Haryana

StateCommission

CC/258/2017

PRIKHSHIT PARASHAR - Complainant(s)

Versus

UNIVERSAL BUILDWELL PVT.LTD. - Opp.Party(s)

RECEIVED FROM NCDRC,NEW DELHI

28 Jan 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.258 of  2017

in C.C. No.13 of 2013

Date of the Institution:12.04.2013

Date of Decision: 28.01.2019

 

Mr. Prikshit Parashar s/o Sh. Sh.M.P. Sharma, aged 34 years R/o A-308, Malviya Nagar, Jaipur

                                                                   .….Complainant

Versus

 

1.      Universal Buildwell Private Limited 8^th Floor, Universal Trade Tower Sector 49, Gurgaon Sohna Road,Gurgaon 1221018,aryanaHarHaryana thbrough its authorized signatory.

2.      State Bank of India (Home Loan Sale), First Floor, near the building of Times of India, Tonk Road, Jaipur through Manager.

3.      State Bank of India, Gomti Nagar, Lukhnow through Manager.

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.N.S.Sidhu, Advocate for complainant.

Mr.Siddarth Gulati, Advocate for opposite party No.1.

Mr. K.S.Arya, Advocate for the opposite party Nos.2 and 3.

 

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 booked two BHK apartment with O.P.No.1 on 15.11.2010 and paid Rs.3,50,000/-. The first installment of Rs.3,99,803/- was paid on 25.01.2011.  He was allotted apartment No.1704 on 16^th Floor in Tower G vide letter dated 29.03.2011 and asked to make payment as per schedule.  The apartment Buyer’s agreement was signed between him and O.P.No.1 on 19.09.2011. The basic sale price of the flat was Rs.36,54,900/- excluding EDC and IDC charges. The complainant enquired from O.P.No.1 about approval of the project, but, O.P.No.1 told him that project was approved by banks.  The Banks approved the project in the month of May 2012, but, he was informed in the month of June 2012.  Instead of sending documents the O.P.No.1 was asking to deposit Rs.6,00,090/-. The cheque was received by O.P.No.1 on 29.06.2012, but, presented on 03.07.2012 for encashment.   However, the cheque was dishonoured due to unknown reason.  On 10.07.2012 the complainant deposited Rs.13,49,893/-, but, O.P.No.1 cancelled the allotment without any reason.  He visited the office of O.P.No.1 to settle the dispute, but, was asked to purchase the flat at the higher price.  Thus there was  deficiency in service on the part of the O.P.No.1.

2.      O.P.No.1 filed reply controverting his averments and alleged that this Commission was not having pecuniary jurisdiction to try the complaint.  The buyers agreement was executed by the complainant voluntarily and as per the agreement, the complainant was supposed to make the payment within time, but, the complainant did not deposit the payment within stipulated period.  The complainant replied that the amount would be paid after obtaining loan facility from the bank.  The reminder was also sent to him on 05.08.2011 to deposit the remaining amount, but, to no avail. The cheque No.891421 dated 30.06.2012 sent by complainant was dishonoured.  The complainant had already delayed the payment by 11 months.  The O.P.No.1 rightly cancelled the allotment.  The complainant was residing and working at Jaipur and he was permanent resident of Lucknow and booked flat at Gurgaon just to earn profit by re-sale.  Preliminary objections about accruing cause of action, estoppal, locus standi, maintainability of complaint etc. were also raised and requested to dismiss the complaint.

3.      O.P.Nos.2 and  3 filed separate reply and alleged that the complainant opened the account with O.P.No.3 and cheque book was issued. The scanning of signature would take sometime, but, he issued cheques dated 30.06.2012 and 06.07.2012 which was bounced due to signatures not scanned in the system of the bank.  They denied their liability in any manner and requested to dismiss the complaint.

4.      After hearing complainant, O.P.No.2 and O.P.No.3, the complaint was allowed by the State Consumer Disputes Redressal Commission, Haryana Panchkula vide order dated 08.10.2013.

5.      Feeling aggrieved therefrom O.P.No.1 preferred revision petition before the Hon’ble National Commission. Vide order dated 16.04.2104 Hon’ble National Commission remitted back the matter to State Commission for fresh adjudication after affording an opportunity to O.P.No.1 to put forth its’ case.

6.      The State Commission vide order dated  28.05.2015 dismissed the complaint on the ground that this commission was not having pecuniary jurisdiction to try this complaint.

7.      Feeling aggrieved therefrom complainant preferred revision petition before the Hon’ble National Commission. Vide order dated 02.03.2107 Hon’ble National Commission remitted back the matter to State Commission  to take a final decision after  submitting the evidence  of respondents within six weeks from today.

