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Judgment
A. P. Sahi, President Member
This Complaint has been filed as a class action complaining that the Opposite Party Builder / Promoter failed to deliver the developed plots which were booked by the Complainants. It is alleged that these developed residential plots related to the projects named as “Santour City” and “Har Har Gange”. The consideration amounts were deposited by the Complainants and an agreement was entered into with all the Complainants from time to time. One of the agreements between the Complainant No.-1 and the Opposite Party has been filed on record and Clause 10 of the said agreement recites as under:
“The company upon completion of the said Plot shall notify the Allottee(s) to take possession of the said plot within 30 (thirty) days from date of issue of such notice, (the 30 day shall be deemed to be and hereinafter referred to as Date for Possession). Upon receipt of intimation as aforesaid, the Allottee(s) shall, within the time stipulated by the company in the notice, take possession of the said plot from the company by setting the account and making payment of all dues under this Agreement including stamp duty charges and Incidental expenses, (nominal documentation and service charges) for registration of sale/conveyance deed and executing necessary indemnities, undertaking, facilities Management Agreement and such other documentation as the company may prescribe. Possession shall be given only after payment of all dues and completion of aforesaid formalities.”
Learned Counsel contends that inspite of the payments having been made and all the formalities having been completed neither the plots were developed nor handed over to the Complainants. It is in this background that several notices including a legal notice were issued but of no avail. The Opposite Party did not respond at all except for making false promises and realizing money. The other agreements are also on records which are similar in nature in respect of the Complainants who have joined in this Complaint.
It may be mentioned that after this Complaint was preferred as a class action under 12(1)(c) of the Consumer Protection Act, 1986, notices were issued on 20.01.2017 at the pre admission stage. On 12.04.2017 the following Order was passed:
Mr. Roven Kumar, counsel for the opposite parties has put in his appearance today. He seeks four weeks’ time to file Vakalatnama. Time, as prayed for, is granted.
Learned counsel for opposite parties states that neither he nor his client has received copy of paper book.He may collect it from the registry after filing his Vakalatnama.
Adjourned to 06-10-2017.”
Subsequently on 06.10.2017 the following Order was passed:
Notice be issued to the Opposite Party returnable on 3.4.2018 to file their reply to the application moved by the complainants under Section 12(i)(c ) of the Consumer Protection Act, 1986.
Dasti in addition. ”
It is thus evident that inspite of a Counsel having appeared on behalf of the Opposite Party neither did he filed his Vakalatnama nor did he further chose to appear before the Commission.
On 03.04.2018 the following Order was passed:
“Notice sent to OP has been delivered on 5.1.2018. However, none is present on behalf of the OP. The OP has also not filedreply to the application moved by the complainants under Section 12(i)(c) of the Consumer Protection Act, 1986. Accordingly, application filed under section 12(i)(c) of the Consumer Protection Act, 1986 is allowed and the learned counsel for the complainants is directed to publish public notice in two newspapers i.e. Times of India (English) and Dainik Jagran (Hindi) being published from Dehradun and being circulated in Haridwar.
Registry to issue notice again to OP to file the written statement to the complaint within 30 days from the date of receipt of notice.
List the matter on 26.10.2018.”
The Application under Section 12(1)(c) was allowed and the Complainants were directed to publish public notice in two newspapers. It was further directed that fresh notice be issued to the Opposite party to file Written Statement to the Complainant within 30 days.
The notings and the reports clearly indicate that no Written Statement was filed and therefore notice was again issued on 12.07.2019 inspite of the fact that the Opposite Party did not choose to appear nor the Counsel who had appeared earlier did take the notice of the same. The notice issued on 12.07.2019 is reported to have been served and inspite of that no Written Statement was filed. This is contained in the Office Report at Page No. 20 of the proceedings. The proof of publication of notice was filed on 27.02.2020 however the same was not traced out and as such the matter was adjourned. Pursuant to the publication of notice under Section 12(1)(c) several impleadment applications were filed that were allowed as recorded in the Order dated 22.03.2022.
It may be mentioned that when the Complaint was initially filed, there were 13 Complainants and after the publication of the notice under Section 12(1)(c) of the Consumer Protection Act, 1986 6 more Complainants have joined. Thus as on date there are 19 Complainants who are pursuing this Complaint which is evident from the Affidavit filed by the Complainants on 13.04.2023 that shall be referred to herein after.
