Delhi

East Delhi

CC/845/2014

KAMALPREET - Complainant(s)

Versus

NITISHREE - Opp.Party(s)

15 May 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. 845/2014

 

	Kamalpreet Kaur D/o Sh. Malkit Singh, Flat No. 532, DDA Flats, Sector-9, Pocket-2, Dwarka, New Delhi-110075	..…Complainant
Versus
	M/s Nitishree Infrastructure Limited Through its Directors 78-B, Group D-2, Janta Flats, Kondli, Gharoli, Mayur Vihar, Phase-III, Delhi-110096.	……OP

 

Date of Institution: 10.09.2014

Judgment Reserved on: 15.05.2023

Judgment Passed on: 15.05.2023

                       

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

Judgment By: Ms. Rashmi Bansal (Member)

 

JUDGMENT

 

The present complaint is filed by the complainant against OP alleging unfair trade practice and deficiency in service in not handing-over the possession of the flat booked as per the agreement  and then not returning the deposited amount.

1. It is the case of the complainant that in the year 2008 she had booked a flat measuring 1125 Sq. ft apartment @ 1524.44 Sq. ft. with OP & paid Rs. 1,68,070/- in its proposed project “Aura Abode”, NH-58, Ghaziabad, and a flat bearing no. 407, Block-B, 4^th Floor was allotted to her. As per Builder Buyer Agreement dated 15.02.2008 the  possession of the flat was promised to be given by December 2009 with grace period of 3 months and the balance amount was to be paid as per linking progress of the project. The complainant submits that no development has been made by the OP despite passing of the 6 year. The OP has not responded to the various calls and visits to its office and the possession of the flat was never offered / given to the complainant. The complainant alleges gross deficiency in service on the part of the OP and unfair trade practice in keeping his hard-earned money with it for such a long period without having any intention of providing appropriate services. The complainant further submits that due to callous and negligent attitude of the OP complainant has suffered financial loss as well as harassment, tension and mental agony at the hands of the OP and is claiming refund of his amount deposited with OP with interest @24% p.a. from the date of depositing till the date of refund, a compensation of Rs. 2,00,000/- for harassment, tension and agony undergone by the complainant at the hands of OP and Rs. 1,00,000/- as litigation cost.
2. Despite notice OP did not appear and as such was proceeded ex-parte on 05.05.2015, however, vide order dated 18.05.2015, an opportunity was granted to OP to file its written statement, subject to the payment of Rs. 500/-  as cost. OP has filed WS but has not paid the cost.  Another opportunity vide order dated 23.07.2015 was also granted to OP to deposit the cost subject to further cost of Rs. 500/- but the same was also not paid by OP & therefore, written statement filed by OP cannot be read for the purpose of its defence, for the non-compliance of the order of the court.
3. Complainant has filed the rejoinder and evidence. OP has not filed any evidence. Since the written statement filed by the OP cannot be read, therefore, the rejoinder filed by the complainant would also be not read.
4. The complainant has filed following document along with her evidence:-
   1. The Special Power of Attorney in favour of Sh. Malkit Singh (Father of the Complainant);
   2. Builder Buyer Agreement dated 15.02.2008 entered between the complainant and OP;
   3. Allotment Letter dated 15.02.2008 along-with receipt of payment ofRs. 1,68,070/- dated 01.02.2008;
5. The Commission has heard the Ld. Counsels for the complainant as well as Sh. Manik Sood Advocate for OP who has advanced the argument. The Commission has perused the record carefully. Since OP has failed to place on record any defence therefore the version put forward by the complainant remained uncontroverted and are deemed to be admitted by OP. Perusal of the record further shows that a payment of Rs. 1,68,070/- has been paid by the complainant. The Allotment Letter dated 15.02.2008 shows that complainant has been allotted a Flat bearing no. 407, Block-B, 4^th Floor, Area 1125 Sq. Ft, with total B.S.P. 17,15,000/-. The agreement dated 15.02.2008 vide its clause no. 9 has specifically mentioned that the OP would deliver the possession of the said apartment to the allotees by December 2009 with grace period of 3 months. The OP, though argued orally yet all such facts have not been denied. No law point was raised by the OP. Upon enquiry from this Commission, it has been informed by the counsel of the OP that the project was not completed till December 2012. Rather it is submitted that the OP has written a letter to the complainant in the year 2008, thereby demanding the remaining amount & offer the possession but when query was raised by the Commission, as to whether the project was ready to handed-over the possession in the year 2008, it was replied that project was not ready in the year 2008 but got ready in the year 2012. It interalia means that the letter written in the year 2008 was nothing but a moonshine to extract money from the complainant, which amounts to unfair trade practice. On further inquiry as to whether any intimation was given to the complainant in the year 2012 when as per OP, the said project was ready, the answer is again in negative. Rather it is stated that the OP is ready to return the amount without interest, as the unit have already been sold. It was also informed by OP that no intimation was ever given to the complainant from the OP w.r.t. any development/progress of the project or w.r.t. the fact that flat was ready or w.r.t. the fact this complainant may take the possession after due payment, after the year 2012, when the OP claims the project was ready. No occupation Certificate or Completion Certificate has been filed by the OP on court record to establish that construction was complete as per the promise of OP in 2009 or even in 2012.
6. In“Lukhnow Development Authority Vs. MK Gupta”(1994) 1 SCC 243, the Hon’ble Supreme Court has held that” when a person hires the services of builder or contractor for the construction of a house or a flat and the same is for the consideration its services as define by the Section 2 (o) of the Consumer Protection Act 1986. The inordinate delay in handing over the possession of the flat clearly amongst deficient of service”.
7. Also in Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra 2019 CA 3182/2019 the Hon’ble Supreme Court held that a buyer cannot be made to wait indefinitely for the possession of the flat and directed the developer to refund the amount paid.
8. Considering the fact and circumstances of the case and the directions of the Hon’ble Supreme Court, this Commission is of the view that the by not delivering the possession of the above stated flat by OP within contractual period, OP is deficient in its services and has involved itself in unfair trade practice by keeping the hard earned money of the complainant since 2008 and utilized the same for its own gain and thus has deprived the complainant from enjoying her own money and enriched itself with unjustified financial gain for approximately 15 years since 2008. We are also conseious of the fact that the money value is lowered since 2008 till today and refunding the deposited amount only to the complainant in 2023, would be unjustified.  Therefore, this Commission is of the view that the ends of justice would meet if exemplary compensation be given to the complainant for his financial sufferings. Therefore, OP is directed;

• To refund the entire amount deposited by the complainant, i.e. Rs.1,68,070/- along with an interest @12% p.a. from the date of deposit i.e. 01.02.2008 till its final realization by the complainant; 
• To pay Rs.30,000/- towards damages for harassment, tension and mental agony undergone by the complainant due to deficient services and unfair trade practice by OP;
• To pay Rs.10,000/- towards litigation costs.

9. This order be complied with within a period of 30 days from the date of receiving the order, failing which the entire amount including compensation & litigation cost will carry interest at the rate of 15% per annum from the date of the order till its compliance.
10. A copy of the order is given to the parties as per CPA rules, 2019 and thereafter the file is consigned to the record room after uploading the order on the website.
11. The complaint could not be decided within the statutory period due to the heavy pendency of the cases before the Commission and the time taken by the settlement proceeding between the parties.
12. The order contains 06 pages for each beer with our signature.

Pronounced on 15.05.2023.