Haryana

StateCommission

CC/276/2017

BIRJENDER SINGH MALIK - Complainant(s)

Versus

TDI INFRASTRUCTURE PVT.LTD. - Opp.Party(s)

BHAG SINGH

29 May 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.276 of  2017

Date of the Institution:08.05.2017

Date of Decision: 29.05.2019

 

Brijender Singh Malik s/o Sh. Sh.Ishwar Singh R/o H.No. 13-D, Pancham Nagar, Sonepat (Haryana).

                                                                   .….Complainant

Versus

 

The Managing director, TDI Infrastructure Limited,Vandana Building Upper Ground Floor, 11, Tolstoy Marg, Cannaught Place, New Delhi-110001, Branch Office at TDI Mall, Kundli, Distt. Sonepat, through its Branch Manager.

                                                 .….Opposite Party

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

                   Mrs. Manjula, Member

 

Present:-    Mr.Bhag Singh, Advocate for the complainant alongwith Brijender Singh Malik-complainant in person.

Mr.Puneet Tuli, Advocate alongwith Mr. Rujhan Dhawan for the opposite party.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts given rise for the disposal of the present complaint are that  he purchased a flat No. EH-08/0204 at Second Floor on 10.10.2001 situated in Espania Heights, NH-1, Kumaspur Distt.Sonepat of opposite party (O.P.). The allotment letter was given to the complainant on 31.03.2012 Ex.C-1.  Apartment Buyers agreement Ex.C-2 was executed between the parties.  The total cost of the flat was Rs.23,53,936/-.  He continued making the payment of installments regularly. The last payment was paid by him to the O.P. on 21.07.2016.  The O.P. illegally increased the price the flat from 23,53,936/- to Rs.23,63,171/- without any base or reason. As per the agreement, the possession of the above said flat was to be given within a period of 30 months i.e. upto 10.04.2014, but, the same was not given till the filing of the complaint.   The complainant had already paid Rs.21,24,043/- upto 21.07.2016. Every demand letter, the OP assured to him that possession of the flat complete in all respect.  The complainant requested the OP to deliver the possession of the flat, but, the O.P. failed to develop the construction work at the site.  The O.P. illegally demanded payment with regard to electric and fire fighting charges.  The O.P. unilaterally changed the payment plan of installments.  The complainant shall entitle to Rs.5/- per sq. feet of the total area of the flat as well as compensation as prayed for. Thus there was deficiency in service on the part of the O.P.

2.                Notice of the complaint was issued against the O.P. and the reply was filed, wherein the averments taken in the complaint were strongly denied and refuted and prayed for dismissal of the complaint.

3.                While taking the preliminary objection it has been alleged that complainant was guilty of suppresio-vari and suggestion falsie. the complainant defaulted in the performance of his obligations under terms and conditions.  The complainant is a speculative investor who had invested in the project of the OP company by purchasing the rights of a third party.  Other preliminary objections about abusing process of law,  consumer, fraud, criminal breach of trust etc. were also raised and requested to dismiss the complaint.

4.                On merits, O.P. alleged that the complainant has not made timely payment as per the agreement.  He obtained construction linked plan. The buyer agreement was signed between the parties on 02.07.2013. The possession was never handed over to the complainant on 10.04.2014. The construction of the project is in full swing and possession may be handed over within due course of time.  The complainant was defaulter or delayed the timely payment of the installments and due to that reason, the project has also suffered.   Thus there was no deficiency in service on the part of the O.P.

5.                When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-15 and closed his evidence.

6.                On the other hand in order to rebut the evidence led on behalf of the complainant the O.Ps. had also tendered the affidavit Ex.RA that of Mr. O.P.Gupta authorized signatory and also tendered documents Ex.R-1  to R-4 and closed its evidence.

7.                The arguments have been advanced by Sh.Bhag Singh learned counsel for the complainant as well as Mr.Puneet Tuli, learned counsel for the opposite party.  With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

8.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the basic and foremost question which requires adjudication by this court as to whether the present complainant is entitled to get refund of the amount which he has already deposited alongwith the interest. 