Since no Written Version was filed nor anybody appeared on behalf of the Opposite Party the matter was adjourned from time to time giving further opportunities.
After noticing the facts of the case, the following Order was passed on 29.01.2024.
“This is a dispute with regard to deficiency in services on the part of the Opposite Party in having failed to deliver the plots that were allotted against which payments were made by the Complainants as per the chart indicated in the body of the plaint. Learned Counsel submits that the complaint was admitted as a class action complaint under Section 12(1)(c) of the Consumer Protection Act 1986. The application was allowed and publication of notice was directed to be made in compliance of the provisions for the notice of the flat owners of the project.
On 03.08.2018, notices were issued to the Opposite Party/builder on the admitted complaint for filing written statement as well as reply to the other IAs. The service on the Opposite Party is stated to have been made as per the office reports and the track reports on record. The publication in terms of Section 12(1)(c) was made and tendered before the Commission.
A fresh notice was also issued to the Opposite Party on IA/18666/2019 vide order dated 11.12.2019. Thereafter certain more complainants moved impleadment applications that were allowed and notices were sent by mail as per the order dated 25.05.2022. It was also recorded therein that in spite of the notices having been published in the newspapers, the Opposite Parties have failed to appear. The case does not appear to have been taken up thereafter and the learned Counsel for the Complainant was called upon to file evidence by way of affidavit. The same has already been filed and additional documents have also been brought on record on 04.01.2024.
It is in this background that the learned Counsel prays that this matter may proceed for hearing as the Opposite Party No.1 has failed to put in appearance and after publication of notice of 12(1)(c) certain applications for impleadments were moved that have been allowed.
The relief prayed for in this complaint is for refund of the amount with interest. In view of this unrebutted position that continues on account of non-appearance of the Opposite Parties, this complaint shall now proceed ex-parte against them as the evidence by way of affidavit has been filed by the Complainant.
Let a copy of this order be dispatched to the Opposite Party at the given address including the e-mail address of the Opposite Party that is contained in the amended memo filed on 17.05.2022 fixing 04.07.2024 as the next date of hearing.
The office shall take notice of the fact that the application under section 12(1)(c)being IA/285/2017 has already been allowed on 03.04.2018 and therefore the said application need not be listed again.”
Notices were again issued to the Opposite Party that were returned with an endorsement that the addressee have moved however notices were also dispatched through email as well. No one has put in appearance on behalf of the Opposite Party nor any Written Version has been filed. It needs to reiterated that as per the Order sheet dated 12.04.2017, Mr. Rovin Kumar had appeared but he also did not chose to appear thereafter. It is also evident that notices in between had been issued and served on the Opposite Party who did not chose to appear repeatedly. In the background above, there is no option but to proceed to hear this Complaint finally.
There is no rebuttal to the facts stated in the Complaint. It is therefore evident that the allegations made in the Complaint about the land not being available for being conveyed to the Complainants is clear. There was no demarcation nor any boundaries exist relating to the plots which remain unidentified. Thus the Opposite Party virtually seems to have duped the Complainants of their money with no land being available to them to be delivered to the Complainants. Consequently the Complaint deserves to be allowed for the refund of the entire amount together with interest.
In order to ascertain the number of Complainants and the payments made by them, the affidavit dated 13.04.2023 discloses the names of the Original 13 Complainants as also the subsequently impleaded 6 Complainants, total 19 in number along with the details. The chart relating to 13 Complainants is disclosed in Paragraph No. 6 and again in Paragraph No. 15 of the Complaint whereas the status and details of payments in respect of the 6 other Complainants have been given in Paragraph No. 21 and the chart is in the Paragraph No. 25. The chart as produced in Paragraph No. 15 and again in Paragraph No. 25 are reproduced herein under:
“ Chart 1
S. No.
Name
Total Amount Deposited
Date of allotment execution of agreement
Whether notified as per clause 10 or no
Allotted plot No. with Approx. measurement (as per initial agreement) & name of the project
Last letter from the opposite party if any
1.
Tej Pal Singh Yadav
8,77,800
17.09.2008
No notice but NOC issued after collecting final payment on 8.9.2015
BB/12-9
200 sq. yards Santour City
8.9.2015 NOC
2.
