Haryana

StateCommission

CC/378/2017

SUBHASH SHARMA - Complainant(s)

Versus

AARCITY BUILDERS PVT.LTD. - Opp.Party(s)

SANDEEP KUMAR

18 Feb 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.378 of  2017

Date of the Institution:12.06.2017

Date of Decision: 18.02.2020

 

Subhash Sharma S/o Nand Lal Sharma, R/o Qr. B-2 Old Jindal Staff Colony, M/s Jindal Stainless Ltd. O.P.Jindal Marg, Hissar.

 

                                                                   .….Complainant

Versus

1.      M/s Aarcity Builder Private Limited, Office: Sector 9 & 11, Hissar-125001.

 

2^ND ADDRESS

 

# 301, Krishna Apra Business Square, Netaji Subhash Place District Centre, Pitampura, New Delhi-110034, through its Managing Director.

 

2.      M/s Hisar Real Estate Pvt. Ltd., SCO-10, Sector 9 & 11, Delhi Road, Hissar-125001, though its Managing Director.

 

                                                .….Opposite Parties

CORAM:   Hon’ble Mr. Justice T.P.S Mann, President.

Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Sandeep Kumar, Advocate for the complainant.

Mr.Vaibhav Jain, Advocate for opposite party No.1.

Presence of O.P.No.2 already dispensed with vide order dated 24.04.2018.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts giving rise for the disposal of the present complaint are that complainant purchased flat from the opposite parties. Buyer agreement cum allotment letter dated 05.11.2012 was executed for Apartment No.0804, tower D, Floor Eighth between the parties.  The total sale consideration price of the apartment was Rs.48,10,625/-. The OPs cleverly mentioned in the agreement that agreement was executed at Delhi, but, the fact was that the said agreement was executed at OP(s) Hissar’s office.  The flat Buyer agreement cum allotment letter dated 05.11.2012 was transferred in favour of the complainant vide 1^st endorsement No. D-804 dated 23.02.2013 at Hissar  The complainant paid Rs.21,00,000/- to the O.Ps.  As per the agreement, the possession of the said flat was to be delivered within period of 36+3 months from the execution of agreement i.e. till November 2015.  In the last week of February, 2014, when complainant visited the site, the construction work was stopped since long and no labour was working. The flat of the complainant is not started yet. The complainant served legal notice dated 04.04.2017,but,  the O.Ps did not reply to the legal notice.  He requested the O.Ps. to refund the deposited amount alongwith interest, but, O.Ps refused to pay the deposited amount. Thus there was deficiency in service on the part of the O.Ps.

2.                 Upon notice, O.P No.1. appeared. However, the presence of O.P.No.2 dispensed with vide order dated 24.04.2018.  The costs of Rs.30,000/- imposed on 18.12.2018 has not been paid by the O.P.No.1.  Defence of the opposite party No.1 was struck off vide impugned order dated 13.02.2019.

3.                When the complaint was posted for recording evidence of the complainant,  Mr.Subhash Sharma in his evidence has tendered the affidavit Ex.CW1/A vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-4 and closed his evidence.

4.                The arguments have been advanced by Mr. Sandeep Kumar, the learned counsel for the complainant as well as Sh.VaibhavJain, the learned counsel for the opposite parties Nos.1.  With their kind assistance the entire record including documentary evidence had been led during the proceedings of the complaint has also been properly perused and examined.

5.                As per the basic averment taken in the complaint including the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he has already deposited, alongwith the interest? 

6.                While unfolding the arguments it has been argued by Sandeep Kumar, the learned counsel for the complainant that as far as the executing the buyers agreement is concerned it is not in dispute.  It is also not in dispute that the price of the flat was Rs.48,10,625/-.   A total sum of Rs.21,00,000/- had been paid by the complainant to the O.Ps.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainant by the O.Ps. on or before November, 2015.  However inspite of the fact that amount of Rs.21,00,000/- stands paid. The period within which, the possession of the flat was to be delivered had already expired and under these circumstances the complainant had no other option, but, to seek the refund of the amount alongwith interest, which he had already paid. 

7.                On the other hand, it has been argued by Sh.Vaibhav Jain, the learned counsel for the O.P. No.1 that the amount which the complainant had paid, has not been paid as per the repayment schedule.  There was a delay in making the payment of the amount.  The total cost of flat was Rs.48,10,625/-. An amount of Rs.27,10,625/- was still outstanding against the complainant.  The complainant had paid amount of Rs.21,00,000/- against the flat.  It is true that the documents were executed between the allottees, which includes the buyers agreement, which contains all the terms and conditions for allotment of the flat, for payment of the installments, charging the interest for delayed payment and delivering of possession.  Since there were a unavoidable circumstances and there was certain reasons which were beyond the control of the O.Ps., the possession of the flat could not be delivered to the complainant in time.  However on one pretext or the other the possession was not taken and now by taking the shelter of this Commission, the complainant seeks refund of the amount and infact this amount has already been invested for making all developmental activities.  As per terms and conditions of the agreement, the O.Ps. were bound  to deliver the possession of the unit within 36+3 (grace period) =42 months  from the date of execution of allotment letter.  The answering O.P. has not committed any breach of agreement. The complainant has no right to demand the refund as builder has not refused to complete the development work and offer possession of flat to the complainant. 

8.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, flat was purchased by the complainant for which amount of Rs.21,00,000/- (Twenty One lacs Only) had been paid.  The flat was allotted in the name of the allottees namely Anindita Sharma, Anuradha Sharma and Pradeep Sharma  and same was transferred in the name of Subhash Sharma are also not disputed.  As per buyer agreement, the possession of the flat was to be delivered within period of 42+3 months complete in all respect, subject to some reservations.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 7 years had expired, the possession of the flat has not been delivered by O.Ps.    As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps. It is the normal trend of the developers/O.Ps. that they would collect the hard earned money from the individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed. As a result thereof the delivery of possession or completion of the project is delayed in the present case.  When the project is not complete as such, this Commission is of the considered opinion that the complainant is well within their legal rights to get the refund of the amount of Rs.21,00,000/- (Twenty One Lacs Only) which he had already deposited with the O.Ps.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and the possession has not been delivered within the stipulated period and under the constraint circumstances, the complainant had to knock the door of this Commission even for seeking refund of the amount.  In such like cases the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

9.                Hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.21,00,000/- (Twenty One Lacs Only)  alongwith interest @ 9%  per annum from  the date of respective deposits till realization.   In case, there is a breach in making payment within the stipulated period  of  45 days, in that eventuality, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period.   The complainant is also entitled  of Rs.1,00,000/- (One Lac Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.21,000/-  (Twenty One Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 25 and 27 of the C.P.Act  would also be attractable. 

 

February 18th, 2020        Ram Singh Chaudhary,             T.P.S.Mann,                                        Judicial Member                        President                                  

S.K.(Pvt.Secy)