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Judgment
Sudip Ahluwalia, Member
This Consumer Complaint has been filed under Section 12(1)(c) of the Consumer Protection Act, 1986 alleging deficiency in service and unfair trade practice on the part of the Opposite Party and seeking refund along with ancillary reliefs.
The factual background, in brief, is that the Opposite Party launched the ‘County Garden’ housing project in Neemrana, Rajasthan, and marketed it widely to the public. Attracted by the project's promises, the Complainants, including Complainant No. 1/Mrs. Poonam Mishra, booked plot after paying Rs.68,250/- initially and she was allotted Plot No. F-171 on 30.03.2012. The plot was priced at Rs.4,550/- per sq. yd., with an additional 10% charge for its preferential location. The total consideration amount for the plot was Rs.7,50,750/-. The Opposite Party committed to delivering possession of the plots within 24 months from the signing of the Memorandum of Understanding (MoU), dated 20.10.2012, with additional grace period of 6 months. The Opposite Party issued a Provisional Allotment Letter on 17.07.2012, for Plot No. F-168 and raised subsequent demands for payments, which Complainant No. 1 paid as per the plan. The MoU stated that possession would be granted only after basic infrastructure, including water supply, electricity, and pucca roads, was in place. However, as of today, the Opposite Party has not completed these developments, nor obtained the necessary Occupancy Certificates to offer a valid possession. The Complainants, having paid significant sums, found that the project site lacked the promised facilities such as water supply, electricity lines, and proper roads. Visits to the site in 2019 revealed minimal progress, with essential infrastructure still incomplete. Repeated requests for a refund, including letters from Complainant No. 23/Mrs. Shail Bala Sharma, were ignored by the Opposite Party. The Opposite Party has collected substantial payments from the Complainants while failing to adhere to the agreed schedule or deliver the plots, causing significant financial loss, harassment, and mental agony to the Complainants. Despite multiple payments by the Complainant No. 1 totaling to Rs.3,41,250/- and the signing of the MoU, the plot was not delivered by the promised date of 20.04.2015. Consequently, being aggrieved by the deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainants have filed the present complaint.
In view of the aforesaid facts, the Complainant has prayed as following -
“a) Allow the instant complaint;
b) Direct the Opposite Party to refund the amount deposited by each Complainants, as well as on behalf of all other allottees who are having common & identical interest in the reliefs, towards the total consideration of their respective plots with interest @ 18% p.a. from the date of respective deposits till realization;
c) Direct the Opposite party to pay compensation @ Rs.5 lakhs to each complainant and other allotees for mental agony and harassment, discomfort and undue hardships caused to the complainants and other allotees as a result of the above acts and omissions on part of the Opposite Party;
d) Direct the Opposite Party to pay @ Rs.50,000/- per complainant towards the cost of litigation as each complainant was left with no alternative but to approach this Hon’ble Commission due to deficiency of service and unfair trade practice on part of opposite party/respondent...”
This Commission vide Order dated 24.11.2021 allowed IA No. 5071 of 2020 which sought permission to file complaint under Section 12(1)(c).
From its side however, the Opposite Party failed to appear despite several notices including publication in newspapers. Therefore this Commission vide Order dated 06.12.2022 decided to proceed ex-parte against the Opposite Party.
Evidence by way of Affidavit on behalf of the Complainants has been filed by Mr. Vikas Mishra (husband of Complainant No. 1 Late Mrs. Poonam Mishra).
This Commission has heard the Ld. Counsel for Complainants, and perused the material available on record.
Ld. Counsel for Complainants has argued that under Clause 8 of the Agreement, the Opposite Party had committed to delivering possession of the plots within 30 months (24 months plus a grace period of 6 months) from the Agreement's date. Accordingly, the delivery dates for the Complainants and other allottees were expected in 2014-15. However, till date, the Opposite Party has failed to deliver the respective plots in the ‘Country Garden’ project and has not initiated any construction. Furthermore, the Opposite Party lacked the necessary approvals for the project. As a consequence, some allottees filed a police complaint in 2018 with the Economic Offences Wing (EoW) in Delhi; That despite numerous opportunities, the Opposite Party has consistently failed to appear before this Commission, leading to an ex-parte proceeding against them.
The MoU dated 20.12.2012 entered into between the Complainant No. 1- Mrs. Poonam Mishra (since deceased) and the Opposite Party which happens to be Annexure-J filed alongwith the Complaint. It is seen that the MoU is silent on the fact as to from when the period of 24 months plus 6 months is to be calculated. Therefore, the due date for handing over of possession by the Opposite Party is taken to be 24 months plus 6 months grace period from the date of execution of respective Memorandum of Understanding of each Complainant. Hence, in the present case the Opposite Party was liable to hand over possession of the unit within 24 plus 6 months from 20.10.2012 i.e. by 20.04.2015.
Consequently, there was clearly an inordinate delay of nearly five years in delivery of possession by the Opposite Party and the Complainants cannot further be expected to wait for indefinite time. Reliance is placed on “Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan, (2019) 5 SCC 725” -
“……10. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant Builder failed to fulfil his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent- Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent- Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @ 10% to the Bank. In the meanwhile, the Respondent- Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest……”
The Opposite Party has been proceeded Ex-parte vide order dated 06.12.2022 meaning thereby that the version of the Complainant is unopposed. Therefore, the Complaint is accepted and allowed against the Opposite Party. Reliance in this regard is placed on the following decision of the Hon’ble Supreme Court –
a. Kolkata West International City Pvt. Ltd. v. Devasis Rudra, (2020) 18 SCC 613 -
“………8. The essential aspect of the case which is required to be analysed is whether the buyer was entitled to seek refund or was estopped from doing so, having claimed compensation as the primary relief in the consumer complaint. The buyer’s agreement is dated 2-7-2007. In terms of the agreement, the date for handing over possession was 31-12-2008, with a grace period of six months. Even in 2011, when the buyer filed a consumer complaint, he was ready and willing to accept possession. It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund.
In the circumstances, we are of the view that the orders passed by SCDRC and by the NCDRC for refund of moneys were justified.
Having regard to all the facts and circumstances of the case, we modify the order of the NCDRC by directing that the appellant shall pay interest at the rate of 9% per annum to the respondent instead and in place of 12% as directed by the NCDRC. Save and except for the above modification, we affirm the directions of the NCDRC………”
b. Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019, decided on 7.4.2022 -
“…32. We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.
At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest……”
In view of the discussion above, the Complaint is allowed with the following directions-
(a) The Opposite Party shall refund to each of the Complainants the entire amount paid by each of the Complainants to the Opposite Party along with interest @ 9% from the respective dates of respective deposits till realisation, within three months from the date of this Order;
(b) The Opposite Party shall also pay Rs.10,000/- to each of the Complainants towards litigation costs;
(c) In the event of non-compliance of this Order within the time specified, the outstanding amounts to be paid shall attract an interest at the rate of 12% p.a. till the time of final realization.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.