Delhi

North

CC/201/2016

KUNDAN SINGH RAWAT - Complainant(s)

Versus

M/S. RAJESH BUILDCON & INFRASTRUCTURE PVT. LTD. - Opp.Party(s)

MANOJ KUMAR SAHU

24 Jun 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.201/2016

In the matter of

Sh. Kundan Singh Rawat

293 ‘E’ Extenstion

Shyam Vihar Phase-1,

Near Shankar Public School

Najafgarh, New Delhi-110043                                                                           …Complainant

                                                                                   

Versus

Rajesh Buildcon & Infrastructure Pvt. Ltd.

2/33, Ansari Road, Darya Ganj

New Delhi-110002                                                                                         ...Opposite Party-1

 

Sh.Prashant Joshi

S/o Sh. Ganga Prasad  Joshi

R/o 2/33, Ansari Road, Darya Ganj

New Delhi-110002                                                                                         ...Opposite Party-2

                                                                                                                                                           

ORDER

24/06/2024

Ms.Harpreet Kaur Charya, Member

Jurisdiction of this commission has been invoked by Sh.Kundan Singh Rawat, the complainant against M/s.Rajesh Buildcon and Infrastructure Pvt. Ltd as OP-1 and Sh. Prashant Joshi as OP-2 with the allegations of deficiency in services.

 

