Haryana

StateCommission

CC/190/2017

SAT PAUL GARG - Complainant(s)

Versus

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

SUKAAM GUPTA

20 Feb 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

 

                  

                                                Complaint  Case No.190 of  2017

Date of the Institution:20.04.2017

Date of Decision:20.02.2019

 

1.      Sat Paul Garg S/o Ramji Dass, R/o 19-E, Shaheed Bhagat Singh Nagar, Ludhiana.

 

2.      Renu Jain W/o Sat Paul Garg, R/o 19-E, Shaheed Bhagat Singh Nagar, Ludhiana.

                                                                   .….Complainants

Versus

 

1.      Universal Buildwell Pvt. Ltd., registered office at 102, Antriksh Bhawan, 22, Kasturba Gandhi Marg, Connaught Place, New Delhi-110001, through its authorized signatory.

 

2.      Universal Buildwell Pvt. Ltd., Universal Trader Tower, 8^th Floor, Sector-49, Gurgaon Sohna Road, Gurgaon-122101, through Managing Director.     

                                       .….Opposite Parties

 

Present:-    Mr.Sukaam Gupta,  Advocate for the complainants.

Mr.Anshul Jain,  Advocate for opposite parties.

 

 

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

                   Mrs.  Manjula, Member.

 

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          Complainant has filed complaint under the Consumer Protection Act, 1986 (In short “Act”) pleaded therein that on 15.07.2010 they booked a office space bearing Unit No.810, 8^th floor and having an area approximately of 500 sq. feet of opposite parties (O.Ps). The total value of the unit was Rs.30,50,000/-. The complainant had deposited Rs.11,67,940/- to the O.Ps at different phases. Shop Buyer’s Agreement was also executed in between the parties on 11.08.2010. As per clause No.15 (a) (i) of the agreement, the possession of the unit was to be delivered within 36 months therefrom, but, till date possession of the unit was not delivered to them. The O.Ps. have committed the unfair trade practices and also cheated the complainants and other innocent people also. The complainant requested the O.Ps to refund the amount but till date O.Ps have not paid any heed to the request of the complainants. Hence, under the constraint circumstances the complainants had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.Ps to make payment of a sum of Rs.11,67,940/- which had been deposited by the complainant alongwith interest 12% p.a. and to pay compensation of Rs.2,17,500/-  in view of the Clause 17 of the agreement, Rs.3,00,000/- as compensation for causing mental tension, harassment etc. and Rs.1,50,000/- for unfair trade practices alongwith Rs.1,00,000/- as litigation expenses.

2.                Notice of the complaint was issued against the O.Ps 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 complainants are only a speculative buyers, who for investment purposes have bought the said unit and therefore they are not consumers as per Section 2 (1) (d) (ii) of the Consumer, Protection Act, 1986. It has been further alleged that the present complaint is barred by limitation because the last payment made by the complainants was on 29.06.2013 and such the present complaint is barred by limitation. It has been further alleged that construction work is in progress and structure is ready on the spot as agreed and in this regard the O.Ps issued various reminders to the complainants and requested to make the payment of the further installment, but they failed to do so. There was no clause in the buyer’s agreement to give any interest to the complainant and both the parties were bound by the terms and conditions of said agreement. Since, there was no negligence on the part of the answering O.Ps or no substantial loss has been caused to the complainant and similarly, there was no deficiency in rendering the services of the answering O.Ps on these sole ground, the complaint is liable to be dismissed.

4.                When the complaint was posted for recording evidence of the parties, the complainants in their evidence have tendered the affidavits Ex.CA, Ex.CB, Ex.CC and Ex.CD vide which they have reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-9 and closed the evidence.

5.                On the other hand, O.Ps have tendered in evidence affidavit Ex.RA  alongwith document Ex.R-1 and closed the evidence.

