Delhi

West Delhi

CC/17/489

JAGDISH - Complainant(s)

Versus

AMIPRABHU - Opp.Party(s)

08 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-III: WEST

GOVT. OF NCT OF DELHIC-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI, NEW DELHI

 

Complaint Case No.  489/2017

 

In the matter of:

Jagdish Parsad

R/o 74, Extn. 23, Nangloi,

New Delhi-110041                                          ………….COMPLAINANT

 

VERSUS

 

1)AMI PRABHU DEVELOPERS PVT. LTD

Regd. Off:D-33, Punjabi Basti,

 North Railway, Nangloi,

New Delhi-110041

 

Also at:

303, Gupta Arcade,

Local Shopping Centre,

Mayur Vihar, Phase-1, Ext.,

Delhi-91

 

Administrative Office at:

1170, Sector-2, Bahadurgarh,

Distt. Jhajjar, Haryana -124507

 

2)Bijender Singh (Managing Director)

OF AMI PRABHU DEVELOPERS PVT. LTD

House No. PDM-24, Gali PD,

 VPO Sarai Aurangabad,

Bahadurgarh, Haryana-124507

 

3) Dhiraj Bandlish

M/s Sangam Infra Estates Pvt. Ltd.

House No. 80-81, Sector-6,

Bahadurgarh, Haryana

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:               DATE OF DECISION:

18.08.2017 30.08.2022 08.09.2022

 

 

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member (Female)

Mr Anil Kumar Koushal, Member (General)

Order passed by Ms Richa Jindal, Member

 

ORDER

1. That the complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986. Brief facts of the complaint are as follows:-

 

1. In the month of September-December 2013, a person claiming to be dealer of OP-3 had approached the complainant and represented the best real estate dealer as OP 3 in the area and later on OP-3 introduced the complainant with OP-2, who represented himself to be the Managing Director/Owner of OP-1 company and also represented to be fully responsible for the day to day affairs of OP-1 company and also stated that their company is having a good reputation in the field of developing real estate. All the OPS asked the complainant to invest with them in their business project at Bahadurgarh under the name & style "PDM Green (Group Housing the Society)" for which they would allot the complainant built up flat  there at Sector-3A, Bahadurgarh (Haryana). OPs approached many times to the complainant and persuaded him to buy the flat in the aforesaid project and further assured that OP no. 1 has already acquired the required land &b necessary NOC & CLU from the concerned authorities for their project and a valid license for the same has been obtained.

 

2. OPs further assured the complainant that the possession of the flat will be delivered within a period of three years from the date of booking of the flat. The OPS fixed the cost of the flat to the tune of Rs. 60,00,000/- and the same was stated to be payable in 12 instalments. The first instalment of Rs. 5,00,000/- at the time of booking, the second instalment of Rs. 5,00,000/- at the time of allotment of flat and the remaining 10 instalments as equal quarterly instalments on a construction link basis. OPS assured that the second instalment will be charged only after the beginning of the construction of the flat. Ops further assured that in case the flat is not delivered within the period of three years, the amount received from the complainant will be refunded with interest. OPS further assured that there will be no need to pay further instalments till the completion of the construction of the flat if the construction will not be started after taking the booking instalment and before taking the second instalment.

 

3. Initially, the complainant was apprehensive to invest with OPs as they were unknown and the amount of investment sought, was very huge but they all categorically and firmly made representations that they all are responsible persons and have a reputation in the real estate industry. OP-2 further assured that he is the owner of the OP-1 and fully responsible for all acts, and deeds for & on behalf of OP-1, OP-2 & OP-3 further stated that they would be severally and jointly liable along with OP-1 for any loss or damage to the complainant.

 

4. In order to convince the complainant, OPS carried the complainant to the place where the city was planned to be formed and further, they stated that the foundation has already been started and it takes only 3 years to deliver the possession of the flat to the buyer. They further stated that they have completed all the requisite formalities with various govt. departments for the starting of construction of the flats over the land. On asking by the complainant to supply a copy of the Registration Certificate, of their company, Annual Return, Balance sheet, From-32, List of Directors and other responsible officers of their company assured that they will supply the same for the complainant at the time of booking of the flat.

