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Judgment
Heard counsel for the parties.
Kiran Singh and Brij Raj Singh have filed above complaint for directing the opposite party to (i) pay Rs.17046711/- with pendent-lite and future interest @24% per annum; (ii) pay Rs.500000/- as compensation for mental agony and harassment, (iii) pay litigation costs, and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainants stated that M/s Assotech Moonshine Urban Development Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects. The opposite party launched a group housing project in the name of “Assotech Bilth”, at Sector-99, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainants booked a flat on 31.08.2012 and deposited the booking amount. The opposite party vide allotment letter dated 23.10.2012, allotted Unit no. C-604, admeasuring 1365 sq. ft., total cost of Rs.8863000/- and payment plan was ‘construction linked payment plan’. As per demand of the opposite party, the complainants have deposited the following amounts:
Date of payment
Amount
Cheque No./Mode
31.08.2012
770000/-
564212 HDFC Bank
23.10.2012
806041/-
740064 UCO Bank
29.12.2012
688019/-
084391 HDFC Bank
07.01.2013
100000/-
084392 HDFC Bank
07.12.2013
162093/-
019613 SBI
07.12.2013
900000/-
019612 SBI
10.06.2014
704489/-
108942 UCO Bank
10.06.2014
200000/-
019620 SBI
19.11.2014
826539/-
097544 HDFC Bank
19.09.2015
293933/-
108952 UCO Bank
19.09.2015
500000/-
000004 HDFC Bank
13.10.2015
36233/-
Cash
08.03.2016
733054/-
000009 HDFC Bank
Total Amount paid
Rs.6720401/-
Clause 19.1 of the allotment letter provides 42 months’ period from the date of allotment with a grace period of six months for completion of the project and handing over possession. 42 months’ period expired on 22.04.2016 and the grace period also expired on 22.10.2016. The opposite party however, delayed the project and could not complete it. Due to unreasonable delay in possession, the complainants gave a notice dated 11.04.2019 for refund of their amount. Inspite of the service of notice, the opposite party did not respond. Then this complaint was filed on 28.05.2019.
The opposite party filed its written reply in which the booking of the flat, allotment of the flat as well as deposits made by the complainants have not been deposited. The opposite party has stated the complainants have committed default in payment of instalments dated 05.10.2016, 26.06.2017 and 15.05.2019. The opposite party gave contract for construction of the building to one M/s Assotech Ltd. M/s Assotech Ltd. went into liquidation proceeding on 08.02.2016, in Company Petition No.357 of 2015 and an official liquidator was appointed. Thereafter, pandemic Covid-19 spread in the country and consequently lockdown was imposed on 23.03.2020 which was continued till 30.09.2020. Therefore, the construction was delayed. However, now the opposite party is proceeding with full spring and likely to complete the construction very soon. The opposite party has raised preliminary objection in respect of pecuniary jurisdiction of this Commission inasmuch as the total cost of the flat was Rs.8863000/- and total deposit of the complainant was Rs.6720401/-.
The complainants filed rejoinder reply, affidavit of evidence, affidavit of admission and denial of both the complainants as well as documentary evidence. The opposite party has filed affidavit of evidence and affidavit of admission and denial of documents of Praveen Kumar as well as documentary evidence. Both the parties have filed their short synopsis of arguments.
We have considered the arguments of the counsel for the parties and examined the record. So far as the pecuniary jurisdiction of this Commission is concerned, Section 21 of the Consumer Protection Act, 1986 provides that where the value of goods along with compensation, if any claimed, exceeds Rs.1 Crore, the complaint will lie before this Commission. In the present case, compensation which has been claimed by the complainants is more than Rs.1 Crore. Therefore, there is no substance in preliminary objection raised by the opposite party. The opposite party has raised plea that the complainants were defaulter in payment of instalments dated 05.10.2016, 26.06.2017 and 15.05.2019 but at the same time has stated that their contractor engaged for construction i.e. M/s Assotech Ltd., went into liquidation proceeding on 08.02.2016 and construction was stopped. If construction was stopped then there was justification to raise demands on 05.10.2016, 26.06.2017 and 15.05.2019. In these circumstances, the complainants cannot be said as defaulters.
As per clause 19.1 of the allotment letter dated 23.10.2012, the possession has to be delivered within 42 months from the date of allotment. The said period expired on 22.04.2016 and the grace period of six months also expired on 22.10.2016 but the project has not been completed so far. The counsel for the opposite party informs that the construction has been completed and the possession is likely to be given in the near future but there is nothing on record to show that “occupation certificate” has been obtained till date, although there has been more than seven years delay. It is well settled that a home buyers cannot be made to wait for possession for indefinite period. In these circumstances, the demand of the complainants for refund their amount by the opposite party cannot be denied.
ORDER
In view of the aforesaid discussion, the complaint is partly allowed. The opposite party is directed to refund the entire amount deposited by the complainants along with interest @9% per annum, from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment. In case the payment is not made within two months then the opposite party will be liable to pay interest @12% per annum thereafter.