Haryana

StateCommission

CC/246/2019

ANITA KAUL - Complainant(s)

Versus

PARKWOOD INFRASTRUCTURE PVT. LTD. AND ANOTHER - Opp.Party(s)

NP SHARMA

13 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Instituion:30.07.2019

                Date of final hearing:13.02.2023

                                                Date of pronouncement: 19.04.2023

 

Consumer Complaint No.246 of 2019

 

IN THE MATTER OF

 

Anita Kaul W/o Ashok Kaul, aged about 61 years, R/o 232, Indian Express Society, Sector-48-A, Chandigarh, UT-160047.

                                                                                      .….Complainant

 

Through counsel Mr. N.P. Sharma, Advocate

 

Versus

 

1.    Parkwood Infrastructure Pvt. Ltd., through its Managing Director, Corporate Office:1001, 10^th Floor, Hemkunt Chambers, 89, Nehru Place, New Delhi-110019.

2.    Parkwood Infrastructure Pvt. Ltd., through its Site Manager, Site Office: Parkwood Westend, Gurgaon, Sector Road, Sector-92, Gurgaon-122505, Haryana.

….Opposite parties.

Proceeded against ex-parte

 

CORAM:   Mr. S.P.Sood, Judicial Member.

                   Mr. S.C. Kaushik, Member.

 

Present:-    Mr. N.P. Sharma, Advocate for the complainant.

Opposite Parties proceeded against ex-parte vide order dated 31^st May, 2022.

 

O R D E R

S.P. SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that in the year, 2010, the complainant approached the opposite parties (‘Ops’) for a residential flat in their project under the name and style ‘Parkwood Westend”, Sector-92, Gurugaon (Haryana). Ops offered three types of flats in the said project at large and in pursuance thereof, one Suresh Kumar Garg & Mrs. Hemlata were allotted an apartment bearing No.D-904, 9^th Floor, Tower-D, having a super built up area of 1685 Sq. ft./156.541 Sq. mtrs. on 15.11.2010, for a sale consideration of Rs.43,49,220/-. Possession of abovesaid flat was to be delivered within 36 months from the date of allotment. Complainant decided to purchase said flat from the original allottees and bought the allotment from them and got transferred the same in her name by Ops vide a fresh Flat Buyer’s Agreement dated 09.12.2011. Complainant paid an amount of Rs.37,61,330/- to the Ops as per table:-

Sr. No.	Date	Amount	Receipt No.	Interest
1	15.11.2010	Rs.2,00,000/-	664	Nil
2	22.11.2010	Rs.1,43,234/-	690	Nil
3	30.12.2010	Rs.3,43,730/-	773	Nil
4	03.11.2011	Rs.17,184/-	Westend/1268	Nil
5	21.04.2012	Rs.3,25,000/-	PW/12-13/0017	Nil
6	15.05.2012	Rs.28,841/-	PW/12-13/0054	+276/-
7	28.10.2013	Rs.4,70,000/-	PW/13-14/0222	Nil
8	06.01.2014	Rs.4,33,448/-	PW/13-14/0388	Nil
9	03.03.2014	Rs.4,00,000/-	PW/13-14/0594	Nil
10	07.03.2014	Rs.51,898/-	PW/13-14-607	+102/-
11	08.04.2014	Rs.4,51,550/-	PW/14-15/0010	Nil
12	23.06.2014	Rs.4,51,724/-	PW/14-15/0202	Nil
13	19.08.2014	Rs.2,65,381/-	PW/14-15/0327	Nil
14	31.07.2017	Rs.1,79,340/-	PW/17-18/0011	Nil
Total Amount    Rs.37,61,330/-

 

As per Flat Buyer’s Agreement, possession of flat in question was to be delivered within 36 months from the execution of said agreement. Further, it was alleged that Ops failed to deliver the possession of said flat in terms of the agreement and in turn informed the complainant on 27.09.2017 that project was going to be delayed and the saleable area of her flat stood increased. Thereafter, Ops again informed her through another letter dated 16.08.2018 that the project would be delayed. On 20.07.2019, complainant visited the site to get the shock of her life when she found no progress at the spot rather the construction work had already stopped. Ultimately, on 23.07.2019, she sent an e-mail to the Ops, vide which she demanded refund of her deposited amount, but Ops failed to do so. Thus, there was deficiency in service on the part of the OPs.  The complainant prayed that OPs be directed to refund her deposited amount i.e. Rs.37,61,330/- alongwith interest at the rate of 18% p.a from the date of deposit till its realization; Rs.5,00,000/- as compensation on account of unfair trade practice and Rs.55,000/- as litigation expenses.