8.      When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-12 and closed his evidence.

9.                On the other hand in order to rebut the evidence led on behalf of the complainant the O.P.No.1 had also tendered the affidavit Ex.RW1 that of Mr. Abhishek Atri authorised representative and also tendered documents Ex.R-1  to R-22 and closed its evidence.  O.P.Nos.2 and 3 also tendered the affidavit Ex.RB that of Mr. Satyendra Kumar Aggarwal and closed his evidence.

10.              The arguments have been advanced by Sh.N.S.Sidhu, learned counsel for the complainant as well as Mr.Sidharth Gulati, the learned counsel for the opposite party No.1 and Mr.K.S.Arya, the learned counsel for the opposite party No.3.  With their kind assistance the entire record including voluminous documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

11.              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 a “Consumer” as defined  under section 2 (i) (d) of the Consumer Protection Act, 1986?

12.              The next paramount question which requires adjudication is if the complainant found to be a consumer, in that eventuality whether the complainant is entitled to get refund of the amount which he has already deposited alongwith the interest. 

13.              While unfolding the arguments it has been argued by Sh.N.S.Sidhu, Advocate learned counsel for the complainant that  since the complainant is a salaried person and after giving first installment, the remaining installment will be paid through the bank loan and he has been purchased the flat for residential purpose, as such, complainant is a consumer.

14.              It is not disputed that apartment buyer’s agreement dated 19.09.2011 for the residential flat was signed between the complainant and O.P.No.1. It is not disputed that the basic price of the flat was Rs.36,54,900/-.  It is also not in dispute that vide receipts Ex.C-1,  C-2 and C-8 total sum of Rs.13,49,893/-/- had been paid by the complainant to the  O.P No.1.  As per the buyers agreement Ex.C-4 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.No.1 on or before 42 months from the date of execution of agreement, which includes six months grace period.  However inspite of the fact that the complainant has paid Rs.13,49,893/-, but, the O.P.No.1 cancelled the unit allotted to him. 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.  16.   On the other hand, it has been argued by Sh.Siddharth Gulati, learned counsel for the O.Ps. that the amount which the complainant 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 which includes six months grace period.  Since there was a huge litigation pending between the parties and there was certain reasons which were beyond the control of the O.Ps., the possession could not be delivered to the complainants in time, but at a later stage, the offer was made to the complainant to take the possession of the unit.  However on one pretext or the other the possession was not taken and now by taking the shelter of this court, the complainant seeks refund of the amount and infact this 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 complainants, the refund cannot be granted and the complaint may be dismissed. 

15.              In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, unit was booked by the complainant for which an amount of Rs.13,49,893/-  had been paid as is evident by the receipts Ex.C-1 to C-2 and C-8.  It is also true that all the relevant documents were executed between the complainants with that of developers or O.ps. including the buyers agreement. Since the unit was booked for the residential purpose by the complainant, as such, as per the definition enshrined under section 2 (i) (d) of the C.P.Act, 1986 the complainants are a consumer and resultantly the first question is answered in affirmative.

16.              Now for the purpose of answering the question No.2 as to whether the complainant is entitled to refund of the amount which he had already deposited at the different phases.  In this regard the terms and conditions were incorporated in the buyers agreement rather most relevant document.  It is true that the complainant had deposited the total amount of Rs.13,49,893/-.  The buyers agreement was executed on 19.09.2011.  As per the clause of delivery of the possession, the possession was to be delivered within period of 36 months complete in all respects and even grace period of six months was also available to the developer-O.P No.1.   To the utter surprise of this court and is very pity that inspite of the fact that period of more than three years and grace period of six months had expired, the possession of the dwelling unit has not been delivered by O.P.No.1  The witness examined on behalf of O.P.No.1 also admitted that  he has no knowledge whether all the payments made by complainant within time or not.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.P.No.1 as O.P.No.1 could not deliver the possession of the unit within the permissible period i.e. 42 months.  The developers or O.Ps. cannot be put to survive on the basis of the amount of the investors.  It is the normal trend of the developers that builder 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 the present case is also of the similar nature where the period of three years  and six months grace period had expired from the date of when the developer was supposed to  and was under obligation to deliver the possession of the dwelling unit.  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.13,49,893/- which he had already deposited with the O.P.No.1.  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 developers/O.P.No.1 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.No.1 is  directed to refund of the amount of Rs.13,49,893/- to the complainant.   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 @ 12% per annum, for the defaulting period.   The complainant is also entitled  of Rs.1,00,000/- for compensation of mental agony and physical harassment.  In addition, the complainant is also entitled of Rs.21,000/-  as litigation charges.    Since O.P.Nos.2 and 3 are not the contesting parties and in fact they are impleaded as opposite party Nos.2 and 3 to avoid any legal technicalities. This order would be having not bearing upon opposite party Nos.2 and 3.  It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

January    28th, 2019                                     Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

S.K.