Delhi

East Delhi

CC/520/2021

PRADEEP KUMAR BAJAJ (SR. CITIZEN) - Complainant(s)

Versus

M/S IMPERIA STRUCTURES LIMITED THROUGH ITS DIRECTORS - Opp.Party(s)

20 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110092

 

C.C. NO. 520/2021

 

	Pradeep Kumar Bajaj S/o Lt. Sh.C.L. Bajaj R/o B-3/33, Pharma Apartment, 88-I.P. Extension, Patparganj, Delhi-110092	….Complainant
Versus
1.         2.           3.           4.	M/s Imperia Structure Ltd. Through its Directors A-25, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-44   Sh. Brajinder Singh Batra- Joint Managing Director, C/o M/s Imperia Structure Ltd. A-25, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-44   Sh. Harpreet Singh Batra- Managing Director, C/o M/s Imperia Structure Ltd. A-25, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-44   Sh. Shyam Sunder Aggarwal- Authorized Person, C/o M/s Imperia Structure Ltd. A-25, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-44	…OP1                                                                                                        …OP2                                                                                                        …OP3                                  …OP4

 

 

Date of Institution: 23.12.2021

Order Reserved on: 10.02.2023

 Order Passed on: 20.02.2023

               

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms.Rashmi Bansal (Member)

 

Order by : Sh. Ravi Kumar (Member)

 

 

JUDGMENT

 

        By this order the Commission shall dispose off the complaint of the Complainant with respect to deficiency in service in not giving possession of the 1 BHK Flat booked by the complainant and not giving assured return by the OP to the complainant.

        The complainant, a senior citizen, has stated in his complaint that he had booked 1 BHK Flat measuring 425 sq ft. with OP1 in their upcoming Project ‘IMPERIA H2O RESIDENCY’ at Plot No. 44 & 45, Knowledge Park-V, Greater Noida, District Gautam Budh Nagar, U.P. The cost of the unit was shown as Rs.15,95,625/-. It was also assured that on one time down payment of 90-95%, the OP shall pay 1% monthly assured return to the complainant till the possession.

        The details of the cost of the flat as per the complainant is as follows:

1. Basic Price: Total Area 425sq ft @ 3100/- per sq ft=Rs 13,17,500
2. Fire Fighting Charges: 425 sq ft @ 35/- per sq ft = Rs. 14,875/-
3. Electrification & Power back up: 425sq ft @ 40/- per sq ft= Rs. 17,000/-
4. Interest free Maintainance: 425sq ft @ 50/- per sq ft= Rs. 21,250/-
5. Club Charges: One time:                                          = Rs. 25,000/-
6. Covered Car Parking: One time                                =Rs. 2,00,000/-

Total Consideration                                           Rs. 15,95,625/-

        The complainant paid initially Rs.25,000/- vide Cheque No. 850408 dated 18/05/2010 to the OP and he made further payment of Rs12,00,000/-(Rs. Twelve Lakhs) vide Cheque Nos. 409467 for Rs.2,00,000/-, 409468 for Rs.3,00,000/- and 409469 for Rs.3,00,000/- on 27/02/2012 and he paid Rs.4,00,000/- in Cash on 27/02/2012 to the OP but the complainant upon receiving the Agreement dated 14/03/2012 was shocked to see that sale consideration was shown as Rs11,95,400/- and when he enquired about it then OP informed that they have considered payment of Rs. 4,00,000/- as Cash and reduced the consideration amount from Rs.15,95,625/- to Rs.11,95,400/-. OP also told the complainant

 

that he will get assured return of Rs.12,250/- per month from U.P. Hotel Clarks (who is not a party in the present case) as per their Agreement. The complainant signed said Agreement dated 14/03/2012 in good faith in three copies and one copy of agreement was provided to him without signature of the authorized person and even after lapse of one year the complainant did not receive the signed copy of the agreement.

        In the month of April 2013 he went to OP and was informed to come after few days and later on he was given another Agreement dated 09/05/2013 in which he found the same terms and conditions along with the assured return of Rs.12,250/- per month with effect from 04/03/2012 and after signing the new Agreement in good faith he returned both the copies to the OP for signature of the Authorized Signatory and to start the process of issuing pending cheques as per the assured returns but nothing happened and OP sent the agreement through courier to the complainant in the month of October 2013 and the complainant was shocked to see

 

material alteration done at clause no. 2, page no. 3 of the Agreement by writing the date 31/12/2012. This alteration was a strong financial favour to the OP as the committed assured return would now start from 31/12/2012 onwards.

