.

   CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

    Case No.179/2020

MRS. RUCHI

W/O SH. PANKAJ KUMAR

R/O C-II, 330, DR. AMBEDKAR NAGAR

SECTOR III, MADAN GIR,

NEW DELHI 110062                                           …..COMPLAINANT

Vs.   

M/S SUPERSONIC ENTERTAINMENT PVT. LTD.

HAVING ITS REGISTERED OFFICE AT:

F-27, WEST JYOTI NAGAR,

GALI NO. 7, NEAR DURGA PURI CHOWK

SHAHADRA, DELHI – 110049

ALSO AT ITS SITE OFFICE:

448K, DURGA CHOWK, ECOTECH III

OPPOSITE DM OFFICE,

GREATER NOIDA – 201306

EMAIL: vikas_industries2007@yahoo.co.in.             …..RESPONDENT

Date of Institution-07.10.2021

Date of Order- 19.07.2024

  O R D E R

DR. RAJENDER DHAR-MEMBER

1. The complaint pertains to deficiency in service and unfair trade practice on the part of OP.
2. Brief facts as stated in the complaint are that the complainant is in the business of sale of cosmetics and garments and OP is a company in business of real estate and was in the process of developing a township at Greater Noida under the brand name of “Sonic World Mall”.  OP2, OP3 and OP4 are directors and in charge responsible for the day to day functioning and working of OP company. OP invited an application for registration of booking of shops, showrooms, office space multiplex in the said project through an advertisement in their website annexed as Annexure C-1 in the complaint.
3. Complainant applied for allotment of the shop in the said project vide application dated 12.0.2014 for running a cosmetics and garments store under the name of “Ruchi Cosmetic” in order to earn livelihood by means of self employment in pursuance thereof, the OP allotted shop no. N-40 on first floor in the said unit admeasuring 140 sq. fts. (basic price of Rs.9,000/- per square feet totaling to Rs.12,60,000/-), copy of application dated 12.10.2014 and allotment letter have been annexed as Annexure C-2 and C-3 respectively.
4. An agreement was entered between the complainant and OP on 11.02.2015 in respect of said unit as per clause 6 of the said agreement “the developer agrees to pay a sum of Rs.13,650/- per month from the date of signing of this Agreement till 4 years of the unit booked to the buyer on 11 day of each calendar month as committed return @13% annual return on the sale consideration amount of Rs.12,60,000/- (Rupees Twelve Lakh Sixty Thousand Only) of the said unit…..”. A copy of the said agreement is annexed as Annexure C-4. OP has also issued a receipt of having received 100% payment against the said unit as per agreement dated 11.02.2015, copy of receipt is annexed as Annexure C-5.
5. Complainant has further stated that OP was committed to give back assured returned of Rs.13,650/- per month till February 2019 to the complainant. However, the said committed return of Rs.13,650/- per month had to be started from February 2015. In part performance of the said agreement the OP paid to the complainant only till March, 2017 and thereafter stopped making payment to the complainant unilaterally without any basis or reason.
6. Complainant has further stated that OP has violated the agreement dated 11.02.2015 and has stopped paying committed return to the complainant from April 2017 amounting to Rs.3,00,300/- i.e. for remaining 22 months (April 2017 to February 2019) despite repeated requests and demands by the complainant.
7. Complainant has further stated that as per the agreement dated 11.02.2015 it was also agreed by OPs that they shall complete the construction and offer possession of the unit latest by 30.03.2015 (3 month grace period) i.e. 30.06.2015. However, the OP failed to fulfill their part of obligation and to complete construction in the schedule period. Complainant has further stated that as per clause 8 of the agreement i.e. “if the delay is more than 12 months, then the buyer has option to get his money back along with interest @18% p.a. from the date of payment towards Sales consideration till date of actual refund”.
8. Further, complainant has stated that since the OP has failed to complete the said project within stipulated time in fact, there is a delay of 12 months from the scheduled period and therefore, the complainant is entitled to exercise his option under Clause 8 of the agreement and seek refund of money paid by him to the OP along with 18% interest per annum till the date of actual refund. Even till date possession has not been offered by the OP.
9. Complainant has further stated that even in Catena judgment by NCDRC it has been categorically specified that in case the delay in construction is more than one year, the builder is bound to refund the amount to the purchaser with interest as the builder cannot keep the purchasers waiting for indefinite period. Similarly, in this case the complainant is entitled to claim refund from the OP along with interest for inordinate delay of more than five years.
10. Complainant has reiterated that OP has failed in fulfilling their part of obligation i.e.

1. Not paying the committed return of Rs.13,650/- per month till the entire period of 4 years.
2. Complete the construction and offer possession of the unit by 30.03.2015.
3. To refund the amount of the complainant with interest on account of the delay in completion of the construction.

