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Judgment
Heard Mr. Saurabh Jain, Advocate, for the complainant and Ms. Sanya Kaushal, Advocate, for the opposite party. The opposite party has filed IA/9545/2022, for referring the dispute for mediation. There is no provision under Consumer Protection Act, 1986 for referring the matter to mediation. The complainant is not agreed for mediation. IA is rejected.
Ruhil Residency Flat Owners Association (the complainant) was formed with object to watch the welfare of the flat buyers in “Ruhil Residency” at Bahadurgarh, District Jhajjar, Haryana and registered under Haryana Registration and Regulation of Societies Act, 2012. Above complaint has been filed on behalf of 22 members of the Association, whose list has been attached as Annexure-C-4 to the complaint. The complainant prayed for refund of the entire sale consideration deposited by the flat buyers along with interest @18% per annum from the date of respective deposit till the date of actual payment, Rs.500000/-, as the compensation for mental agony and harassment, cost of the litigation and any other relief which is deemed fit and proper in the facts and circumstances of the case.
The complainant stated that Ruhil Promoters Pvt. Ltd. (the opposite party) was a company registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a project in the name of “Ruhil Residency” at Sector-3, Bahadurgarh, District Jhajjar, Haryana in the year 2011 and made wide publicity. Various flat buyers were in need of their residence and they booked one flat for each of them in the aforesaid project and deposited booking amount. The opposite party allotted flats to them in the project during the year 2012 to 2014. The opposite party executed the Flat Buyer’s Agreement in favour of the flat buyers, after allotment of the flat during the year 2013 -2014. As per Clause-9 of Flat Buyer’s Agreement, the possession has to be delivered within 36 months with grace period of six months from the date of execution of the agreement. For all the flat buyers due date of possession expired in 2017, but the construction was neither completed nor possession was offered to the complainant. Then this complaint was filed by the Association on 11.07.2018.
The notice in the complaint has been issued to the opposite party by the order dated 10.08.2018. However, the notice could not be served. Thereafter, by order dated 19.02.2019, the notice was directed to be issued on furnishing fresh address. The complainant was given liberty to serve dasti notice. Dasti notice was served upon the opposite party and proof of service has been filed on 26.08.2019. Thereafter, the opposite party put appearance through Mr. Prabhat, Advocate, whose presence was recorded in the order dated 29.08.2019. On that day the opposite party was again granted time for filing written reply, but written reply was not filed within the statutory period, as such, by order dated 15.01.2020 right to file written reply was closed. Then, the opposite party filed IA/9544/2022 for recalling the order dated 15.01.2020 proceeding ex-parte against the opposite party. In this application, service of dasti notice upon the opposite party is not disputed as the statutory period of 45 days as provided under Section 13 (2) of the Consumer Protection Act, 1986 has already expired long back. As such, no purpose will be served in recalling the order dated 15.01.2020, by which the right to written reply has been closed. Accordingly, IA is rejected.
The complainant filed Affidavit of Evidence on 17.02.2020. As per Clause-9 of Flat Buyer’s Agreement, due date of possession expired in all the cases in 2017, but the flat buyers were not offered possession. The opposite party offered possession in March, 2022, but the flat buyers are not ready to take possession due to unreasonable delay. Supreme Court in Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442, Kotkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725 and Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd.,(2020) 16 SCC 512, it has been held that the home buyers cannot be made to wait for unlimited period for possession and directed for refund of their money.
ORDER
In the result, complaint succeeds and is allowed. The opposite party is directed to refund entire amount deposited by the flat buyers for whose benefits this complaint has been filed, with interest @9% per annum from the date of their respective deposit till the date of actual payment, within a period of two months from the date of this judgment.