Chandigarh

StateCommission

CC/22/2021

Sujatha Rafhunandan - Complainant(s)

Versus

M/s Airwil Business Park Pvt. Ltd. - Opp.Party(s)

Himanshu Raj & Anshu Chaudhary Adv.

13 Jul 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/22/2021
Date  of  Institution	:	02/09/2021
Date   of   Decision	:	13/07/2022

 

 

 

 

 

Sujatha Raghunandan wife of Raghunandan Sathyanarayan Rao, Resident of House No. 215, Shivalik Enclave, Behind N.A.C. Market, Manimajra, U.T. Chandigarh.

…. Complainant

 

Vs.

 

 

M/s Airwil Business Park Pvt. Ltd., through its Managing Director/Directors/Authorized Representative.

Regd. Address:-        1110, Mani Bazar, Paharganj, New Delhi – 110 055.

…… Opposite Party

 

 

BEFORE: JUSTICE RAJ SHEKHAR ATTRI    PRESIDENT

PADMA PANDEY                             MEMBER

                RAJESH K. ARYA                           MEMBER

 

PRESENT	:	Sh. Himanshu Raj, Advocate for the Complainant.
	:	Opposite Parties ex-parte vide order dated 5.5.2022.

 

PER PADMA PANDEY, MEMBER

 

 

 

                In brief, the facts necessary for the disposal of the instant Consumer Complaint are, the Complainant, who is a well qualified lady, had booked an Apartment/Unit (measuring 2500 sq. ft.) on 27.10.2013 for self-employment for earning her livelihood in the project of the Opposite Party namely, “INTELLICITY” located at Plot No. 10, Tech Zone-IV, Greater Noida, District Gautam Budh Nagar, Uttar Pradesh. The total sale consideration of the Unit was Rs.2,58,87,500/- out of which the Complainant had paid a sum of Rs.2,46,30,650/- in accordance with the payment plan. A Builder Buyer’s Agreement for the said unit was also executed on 08.11.2013 and the Complainant was allotted Unit No. BS/A/01, Block-Spine-A/Bank Space. As per Clause 9.2 of the aforesaid Builder Buyer’s Agreement, the construction of the unit was supposed to be completed within a period of 04 years from the date of execution of the agreement i.e. on or before 08.11.2017, but the Opposite Party failed drastically to fulfill the promise of making timely delivery of the possession of the Unit leaving the Complainant to suffer financially and mentally. When the issue qua possession as well as non-payment of return was discussed with the Opposite Party, the Opposite Party vide e-mail dated 30.07.2011 came up with an option to settle the rental cases in onetime. However, none of the options (i.e. quarterly or onetime payment) were complied by the Opposite Party.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Party, the Complainant has preferred the instant Consumer Complaint.

 

2.         Notice of the complaint was sent to Opposite Party seeking its version of the case. However, nobody appeared on behalf of Opposite Party despite service, through publication in newspaper namely, “Hindustan Times (Delhi Edition) dated 22.02.2022, therefore, it was proceeded ex-parte on 5.5.2022.

 

3.         Complainant led evidence by way of affidavit and documents.

 

4.         We have heard the learned counsel for the Complainant and gone through the record of the case, including the written arguments advanced on behalf of the Complainant. After scanning of record, including written arguments, our findings are as under:-

 

5.         It is manifest on record that believing the assurances qua timely delivery of possession, the Complainant had booked an apartment/unit admeasuring 2500 sq. ft. in the project of the Opposite Party namely, “INTELLICITY” on 27.10.2013 for self employment for earning her livelihood. The total sale consideration of the Unit was Rs.2,58,87,500/-, out of which the Complainant had paid an amount of Rs.2,46,30,650/-. A Builder’s Buyers Agreement for the said unit was executed on 08.11.2013. As per Clause 9.2 of the said Agreement, the possession of the Unit was to be handed over within 4 years from the date of the execution of the agreement i.e. by 08.11.2017. It is the case of the Complainant that she has not been given the possession of the unit till date and the project is still under construction. In this regard, a certificate of an Architect has been placed on record to show that the project was approx. 10% constructed. Thus, the Opposite Party has miserably failed to meet its obligation by delivering the possession of the unit within the stipulated time period aforesaid.