2.                Notice of the complaint was issued against the OPs, upon which they appeared, but failed to submit their written version despite availing repeated opportunities and thereafter they even stopped appearing before this Commission on several occasions. Ultimately, Ops were proceeded against ex-parte vide order dated 31^st May, 2022.

3.                When the complaint was posted for recording evidence of the complainant, learned counsel for complainant has tendered into evidence affidavit of Ms. Anita Kaul as Ex.CA, vide which he has reiterated all the averments taken in the complaint, alongwith documents Ex.C-1 to Ex.C-10 and closed the same on behalf of complainant.

4.                The arguments have been advanced by Mr. N.P. Sharma, learned counsel for the complainant. With his kind assistance entire record including documentary evidence as well as whatever other material has been led during the proceedings of the complaint was also properly perused and examined.

5.                As per the basic averment taken in the complaint including the contentions raised by the learned counsel for the complainant, the foremost question which requires adjudication by this Commission is to whether the present complainant was entitled to get refund of the amount which she had already paid to OPs, alongwith the interest or not? 

6.                While unfolding the arguments, it was argued by Mr. N.P. Sharma, learned counsel for the complainant that so far as the execution of the Flat Buyer’s Agreement Ex.C-4 and allotment letter Ex.C-3 are concerned, the same have not been in dispute.  It is also not disputed that complainant has paid Rs.37,61,330/- (Ex.C-5 colly) to the Ops on different dates. It is also not disputed that the total sale price of the plot was Rs.43,49,220/-.  As per the Flat Buyer’s Agreement and the terms and conditions incorporated therein, complainant has paid almost 86.48% of total costs, but still Ops have failed to offer her possession. The period within which, the possession of the unit was to be delivered had already expired. In these circumstances, the complainant has left with no other option, but, to seek the refund of the amount alongwith interest, which she had already paid because it appeared that Ops will never be able to put her into possession of the flat.

7.                In view of the above submission and after careful perusal of the entire record, we find that entire oral and documentary evidence brought on record by the complainant has remained unrebutted. That being so, it is not in dispute that upon floating a project by the Ops-builders, residential flat was purchased predecessor in interest of by the complainant for a total cost of Rs.43,49,220/- against which an amount of Rs.37,61,330/-  has already been paid by complainant after appearing on the scene. Flat Buyer’s Agreement has also not been disputed, but to the utter surprise of this Commission it is quite surprising as to how inspite of the fact that period of more than 9 years had expired, the possession of the flat has not been delivered by OPs.  As such, there is a clear breach of terms and conditions of the flat buyer’s agreement on behalf of the Ops. It is the normal trend of the developers that they collect hard earned money from the individuals and would invest the funds in other projects as a result thereof the project for which the investors have invested their hard-earned money is not completed.  Resultantly, the delivery of possession or completion of the project gets delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there was deficiency in services of OPs and thus, complainant is well within their legal rights to get the refund of the amount of Rs.37,61,330/- (Rs. Thirty seven lacs sixty one thousand three hundred and thirty only) which she had already deposited with the OPs. Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for her having invested a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, she had to knock the door of this Commission even for seeking refund of the amount.  In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

8.                As regard the rate of interest to be awarded, it may be relevant to keep the following factors into consideration keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by Nationalized Banks, there has been an increase in lending rate by the Nationalized banks accordingly it would, in our considered view, be just fair and reasonable to award 9% as rate of interest to the complainant.

9.                In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the Ops are directed to refund of the amount of Rs.37,61,330/- (Rs.Thirty seven lacs sixty one thousand three hundred and thirty only)  alongwith interest @ 9%  per annum from  the date of respective deposits till realization.  In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainants would further be entitled to get the interest @ 12 per annum, for the defaulting period. The complainant is also entitled of Rs.50,000/- (Rs. Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/- (Rs. Twenty Five Thousand Only) as litigation charges. It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act would also be attractable.

10.              Application(s) pending, if any, stands disposed off in terms of the aforesaid order.

11.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

12.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 19^th April, 2023

 

                                                                                                            S.P.Sood

                                                                                                            Judicial Member                                                                                                                 Addl. Bench            

 

 

 

S.C Kaushik,

Member        

Addl. Bench

 

 

R.K