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Dwarkadhis Projects Pvt. Ltd., Delhi v/s J.S. Yadav

    Revision Petition No. 2703 of 2015
    Decided On, 28 October 2020
    At, National Consumer Disputes Redressal Commission NCDRC
    For the Petitioner: Nityanand Singh, Advocate. For the Respondent: Madhurendra Kumar, Advocate a/w respondent in person.

Judgment Text
Taken up in physical hearing.1. This Revision Petition has been filed under Section 21(b) of The Consumer Protection Act, 1986, hereinafter referred to as the ‘Act’, challenging the Order dated 03.07.2015 of The State Consumer Disputes Redressal Commission, Haryana, hereinafter referred to as the ‘State Commission’, in F.A. No. 433 of 2015 arising out of the Order dated 13.03.2015 in C.C. No. 529 of 2011 passed by The District Consumer Disputes Redressal Forum, Rewari, hereinafter referred to as the ‘District Forum’.The Petitioner herein, Dwarkadhis Projects Pvt. Ltd., was the Opposite Party before the District Forum, and is hereinafter being referred to as the ‘Builder Co.’.The Respondent herein, Mr. J.S. Yadav, was the Complainant before the District Forum, and is hereinafter being referred to as the ‘Complainant’.2. Heard arguments from learned Counsel for the Builder Co. and the learned Counsel for the Complainant on 19.10.2020.Perused the material on record including inter alia the Order dated 13.03.2015 of the District Forum, the impugned Order dated 03.07.2015 of the State Commission and the Petition.3. The rival contentions have been succinctly articulated by the District Forum in paras 1 and 2 of its Order of 13.03.2015:[1] Factual matrix comprising the case of the complainant, shorn of details, is that the complainant had booked a flat of 1500 sq. fts. area for three bed accommodation with the opposite party by paying a sum of Rs. 3,50,000/- on 10.1.2007 with the application for provisional registration. It is alleged that as per condition of the application, neither the flat was allotted within the stipulated period not the amount was refunded in spite of repeated requests; hence this complaint seeking refund of the amount of Rs. 3,50,000/- with interest @ 24% p.a. besides compensation and litigation expenses.2. In reply, it is averred that the complainant made a provisional registration of a three bedroom flat of 1500 sq. fts. by paying an amount of Rs. 3,50,000/- on 10.1.2007 and the allotment was subject to due execution of the company’s agreement. It is also averred that the complainant failed to deposit the remaining amount in spite of sending various reminders. It is alleged that in terms of Clause 14.1, the construction of the flat was subject to completing all the requisite approvals and subject to force majeure which are beyond their control and in case cancellation of apartment, the amount is refundable only after deducting 10% of the total sale price of the apartment. It is further averred that the construction work of apartments is in full swing and they are ready to perform the part of the promise of providing apartment subject to payment of the dues. In the end, dismissal of the complaint has been prayed for.4. The District Forum, vide its Order dated 13.03.2015, allowed the Complaint.For ready appreciation, extracts from the appraisal made by the District Forum are reproduced below:4) It is not disputed that no agreement in between the parties has been executed so far. However, the applicant had moved an application for provisional registration of flat on 22.1.2007 which contains terms and conditions of the allotment. Clause “a” of the application reads as under:-“That your offer of allotment for flat in your proposed scheme shall as far as possible be made to me / us within 9 months of my registration / or application made therein failing which I / we shall be entitled to simple interest @ 10% p.a. thereafter”.Thus, it is made clear that the offer of allotment of flat in the proposed scheme was to be made within nine months of application and in case of default of either party, the money will be returned by deducting 10% with simple interest. We have anxiously perused the record of the case. No evidence has been led nor no cogent reason has been given for not completing the construction in time till today even after a lapse of 7 years. The contention of opposite party that the complainant himself is guilty as he failed to maintain financial discipline and has not paid the installments in time cannot be accepted. Since no cogent reason for not even constructing the flat in question so as to allot the alleged flat is there not there is any likelihood of completing construction and handing over the flat in near future, the complainant cannot be left to live in misery and wait indefinitely, at the mercy of the builder. The builder has lured the innocent consumers at large by launching tempting scheme with high sounding promises but without meaning anything. Thus, the conduct of the opposite parties shows grave deficiency on their part. As per Clause (g) sub clause (vi) “the allotment shall be subject to due execution of the Company’s agreement in its standard format including maintenance agreement and acceptance by me / us of all the terms and conditions of the company”. No reason has come on record as to why the agreement could not be executed. The opposite party cannot get benefit of its own wrong for not executing the agreement. However, the application Ex. OPW-1/3 containing terms and conditions of allotment is as good as agreement and we are of the view that it has got force of the agreement which is enforceable under Consumer Protection Act. The duty of the service provider prompt, effective and helpful service to the consumer and not to harass it. Under the circumstances, we are of the considered view that the complainant is entitled to the refund of the deposited amount with interest @ 10% p.a. in terms of condition “a” of the application Ex. OPW -1/3.5) Resultantly, the complaint is allowed directing the opposite party to refund the deposited amount of Rs. 3,50,000/- to the complainant with interest @10% p.a. from the date of deposit till realization. The complainant is also awarded compensation to the tune of Rs. 40,000/- besides litigation expenses which are quantified at Rs. 11,000/- against the opposite party. Let the compliance of this order be made within two months from the date of receipt of the copy of this order. Ordered accordingly.(emphasis supplied)5. In essence, it is an admitted fact that Rs. 3.50 lakh was deposited by the Complainant with the Builder Co. The District Forum has ordered the Builder Co. to refund the said sum of Rs. 3.50 lakh with interest at the rate of 10% per annum from the date of deposit till its realisation, alongwith compensation of Rs. 40,000/- and cost of litigation of Rs. 11,000/-.6. The State Commission, vide its Order dated 03.07.2015, dismissed the Appeal.For ready appreciation, extracts from the appraisal made by the State Commission are reproduced below:4. Indisputably, the respondent-complainant deposited Rs.3,50,000/- with the builder. It is also not disputed that the builder failed to start construction of the flat as per the agreement executed between the parties. Merely stating that now flats are ready cannot be a ground to non-suit the complainant. In the considered opinion of this Commission, non-delivery of possession of the flat within the stipulated time undoubtedly amounted to deficiency in service on the part of the builder. Furthermore, having pocketed the money from the respondent and refusal to refund the same to him was most unethical. Thus, the order passed by the District Forum was justified and requires no interference.5. Hence, the appeal is dismissed.(emphasis supplied)7. The State Commission

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has passed a speaking, reasoned Order; it has concurred with the District Forum.The Award made by the District Forum, as upheld by the State Commission, appears just and equitable in the facts of the case.No palpable crucial error in appreciating the evidence is visible; no jurisdictional error, or a legal principle ignored, or miscarriage of justice, is visible; interference in exercise of the revisional jurisdiction of this Commission is not warranted.8. The Revision Petition, being bereft of merit, is dismissed. The State Commission’s Order of 03.07.2015 is confirmed. The Award made by the District Forum, as upheld by the State Commission, is sustained.9. The Registry is directed to send a copy each of this Order to the Builder Co., the Complainant and the District Forum within three days of its pronouncement.