Delhi

East Delhi

CC/294/2020

SMT. FILOMINA KUMAR - Complainant(s)

Versus

NAV GIRH DEVELOP. - Opp.Party(s)

21 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No.294/2020

 

1           2	FILOMINA KUMAR W/O SHRI BANNU BRIJESH R/O 760, NEW SAINIK COLONY, KANKAR KHERA, SARDANA ROAD, MEERUT, UTTAR PRADESH – 250001   ABHISHEK KUMAR S/O SHRI BANNU BRIJESH R/O 760, NEW SAINIK COLONY, KANKAR KHERA, SARDANA ROAD, MEERUT, UTTAR PRADESH – 250001	….Complainant
Versus
	NAV GRIH DEVELOPERS PVT. LTD. (THROUGHT ITS DIRECTOR) MR. PURAN C-60, SIKKA HOUSE, PREET VIHAR, VIKAS MARG, NEW DELHI - 110092	……OP

 

 

Date of Institution	:	14.12.2020
Judgment Reserved on	:	20.04.0023
Judgment Passed on	:	21.04.2023

 

                  

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

 

Authored By: Ms. Rashmi Bansal (Member)

 

 

 

JUDGEMENT

 

The complainant filed the present complaint against OP for not handing over the possession of the flat booked as per the flat allotment agreement entered between them alleging deficiency of service and claiming a refund of the amount paid with interest along with compensation and litigation cost.

1. Complainants no. 1 and 2 are the mother and son, who entered into a flat allotment agreement with OP on 21.06.2016, in pursuance of their “subvention payment plan” under their Scheme named “Sikka Krissh Greens” and were allotted a flat bearing number 702, seventh floor, Divjot Tower, Meerut, UP, for a total consideration of Rs. 42,96,500/- only. As per the terms and conditions of the agreement and subvention payment plan, the complainant made 10% of the total booking cost of Rs. 11,000/- through cheque on 21.03.2016 against the payment receipt dated 21.03.2016. The complainant submits that to secure the timely payment, the OP has facilitated the complainants to open a housing loan joint account with the bank against the loan amount of Rs. 34,54,150/- and as per the terms and conditions of the subvention payment plan, part payment of 30% of the total cost was to be made on the start of excavation. Complainants allege that on 07.04.2016, without the knowledge of the complainant, the OP made a disbursement of 30% of the total cost, i.e. Rs.12,90,659/- from the housing loan account of complainant no. 2 without even starting any excavation activity by flouting upon the rules and regulations of their agreed subvention payment plan. The complainants submit that the OP has not even started the excavation even at the time of filing the complaint which was delayed almost by 3 years from now, but they are regularly making payments each month against the installments arising against their joint loan bank account.
2. Complainants further submit that as per clauses 27 and 28 of the allotment agreement, the OP was under obligation to provide the possession /completion of the said property within 36 months from the date of the execution of the allotment agreement. However, OP has failed to hand over the same even after the expiry of 56 months and thus committed a breach of contract. The legal notice dated 21.10.2020 sent by the complainant to the OP also was not replied. The complainant alleges that the OP is indulged in unfair trade practices and there is a deficiency in service on its part for misleading the complainant and deliberately delaying the allotment and handing over the possession and also liable for misappropriating their funds which has caused great hardship, mental harassment and pecuniary losses to them. Therefore, the complainant submits that the OP is liable to pay back the entire amount of Rs.11,000 and Rs. 12,90,659/- along with 18% interest, cancelling the allotment agreement, close the loan account and bear the deficit cost, Rs. 25,00,000/- towards causing hardship, mental and physical harassment and litigation cost and Rs. 25,00,000/- along with 18% of interest for causing deficiency in service.
3. The OP, despite service of notice, chose not to appear and as such has been proceeded, ex-parte vide order dated 05.05.2022. The complainants have filed their ex-parte evidence and in support of their case have filed:-

1. Flat allotment agreement dated 21.03.2016, Ex. CW1/1;
2. The payment receipt dated 21.0 3.2016, Ex. CW1/2;
3. The copy of the loan amortization schedule and loan information, Ex. CW1/3;
4. The copy of the photographs of the site, Ex. CW1/4;
5. The copy of the bank statement of the complainants, Ex. CW1/5 (colly);
6. The copy of the legal notice dated 21.10.2020, sent by the complainant, Ex. CW1/6.

4. We have heard the arguments put forward by the counsel for complainants and appreciated the documents placed on record. In the absence of any reply on the part of OP, the allegations put forward by the complainant deems to be admitted by the OP the same being remained uncontroverted. The documents on record show that the complainants have made a payment of Rs.11,000/-  towards the booking amount and an amount of Rs.12,90,659/-  has been disbursed upon OP from the bank from which the complainants have taken the loan. The allotment agreement clearly mentions that the possession of the flat would be given to the complainant within 36 months from the date of signing of the agreement, i.e. latest by 21.06.2019 and the photographs on record show that the site has not even been excavated or prepared for construction to date.
5. Hon'ble Supreme Court of India  In Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243 has held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a service as defined by section 2(o) of the Consumer protection act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to a deficiency of service. 
6. Hon'ble NCDRC in Adrian Pereira v. Anita Ronald Lewis, 2020 SCC OnLine NCDRC 466, decided on 16-10-2020 has held that the Builder has to mention the date of delivery of possession in the agreement & failure to do so will be read against the builder; Homebuyer cannot be made to wait for possession indefinitely.
7. Therefore, considering the facts and circumstances of the case, this Commission is of the view that OP is deficient in its service in not handing over the possession of the flat to the complainants despite receiving the consideration in accordance with the allotment agreement. Therefore, OP is directed to return the amount received from the complainants i.e. booking amount Rs.11,000/-, 30% of the total cost of the flat Rs. 12,90,659/- along with interest at the rate of 9% from the date of filing of the complaint which is 14.12.2020, an amount of Rs. 50,000/- towards compensation for being deficient in service and causing mental and physical harassment to the complainants which shall include the litigation cost, within 30 days from the date of receiving of the order, failing which the entire amount shall carry interest at the rate of 12% per annum from the 31^st day till the actual realization by the complainant.
8. A copy of the order is given to the parties as per CPA rules, 2019.
9. The order is uploaded to the website and thereafter the file be consigned to the record room.
10. The order contains 06 pages, each beer our signature.