Delhi

East Delhi

CC/571/2016

REETA SAXENA - Complainant(s)

Versus

HARSHA ASSO - Opp.Party(s)

17 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.571/2016

 

	Mrs. Reeta Saxena W/o Sh. Vinod Kumar Saxena R/O- C-99, South City-I, Gurgaon -122002, Haryana	….Complainant
Versus
	M/s Harsha Associates Pvt Ltd. Regd Office at- 117, Hargovind Enclave, Vikas Marg Extenstion Delhi 110092 Through its Director	……OP1
	Mr. Harish Kumar Kathuria Director M/s Harsha Associates Pvt Ltd. Regd Office at- 117, Hargovind Enclave, Vikas Marg Extenstion Delhi 110092	OP2
	Mr. Sumit Kathuria Director M/s Harsha Associates Pvt Ltd. Regd Office at- 117, Hargovind Enclave, Vikas Marg Extenstion Delhi 110092	OP3
	Ms. Yash Kumari Director M/s Harsha Associates Pvt Ltd. Regd Office at- 117, Hargovind Enclave, Vikas Marg Extension Delhi 110092	OP4

 

Date of Institution	:	26.10.2016
Judgment Reserved on	:	17.04.2023
Judgment Passed on	:	21.04.2023

 

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

Order By: Shri S.S. Malhotra (President)

 

JUDGEMENT

1. By this order the Commission shall dispose off the present complaint filed by the Complainant against OPs w.r.t. deficiency of service in not returning the paid amount as deposited towards the booking of a shop. 
2. Brief facts as stated by the complainant in the complaint are that in the year 2005 on the advertisement issued by the OP the complainant booked a shop in the project of OPs i.e. Harsha City Mall, Plot B, Indirapuram, Ghaziabad to earn her livelihood as she wanted to open shop for cosmetic products and she was allotted one shop bearing No.128 at 1^st floor, measuring 283.00 sq. ft. @ Rs.5,148/- per sq. ft. and paid Rs.21,000/- in advance and also gave a cheque of Rs.1,24,863/-. It is further submitted that various plans were offered by the OP but the complainant chose one plan under Development Link Plan in which if the buyer makes 95%, payment then respondent would offer the possession and would demand the remaining payment of 5% at the time of possession and as such complainant paid an amount of Rs.14,58,634/- without any delay i.e. the 100% of the demanded amount was paid by the complainant but the OP could not make the construction in time nor it provided any documents regarding the said booked shop and ultimately on 11.10.2006 provisional allotment letter was given to the complainant thereby confirming that complainant has paid Rs.14,58,634/- and he also confirmed that there is no balance/due against her but despite that, the possession was not given nor the registry was done after obtaining NOC from the concerned departments.  Not only this the OP in the year 2016 sent a letter to the complainant showing an amount of Rs.22,44,983.98/- is overdue against the complainant towards the maintenance charges which letter is per se illegal and contrary to the law as the fact remains that maintenance charges have to be paid only once the possession has been given to the complainant which has not at all been given to the complainant and therefore the said letter was illegal.  The complainant also came to know that the OPs have been denied NOC from the concerned departments, as neither the OPs took the NOCs nor handed over the possession and ultimately she filed the present complaint against OPs thereby seeking the directions to the OP to refund Rs.14,58,634/- with interest @ 24% p.a., to withdraw the letter in which the OP demanded Rs.22,44,983.98/-, and direct the OPs to pay compensation of Rs.4,00,000/- and litigation charges of Rs.1,00,000/-. 
3. The OPs have filed Written Statement taking preliminary objection that complaint is not maintainable interalia on the ground that it is false, malicious and without any cause of action, the same is barred by limitation and the same has been filed after more than 10 years.  It is also stated that the complainant has not made the outstanding payment as agreed in the allotment letter, the complaint is bad for mis-joinder of necessary parties and the complainant infact is trying to cover the delay on her part.  It is further submitted that complainant booked a shop for commercial purpose and as such she is not a consumer under the CPA-2019. 
4. On merit the booking of the shop by the OP is not denied but it is submitted that complainant has not placed true and correct facts and failed to comply with the terms and conditions of the agreement.  The OP never denied possession but it is the complainant who failed to make the outstanding payments.  Possession was never denied by the OP to the complainant but complainant never come forward for the registration of the sale deed after clearing all the outstandings, the answering respondent has completed all the legal formalities in respect of NOCs and approvals, and had obtained all the necessary documents w.r.t. approval from fire department and operation of lift in the property and even copy of sale deed in respect of one of the shop in the Mall has been placed on record to show that there was no delay in handing over the possession or registration of the sale deed.  It is further submitted that project of the OP was completed in time and shops were allotted to many persons and even otherwise the present shop was purchased by the complainant for commercial purpose and therefore complaint of the complaint is liable to be dismissed and may kindly be dismissed. 
5. It is a matter of fact that the complaint initially was filed before the Hon’ble SCDRC but since the pecuniary jurisdiction was less, it was withdrawn from the Hon’ble SCDRC with liberty and then it wsa filed before this Commission. 
6. The complainant has filed his evidence and has exhibited the following documents:

1. The copy of the Order of Hon’ble State Commission dated 01.09.2016 is exhibited as CW-CW1/A.
2. The copy of the advertisement is exhibited as EX-CW/1.
3. The copies of the ledger accounts and receipts against the payents/EMIs paid to the respondents are exhibited as EX-CW1/2 (Colly).
4. The copy of the said provisional allotment letter/agreement dated 11.10.2006 is exhibited as EX-CW1/3 (Colly). 
5. The copy of the letter showing amount of overdue outstanding against the maintenance charges is exhibited as EX-CW1/4.
6. The copy of the legal notice is exhibited as EX-CW1/5 (Colly). 
7. The copies of the postal receipts as well as the tracking report are exhibited as EX-CW1/6 (Colly). 

7. OP has filed the evidence of Sh. Harish Kathuria, S/o late Sh. Guru Dutt and has exhibited the following documents:

8. True extract of the Form -32 showing the resignation of the OP No.2 from the OP No.1 Company is filed herewith as EX-RW1/1.
9. Copies of the demand letters issued by the complainant are filed herewith as EX-RW1/2.
10. The copy of the bills with regard to Maintenance Charges, Electric Consumption Charges, Sinking Fund, Water Consumption charges along with Arrears/Excess and Interest issued at various intervals to Complainant as EX-RW1/3 (Colly).
11. Copies of documents which reveal that the property in question where the subject shop was situated was very well operational even in 2008-09 as EX-RW1/4 (Colly). 

8. Both the parties have filed Written Arguments. 
9. The Commission has heard the arguments and perused the record. 
10. The basic bone of contention w.r.t. present complaint case is that complainant states that she has given 95% of the shop amount i.e. Rs.14,58,634/- in the year 2006 itself and possession has not been given whereas basic contention of OP is that the project was ready within time and it is the complainant who have not come forward for clearing the outstanding dues to the extent of Rs.22,44,983.98/- therefore complaint of the complainant be dismissed. 
11. As far as payment of Rs.14,58,634/- is concerned the same is not disputed.  It is also not disputed that this amount of Rs.14,58,634/- was 95% of the total amount.  The respondent in the entire written statement has not denied that the total claim of the unit was Rs.1458634/- and has been paid.  Admittedly the OP has raised a demand of Rs.22,44,983.98/- from the complainant in terms of exhibit CW1/4 towards maintenance charges of the said shop.  Further, in the entire Written Statement the OP has no where stated that the possession of the shop has ever been given to the complainant right from the year 2006.  Once the possession has not been given by the OPs to the complainant therefore demand of the OPs w.r.t. maintenance charges or any other charges apart from the charges which were due towards the basic sale consideration to the extent of 5% cannot be demanded by the OPs as per the terms and conditions of the allotment letter and accordingly this demand of the OPs was totally unjustified. 
12. Therefore, prayer of the complainant w.r.t. seeking direction to OPs for withdrawal of this letter is well found and the same prayer is granted. 
13. Coming to the contention of the OP that project was for commercial purpose. No doubt it was a shop as the complainant in the complaint itself has submitted that the complainant had booked a shop however the complainant has clarified that she had booked the shop for earning her own livelihood and for her own use.  Therefore, this contention of OP that the complainant is not a consumer within the definition of CPA-2019 is not well found.   
14. The next contention of the OP is that complaint is barred by law, also have no legs to support as the cause of action w.r.t. handing over the possession is a continuous cause of action and once the OP has not been able to complete the project and had not given the information to the complainant that project is ready and she should take possession, the cause of action would continue and thus the complaint case is not barred by limitation.  
15. The next contention that OP1 that the complainant has not made necessary parties is also not well found as OP1 is the company whereas OP2 to OP4 are stated to be the directors  of the OP.  As to when those directors were removed from the Board of Directors has not been specified by the company/OPs.  It is an admitted case that possession has not been given despite having taken amount. 
16. Therefore, the letter w.r.t. demand of Rs.22,44,983.98/- is rejected.  Now, the complainant has prayed that the total amount paid be returned.  Accordingly, deficiency on the part of OPs is proved and OPs are jointly and severally are directed to pay as follows: 

• OPs to pay an amount of Rs.14,58,634/- with interest @ 9% p.a. to the Complainant.   
• OPs to pay a compensation of Rs.25,000/- including legal expenses to the complainant. 

This order be complied with within 30 days from the date of receipt of the order failing which an interest @ 12% p.a. would be charged on all above stated amounts. 

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

File be consigned to Record Room

Announced on 21.04.2023