DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. NO. 249/2022

Date of Institution: 02.06.2022

Judgment Reserved on: 23.01.2024

Judgment Passed on: 28.02.2024

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

Judgment By: Sh. Ravi Kumar (Member)

JUDGMENT

The Complainants have alleged deficiency in service on the part of OP in not refunding the amount deposited by them towards booking of Flat despite of their request of cancellation when OP failed to deliver the Flat to them.  

The complaint has been filed by the Complainants in which Complainant No.2 is representing Complainant No.1 as his GPA Holder. 

1. The Complainants have contended that on 17.03.2019 they had booked a Flat bearing no. M-401, 4^th floor, Tower M, in the project Ajnara Le-Garden of the OP having Carpet Area 800 sq. ft. and Super Area 1225 sq. ft.. The booking ID was LEOM004001 and Customer ID was 10033455. The total cost of the said Flat was Rs.40,29,025 including BSP + PLC + Other Charges. Complainants have enclosed copy of their account Ledger upto 04.10.2021 which shows that they have made payment of total Rs.18,05,004/- to the OP between the period 16.03.2019 and 21.10.2019.  
2. The Project of OP is situated at Plot No.GH02, Sector-16, Greater Noida West, Uttar Pradesh. Allotment Letter dated 09.08.2019 was issued to them by OP. As per the Allotment letter Terms & Conditions, OP was to handover the fit-out possession of the Flat on or before 31.12.2020 with further grace period of additional six months. However, the OP failed to deliver the Flat to the Complainants within stipulated time period and they cancelled the booking of their Flat and informed the OP about it by way of email. OP firstly vide their email dated 12.08.2020 informed the Complainants that possession will be offered to them by June 2021 and later OP wrote another email  dated 26.10.2021 informing the Complainants that the Flat will be ready for fit-out possession by December 2022 i.e. after 2 years of due date. When the Complainants visited the Project site on 06.03.2022 then they found that there was no progress at the site and no construction was going on. The Complainants have enclosed photographs of Project site which shows that there is no signboard mentioning the date of completion of Project.
3. The Complainant no.1 is 62 years old and had invested his life time savings in the Project of OP. The Complainants have stated that they are living in a rented accommodation at S-58A, School Block, Shakarpur on monthly rent of Rs.12,000/- and he and his family were hopeful that they will shift to their new home shortly. On account of unusual long delay in getting possession of their Flat, the Complainants lost interest in the Project.  The Complainants have stated that they issued notice dated 04.04.2022, 25.04.2022 to the OP however no reply was received by them from OP. 

Finding no option present complaint has been filed by the Complainants before this Commission seeking following reliefs:

• To give directions to OP to refund the full principal paid amount of Rs.18,05,004/-  along with interest of Rs.6,41,367/- up to April 2022.
• To allow compensation of Rs.3,00,000/- from OP for the harassment and inconvenience of Complainants.
• Pass such order/further orders(s)/direction(s) as this Forum may deem fit and proper in the interest of justice to the Complainants.

4. Notice was issued to the OP and they received copy of the complaint on 12.10.2022 however no Reply was filed by them and their opportunity to file Reply was closed on 18.05.2023.
5. Evidence by way of affidavit has been filed by Complainant no.2 Mr. Karan Kumar wherein following documents have been marked as exhibits:

• GPA of Complainant no.1 in favour of Complainants no.2 as Exhibit CW2/1.
• Copy of Booking Application Form as Exhibit CW2/2.
• Copy of Agreement dated 09.08.2019 between Complainants and OP as Exhibit CW2/3.
• Copy of Ledger Sheet dated 04.10.2021 as Exhibit CW2/4 (Colly).
• Copy of email dated 12.08.2020 and 26.10.2021 as Exhibit CW2/5 (Colly).
• Original Photographs between September 2019 to April 2022 as Exhibit CW2/6 (Colly). 
• Copy of email dated 30.11.2020 as Exhibit CW2/7.
• Copy of Rent Agreement as Exhibit CW2/8.
• Copy of email of the Complainant informing change of address as Exhibit CW2/9.
• Copy of Notice regarding cancellation of Flat and receipt of the same by OP as Exhibit CW2/10.
• Copy of calculation sheet till March, 2023 as Exhibit CW2/11.
• Copy of Postal Receipt and tracking report as Exhibit CW2/12 (Colly).