        Complainant has stated that Hon’ble State Commission Lucknow in the case ‘Akash Goyal Vs. M/s Imperia Structures Ltd (CC/68/2019) has held the respondent to hand over the flat within 6 months or to refund the amount and also directed to pay assured return along with compensation.

        When there was no response from the OP either towards handing over possession or return of the amount, the complainant filed FIR No.50/2017 U/s 406, 420 & 304 of IPC registered at Police Station Sarita Vihar Delhi on 15/02/2017 and a Criminal Case No. 6679/2021 has been registered which is pending in the Court of Hon’ble CMM Saket, Delhi.

        Complainant has stated that it is now settled legal proposition ‘that failure to deliver possession being a continuous wrong and buyer can always approach Consumer Forum. Further, Hon’ble Supreme Court in Meerut Development Authority Vs. M.K. Gupta – IV(2012) CPJ 12 has held that buyer has a recurring cause of action for filing a complaint for non delivery a possession of the plot.

        As the OPs were not responding, the complainant issued legal notice dated 05/11/2021 to OP1 to OP3 however no reply has been received till date. The complainant has also enclosed recent photographs of the site ‘IMPERIA H2O RESIDENCY’ showing the status as on 14/12/2021 and it shows that the Project is incomplete. The complainant has sought relief from this Commission as follows: 

-  Pass an order directing the Opposite Parties to deliver the legal possession of the fully furnished Flat No. C-712 with all amenities and facilities situated in their project ‘Imperia H2O Residency’ situated at 44-45, Knowledge Park, Gautam Budh Nagar-UP, to the complainant or refund the total amount which has been paid by the complainant i.e. Rs.12,25,000/- (Rs. Twelve Lac Twenty Five Thousand Only) along with interest for @18% on the paid amount from the respective date of the payment until realization; and

- Pass an order directing the Opposite Parties to pay Committed Assured Return @Rs.12,250/- (Rs. Twelve Thousand Two Hundred Fifty) per month from March-2012 until realization to the complainant; and

- Pass an order directing the Opposite Parties to pay to the Complainant a sum of Rs.5,00,000/- (Rs. Five Lac Only) for the relief for mental agony and physical harassment as the matter is pending due to the fault of Respondents since 2010.

- Pass an order directing the Opposite Parties to pay to the Complainant a sum of Rs.50,000/- (Rs. Fifty Thousand Only) as litigation expenses; and

- Pass an order against Opposite Parties by slapping the fine of Rs.50,00,000/- (Rs. Fifty Lac Only) for tampering the agreement dated 14-02-2012 and dated 09-05-2013 by false reporting to the Central Government's Income Tax Department cheating and duping the amount of Rs.110250/- of the complainant and numbers of other buyers.

- Pass any other order(s) which this Commission deems fit under the facts and circumstances of the matter, in favour of the complainant and against the OPs.

        Notice was issued to the OPs and they were served on 11/05/2022 however they did not appear before this Commission and all OPs were proceeded ex-parte vide order dated 22/08/2022.

        Complainant filed their evidence by way of affidavit wherein they have marked the following documents as Exhibit.

