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Judgment
This is a complaint filed by Shri Vishu Chaudhary (herein after referred as the Complainant) against M/s Antriksh Developers & Promoters Limited (subsequently revised M/s Antriksh Engicon Private Limited, herein referred as Respondents) seeking several reliefs in respect of an apartment booked by him in 2015 in a project named "Antriksh Urban Greek" promoted by Antriksh Group and located in L zone, Dwarka, Delhi. The reliefs sought by the Complainant include refund of the deposit with interest, compensations for unfair trade practices, and for causing mental harassment and anxiety; reimbursement of legal expenses; and interim compensation to be subsequently adjusted against the total refundable amount.
Brief facts of the case as mentioned by the Complainant in his application filed on 16 September 2020 in Form 'M' before the Authority are that the Complainant had approached M/s Antriksh Developers & Promoters Pvt Ltd in the year 2015 for booking an apartment with a super area measuring 1100 sq .feet in a project "Antriksh Urban Greek" and paid an amount of Rs.5,37,900/- (Rupees Five lakh thirty seven thousand nine hundred only) in more than one installments that the application form for booking the apartment were signed and received by the Complainant on 17 July, 2015; that as per the information of the Complainant, the opposite party was not able to obtain any licenses and approvals from the concerned authorities for constructing the project in question; that the opposite party has failed to deliver the apartment or to refund the full amount paid despite several successive efforts; that the Complainant had been cheated and de-frauded by the opposite party, who had misappropriated the money and not offered possession of the apartment and that the construction of the apartment or the project had not even commenced within two years after its date of booking. Complainant also filed a copy of Agreement dated 19 November,2018 between the Complainant and Respondent; duly signed by the Respondent; As per this agreement, Respondent was to pay Rs. 10,997/- (Rs. Ten Thousand Nine Hundred Ninety Seven only) per month through post dated 48 cheques starting from 28 November, 2018 onwards; the post dated cheques were honoured by the bank up to February, 2020; Afterwards, the post dated cheques were returned by the bank as unpaid due to insufficient funds; Based on the averments, the Complainant sought reliefs in terms of refund of balance amount of Rs.3,51,948/- (Rupees Three lakh fifty one thousand nine hundred and forty eight only) paid by him to the opposite party along-with 18% interest; a sum of Rs.1,00,000/- (Rupees One lakh only) as compensation for unfair trade practices; a sum of Rs.1,00,000/- (Rupees One lakh only) as compensation for causing mental harassment and anxiety; and a sum of Rs.1,00,000/- (Rupees One lakh only) as reimbursement of legal expenses. The Complainant further sought an interim relief of Rs.1,00,000/- (Rupees One lakh only) as interim compensation which amount may be adjusted against the finally determined refundable amount.
The complaint was brought before the Authority on 18 September, 2020 when the Authority considered it necessary to first hear the Complainant in the interest of justice. A notice was accordingly issued to the Complainant to appear before the Authority on 01 October 2020 on which date, after hearing the Complainant, the Authority directed that a notice may be issued to the Respondent. On the following hearing on 10 November, 2020, the Respondents did appear and requested for grant of time to file reply to the complaint and the case was adjourned for 02 December, 2020.
The Respondents submitted reply to the complaint on 30 November, 2020. In the reply to the complaint, the Respondents stated that the Complainant has filed this complaint to extort money from the Respondents further, Rs.58,658/- and Rs. 3,00,000/- (totaling to Rs.3,58,658/-) were refunded by the Respondent vide cheque No. 449799 dated 14 September, 2020 and cheque No. 449818 dated 26 October, 2020 respectively in compliance to the settlement agreement dated 19 November, 2018; As such entire money deposited by the Complainant has been refunded. The Respondent also submitted that as per settlement agreement, entire amount was to be refunded in 48 instalments on a monthly basis ending on 28 October, 2022, whereas the Respondent has refunded entire amount on 15 September, 2020; the Respondent also submitted that there is no jurisdiction of this Authority as payment has already been made to the Complainant and therefore, no Grievances whatsoever arises against the Respondent and therefore demand for interest @18% is an absolute frivolous demand by the Complainant.
On 02 December, 2020, the Counsel for the Complainant sought time to file the rejoinder and the case was adjourned to 27 January 2021. On 27 January, 2021, the Counsel for the Complainant submitted that he does not want to file any rejoinder and the complaint may be heard at this stage only. As the main Counsel for the Respondent was not present on 27 January, 2021, the case was listed for final disposal on 17 March, 2021. However, on 17 March, 2021, the Counsel for the Complainant filed the rejoinder during early hours which was having some discrepancies. During the course of hearing on same day requested for some more time to re-file the rejoinder as there were some discrepancies in the rejoinder filed. The request was allowed and the case was again listed for final disposal on 22 April, 2021. Fresh rejoinder was filed by the Counsel for the Complainant on 23 July 2021.
In the rejoinder dated 23 July, 2021 the Counsel for the Complainant has specifically denied and stated that no such payments of Rs. 58,658/- & Rs. 3,00,000/- were paid by the Respondents on 14th September, 2020 & 26th October, 2020 respectively as stated in the reply by the Respondents were received by the Complainant and further the Complainant requested that the Respondents be put to strict proof of making any such payment to the Complainant.
