Haryana

StateCommission

CC/698/2017

SANDEEP GOYAL - Complainant(s)

Versus

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

GAURAV CHOPRA

21 Jan 2020

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.698 of  2017

Date of the Institution:06.11.2017

Date of Decision: 21.01.2020

 

Sandeep Goyal W/o Sh.Sanjay Goyal R/o H.No.51, Sector 21 A, Chandigarh.

 

                                                                   .….Complainant

Versus

Universal Buildwell Pvt. Ltd., M/s Universal Trade Power, 8^th Floor, Sector-49, Gurgaon-Sohna Road, Gurgaon through its Managing Director.

 

                                                .….Opposite Party

CORAM:   Hon’ble Mr. Justice T.P.S Mann, President.

Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Gaurav Chopra, Advocate for the complainant.

Opposite party already proceeded ex parte vide order dated 21.12.2018.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          There is a delay of 1125 days in filing the present complaint.

2.      Alongwith the complaint, the complainant has filed an application under section 24 A of the Consumer Protection Act, 1986 for condonation of delay of 1125 days. It is alleged in the application that cancellation letter dated 09.10.2012 was issued by the opposite party illegally and on the basis of legal advice, he had approached the permanent Lok Adalat, Gurgaon, which was dismissed as withdrawn on 25.08.2014 with liberty to file complaint before competent court or authority having jurisdiction in the matter. Subsequently a consumer complaint No.117 of 2014 was instituted by the complainant in this Commission, which was also dismissed as withdrawn on 28.11.2014 with liberty to him to approach the proper District Forum.  He approached District Forum, Gurgaon, which was also dismissed as withdrawn in view of the law laid down by the Hon’ble National Commission in its judgement rendered in Ambrish Shukla Vs. M/s Ferrous Infrastructure.  Certified copy of the order dated 05.09.2017 passed by the learned District Forum was received by him on 16.10.2017.  No fault can be attributed to the complainant. The delay, if any caused in the institution of the above mentioned complaint in this commission was bonafide and had been caused due to reasons as stated hereinabove, which were beyond the reasonable control of the complainant.  The delay of 1125 days may kindly be condoned, in the interest of justice, equity and fair play.

3.      Heard.

4.      Learned counsel for the complainant vehemently argued that the he filed complaint before Permanent Lok Adalat, before this Commission and before the learned District Forum, Gurgaon, but, all the times, the complaint was dismissed as withdrawn in view of law laid down in Ambrish Shukla’s case (supra).

5.      Since, no fault can be attributed to the complainant at the time of institution of the consumer complaint before the competent authorities. Hence, the delay of 1125 days in filing the complaint is hereby condoned, in the interest of justice, equity and fair play.

6.       The brief facts giving rise for the disposal of the present complaint are that he (complainant) inspected the location and site plan of the flat had submitted an Advance Registration Forum dated 11.10.2010 for seeking allotment of a residential unit in the project being developed by the opposite party.  The total sale consideration of the allotment Unit was Rs.85,11,241/-. At the time of submission of form, he had issued cheque for an amount of Rs.4,50,000/-, which was encashed by the OP vide receipt No.002393 dated 31.12.2010.  The complainant had also paid an amount of Rs.8,29,822/- as first installment on 22.1.2011. The OP had provisionally allotted Apartment No.302, Tower B, type III, BHK-st having an approximate area of 1968 sq. ft. in the residential project ‘Universal Aura’ which was being developed by the opposite party vide a provisional allotment letter dated 26.03.2011.  Till January 2011, the complainant had paid an amount of Rs.17,77,822/- against allotment of the residential apartment.  No buyer’s agreement had even been communicated to the complainant. Vide letter dated 03.07.2011, the opposite party demanded Rs.10,14,799/- from him, but, upon inspection of the site by the complainant, there was no construction activity on the site.  He also deposited Rs.5,00,000/- to the OP vide a cheque No.169797 dated 07.05.2012, which was encashed by the OP. A cancellation letter dated 09.10.2012 was received from the OP on the ground that complainant has not deposited the amount as per the terms.  Aggrieved by the illegal act, he had got issued a legal notice dated 09.11.2012 through counsel and to withdraw the cancellation letter dated 09.10.2012. The cheque of Rs.15,31,288/- was sent to the complainants by the OP, which was not encashed. The OP illegally withheld an amount of Rs.1,97,917/- and service tax of Rs.48,117/-.  Thus there was deficiency in service on the part of the O.Ps.

7.                Notice of the complaint was issued against the opposite party. Initially the O.P. was represented by its counsel but subsequently on  three dates it has failed to appear through counsel as such the ex parte proceedings were recorded vide impugned order dated 21.12.2018 and the appeal was fixed for ex parte evidence of the complainant.

8.                The argument has been advanced by Mr. Gaurav Chopra, the learned counsel for the complainant.  With his kind assistance the entire record of the complaint has also been properly perused and examined.

9.                While unfolding the arguments it has been argued by Gaurav Chopra, the learned counsel for the complainant that as far as the basic price of the flat was Rs.85,11,241/-.  It is also not in dispute that a sum of Rs.17,77,822/- had been paid by the complainant to the  O.P.  It is also not disputed that cancellation letter dated 09.10.2012 was issued by the opposite party.  It is also not disputed that the opposite party issued cheque of Rs.15,31,288/- to the complainant, which was not encashed. It is also not disputed that OP illegally deducted amount of service tax as Rs.48,117/- and Rs.1,97,917/- as interest on delayed payment.  It is also not disputed that the buyer’s agreement was not executed by the opposite party. 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 Rs.17,77,822/- of the amount alongwith interest, which he had already paid.

10.              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, flat was purchased by the complainant for which total amount of Rs.85,11,239/- (Eighty Five Lacs Eleven Thousand Two Hundred And Thirty Nine) had been paid.  The unit was cancelled on  09.10.2012 is also not disputed.  As per oral agreement, the possession of the flat was to be delivered within stipulated period subject to some reservation.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 9 years had expired, the possession of the flat has not been delivered by O.P. Even, the opposite party has not executed the buyer agreement.  It is the normal trend of the developers/O.P. that they would collect the 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. 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 Commission is of the considered opinion that the complainant is well within their legal rights to get the refund of the amount of Rs.17,77,822/- (Seventeen Lacs Seventy Seven Thousand And Eight Hundred And Twenty Two Only) 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 the stipulated period and under the constraint circumstances, the complainant 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/O.P. with severe hands who are misusing the funds of the individuals. 

11.              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.17,77,822/- (Seventeen Lacs Seventy Seven Thousand And Eight Hundred And Twenty Two Only)  alongwith interest @ 12%  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 complainant would further be entitled to get the interest @ 15% per annum, for the defaulting period.   The complainant is also entitled of Rs.1,00,000/- (One Lac Only) for compensation of mental and physical agony.  In addition, the complainant is also allowed Rs.51,000/-  (Fifty One Thousand Only) as litigation charges.    Letter dated 09.10.2012 vide which the allotment was cancelled by the O.P. is illegal and stands quashed.  It is also made clear that for non-compliance, the provisions enshrined under section 25 and 27 of the C.P.Act  would also be attractable. 

 

January 21st, 2020          Ram Singh Chaudhary,             T.P.S.Mann,                                        Judicial Member                        President                                  

S.K.(Pvt.Secy)