6.                The arguments have been advanced by Sh.Sukam Gupta, Advocate, learned counsel for the complainants as well as Sh. Anshul Jindal, Advocate, learned counsel for the O.Ps.  With their kind assistance the entire records including documentary evidence as well as whatever the evidence had been led by the complainants during the proceedings of the complaint had also been properly perused and examined.

7.                As per the basic averment taken in the complaint and 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. 

8.                While unfolding the arguments it has been argued by Sh.Sukam Gupta, Advocate learned counsel for the complainants that as far as the executing the Shop Buyer’s Agreement is concerned it is not in dispute. It is also not in dispute that an amount of Rs.11,67,940/- had been paid by the complainant to the  O.Ps.  As per the Buyer’s Agreement 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 complainants by the O.Ps. within 36 months.

9.                The period within which, the possession of the unit was to be delivered had already expired and under these circumstances the complainants have 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. Anshul Jindal, learned counsel for the O.Ps. that the amount which the complainants had paid, was not paid as per the repayment schedule.  There was a delay in making the payment of the amount.  Several reminders issued to her regarding balance payment, but, they have not deposited the balance amount.  It is true that the documents were executed between the parties, which includes the Buyer’s 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 global recession which had hit the market/economy and which extended in the subsequent years as well affected the real estate sector of India to a large extent. Under these circumstances, the refund cannot be granted alongwith interest and the complaint may be dismissed.  

11.              As per the submissions made by Sh.Sukam Gupta, learned counsel for the complainants as well as Sh. Anshul Jindal, learned counsel for the O.Ps and after perusal of the entire record as well as appreciation of the evidence during the prosecution of the complaint. It is true that the O.Ps have launched a commercial space project under the name and style of “Universal SquareI” in Sector-59, District Gurgaon (now known as Gurugram).  The complainants have opted to book a unit and initially, they had deposited an amount of Rs.3,00,000/- thereafter, the Shop Buyer’s Agreement  was executed between the parties on 11.08.2010 and as per sub clause No. 15 (a) (i) of the agreement, it contains the terms and conditions of completion of the project and the most important part is that delivery of the possession within the period of 36 months from the date of executing the Shop Buyer’s Agreement. As per payment receipts which are exhibited as Ex.C-1 to Ex.C-5, the complaints had deposited a total sum of Rs.11,67,940/- with the O.Ps on different phases.

12.              Thus, it is apparently clear that complainant had deposited Rs.11,67,940/-  including service tax to the O.Ps. The Buyer’s Agreement was executed on 11.10.2008 and as per the clause 15 (a) (i) of the agreement, the possession of the possession of the unit was to be delivered within 36 months. Still the period of approximately 8 years had already expired and while advancing the arguments, it has been fairly conceded on behalf of the O.Ps that the project is yet to be completed. The possession cannot be delivered under these constraint circumstances the O.Ps cannot be allowed to utilize or to enjoy the hardened money deposited by the complainants for getting the unit booked for their livelihood. It is the normal trend of the developers/O.Ps that they would collect their hardened money from the general public and would invest the funds in other projects as a result thereof the project  for which the general public have invested their hardened money is not completed.  The complainants had to wait more than period of 8 years for delivery of possession.  In such like matters the court has to be callous enough and the O.Ps are to be dealt with severe hands  and cannot be allowed to mis-utilizing the funds of the general public or to have  a mis-directions of funds, which ultimately has been resulted into non-completion of the project and ultimately, it is the complainant  or the general public who had to suffer. In such circumstances, it is evidently clear that complainants had already paid a sum of Rs.11,67,940/- and as such the complainants are entitled to get the refund of the amount in all proposition, the possession of the unit cannot be delivered even in coming years and moreover, a period of more than eleven years have already been expired, hence the O.Ps are directed to make a payment of Rs.11,67,940/- 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 complainants are also entitled of Rs.51,000/- 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. 

 

 

February 20^th, 2019               Manjula                                  Ram Singh Chaudhary                                                        Member                                  Judicial Member                                                                   Addl. Bench                           Addl.Bench               

R.K.