.

          …..Complainants

VERSUS

M/s. Wave Mega City Centre Pvt. Ltd.

Through its Directors,

Office at :

Mezzanine Floor, M-4,

South Extension Part-II, New Delhi.

Also at :

Plot No. 01, Block CC1,

Sector 32, Noida, U.P. – 201301.

..…Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The present complaint has been filed under section 34 of the Consumer Protection Act, 2019 against Opposite Party (in short OP) alleging deficiency of service. Brief facts of the case are that the complainants have booked an apartment in the project of OP namely “Vasilia” at plot no. CC-001, Sector 32, Noida.  The OP has allotted flat no. 2802 on 28^th floor in Tower D, Block 2D measuring 1264 square feet.  Both the parties have executed agreement on 13.02.2014. True copy of Allotment Allottee Arrangement-cum-Agreement dated 13.02.2014 is annexed as AnnexureA-1.  The agreement containing terms and conditions of the allotment.  The total price of flat was Rs.1,00,52,759/- (Rupees One Crore Fifty Two Lakh Seven Hundred Fifty Nine) and complainants have paid Rs.45,68,438/- (Rupees Forty Five Lakh Sixty Eight Thousand Four Hundred Thirty Eight) in different installments in respect to purchase of the said flat.  True copies of payment receipts are annexed as Annexure A-2 (Colly).  It is submitted that as per clause 5 (1) of the agreement, OP has assured the complainants to handover the possession of flat within 42 months alongwith further extended period of 06 months from date of execution of agreement.  The complainants have booked the flat in 2014 but the possession of the flat was not handed over till 2018.  The complainants have visited the project site numerous times to oversee the construction progress,but the project was incomplete and there was no ground work on the project.  The OP has sent email to the complainants on 30.01.2017 stating that the ground floor slab work has been completed in ‘Vasila Segment’ but the OP has not provided any information on the construction progress.  True copy of email dated 30.01.2017 is annexed as Annexure A-3.  The delay in completing the construction of the present project and extending the date of possession is due to the malafide and unlawful acts of the OP in diverting funds for other purpose which were received from buyers for the construction of the above said project.  The complainants have prayed for refund their deposited amount Rs.45,68,438/- (Rupees Forty Five Lakh Sixty Eight Thousand Four Hundred Thirty Eight) alongwith interest @ 18% p.a. alongwith Rs.15,00,000/- (Rupees Fifteen Lakh) for mental agony and harassment with cost of litigation Rs.1,00,000/- (Rupees One Lakh).
2. Notice of complaint was served to OP.  The OP did not appear to attend the proceedings and proceeded Ex-Parte vide order dated 05.07.2023.
3. The complainants have filed affidavit in Ex-Parte evidence alongwith written arguments in support of their case.
4. On 24.04.2024, we have heard the arguments form Ld. Counsel Sh. YashTandon for complainant and OP is Ex-Parte in this case.Hence, the case was reserved for order.
5. We have carefully considered the material on record and thoroughly perused the documents placed on record by the complainant.
6. It is the case of complainants that they had booked an apartment in the project of OP namely “Vasilia” at plot no. CC-001, Sector 32, Noida.  The OP has allotted flat no. 2802 on 28^th floor in Tower D, Block 2D measuring 1264 square feet.  Both the parties have executed agreement on 13.02.2014. The agreement containing terms and conditions of the allotment.  The total price of flat was Rs.1,00,52,759/- and complainants have paid Rs.45,68,438/- (Rupees Forty Five Lakh Sixty Eight Thousand Four Hundred Thirty Eight) in different installments in respect to the purchase of said flat.  It is submitted that as per clause 5 (1) of the agreement, OP has assured the complainants to handover the possession of flat within 42 months alongwith further extended period of 06 months from date of execution of agreement.  The complainants have booked the flat in 2014 but the possession of the flat was not handed over till 2018.  It is also the case of the complainants that they have visited the project site numerous times to oversee the construction progress, but they came to know that no such development has been completed.  It is the case of complainants that they did not get the possession of the flat so sought the refund of deposited amount. But the same has not been refunded despites repeated requests with the OP. It is their case that this conduct of OP amounts to deficiency in service and unfair trade practices.  Non-delivery of possession of flat on receipt of booked amount within reasonable time amounts to deficiency in service.

“Supreme Court Judgment in the case of Kolkata West International City Vs. DevasisRudra dated 25^th March, 2019 Civil Appeal 3182/2019” is an authority on this point.

The allegations made by the complainants have gone unchallenged, unrebutted and uncontested and as such whatever has been placed on record is believed. From the facts of the case and evidence placed on record, it is clear that despite receipt of Rs.45,68,438/- from the complainants, the OP has neither handed over the possession of flat nor refunded the amount to the complainants and this act apparently and clearly constitutes ‘deficiency’ in service, monopolistic and unfair trade practices on the part of OP.

7. Accordingly, we allow the complaint and direct the OP to refund Rs.45,68,438/- (Rupees Forty Five Lakh Sixty Eight Thousand Four Hundred Thirty Eight) to the complainantsalongwth an interest @ 6% p.a. from the date of deposited money alongwith Rs.5,00,000/- (Rupees Five Lakh) as lumpsum for mental agony and litigation charges within 45 days from the date of receipt of order failing which OP shall be liable to pay entire amount alongwith interest @ 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.
• Announce in the open Court on 30.04.2024 at 3.30 PM.