DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No.16/2023

Date of Institution: 12.01.2023  

Judgment Reserved on: 13.05.2024

Judgment Passed on:13.05.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Judgment by: Shri Ravi Kumar (Member)

JUDGMENT

The Complainants have alleged deficiency in service on the part of OPs in not delivering possession of the Plot they had booked in the project of OP i.e. Jeevan Chhaya Farm Noida, at Nagli Nangla Village, District Goutam Budh Nagar adjacent to Sector – 135, Noida, UP nor refunding the amount deposited by them.

1. The Complainants have stated in their complaint that they had advertised they were entitled to sell land in the form of farmland in their project ‘jeevan Chhaya Farm’ at Nagli Nagla Village, adjacent to Sector 135, Noida District Gautam Budh Nagar UP and they will develop the area and also get the land transferred in the name of purchaser.
2. Allured by the same, the Complainant dooked a plot bearing NO. 14A measuring 1512 square yards in the above said project. The basis price of the said Plot was Rs. 56,70,000/- OPs had promised to provide barbed wire fencing with RCC Poles on the boundary of the plot with Iron Gate with RCC Pillar as well as one Solar light with Iron Pole at the said Plot. OPs also promised to provide hundred Phycus Plants to be placed on fencing/boundary of the said property before handover the possession and the proper Bituminous Road for commutation and connecting the farm land to the main road with the entire Project. OPs were also to provide electric pole with proper light facilities on the said road.
3. Complainants had initially paid Rs.1,00,000/- by cheque on 13.02.2021 thereafter they had paid total amount of Rs.11,34,000/- and Agreement to Sell dated 08/03/2021 was executed between the parties. After making the payment, the OPs were supposed to deliver the plot to the Complainants in time bound manner. By receiving the balance payment. However initially OPs delayed the Project under the pretext of Covid pandemic and later they informed the Complainants that they have already sold the said Plot to some other third party. On coming to know of these facts, the Complainants requested the OPs to refund the amount of Rs.11,34,000/-. On 10.04.2022 the OPs refunded the amount of Rs.2,49,000/- and thereafter the balance amount outstanding is Rs.8,85,000/- which has not been refunded by the OPs to the Complainants.
4. When the full amount was not refunded by the OPs the Complainants issued Legal Notice dated 11.06.2022 which was not replied by OPs.

Complainants have thereafter filed the present complaint seeking following reliefs:

• Hold the OPs, jointly and severally, deficient in service for adopting unfair trade practice and malpractice for selling the property to third party during the subsistence of the agreement to sale dated 08/03/2021.
• Direct the OPs to refund, jointly and severally, Rs.8,85,000/- to the Complainants along with interest calculated @24% per annum from the date of the said payments till realization.
• Direct the OPs to pay, jointly and severally, to the Complainants compensation of Rs.5,00,000/- for the continuous harassment and mental agony suffered and for adopting unfair trade practice and committing gross deficiency of service and malpractice.
• Direct the OPs, jointly and severally to pay to the Complainants a sum of Rs.1,50,000/- towards cost and legal expenses.
• Direct the OPs to pay punitive damages to the tune of Rs.5,00,000/-
• Direct the Opposite party to pay the interest pendent-lite and
• May pass any other or further order as this Commission may deem fit and proper in the interest of justice.

5. Notice was issued to all the OPs. OP1 to OP4 appeared  and informed that they have received paper book with notice through email on 24.08.2023. Thereafter the OP1 to OP4 filed their Written Statement on 19.10.2023 alongwith application for condonation of delay. Their application for condonation of delay was dismissed on 05.02.2024 and no appeal was filed by OP1 to OP4 and hence the said order has attained finality and the Written Statement of OP1 to OP4 cannot be read in their defense.
6. As regards OP5 and OP6, they were proceeded ex-parte as they did not appear  before the Commission.
7. The Complainants have filed their evidence by way of affidavit wherein the following documents has been marked as exhibits:

• Copy of Company Master Data of OP1 as Exhibit CW1/A.
• A copy of map of the plot No. C-14/A alongwith signature of OP1 as Exhibit CW1/A.
• Copy of Cheque and payment receipt  as Exhibit CW1/C.
• Copy of Brochure of the said Project as Exhibit CW1/C1.
• Copy of the Agreement to sell as Exhibit CW1/D.
• Copy of Legal Notice as Exhibit CW1/E.
• Copies of the various chat texts on various mobile numbers as Exhibit CW1/F (colly).