Ashok Agarwal
8,86,578
10.9.2008
No notice but NOC issued vide letter dated 8.9.2015
BB-12-11
200 sq. yards Santour City
8.9.2015 NOC
3.
Sanjeev
4,58,936
28.8.2008
No, vide letter dated 22.7.2015 demanding further payment
BB-12-10
200 sq. yards Santour City
22.7.2015
4.
Ajay Dogra
6,66,568
6.9.2008
No. 24.12.2013 intimating the change of plot
A/1-10
240 sq. yards Santour City
24.12.2013
5.
Sarita Kalra & Kirti Kalra
7,30,810
28.6.2008
No Letter dated 12.9.2015 intimating the change of plot
HS-820
203 sq. yards Santour City
19.12.2015
6.
Raman Handa
5,03,000
In which Rs. One lakh was collected by way of cash without issuing any receipt.
6.3.2009
No
Handwritten receipt issued dated 8.3.2014
A/12/90
240 sq. Yards
Santour City
8.3.2014
7.
Sudesh Seth
9,01,085 along with registration charge Rs.66,000/- in cash Rs.9,67,085
12.12.2008
7.12.2013 Intimating receipt of full payment 12.9.2014 confirmation regarding receipt of registration amount of Rs.66,000/-
CC/12-31
160 sq. yards
Santour City
12.12.2008
8.
Mrs. Ruchi Agarwal & Vineeta Gupta
8,77,800
9.9.2008
20.1.2015, 5.2.2015 & 24.12.2015 Confirming the full payment towards the allotment
B/1-4
200 Sq yards
Santour City
24.12.2015
9.
Anoop Bhandari
7,58,422
16.9.2013
No Through letter dated 19.8.2016 demanded extra development charges
1372,
100 sq. yards
Har Har Gange
19.8.2016
10.
Saroj Gupta
6,16,000
19.12.2008
No letter last payment receipt dated 25.9.2015
CC/14-21
160 Sq. yards
Santour City
25.9.2015 receipt
11.
Suneeta Modi
2,41,520
6.11.2008
No letter
CC-16-3
160 sq. Yards Santour City
None
12.
Vijay Kumar
2,82,517
15.9.2008
No letter only last confirmation of payment 4.10.2013
CC/2-8
175 Sq. yards
Santour City
None
13.
Rajesh Parihar
2,89,400
13.10.2008
No letter only last confirmation of payment 4.10.2013
B/15-2
200 Sq. yards
Santour City
None
Total Principal amount
81,56,436/-
Chart 2
S. No. and Name
Principal amount
Date from the interest calculated @ 18% per annum till the date of filing
Interest amount
Total Interest plus Principal amount till filing the application
Surender Kumar Dewan
9,32,000
7.9.2016 to
2.12.2019
Rs.5,12,467
Rs.14,44,467
Suresh Kumar Narang
11,34,000
1.9.2016 to
2.12.2019
Rs.6,11,569
Rs.17,45,569
Bhupender Sharma
7,98,000
1.11.2012 to
2.12.2019
Rs.10,75,464
Rs.18,73,464
Nirmal Dahiya
8,99,745
7.2.2013 to
2.12.2019
Rs.9,80,307
Rs.18,80,052
Roopali Singh
10,07,369
25.1.2013 to
2.12.2019
Rs.10,98,444
Rs.21,05,813
Sourabh Chowdhary
11,11,569
25.1.2023 to
2.12.2019
Rs.12,1,879
Rs.23,23,448
The total of 19 Complainants therefore along with their amounts reflected as claimed are indicated therein.
The Complainants have claimed interest at the rate of 18%. However keeping in view various judgments passed from time to time by the Apex Court in Ireo Grace Realtech Private Limited versus Abhishek Khanna and Ors. reported in (2021) 3 SCC 241 and in Experion Developers Private Limited versus Sushma Ashok Shiroor reported in (2022) SCC OnLine SC 416 the rate of reasonable interest would be 9% from the date of their respective deposits.
Consequently the Complaint is allowed with a direction that the entire amount deposited by the Complainants with the Opposite Party shall be refunded to them within a period of 3 months from today together with 9% interest with respect from each of the deposits. In the event of any default the rate of interest shall stand enhanced to 12%. The Complaint is accordingly allowed subject to the directions herein above.