1. Facts necessary for the disposal of present complaint are that the complainant, a retired defence personnel on 09/12/2016 applied  for a 200 sq.yard plot vide application RBI/DU200/34 for plot No.A-15, Cluster -2, Sector/Block-II at Diamond Vedic City, Delhi Haridwar Highway.   
2. The complainant paid Rs.3,32,100/- vide voucher No.127 and Rs.61,348/-.   On 23/02/2008, the builder buyer agreement was executed where it was mutually agreed that remaining amount of Rs.14,363/- will be paid in 20 equal monthly instalments.  As per Clause 4.9 of the agreement, possession was to be handed over within 20 months from the date of signing of the agreement. 
3. It has been stated by the complainant that as OP was offering Rs.20,000/- discount on 200 sq. yards plot in case the purchaser paid all the 20 instalments in one go.  Hence, on 02/05/2008, the complainant issued a cheque bearing No. 998188 drawn on Syndicate bank for Rs.2,40,534/-.
4.  It has been alleged by the complainant that despite paying the total agreed sale consideration; OP has not handed over the possession of the plot within stipulated time. 
5. Despite several written and telephonic requests, the OP failed to handover the possession. An email dated 18/05/2010 requesting OP to refund the amount and subsequent reminders were sent by the complainant.
6. A legal notice dated 02/02/2013(sic) though it is 24/01/2013 and email dated 19/02/2013 was issued to OP seeking refund of total sale consideration paid by the complainant alongwith interest @21% was issued, same was neither replied nor complied by the OP.
7. Feeling aggrieved by the act/omission on the part of OP, the present complaint with the prayer for direction to OP to refund the entire sales consideration paid by the complainant; pay interest @18% p.a. on the amount paid till realization; Rs.5,00,000/- as compensation on account of mental agony, harassment due to deficiency in services; Rs.1,00,000/- as punitive damages and cost of litigation.
8. The complainant has annexed the brochure of OP as Annexure-A, welcome letter dated 09/08/2007, transfer certificate dated 09/08/2007, offer of allotment dated 16/01/2008, letter dated 02/05/2008 written by complainant, receipt for Rs.61,348/- dated 06/02/2008, receipt for Rs.14,363/-dated 01/03/2008, receipt of Rs.14,363/- dated 01/04/2008, email dated 16/08/2010; ledger account for period 01/04/2007 to 29/07/2008, Plot  buyer’s agreement dated 23/02/2008 as Annexure-B(Colly); letter dated 02/05/2008 w.r.t. payment of instalment in one move as Annexure-C; receipts dated 02/05/2008 for Rs.2,40,534/- as Annexure-D; emails dated 16/08/2010 requesting refund and reminder dated 28/02/2011, 13/08/2011 ; letter dated 24/10/2011 issued by OP as Annexure-E and legal notice dated 24/01/2013 alongwith postal receipts as Annexure-F. .
9. Written statement was filed on behalf of OP upon Notice. They have taken several pleas in their defence such as the complainant is barred by limitation; there is no cause of action in favour of the complainant;  the complainant himself chose to surrender the plot on 18/05/2010 and did not come forward to get the sale deed executed; as per clause 10 in the event of cancellation/termination the OP has right to forfeit the earnest money ;  complainant is attempting to seek the recovery of the time barred amount in the guise of complaint under the  provisions of Consumer Protection Act.
10. It has been submitted that the complainant was advised by OP to complete the formalities and deposit the amount towards the sale deed papers.  The complainant is required to bear/pay the cost of stamp paper and miscellaneous expenses which has been not done by the complainant.  It is the complainant who did not come forward to complete the formalities for execution of the sale deed and has abandoned the proposed ownership.
11. As per clause 10 of the agreement, in the event of the cancellation of the plot the OP has right to forfeit the earnest money i.e. 25% of the sale amount.  Consequent thereof, the complainant has instituted the present complaint.  It has been denied that there is any deficiency in services on their part and the complainant has suffered due to breach committed by OP.  Rest of the content of the complaint have been denied with the prayer for dismissing the complaint with cost.
12. Evidence by way of affidavit was filed by the complainant reiterating the contents of the complaint.  He has got exhibited the documents annexed with the complaint; brochure of OP as EX.CW1/1, welcome letter dated 09/08/2007, transfer certificate dated 09/08/2007, offer of allotment dated 16/01/2008, letter dated 02/05/2008 written by complainant, receipt for Rs.61,348/- dated 06/02/2008, receipt for Rs.14,363/-dated 01/03/2008, receipt of Rs.14,363/- dated 01/04/2008, email dated 16/08/2010; ledger account for period 01/04/2007 to 29/07/2008, Plot  buyer’s agreement dated 23/02/2008 as EX.CW1/2; letter dated 02/05/2008 w.r.t. payment of instalment in one go as EX.CW1/3; receipts dated 02/05/2008 for Rs.2,40,534/- as EX.CW1/4; emails dated 16/08/2010 requesting refund and reminder dated 28/02/2011, 13/08/2011 EX.CW1/5; letter dated 24/10/2011 issued by OP as EX.CW1/6; copy of email dated 18/12/2012 alongwith attachment as EX.CW1/7 and legal notice dated 24/01/2013 alongwith postal receipts dated 04/02/2013 as EX.CW1/8.
13. OP has got examined Sh.Rajesh Gupta, Director on their behalf.  He has got exhibited the board Resolution dated 01/05/2013 as Ex.RW1/1, Plot Buyer Agreement dated 23/02/2008 as Ex.RW1/2, the order dated 08/04/2013 passed by this Commission in CC No.82/2013 as Ex.RW1/3 and the environmental clearance, sanction/permission from the State Govt., sanctioned Site Plan, NOB Certificate by the State Govt. regarding the project.  The requisite documents regarding the registration of the company, Treasury receipt letters/NOC from the State Govt. and State Level Environment Impact Assessment Authority and the letter regarding the sanctioned plan are Ex.RW1/4.
14. We have heard the arguments of the Ld.Counsel for the complainant and have perused the file.  At the onset we would like to state that the facts mentioned in the complaint are not clear.  The complainant has placed on record the Ledger Account pertaining to his plot.  He has made the following payment as per the said account:-

 

NO.	Date of payment	Voucher No.	Amount in Rs.
	09/08/2007	127	3,32,100.00
	0702/2008	656	61,348.00
	03/03/2008	858	14,363.00
	3/04/2008	11	14,363.00
	02/05/2008	282	2,40,534.00
Total			6,62,708.00