9.                While unfolding the arguments it has been argued by Bhag Singh, Advocate learned counsel for the complainant that as far as the executing the buyers agreement is concerned it is not in dispute.  It is also not in dispute that 90% amount of Rs.21,24,043/- had been paid by the complainant to the  O.P.  As per the buyers agreement Ex.C-2 and the terms and conditions incorporated therein including date of delivery of the possession, the possession complete in all respect was to be delivered to the complainant by the O.P. on or before 10.04.2014.  However inspite of the fact that the 90% amount stands paid. The period within which, the possession of the unit was to be delivered had already expired and under these circumstances the complainant had no other option, but, to seek the refund of the amount which he had already paid alongwith interest. 

10.              On the other hand, it has been argued by Sh.Puneet Tuli, learned counsel for the O.Ps. that the amount which the complainant had paid, was not paid as per the repayment schedule.  There was a delay in making the payment of the amount.  It is true that the documents were executed between the parties which includes the buyers agreement which contains all the terms and conditions for allotment, for payment of the installments, charging the interest for delayed payment and delivering of possession.  There was certain reasons which were beyond the control of the O.P., the possession could not be delivered to the complainant in time.  Infact complainant’s amount has already been invested in raising the construction of the project and for making all developmental activities.  Under these circumstances, when the possession is ready to be delivered to the complainant, the refund cannot be granted and the complaint may be dismissed. 

11.              Initially the unit was sold to Ms. Surender Santoshi on 05.08.2011, thereafter, the present complainant has purchased the flat on 31.03.2012.  In this regard, document in fact Ex.C-1 was also executed, thereafter, the buyers agreement  Ex.C-2 was executed on 02.07.2013. The O.P. was also granted to transfer the flat in favour of the present complainant.  As per the terms and conditions of the buyers agreement, the possession was to be delivered within a period of 30 months.  Neither the possession of the flat was delivered nor offered to him.  The complainant has paid the total amount of the unit i.e. Rs. 23,53,936/-, in fact the complainant has paid the amount of Rs.21,24,043/- i.e. 90% of the total cost.  Since the terms and conditions of the buyers agreement has not been executed and the possession has not been offered or delivered, in that eventuality, there was no legal impediment to proceed the refund of the amount from the opposite party.

12.              To the utter surprise of this court and is very pity that inspite of the fact that period of more than three years had expired, the possession of the dwelling unit has not been delivered by O.P.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.P. as it could not deliver the possession of the unit within the permissible period i.e. 30 months.  The developer or O.P. cannot be put to survive on the basis of the amount of the investors.  It is the normal trend of the developer/O.P. that it would collect their hardened money from the investors and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hardened money is not completed. As a result thereof the delivery of possession or completion of the project is delayed in the present case.  When the project is not complete as such, this court is of the considered opinion that the complainant is well within his legal rights to get the refund of the amount of Rs.21,24,043/-  which he had already deposited with the O.P.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and the possession has not been delivered within its permissible period and under the constraint circumstances, the complainants had to knock the door of this court even for seeking refund of the amount.  In such like cases  the court had to deal with the developer/O.P. with severe hands who are misusing the funds of the investors and hence with the above observation and discussion there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.P. is directed to refund of the amount of Rs.21,24,043/- alongwith interest @ 12%  per annum from the date of respective deposits and till realization.   Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period  of  three months, in that eventuality, the complainant would further be entitled to get the interest @ 18% per annum, for the defaulting period.   The complainant is also entitled of Rs.2,00,000/- for compensation of mental agony and physical harassment.  In addition, the complainant is also entitled of Rs.21,000/-  as litigation charges.    It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

 

May  29th, 2019                    Manjula                                  Ram Singh Chaudhary                                                        Member                                  Judicial Member                                                                   Addl.Bench                            Addl.Bench               

S.K.