6. During the course of the hearing it was enquired from the Complainants whether some proceedings are pending in Hon’ble NCLT w.r.t. the OP Company. In reply to the same, the Complainants relied upon Order dated 30.06.2023 passed by Hon’ble RERA UP and Order dated 02.06.2023 passed by Hon’ble NCLT. 
7. Besides the above, the Complainants submitted before this Commission that the OP Company is not before Hon’ble NCLT for insolvency/moratorium and he filed documents which are order dated 24.04.2023 passed by Hon’ble NCLT in Case No.IB/524/ND/2021 and order dated 30.06.2023 passed by Hon’ble RERA. Based on the said documents the Complainants have submitted that the Project Ajnara Le-Garden of Ajnara Realtech Ltd. is not under liquidation and he has also filed an affidavit dated 18.05.2023 wherein he has stated that the OP is not under Insolvency process till date and Complainants undertake that they will be responsible if the OP is found under Insolvency process at the time of passing of the order on their complaint case before this Commission. 
8. From the above documents filed by the Complainants, it is observed that the case No.IB/524/ND/2021 is pending in Hon’ble NCLT against the OP Company however there is no order as on date regarding initiation of CIRP proceedings against it (OP Company).
9. This Commission has heard the arguments of the Complainants and perused the record.

On the basis of documents filed by the Complainants it is evident that they had booked Three Bedroom Flat No.M-401 along with car parking in Tower M in the project Ajnara Le-Garden of the OP. The carpet area of the Flat was 800 sq. ft. and super area was 1225 sq. ft. The total cost including BSP + PLC + Other charges was Rs.40,29,025/- and the Complainants had paid initially Rs.1,00,000/- on 29.03.2019 and Rs.3,03,000/- on 11.07.2019 and Allotment Letter dated 09.08.2019 was issued to them by the company (Exhibit CW 2/3).  As per the terms and conditions of the Allotment Letter, the notice for fit out possession was to be given by the OP to the Complainants on or before 31.12.2020 with grace period of additional six months. However, when this did not happen the Complainants issued Notice for termination of contract to the OP by way of email (Exhibit CW2/10) and the OP vide their email dated 12.08.2020 informed the Complainants that the fit out possession will be offered by June 2021 and later OP further extended the date to December 2022 for fit out possession vide their email dated 26.10.2021 - Exhibit CW2/5 (Colly)

10. Thereafter also OP did not offer fit out possession and the Complainants sought refund of the amount from OP deposited by them. However, OP neither did offer fit out possession of the Flat nor refunded the amount after termination of the agreement by the Complainants. The photographs enclosed by the Complainants shows that the Project of the OP is still incomplete - Exhibit CW2/6 (Colly) and matter against the OP Company is also pending before the Hon’ble NCLT (Case No.IB/524/ND/2021) at present however no CIRP proceedings has been initiated as on date.
11. The Complainants have filed their accounts Ledger upto 04.10.2021 which shows that they have made payment of Rs.18,05,004/- to the OP towards booking of their Flat - Exhibit CW2/4 (Colly). The Complainant no.1 is a senior citizen who had invested his hard earned money in the project of the OP in March 2019 with the hope that he will get his flat from OP in time so as to stay comfortably with his family there however his dreams were shattered on account of not handing over the possession of the Flat so booked by them as promised by OP nor the amount deposited by them was refunded to them. The Complainants suffered financially and they also underwent mental agony and harassment.
12. Hon’ble Supreme Court in its judgment dated 07.04.2022 in the Civil Appeal no.6044 of 2019 has held ‘A consumer invoking the jurisdiction of the Commission can seek such reliefs as he/she considers appropriate. A consumer can pray for refund of the money with interest and compensation. The consumer could also ask for possession of the apartment with compensation. The consumer can also make a prayer for both in the alternative. If a consumer prays for refund of the amount, without any alternate prayer, the Commission will recognize such a right and grant it, of course subject to the merits of the case…..’
13. Also Hon’ble Delhi State Consumer Disputes Redressal Commission in its order dated 04.05.2021 in Complaint case no.895/2016 has held in para 19 that ‘the Complainants entered into an agreement to avail the services of the Opposite Party for a consideration. However, the Opposite Party failed to honor the terms of agreement, aggrieved by which, the Complainants have sought the refund of the amount paid by them. Hence, the Complainants are entitled to file the present complaint before this commission since the Complainants are aggrieved by the deficient services of the Opposite Party i.e. the failure of the Opposite Party to handover the possession within the prescribed period and it is only due to this reason, that the refund of the amount paid is sought from the Opposite Party, which this Commission is authorized to adjudicate.’

And under para 29 ‘Consequently, we hold that the Opposite Party is deficient in providing its services to the Complainants since it has failed to handover the possession of the flat within the stipulated time period and the Complainants are entitled of the money deposited by them with the Opposite Party’.

14. Following the above and keeping in view the facts of the present case and that the complaint filed by the  Complainants goes un-rebutted since no Reply has been filed by the OP and therefore for not delivering possession of the Flat to the Complainants so booked by them despite of receiving the amount, the Commission holds OP liable for deficiency in service and orders as follows:

• OP to pay to the Complainants Rs.18,05,004/- along with interest @ 9% p.a. from the date of each deposit.
• OP to pay Rs.50,000/- towards mental agony and litigation cost.

This order shall be complied within 30 days from the date of receipt of the order and if not complied then OP 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.