Haryana

StateCommission

CC/513/2018

SUJIT SINGH - Complainant(s)

Versus

M/S SAMAR ESTATES - Opp.Party(s)

SAPAN DHIR

11 May 2023

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.513 of  2018

Date of the Institution:07.09.2018

Date of Decision:    11.05.2023

 

Sujit Singh Maini S/o S.Harcharan Singh R/o # 1370, Sector 34-C, Chandigarh.

                                                                    .….Complainant

Versus

1.      M/s Samar Estates Private Limited, # 254 NAC, Manimajra Chandigarh 160101 through its MD Sh.Vinod Bagai.

          2^nd Address SCO 283, Sector 20, Panchkula.

2.      M/s ESS VEE Apartments # 87, Sector-7, Panchkula 134109.

3.      Sh.Vinod Bagai S/o Sh.Nand Lal, Managing Director, Samar Estate Pvt. Ltd. ESS VEE Apartment, Sectgor-20, Panchkula, Haryana.

                                                          .….Opposite Parties

 

CORAM:   Mr.S.P.Sood, Judicial Member

 

Present:-    Mr.Sapan Dhir, Advocate  alongiwth Mr. Prarthana Dubey, Advocate for the complainants.

Ms. Mukta Mahesh, Advocate for the Opposite Parties. (Defence of the OPs was struck off vide order dated January 2^nd, 2023.)

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that on 02.06.2006, complainant booked  a  residential apartment (having super area of 1600 sq. ft. (consisting of three bed room with study room etc.) for a total amount of Rs,30,72,672/- to be paid by way of installments as per the price schedule and paid registration amount of Rs.6,00,000/- to the opposite parties.  The application proforma was got signed by the OPs from the complainant containing several clauses including time stipulation as per which OPs promised to hand over the flat within 24 months from the date of start of construction. As per the demand of OPs, another payment of Rs.Two lac was also tendered by him on 18.07.2006 and thereafter despite his waiting for long he did not receive any communication from OPs till 14.04.2008. Even after the above stated position, the OPs demanded balance payment of Rs.22,72,672/- illegally, whereas the OPs did not start the construction. This is how, the complainant in all paid Rs.30,00,000/- to O.Ps but still without the agreed appointment.     As per terms and conditions of the OP, the possession of the apartment was to be handed over to the complainant on or before 14.10.2009, which the OPs have failed to do so.   It was almost more than 12 years that the  complainant is being harassed, humiliated and stood cheated by the OPs. The opposite parties were required to handover possession of the apartments by October 2009, but the construction work was not completed by the opposite parties within the stipulated period.    The period of about 12 years has already elapsed and opposite parties are retaining the hard earned money of complainant and several other gullible customers.   Faced with this situation, he got served a legal notice dated 30.07.2018 to the OPs but, to no avail. The complainant prayed that OPs be directed to  refund the deposited amount, i.e. Rs.30,00,000/- alongwith interest at the rate of 12% p.a; Rs.7,00,000/- as compensation   for mental harassment and Rs.50,000/- as litigation expenses, hence the complaint.

2.                Notice of the complaint was issued against the O.Ps. who appeared and filed their written statement, wherein the O.Ps. stated that  letter dated 16.03.2013 clearly reveals that flooring of Tower O has already been completed. Further it was submitted that till 31.03.2019 OPs have already incurred an amount of Rs.30.50 crore i.e. licence fee, conversion charges, service charges, scrutiny fee, 100% EDC & 100% IDC to the govt, besides Rs.5.38 crore towards book value of the land cost paid to the land owners and HUDA on this project.  The OP have spent Rs.186.05 crore towards development/ construction cost thus totaling Rs.221.93 crore against the total receipts/advances of Rs.92.75 crore from the allottees.  About Rs.186.18 crore is still over due from the buyers of pocket-A i.e. Ess Vee Apartments after adjusting the above said receipts advances of Rs.92.75 crore upto 31.03.2019. The complainant  had booked apartment No.-501 in Ess Vee Apartments of super area of 1600 sq ft. for the total agreed price of Rs.34,14,080/- on 02.06.2006 on down payment plan i.e. basic sale price @ Rs.2270/- per sq. ft less 6% rebate.  As on 16.03.2013 flooring of booked tower has been completed.   It was denied that OPs have cheated and committed criminal breach of trust.  The complainant had originally opted for down payment plan but could not deposit the overdue amount upto 17.04.2011.  However finding the recession in the real estate market, the OPs have time to time extended the due date of installments. There has never been any illegal demand by the OPs. The complainant has been irregular in making the due instalments and the last payment was made on 01.09.2013 and has originally booked apartment at the price of Rs.34,14,080/- on 02.06.2006 after opting Down Payment Plan. The complainant was required to complete 90% i.e.Rs.30,72,672/- within 30 days from the date of booking but he did not deposit the overdue amount upto 17.04.2011 and thus OPs have credited delayed possession compensation (DPC) @ Rs.5/- per sq. per month upto December 2010 and @ Rs.7/- per sq. ft. per month w.e.f. 01.01.2011 instead of Rs.5/- per sq. ft. per month, in the ledger account of complainant alongwith interest @ 12% p.a.  An amount of Rs.11,79,200/- has already been credited which would be paid/adjusted at the time of possession of the flat.  Thus there was no deficiency in service on the part of the OPs and prayed for dismissal of the complaint.