11. Complainant has further stated that OP has indulged into unfair trade practice by not completing the construction in schedule time. Under the above explained circumstances by the complainant the OP has failed to perform his obligations under the mutually signed agreement dated 11.02.2015, also failed to pay committed returns of Rs.13,650/- per month to the complainant and has also failed to complete the construction and hand over the possession within the stipulated period of time. Complainant has sent a legal notice dated 31.08.2022 through her counsel, copy of notice, postal receipts and tracking report have been annexed with the complaint and has annexed as Annexure C-6, C-7 and C-8 respectively.
12. Despite legal notice OP has not refunded the amount and no reply to the legal notice has been given. Reminder notice dated 25.09.2020 was also sent by the complainant through speed post. Copy of the reminder, postal receipts and tracking report has been annexed as Annexure C-8, C-9 and C-10 respectively.
13. Complainant has reiterated that the cause of action arose on 17.10.2014 and is continuing since OP neither refunded the amount nor paid the committed returns and also not offered the possession of the unit to the complainant, therefore, the cause of action is continuing.
14. Complainant has prayed  that direction may be issued to OP for refund of Rs.12,98,934/- along with 18%p.a. from the date of each payment till realization, Rs.10,00,000/- as compensation for damages caused to the complainant on account of harassment and mental agony due to the deficiency in service and Rs.1,00,000/- towards cost of litigation.
15. Notice was served upon OP on 12.01.2021 as per the track report, despite that OP did not appear and no written statement was filed. However, three more opportunities were provided to OP despite that OP failed to appear and no written statement was filed by them. Hence, OP was proceeded Ex-parte vide ordersheet dated 27.07.2022.
16. Complainant dropped OP2, OP3 and OP4 from the array of parties which was recorded in the ordersheet dated 29.05.2023 and complainant also filed evidence by way of affidavit.
17. Complainant has filed ex-parte evidence and has exhibited the following documents:

1. Copy of the advertisement is exhibited as Ex.C-1/1.
2. Copy of letter is exhibited as Ex.C-1/2 and Ex.C-1/3 respectively.
3. Copy of the agreement is exhibited as Ex.C-1/4.
4. Copy of the receipt is exhibited as Ex.C-1/5.
5. Copy of the notice, postal receipts and tracking report are exhibited as Ex.C-1/6, Ex. C-1/7 and Ex. C-1/8 respectively.
6. Copy of the reminder notice, postal receipts and tracking report are annexed as Ex. C-1/9, Ex.C-1/10 & Ex. C-1/11.

18. Complainant has filed written arguments and has reiterated the contents of the complaint.
19. Since, the OP choose not to be present and defend this complaint therefore, the contents of the complaint, evidence filed by the complainant and written argument and other related documents filed by the complainant are deemed to be correct as there is no rebuttal from OP.
20. It is clear from the documents filed by the complainant that complainant had applied for allotment of a shop in the Sonic World Mall being constructed by the OP in Noida, UP for the purpose of opening a small cosmetic and garments under name of Ruchi Cosmetic in order to earn livelihood by means of self employment. The said shop was measuring 140 sq. fts. with a basic price of Rs.9,000/- per square feet totaling to Rs.12,60,000/- which is evidence from the allotment letter filed by the complainant. It is also agreed by the OP in terms of the settlement dated 11.02.2015 as per clause 6 the developer agrees to pay return of sum of Rs.13,650/- per month from the date of singing of this agreement till four years of the unit booked by the buyer on 11^th day of each calendar month as committed return @13% annual return on the same consideration amount of Rs.12,60,000/-. This is evident and clear from the agreement dated 11.02.2015 filed by the complainant. The OP has also received 100% payment against the said unit but it is seen that the OP has defaulted by not paying the committed return to the complainant @13,650/- per month from April 2017 to February 2019 i.e. for a period of 22 months despite the repeated requests and demands from the complainant. It is seen that the project in question was not complied at the scheduled time which was assured by the OP vide agreement dated 11.02.2015 latest by 30.03.2015 (three months grace period) i.e. upto 30.06.2015. The project as such was not completed and the shop booked by the complainant was not delivered to him and no possession was given to the complainant.
21. It is seen that as per clause 8 of the said agreement which provides that if the delay is more than 12 months “the buyer has open to get his money back along with interest @18% per annum from the date of payment towards sales consideration till date of actual refund”.
22. Hence, it is seen that there is a delay of more than 12 months from the scheduled period of construction and therefore, the complainant is also entitled to the benefit as stipulated in clause 8 of the agreement which provides seeking refund of the money paid by him to the OP along with 18% per annum till date of the actual refund. Also keeping in mind the various judgments of NCDRC in such like matters where the delay in construction is more than one year, the builder is bound to refund the amount to the purchaser with interest as the builder cannot keep the purchasers waiting for definite period.
23. Considering the contents of the complaint, it is observed that the OP has blatantly violated terms and conditions of the mutually builder buyer sale agreement dated 11.02.2015 and as such has created breach of trust, faith and confidence and has therefore, indulged in deficiency in services and promising false allurements of assured returns to the complainant which although, were given for a very short duration of time but were stopped thereafter. This amounts to unfair trade practice on behalf of the OP. Ends of justice would be served, following directions are given to OP:

1. Refund and amount of Rs.12,60,000/- along with 7% per annum from the date of filing of this complaint till its realization.
2. Release a sum of Rs.3,00,300/- towards assured returns @ Rs.13,650/- per month for 22 months from April 2017 to February 2019 within one month failing which the amount shall carry interest of 6% per annum from the date of due payment till its realization.
3. An amount of Rs.10,000/- as compensation on account of harassment and mental agony on account of deficiency in services.
4. An amount of Rs.5,000/- towards cost of litigation.

24. Order to be uploaded and to be complied with within 30 days from the date of the order. File consigned to record room.