8. This Commission has heard the arguments and perused the records.

The case of the Complainants falls under the narrow compass  and the issue relates to neither handing over the Plot bearing No. 14A measuring 1512 sq. yards which was booked by the Complainants situated in Jeevan Chhaya Farm, Noida at Nagli Nangla Village, District Goutam Budh Nagar UP by adhering to the agreement to sell nor refunding the amount so deposited by the Complainant after OPs had sold the said Plot to some other third party.

The Complainants had in total paid Rs.11,34,000/- to OPs which has been recorded in the Agreement to Sell dated 08.03.2021. The total cost of the Plot in question was Rs.56,70,000/- which was to be developed by the OPs in their Project however after receiving the initial amount of Rs.11,34,000/-, the OPs did not proceed further with regard to receiving balance payment from the Complainants.

As per the Agreement to Sell, the sale deed was to be executed and registered before 10.05.2021 and the balance amount was to be paid before that. However OPs informed the Complainants that they have already sold the Plot in question to some third party. On coming to know about it, the Complainants requested the OPs to refund the entire amount of Rs.11,34,000/-. OP refunded Rs.2,49,000/- to the Complainants on 10.04.2022 however the balance amount of Rs.8,85,000/- has not refunded to the Complainants.

9. Since Written Statement of the OP1 to OP4 has not been permitted to be read in its defense as the same was beyond limitation period as prescribed under the CP Act and OP5 and OP6 are ex-parte and therefore the case of the Complainants has gone un-rebutted.
10. OPs neither  received nor demanded payment of the balance amount of cost of the Plot after receiving Rs.11,34,000/- which shows that they had no intention to adhere to the agreement to sell and their only intention was extract money from the complainants. Any developer would definitely demand balance amount of the total cost but there was no such step taken by the OPs. Also OPs refunded Rs.2,49,000/- out of Rs.11,34,000/- without any objection to the Complainant which amounts to admission on their part in not fulfilling their obligations as per the agreement to sell dated 08.03.21(Exhibit CW1/D).
11. Thus there is apparent deficiency in service on the part of OPs which Complainants are able to establish. OPs did not refund the balance amount and Rs. 8,85,000/- which is still outstanding. It is just like usurping the money of the Complainants by OPs with no intention to complete their obligation.
12. Once booking was cancelled on their own, then OPs should have refunded the entire amount of Rs.11,34,000/- to the Complainants which was not done by them. Hon’ble Supreme Court in Civil Appeal no.6044 of 2019 in Expression
    Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor has held that ‘Consumer Courts have power to grant relief to aggrieved Flat Buyers because of delay in delivery of Apartment and Consumer Courts, therefore have the power to direct refund and compensation to a consumer for the deficiency in delivering the Apartment in accordance with the terms of Agreement’.  In the present case booking of plot in question was cancelled by the OPs on their own but OPs did not refund the entire amount to the complainants making them to run for availing legal option at the cost of their time and money.
13. Keeping in view the above and the facts and circumstances of the case, this Commission holds OPs (jointly and severally) liable for deficiency in service and orders as follows:

• OP1 to OP6 jointly and severely, shall refund to the Complainants Rs.8,85,000/- along with interest @9% per annum from the date of each deposit;
• OP1 to OP6 jointly and severely, shall pay Rs.50,000/- towards mental agony and harassment to the Complainants including litigation cost.

The order shall be complied by within 30 days from the date of the order failing which OPs shall pay interest @12% p.a. on all the above amounts till the date of realization.

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room.

Announced on 13.05.2024.