Delhi

StateCommission

CC/11/113

SHOBHA ARORA & ANR. - Complainant(s)

Versus

AJAY ENTERPRISES PVT. LTD.& ANR. - Opp.Party(s)

22 Jan 2016

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 22.01.2016

Complaint Case No. 113/2011

In the matter of:

1. Shobha Arora

W/o Late Sh. Ugar Sain Arora

R/o A-19, Nizamuddin East

New Delhi-110013

 

2. Varun Arora

S/o Late Sh. Ugar Sain Arora

R/o A-19, Nizamuddin East

New Delhi-110013                                  .........Complainants

 

Versus

 

1. Ajay Enterprises Pvt. Ltd.

Regd. Office-8^th Floor, Eros Corporate Tower

Nehru Place, New Delhi-110019

 

2. Sh. Jagdish Rai Sood

The Chief Managing Director

Ajay Enterprises Pvt. Ltd.

Regd. Office-8^th Floor, Eros Corporate Tower

Nehru Place, New Delhi-110019

 

3. Sh. Md. Awaish Akhtar

Deputy General Manager and

Authorised Signatory

Ajay Enterprises Pvt. Ltd.

Regd. Office-8^th Floor, Eros Corporate Tower

Nehru Place, New Delhi-110019                .......Opposite Parties

                                                                  

CORAM

 

N P KAUSHIK                                    -                       Member (Judicial)

S C JAIN                                             -                       Member

 