 

5. On repeated requests and persuasion by the OPS and believing upon their firm representations of deliver of physical possession of the flat within 3 years, the complainant became ready to invest within OP-1 and vide receipt no. 039 dated 5/9/2013, an amount of Rs. 5,00,000/- was paid to them for the purpose of booking & allotment of built-up residential apartment/flat in "PDM Green (Group Housing Society)", Sector-3A, Bahadurgarh, Haryana. It was specifically agreed by the OPS, that if they failed to deliver the possession of the flat within a period of such three years, then they will refund the amount taken from the complainant along with interest as prescribed by the rules &regulations of the Haryana Apartments Act. The complainant has booked the flat in the name of his wife Ms Maya Devi.

 

6. At the time of booking the flat, the OPS avoided delivering the documents of the project and the OPs on the ground that the same is kept in the office at Mayur Vihar and will be delivered to the complainant within a week.

 

7. Thereafter the run of the complainant from pillar to post started as till today no flat was allotted to the complainant. Many times, the complainant contacted OP 3 who introduced the complainant to OP-1 & OP-2, but he never replied positively and every time used to say that the company is under financial crisis and not in a position to refund the amount immediately. The OP-3 assured that the company/OP-1 is trying to cope with crises and will definitely come out from the same and will be able to deliver the flat within the stipulated period of time.

 

8. By the passing of time, the complainant was worried for his money as nothing was happening as the money was not refunded and no construction work was going on the site. When asking about the fact of how the flat will be allotted within the period of three years, OPs were putting the matter off under one pretext or the other.

 

1. That the time was running and the complainant was more worried about her booking amount of Rs. 5,00,000/- which was paid to the OPs as above. In this time, under the threat of forfeiture of the amount already deposited with OP 1, the OPS got signed some applications for the transfer of the amount to some other projects. However, that was the complete fake assurance of the OPS as thereafter, they never bothered to issue any other documents to the effect of transfer of the amount to some other projects. However, on asking for the refund of the amount, OPS used to say to wait till the expiry of a period of three years.

 

10. That in such circumstance the complainant was forced to wait for the expiry of the period of three years from the date of booking of the flat i.e., 05/09/2013. However, on expiry of the period of three years in 2016, the OPs again failed to refund a single penny to the complainant or give possession of flat. It is pertinent to mention here from the time of booking of the flat till the date there is no construction work carried out by the OPS upon the plot as above. Further, upon inquiry, it came into knowledge of the complainant that the OP-1 had even failed to purchase the required land as yet for the above-said project. The complainant was further shocked as he came to know that no license had been granted for the development of the project in the name of OP-1. The complainant was further shocked as he came to know that the license & sale deed papers for the purchase of land shown to the complainant at the time of taking of the booking amount were Fake and Fabricated. The complainant enquired from the people around the proposed project, they told her that the land was of the Haryana Government and they further stated that they have never seen any kind of construction work over the land.

 

11. After knowing that the complainant had been cheated by the OPS in a very calculated manner, The complainant asked them to pay -back the amount of Rs. 5,00,000/- (Five Lakhs Only) as per buy back theory/policy, then they told her that they are not in the sound position and assured to pay the same at the earliest, but despite the several demands and requests they did not pay even a single penny and kept of delaying the same upon one or another pretext. It is pertinent to mention here from the date of taking of the booking amount, the OPS never bothered to satisfy the complainant upon the reasons of delaying in construction rather the OPS has put pressure on her for the payment of a further amount by sending notices.

 

• That in the aforesaid circumstances, the complainant has filed one criminal complaint against the OPS which is pending in Tis Hazari Court.

 

13. Now, in view of the above submissions, it is clear that firstly, the OPs failed to deliver the goods as promised at the time of taking the amount and thereafter on many occasions. The OPS are responsible for the deficiency of the services and hence are liable to be penalized as per the provisions of the consumer protection act.

 

• That though the illegal and unjust actions of the OPS which have caused immense loss to the complainant cannot be compensated in terms of money as the complainant has waited for more than three years and invested the money in the respondent company for the allotment of a plot but the respondent company needs to be compensated in terms of money 1.e. Rs. 10,00,000/- as damages and the respondent are jointly and severally liable to pay the same because they have connived together to cause loss to the complainant. Hence the complainant has filed the present complaint before this commission seeking the following reliefs: -

1. To refund the booking amount of Rs. 5,00,000/- along with interest @24% p.a. and
2. To pay Rs. 5,00,000/- towards compensation as damages suffered by the complainant;

 

2. Accordingly, on 12/09/2017 after hearing arguments on admission, notice was issued to OP’s returnable on 16/11/2017 respectively. On 16/11/2017 Shri Naveen Sharma A/R of the OPs appeared and filed his authority. The matter adjourned for filing of reply, but thereafter OP’s never appeared, hence firstly their right to file reply was stuck off, later OP’s were proceeded exparte vide order dated 12/09/2018.