 

15. Thus, it can be adduced that the complainant has paid Rs.6,62,708.00.     
16. Initially, the complainant had filed CC/82/2013 titled as “Kundan Singh Rawat vs M/s Rajesh Buildcon”; same was dismissed being barred by period of limitation by ld. Predecessor of this Commission vide order dated 05/04/2013.   The said order was set aside by Hon’ble State Commission Delhi in FA No. 487/2013 titled as “Sh. Kundan Singh Rawat vs M/s Rajesh Buildcon & infrastructure Pvt. Ltd.”dated 03/05/2016 and the matter was remanded back with the observations that:-

10. In the present case also the possession has not been delivered and the appellant/complainant is alleging deficiency in service and seeking refund of payment.Present is a case continuous cause of action and the complaint filed by the appellant/complainant before the Ld. District Forum was not time barred.Accordingly, we accept this appeal and set aside the impugned order and remand back the case to the Ld. District Forum for deciding the same in accordance with law.

 

17. Since, this order of Hon’ble State Commission has not been challenged, thus it has attained finality; hence this Commission cannot go into the objections taken by OP with respect to limitation and the same is to be decided on merits.
18. As per Clause 4.9 of Ex.CW-1/2, Plot buyer’s Agreement dated 23/02/2008, the OP proposed to handover the possession of the plot within a period of 20 months from the date of signing of the agreement with a grace period of 180 days.  Thus, OP was liable to handover the possession by 22/04/2010.
19. OP has pleaded that the complainant himself chose to surrender the plot on 18/05/2010 and in order to escape forfeiture of the 25% of the earnest money has filed the present complaint. The said email is after the expiry of the stipulated time of 22/04/2010, when OP had to hand over the possession as stipulated in the agreement. Thus, this objection of OP is not sustainable.
20. We have also gone through Ex.CW1/7 (Colly), an email dated 18/12/2012 with the subject “TRF letter”, with attachment containing all the enclosures. The said email is after a period of 2 yrs 7 months wherein the complainant is requested to complete and send all the papers. OP has failed to give any plausible reason as to why there was a delay of more than 2 yrs.
21. Another objection raised by OP is that the complainant did not come forward to get the sale deed executed.  If we look at letter dated 24/11/2011 (Ex.CW1/6) wherein the OP has intimated the complainant that all the development work at site is in progress. All the NOCs related to the site like water, National Highway, electricity etc. have been obtained for the project.  Registry process also started and the company is going to start giving possession of plot within the next three months positively.  According to this, the possession should have been given by 24/02/2012.
22. However, it is only on 24/11/2011, OP informed the complainant with respect to the handing over of possession shall be completed in next three months positively. 
23. OP has not place on record  any document to show that the possession was offered to the complainant and it was the complainant who failed to execute the sale deed and complete the formalities required for registration/handing over of possession.  The complainant cannot be made to wait indefinitely.  Failure to handover the possession within the stipulated time period definitely amounts to deficiency in services.
24. OP has also failed to return the amount paid by the complainant despite repeated reminders through email from 16/08/2010 to 23/09/2011 requesting for refund.  The said mails have been ignored by the OP.  The amount deposited by the complainant has been enjoyed by the OP for which the complainant is entitled for interest. 
25. Therefore, in the facts and circumstances of the present complain, we direct OP to:-

1.  Refund Rs.6,62,708/ paid towards the cost of the plot.
2. Pay interest @7% p.a. from the date of each payment (tabulated above) till realization .
3. Pay Rs.25,000/-as compensation on account of mental harassment and agony, inclusive of litigation expenses.

 

26. The order be complied with in 30 days from the date of receipt of order.  In case of non-compliance within a stipulated period, OP shall be liable to pay interest @9% p.a. on (a+b+c) from the date of order till realization.  

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

 

(Harpreet Kaur Charya)              Member	(Ashwani Kumar Mehta)                          Member   (Divya Jyoti Jaipuriar)           President