However due to Corona 19 Pandemic, hearing on 22 April, 2021 could not be held in the mean time the Counsel for the Complainant filed afresh rejoinder on 23 July, 2021 whereas the case was listed for final arguments on 29 July, 2021.
The arguments of both parties were heard on 29 July, 2021 for some time and parties were directed to file written submissions within two weeks; the matter was reserved for orders.
Written Arguments were submitted by the Respondents and Complainant on 12 August, 2021 and 30 August, 2021 respectively.
Upon examination of the various pleadings, arguments, submissions and documents filed by the Complainant and the Respondents, the following points emerged:-
The Complainant submits and the Respondents admits that the project by the name 'Antriksh Urban Greek' was promoted by the Respondent in the year 2015;
The Complainant submits and the Respondents admits that the Complainant had booked an apartment in the said project and have online / through cheque deposited Rs. 5,37,900/- (Rs. Five lakh thirty seven thousand nine hundred only) in two installments. Further, the Respondents have provided postdated cheques for refund of entire amount deposited by the Complainant by 28.10.2022. Out of these the bank has honoured the cheques for total amount of Rs. 1,85,952/- Thus, the Respondents are yet to pay / refund Rs. 3,51,948/- along with interest.
The Complainant submits and the Respondents admits that there has been no progress at all in the construction of the said project as the Respondent has not been able to obtain the necessary approvals and sanctions of various authorities, which the Respondent claimed were beyond its control;
The Respondents claims that upon realizing that a delay in execution of the project was inevitable, it had offered all such persons who had booked apartment in this project to either continue with the project until the project was completed or to opt for a refund; and further claims that the Complainant had at the relevant point in time not opted for refund;
Both the Complainant and the Respondents have furnished, along-with their pleadings, copies of Welcome Letter, Receipts relating to the transactions, letter of Confirmation for Booking and Agreement for Settlement. Clause 20 of the terms and conditions as laid down on the application form stipulates that if the NOC/Sanction Plans for commencement of construction of the said Housing Complex is not obtained by the first party (the Respondents) within three years from the date of this application form then the company, (the Respondents) shall be liable to the refund of amounts received with an interest @6.99% p.a;
The Respondents claims that it has accepted cheque payments from the Complainant against receipts and that it has been amenable to settling the case and has relied on the terms and conditions included in the booking form for this purpose.
That after making request for refund by the complainant, both the parties agreed to sign a settlement agreement and as per Settlement Agreement the Respondents were ready to pay the entire refund to the Complainant. Whereas some of the cheques issued by the Respondents were dishonored and only amount of Rs. 1,85,952/- was realized into the account of the complainant. The Complainant is seeking refund of the remaining amount that is Rs. 3,51,948/- out of total amount paid by the complainant as Rs. 5,37,900/-.
In addition to the above points relating to the present dispute between the Complainant and the Respondents which is under consideration of the Authority, two more issues emerged that merit consideration; namely, i) whether the Respondents was in violation of the provisions of the Real Estate (Regulation and Development) Act, 2016 by not registering, within the prescribed time frame, the said project 'Antriksh Urban Greek' as an ongoing project particularly as the said project was admittedly promoted in the year 2015 and had not been completed as on the date of coming into force of the relevant provisions of the Act, and ii) whether by the alleged publication of an advertisement on its website or elsewhere relating to its project 'Antriksh Urban Greek' the Respondent were in violation of the provisions of the Act by projecting an inaccurate and inapplicable registration number granted by UP RERA to another project and thereby giving false and incorrect information to the prospective home buyers. These two issues are already being dealt by the Authority separately.
The Complainant has already received Rs. 1,85,952/- by encashing the postdated cheques provided by the Respondent against the total amount of Rs. 5,37,900/- as per Settlement Agreement executed on (19th) Nov, 2018. In view of the facts and circumstances of the complaint, I have no hesitation to hold that the Complainant is entitled to a refund of the balance amount of Rs. 3,51,948/- (Rupees Three lakh fifty one thousand nine hundred and forty eight only) deposited by him, along-with interest.
I order that the Respondents M/s Antriksh Engicn Private Limited must pay the balance amount of Rs. 3,51,948/- (Rupees Three lacs fifty one thousand nine hundred forty eight only) and interest @ 9(Nine)% (MCLR + 2%) from the date of receipt of each such amount until the date of full payment to Shri Vishu Chaudhary, the Complainant within a period of 45 days of this order.
With regard to the claim made by the Complainant for payment of interest @ 18%. I hold that any interest beyond that ordered in the preceding para (Para-13) would squarely lie in the realm of compensation and this claim along-with other reliefs sought by the Complainant such as compensation for unfair trade practices; compensation for causing mental harassment and anxiety; and, reimbursement of legal expenses may be agitated by him before the Adjudicating Officer in accordance with the provisions of Section 71 (1) of the Real Estate (Regulation and Development) Act, 2016 by filing such claims in the prescribed Form 'N'. The Complainant shall be at liberty to file such claims for compensation at an appropriate time.
Ordered accordingly.
No order as to cost.