 

3. The OPs were also served through court notice and after that also they didn’t turn up and ignored the court notice. This act of the OPs clearly shows that the OPs are avoiding/disrespecting the court proceedings although they have been duly served.

 

4. In M/s. Madan and Co. Vs. Wazir Jaivir Chand AIR 1989 SCC 630, the Hon’ble Supreme Court has held “That if a registered letter addressed to the person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's conduct. If he is staying away for some time all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorized by him.” Further, Hon’ble Apex Court in State of M.P. Vs. Hira Lal & Ors. (1996) 7 SCC 523 has held that notices returned with postal remarks “Not available in the House”, “House Locked” and “Shop Closed", must be deemed that the notices have been served on the OPs. Accordingly, the OP’s have proceeded exparte on 12-09-2018.

 

5. The complainant filed exparte evidence by way of an affidavit on 12-09-2018 testifying all the facts stated in the complaint along with documents affirming the facts alleged in the complaint. The complainant has filed his evidence as CW1/PW1 by way of his affidavit and he has proved the following documents. :

 

1. The copy of Company Master Data.
2. The copy of the receipt of the payment made to OP.
3. The copy of visiting card of OP-3.

 

6. Written arguments on behalf of the complainant were filed on 18/03/2022. Oral arguments were heard on 30/08/2022. We have carefully gone through the record of the case and have heard submissions from the complainant.

 

7. The testimony of PW1 has gone unrebutted and unchallenged. The complainant has proved on record the relevant documents in support of its case.

 

8. Admittedly the Complainant filed a complaint in the month of October 2018 against the Opposite Party even after duly receipt of the notice, but the same was neither replied to nor they appeared before this commission.

 

9. The learned counsel for the complainant places reliance upon the recent decision of Hon’ble National Commission in the case titled “Ajai Kumar & Anr. vs M/S. Supertech Limited” decided on 22^ndApril, 2019 in Consumer Case No. 1639 of 2017, wherein National Commission held that-

 

“The Respondent - Flat Purchaser has made out a clear case of deficiency of service on the part of the Appellant - Builder. The respondent-flat purchaser was justified in terminating the Apartment Buyer's Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent - Purchaser was legally entitled to seek a refund of the money deposited by him along with appropriate compensation.”

 

10. Further, Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan Civil Appeal No. 12238 of 2018 decided on 02.4.2019, the builder obtained the occupancy certificate on 23.7.2018 during the pendency of the consumer complaint and offered possession on 28.8.2018. This Commission vide its judgment dated 23.10.2018, held that since the last date stipulated for construction had expired about three years before the issuance of the occupancy certificate, the flat purchasers could not be compelled to take possession at such a belated stage.

 

11. In Lucknow Development Authority V. M.K. Gupta reported in 1994 SCC (1) 243, Hon’ble Supreme court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a "service" as defined by Section 2(o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to a deficiency of service. In Fortune Infrastructure & Anr. Vs. Trevor D'Lima & Ors., this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek a refund of the amount paid by him, along with compensation.

 

12. There is nothing on record to disbelieve the sworn testimony of the Complainant or the claim of the complainant. The complaint of the complainant is within the time limit since the opposite party had accepted his complaint/ letter dated 4.09.2018. Therefore, considering the totality of the facts and circumstances and because of the unchallenged, uncontroverted and unrebutted testimony of Complainant and the documents proved on record, Complainant is entitled to recover Rs 5,00,000/- (Five Lacs) from OP.

 

13. Given the above discussion, the present complaint deserves to be allowed against the OPs and the same is accordingly allowed. The OPs are directed as under:-

 

[i] To refund Rs 5,00,000/- (Rupees Five Lakh only)to the complainant along with interest @ 6% per annum from the date of filing of complaint i.e., 18/08/2017 till realization to the complainant

[ii] To pay Rs. 15,000/- as compensation for mental agony & physical harassment suffered by the complainant and his family members; Litigation.

[iii] to pay Rs 5,000/- as the cost of Litigation

 

14. Let the order be complied with by OPs within 30 days from the date of receipt of the copy of this order.

 

15.  Let a copy of this order be sent to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.
16. File be consigned to record room.

 

17.  Announced on 08/09/2022.

 

 

 

 

Richa Jindal                          Anil Kumar Koushal                   Sonica Mehrotra

(Member)                                  (Member)                             (President)