3.                When the complaint was posted for recording evidence of the parties, complainant-Sujit Singh Maini in his evidence has tendered the affidavit Ex.CW-1 vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-11 and closed his evidence.

4.                It is pertinent to mention here that  OPs did not appear to lead evidence despite availing several opportunities and even cost of Rs.3000/- was also not tendered. This commission has closed evidence of the OPs.

5.                These arguments were advanced by Mr.Sapan Dhir Advocate alongwith Sh. Prarthana Dubey, Advocate for the complainant as well as Ms.Mukta Mahesh, learned counsel for the opposite parties.  With their kind assistance the entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint was also properly perused and examined.

6.                As per the basic averment raised in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the foremost question which requires adjudication by this Commission is as to whether present complainant is entitled to get refund of the amount which he had already deposited, alongwith the interest? 

7.                While unfolding the arguments, it has been argued by Mr.Sapan Dhir Advocate alongwith Mr. Prarthana Dubey, learned counsel for the complainant that the basic price of the flat was Rs.30,72,672/- against which a sum of Rs.30,00,000/-  has already been paid by the complainant to the  O.Ps.  As per the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect was to be delivered to the complainants by the O.Ps.  within 36 months subject to some reservations.  The period within which, the possession of the flat was to be delivered has already expired despite his depositing the amount of Rs.30,00,000/-.  In these circumstances the complainant had no other option, but, to seek the refund of the amount alongwith interest, which he had already paid. 

8.                On the other hand, it has been argued by Ms.Mukta Mahesh, learned counsel for the O.Ps. that complainant has not paid the installment as per the agreed payment schedule.  There was a delay in making the payments towards the costs of the flat of Rs.34,14,080/-.  It was further submitted that letter dated 16.03.2013 clearly shows that flooring of Tower O has already been completed. Further she argued that OPs upto 31.03.2019 have paid charges amounting to Rs.30.50 crore towards licence fee, conversion charges, service charges, scrutiny fee, 100% EDC & 100% IDC to the govt, besides Rs.5.38 crore towards book value of the land cost paid to the land owners and HUDA.  Besides they have spent Rs.186.05 crore towards development/ construction cost thus totaling Rs.221.93 crore against the total receipts/advances of Rs.92.75 crore from the allottees.  About Rs.186.18 crore were still over due from the buyers of pocket-A i.e. Ess Vee Apartments after adjusting the above said receipts advances of Rs.92.75 crore upto 31.03.2019. Further argued that the complainant  had booked apartment No.-501 in Ess Vee Apartments of super area of 1600 sq ft. at the total agreed price of Rs.34,14,080/- on 02.06.2006 on down payment plan i.e. basic sale price @ Rs.2270/- per sq. ft less 6% rebate.  She argued that complainant had originally opted for down payment plan but did not deposit the overdue amount upto 17.04.2011.  The complainant has been irregular in making the due instalments and the last payment was made on 01.09.2013.  The complainant has originally booked apartment at the price of Rs.34,14,080/- on 02.06.2006 after opting Down Payment Plan. The complainant was required to complete 90% i.e.Rs.30,72,672/- within 30 days from the date of booking but he had not deposited the overdue amount upto 17.04.2011. The OPs have credited delayed possession compensation (DPC) @ Rs.5/- per sq. per month upto December 2010 and @ Rs.7/- per sq. ft. per month w.e.f. 01.01.2011 instead of Rs.5/- per sq. ft. per month, in the ledger account of complainant alongwith interest @ 12% p.a.  An amount of Rs.11,79,200/- has already been credited which would be paid/adjusted at the time of possession of the flat.  Thus, the complainant was not entitled for the refund as prayed for.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, the disputed apartment was purchased by the complainant for a cost of Rs.30,72,672/- out of which an amount of Rs.30,00,00/- (Thirty lacs only) has already been paid.  Application form for allotment of a residential apartment  is also not disputed.   Even all the averments raised in the written version have not been proved by OPs by way of evidence on oath.  As per terms and  condition of OPs, the possession of the flat was to be delivered within period of 36 months complete  subject to some reservation.   To the utter surprise of this Commission and is  very pity that inspite of the fact that a period of more than 12 years having expired, the possession of the flat has not been delivered by O.Ps.  As such, there is a clear breach of terms and conditions made by the OPs.   It is the normal trend of the developers/O.Ps. that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly,  the delivery of possession or completion of the project is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite party  and thus, complainant is well within his legal rights to get the refund of the amount of Rs.30,00,000/- (Thirty Lacs Only)  which he had already deposited with the O.P..  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and the possession has not been delivered within the stipulated period and under the constraint circumstances, the complainant had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.P. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.30,00,000/- (Thirty Lacs only)  alongwith interest @ 9%  per annum from  the date of respective deposits till realization.   In case, there is a breach in making payment within the stipulated period  of  45 days, in that eventuality, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period.   The complainant is also entitled  of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/-  (Twenty Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

11.              Application(s) pending, if any, stand disposed of in terms of the aforesaid Order.

12.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The Order be uploaded forthwith on the website of the commission for the perusal of the parties.

13.              File be consigned to record room.                  

 

May 11th, 2023                                                               S.P.Sood

                                                                                       Judicial Member                       

S.K.(Pvt.Secy)