DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No.263/2020

Date of Institution: 24.11.2020

Judgment Reserved on: 19.02.2024

Judgment Passed on: 11.04.2024

COURUM:

Sh. S.S. Malhotra (President)

Ms. Rashmi Bansal (Member)(On leave)

Sh. Ravi Kumar (Member)

Judgment By: Sh. S.S. Malhotra (President)

Judgment

By this judgment the Commission shall dispose off the alleged deficiency in not handing over the possession of booked flat and then not even refunding the deposited amount back.

1. Before coming to the facts, it is necessary to mention that complaint has been filed by complainant through attorney Shri Shiv Shankar Prasad his father.
2. Brief facts as stated by the complainant in the complaint are that the complainant booked a flat by submitting an application on 09.04.2013 and he was allotted the Unit No. C-402 at 4^th Floor in Tower/Block No. CEDAR of the residential project called “Paramount Golfforeste” for a total amount of Rs.43,11,374/- including Rs.2,00,000/- as parking cost and he made a payment of Rs.15,05,270/- vide cheque dated 09.04.2013 itself against which the receipt was issued however by resorting to the unfair trade practices and misusing their dominant position, by adding two additional/extra charges than discussed. Not only this, he was assured to give one gold coin of 10 grams, which was also not given but on persisting, for the same one credit note of Rs.30,000/- dated 11.11.13 was given to complainant to be adjusted at the stage of possession. The OP vide letter dated 23.04.2013 asked for another payment for Rs.72,163/- which was paid and Rs.296/- towards interest which was totally misplaced, as the complainant had chosen ‘super flexy payment plan’ option where he had to pay only 35% of sale consideration at the time of booking which he had paid and remaining amount was to be paid at the time of ‘offer of possession’. OP never completed the construction rather demanded the amount from the complainant and even imposed many hidden charges for the first time in the offer of possession letter without mentioning any fact with respect to the inordinate delay or with respect to the OC/CC (certificates) whereafter the complainant raised certain querries from the OP which were never replied, and ultimately complainant served a legal notice dated 02.04.2019 thereby cancelling the booking and calling upon the OP to refund the entire amount Rs.15,77,433/- with interest @18% per annum which has not been refunded despite there being various legal pronouncement to the effect that complainant cannot be made to wait for unlimited period for taking possession of a delayed project and as such it is prayed  that OP be directed to refund Rs.15,77,433/- alongwith interest @18% with compensation of Rs. 5,00,000/- and litigation charges Rs.1,00,000/-.
3. The OP has filed written statement claiming itself to be the leading Estate Developer in the NCR region and providing various projects to the public at large by further stating that present complaint is without any cause of action and has submitted that the terms and condition of the agreement were accepted by the complainant at the time of allotment letter dated 16.04.2013 and OP Company raised demand at the appropriate stages and although there was certain delay, yet after completion of construction work in villas of the project, the competent authority i.e. UPSIDC has granted a completion certificate on 07.01.2015 for 1988 villas and as far as balance part of the project is concerned, an application was made to the competent authority for grant of CC on 13.10.16 and in pursuance thereof Jr. Engineer of UPSIDC had inspected the project and found the project appropriate for residential purpose, which fact was also recorded by the Regional Manager of UPSIDC in its report dated 13.11.2017, and only on the basis of that report, the OP company had issued a letter of offer for possession dated 09.01.19 and demanded the balance payable amount from the complainant within 30 days and complainant was required to clear all the dues and also to purchase the stamp paper in order to execute the agreement of getting sub-lease executed and take the possession of the unit but the complainant himself failed to purchase the stamp paper and therefore the possession could not be handed over to him which was not  on account of any fault of the OP, as the OP had all the requisite certificates/NOCs from the concerned authorities and only thereafter he had applied for CC and a copy of the office order dated 16.09.19 issued by UP Real Estate Regulator Authority (UPRERA) is attached and not only this, 60% of the allottees of this project who had deposited full and final payment had initiated the process for execution of the conveyance deed and thereafter possession of such units have already been delivered to them and therefore present complaint is liable to be dismissed and be dismissed.
4. As far as merits are concerned the deposit of the money by complainant in name of the project and the unit number are not disputed but it is stated that M/s Paramount Villas Pvt. Ltd. has been amalgamated with Paramount Propbuild Pvt. Ltd. in terms of the judgment of the Hon’ble High Court of Delhi passed on 18.05.15 in company Petition No. 788/2014 which caused certain delay. It is further submitted that terms and conditions of the allotment letter was neither arbitrary nor one sided and OP never breached the terms and condition of the allotment rather adjusted the amount of the gold coins also as per the assurance on the request of complainant and issued credit note against it but it is the complainant who did not make the payment, once the demand letter and letter of offer of possession was given on 09.01.2019 and further there were no hidden charges demanded from the complainant and OP had raised demands on various intervals as per the terms of the their allotment and since various people had not made the payment to the legitimate demand of the OP, the project got delayed and it is reiterated that OP had all the requisite approval in his possession so as to offer the possession to the complainant and it is the complainant who has breached the terms and condition of allotment letter and therefore no case is made out against the complainant and therefore it is prayed that complaint of the complainant be dismissed.
5. The complainant has filed rejoinder and CE whereas OP has filed evidence of Shri Bhupendra Singh, AR of OP.

• The Commission has heard the arguments and perused the record. The complainant is seeking refund of the paid amount from the OP with interest. The OP issued an allotment letter to the complainant. An amount of Rs.15,77,433/- has been received by the OP from the complainant in April, 2013. The possession of the flat could not be given within 36 months as mentioned in the allotment letter, and complainant cancelled the allotment of flat are not disputed facts. The only issues is that aggrieved from the conduct of the OP who delayed the possession as agreed, the complainant cancelled the flat and demanded the paid money back was not as deposited by him on account of delayed possession whereas the contention of OP is that the delay was on account of certain court proceedings/proceeding pending before the NGT etc. Even otherwise this delay is also not disputed. Offering of possession by the OP in 2019 i.e. after about 6 years that too on the basis of deemed OC and CC is the core issue. The OP might have received the OC/CC with respect to certain villas or certain other part of the various projects being developed by OP but the admitted facts are that the CC/OC with respect to the present project has not been received by OP so far, i.e. either at the time when he offered the possession to the complainant or at the time when the complaint was filed or even up to today and therefore the contention that complainant has not come forward to take the possession is not well found. The complainant is within his right to ask for OC/CC and cannot be compelled to make payment on mere deemed CC/OC. Not have OC/CC amounts to deficiency on the part of OP and the same stands established and as per settled proposition of law the complainant cannot be made to wait for a indefinite period in getting the possession of the flat. Therefore the Commission hereby the order as follows:
• OP would refund Rs.15,77,433/- to the complainant with interest @10% per annum from the date of deposit alongwith compensation of Rs.40,000/- and litigation charges of Rs.15,000/-.
• If this Order is not complied within 30 days from the date of the Order then OP shall pay interest on all the above amount @14% p.a. from the date of deposit till the date of realization.
• Copy of the order be supplied/send to parties free of cost as per rules.

File be consigned to Record Room.

Announced on the 11.04.2024.