1. Signed application form as Ex-CW1/A.
2. Document showing total value of Rs.15,95,625/- as Ex-CW1/B-1 to 11.
3. Company’s Brouchure as Ex-CW-1/C-1 to 4.
4. Hand written acknowledgement of receiving payment of Rs.8,25,000/- on 03/07/2012 as Ex-CW1/D.
5. Agreement dated 14/03/2012 as Ex-CW-1/E- 2 & 3.
6. OP showing total sales consideration value as Rs.11,95,400/-at page no. 2 of MOU dated 14/03/2012 as Ex-CW-1/E-1 to 8.
7. Agreement dated 09/05/2013 as Ex-CW-1/F-1 to 7.
8. Agreement dated 27/07/2010 between Mr. Akash Goel and the Respondent No. 1 & 4 as Ex-CW-1/G-1 to 8.
9. Judgment of Hon’ble State Commission, Lucknow, UP - Akash Goel Vs. M/s Imperia Structures Ltd & ANS.(CC/68/2019) as Ex-CW-1/H-1 to 4.
10. Correspondence through various emails and letters dated 02.03.2012, 14.03.2012, 19.03.2012, 21.10.2013, 14.12.2013, 03.05.2014, 22.06.2014, & 28.04.2014 as Ex-CW-1/I-1 to 6.
11. Allotment Letter dated 11.12.2013 as Ex-CW-1/J.
12. Final Reminder/Notice dated 21.06.2014 as Ex-CW-1/K.
13. Letter dated 24.06.2014 of OP1/authorized signatory as Ex-CW-1/L.
14. Tax Statement 26 AS as Ex-CW-1/M-1 to 2.
15. MOU between OP1 and UP Hotels Clarks Ltd. on 18.05.2010 as Ex-CW-1/N-1 to 13.
16. Complaint lodged against OP1 to 4 at PS Sarita Vihar on 24.08.2014 as Ex-CW-1/O-1 to 3 & CW-1/P-1 to 6.
17. FIR No. 50/2017 u/s 406, 420 & 34 of IPC registered at PS Sarita Vihar on 15.02.2017 as Ex-CW-1/Q-1 to 4.
18. Criminal Case No. 6679/2021 registered in under in the Court of Hon’ble CMM-05, South East District Court, Saket, New Delhi Ex-CW-1/R-1 to 2.
19. Company’s brochure and Agreement as Ex-CW-1/C & CW-1/F.
20. Letters dated 15-07-2021 and 26-07-2021 as EX- CW-1/S & CW-1/T and reply dated 02-08-2021 as EX- CW-1/U-1 to 2 and letter dated 03-08-2021 sent to SHO PS-Sarita Vihar Delhi as EX- CW-1/V.
21. Unit No. C-712 allotted as EX- CW-1/J.
22. Legal notices delivered to the OPs on 07-11-2021 as EX- CW-1/W-1 to 2 & CW -1/X-1 to 2.
23. Photographs of the site of ‘Imperia H2O Residency’ as EX- CW-1/Y-1 to 5.

This Commission has heard the arguments of the complainant and has perused the documents on record. OP has not put-forth any arguments in their defense.

        The case of the complainant is that he had booked 1 BHK Flat measuring 425 sq. ft. and the total value to be paid was Rs.15,95,625/- and according the complainant he had paid Rs.12,25,000/- to the OP out of which he had paid Rs.4,00,000/- in Cash on 27/02/2012 to the OPs and the other payments were made through cheques. However the complainant was issued receipt for Rs.8,25,000/- (Ex-CW1/D) by OP and in the Agreement dated 14/03/2012 the sale consideration was shown as Rs.11,95,400/- (Ex-CW-1/E-1 to 8).

        When he enquired from the OP about the same then he was informed that Rs. 4,00,000/- have been considered ‘as received’ and therefore the amount has been reduced from Rs.15,95,625/- to Rs.11,95,400/-.

        As per the Complainant the sale consideration of the Flat was Rs.15,95,625/-.

        OPs have not filed their reply objections to the complainant filed by the complainant and therefore the complaint goes un-rebutted.

 The complainant was supposed to get the possession of the Flat he had booked in a time bound manner and he was also given assurance of assured return and as per his version despite of making payment of Rs.12,25,000/- neither he got the possession nor the assured returns.

The Judgment cited by the complainant of Hon’ble State Commission Lucknow CC/68/2019 (Ex-CW-1/H-1 to 4) is against the same OPs i.e. Imperia Structures Ltd. which shows their conduct as regards  other buyers also and as per the photographs enclosed by the complainant along with his complaint EX- CW-1/Y-1 to 5 it is apparent that the Project of OP is incomplete and OP has failed to honour his obligations of handing over possession of 1 BHK Flat booked by the complainant despite of receiving substantial consideration amount.

Complainant has not provided any proof or receipt of payment of Cash of Rs.4,00,000/-  made by him to the OPs and has raised the contention that OP has reduced this amount from consideration amount paid by him which reduced the consideration amount of the Flat to Rs.11,95,400/- Ex-CW-1/E-1 to 8 from Rs.15,95,625/-but in the absence of any direct evidence/receipt of Cash payment made by the Complainant the contention of the Complainant cannot be appreciated.

Further Complainant has not made any specific allegation against OP4, no relief is granted against OP4. However, as far as OP1 & OP3 are concerned who are the Directors of the OP Company and they are held to be jointly & severally liable.

For the reasons stated as above, this Commission holds OP1 to OP3 liable for deficiency in service orders as follows:    

• OP1 to OP3 to pay (jointly and severally) Rs.8,25,000/- to the complainant along with interest @ 9% p.a. from the date of deposit of the amounts with them.
• OP1 to OP3 (jointly and severally) to pay Rs.50,000/- towards mental agony and compensation to the complainant.

This order be complied within 30 days from the date of receipt of the Order and in case of failure OP1 to OP3 (jointly and severally) shall pay interest @ 11% p.a. to the complainant on the above said 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 20.02.2023.