1.       Whether reporters of local newspaper be allowed to see the judgment? Yes

2.         To be referred to the reporter or not? Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

Judgement

1.      Complainant Nos. 1 and 2 who are the mother and son respectively, got booked a commercial space in one of the projects of M/s Ajay Enterprises Pvt. Ltd., 8^TH Floor Eros Corporate Tower, Nehru Place, New Delhi-110019 (in short the OP) on 20.11.2006. The project is located at K Block, I.M.T. Manesar and known by the name of Eros Corporate Park, Manesar, Gurgaon (Haryana). Plot buyer’s agreement was entered into between the parties on 20.11.2006. The commercial space measures 876 sq.ft. and was agreed to be sold @ Rs 5435 per sq.ft. Unit No. 514 on 5^th floor of the project was allotted to the complainants. Total sale consideration of the commercial space was Rs. 47,61,060/-. OP also charged an amount of Rs. 2,25,000/- towards car parking space. Initially an amount of Rs. 7,14,160/- was paid by the complainants to the OP, on 03.10.2006. In all complainants had paid an amount of Rs. 27,12,462/- by 08.09.2008.
2.      Grievance of the complainants is that the OP at the time of signing of the agreement represented that the project had obtained to the sanction of the Haryana Urban Development Authority. But the said sanction was however received only on 19.06.2007. Next submission of the complainant is that the OP vide its letter dated 04.08.2007 informed the complainants that as per revised sanction plan the number of floors was increased to ground floor plus 14 floor whereas initially it was agreed as ground floor plus 7 floors. OP vide its letter dated 24.01.2009 sent a new payment schedule. Complainants further stated that on their visit to the site on 25.01.2009, they found the project still incomplete and building under construction. Complainants further submitted that the OPs had assured that the project would be completed in 2 or 3 years but even in January 2009 they found the same incomplete.
3.      Before proceeding further, it may be mentioned here that the complainant contended that they had got the commercial space booked for opening an advertising consultancy. The same was to be run for earning their livelihood through self employment. Complainants submitted that after a lapse of a period of six years and waiting for the possession of the commercial space, complainant No. 2 joined a job in a private company. Complainants stated that complainant No. 1 is an old lady of 74 years. Complainant No. 2 waited for long for getting the possession of the commercial space and ultimately joined a private job. On 14.01.2011 complainants received a letter from the OP calling upon the complainants to make payment of the amount of Rs. 28,24,366/-. Aggrieved against the revised payment schedule and the delay in handing over the possession of the commercial space, complainants vide their letter dated 29.01.2009 called upon the OP to refund their entire amount. Complainants however sent a legal notice dated 04.02.2011 asking the OPs to refund the amount paid by them. Complainants thereafter wrote letters dated 13.08.2009, 02.12.2010 and 12.12.2010 asking the OPs for refund of amount deposited.
4.      On the basis of the aforesaid facts, the complainants have prayed for refund of the amount deposited by them alongwith interest @ 24% p.a. w.e.f. January 2009. Compensation to the tune of Rs. 1,50,000/- alongwith and litigation charges of Rs. 50,000/- have also been prayed for.
5.      Defence raised by the OPs in their written version is that the complainants applied for allotment of the commercial space for commercial purposes only and for that reason they do not fall within the ambit of the expression, ‘consumer’. OPs further submitted that it received occupation certificate from Haryana Estate Industrial and Structure on 26.05.2011. OP contended that in terms of clause 13 of the agreement, 25% of the total value of the commercial space constituted the earnest money. In case of the complainants asking for cancellation of the allotment, the earnest money is liable to be forfeited. Next submission of the OPs is that at the time of booking, the complainants were allotted commercial space bearing No. 514 on 5^th floors of the building for an area of 876 sq. ft. The super area of the commercial space got increased to 971 sq. ft. as per revised sanctioned plan. Last contention of the OP is that it never promised to handover the possession of the commercial space to the complainant within a particular time frame.
6.      Parties led their respective evidence and filed written arguments. We have also heard at length the arguments addressed by the counsel for the complainants Sh. Saket Bisani Advocate and Counsel for the OP Sh. H.D.Behl Advocate.
7.      Perusal of the complaint shows that the complainants in para 8(a) of the complaint clearly stated that the commercial space was got booked by them for running an advertising consultancy which was to act as means for earning their livelihood through self employment. In reply to para 8(a) of the complaint, OP in its written version reiterated its stand that the amendment allowed to the complaint caused prejudice to his case. It may be mentioned here that the amendment to the complaint to the effect that the commercial space was required for earning their livelihood, was allowed by this Commission. Once the amendment having been allowed, it did not lie in the mouth of the OP to raise its objection to the amendment granted. Be that as it may, it has now come on record that the commercial space was intended to be used for earning livelihood through self employment. Objection thus raised by the OP on this score is devoid of merits. The same is as hence dismissed.
8.      Now coming to the question of timely completion of the project, record shows that it was a construction linked plan. Complainants were required to make payment to the OPs of various instalments as per progress in construction. Agreement came into existence between the parties on 20.11.2006. First instalment was paid on 28.09.2006. As per construction linked plan, last instalment was to be paid on 08.09.2008. It leads to an inference that on or about the end of the year 2009 the possession of the commercial space ought have been handed over to the complainants. On the visit of the complainants to the site on 25.01.2009, complainants had found the project incomplete. It was at that juncture that they asked the OP to refund their money back. Complainants were, therefore, justified in seeking cancellation of the allotment in question and ask for the refund of money. OPs were clearly ‘deficient in service’. We, therefore, direct the OPs to pay to the complainants as under:

 

1.    to refund the amount of Rs. 27,12,462/- alongwith interest @ 18% p.a. w.e.f. 01.01.2009 till the date of its realisation.
2.    to pay compensation to the tune of Rs. 1.5 lacs for harassment, inconvenience, mental agony, anguish and sadness caused to the complainants.
3.    to pay litigation charges of Rs. 50,000/- to the complainants.

The abovesaid payments shall be made by the OPs to the complainants within a period of sixty days from today failing which the OPs shall be liable to pay interest @ 24% p.a. on the amount accruing after the expiry of the period of sixty days. Complaint is accordingly disposed of.

9.      Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

(N P KAUSHIK)
MEMBER (JUDICIAL)
 

 

 

(S C JAIN)

MEMBER