 

6.         The Complainant further claims that as per the Buyer’s Agreement, the Opposite Party assured to pay 15% p.a. quarterly return to her during the construction period, but the same was also not honoured by the Opposite Party. It is obvious from the records that the Complainant had made the payments in accordance with the payment plan and the same has been acknowledged by the Opposite Party from time to time. It is also the case of the Complainant that when the issue qua possession as well as non-payment of return was discussed with the Opposite Party, the Opposite Party vide e-mail dated 30.07.2011 came up with an option to settle the rental cases in one go. However, none of the options (i.e. quarterly or onetime payment) were complied by the Opposite Party, which shows that there is gross deficiency on the part of the Opposite Party by not adhering their own commitments inspite of receiving a very huge amount from the Complainant.

 

7.         The whole evidence placed on record by the complainant corroborates the assertions set out in the present complaint. Significantly, the Opposite Party did not appear to contest the claim of the Complainant and preferred to proceed against ex-parte. This act of the Opposite Party itself draws an adverse inference against it. The non-appearance of the Opposite Party shows that it has nothing to say in its defence against the allegations made by the Complainant. Therefore, the assertions of the complainant go unrebutted and uncontroverted.

 

8.         In the present circumstances, it is established beyond all reasonable doubts that the complaint of the Complainant is genuine and the Opposite Party has certainly and definitely indulged into unfair trade practice as it ought to have initiated steps to redress the grievance of the Complainant promptly, which it miserably failed to do. At any rate, the Opposite Party even did not bother to redress the grievance of the Complainant, despite having approached for the same by the Complainant time & again, which to our mind not only amounts to deficiency in service, but is a grave malpractice under the Consumer Protection Act.
9.         The Complainant in her prayer clause had made a prayer for handing over the vacant physical possession of the allotted unit along within 15 days from the date of passing of the order of this Commission. However, per material available on record, this Commission observes that handing over of the possession within 15 days from now may not be a possibility since the Complainant has himself placed on record a certificate of an Architect certifying that only 10% of the construction is there at the project site. Therefore, there is a bleak and remote possibility that the Opposite Party could hand over the vacant physical possession of the allotted unit to the Complainant if ordered by this Commission. Be that as it may, the fact, as stated above, that there is a delay of more than 4 years from the committed date and more than 8 years from the date of booking, in offering possession of the Unit in question to the complainant, which is still continuing, is not in dispute. It is well settled law that non-delivery of possession of plots/units in a developed project by the promised date or within a reasonable period from the date of booking is a material violation on the part of a builder and in those circumstances, the purchaser is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in “Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd.”, Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as “Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan”, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in “M/s Fortune Infrastructure Versus Trevor D’ Lima & Ors.” (2018) 5 SCC 442. In the present case also, since there has been an inordinate delay in the matter, as such, we are of the considered opinion that the complainant is not bound to accept the possession of the Unit, even if the same is offered at belated stage. We cannot make the complainant to wait for an indefinite period on the whims and fancies of the Opposite Party. Thus, under these circumstances, if we order refund of the amount paid alongwith interest from the respective dates of deposits, that will meet the ends of justice. 

 

10.         In the light of above discussion, this consumer complaint deserves to succeed. The same is accordingly partly allowed.  Opposite Parties are, jointly and severally, directed as under:-

[a]    To refund the amount of Rs.2,46,30,650/- alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the Complainant, from respective dates of deposit, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.

[b]    To pay the return @ 15% p.a. (as assured in the Buyer’s Agreement, being a Bilateral Contract) alongwith interest on delayed/defaulted return @12% p.a., to the Complainant, from the date of Buyer’s Agreement, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.

[c]    To pay cost of litigation to the tune of Rs.50,000/- to the Complainant, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of passing of this order, till realization.

11.         Certified copies of this order, be sent to the parties, free of charge.

 

12.         The file be consigned to Record Room, after completion.

 

Pronounced

13^th July, 2022                                                    

Sd/-

                                                (RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

Sd/-

                                                        (PADMA PANDEY)

MEMBER

 

 

Sd/-

                                                        (RAJESH K. ARYA)

MEMBER

“Dutt”