1. The present complaint has been filed by Vijay Kumar-complainant under Section 17 of the Consumer Protection Act, 1986 averring that he purchased Flat No.EF-68/FF in Espania Floors, NH1, Kamaspur, Sonepat, Haryana from one Sh. Parveen Kumar, who earlier purchased it from the original allottee Smt. Swaran Gandhi. The allotment was transferred in the name of the complainant on the same terms and conditions vide endorsement done on the back of the booking receipt dated 18.10.2011. The original allottee had paid the booking amount/advance of Rs.3,00,000/- vide cheque No.137500 dated 25.07.2011 for the allotment of flat having the area of 1224 sq. ft. The total basic sale price of the flat was fixed at Rs.26,00,000/-. The payments were made to the opposite party viz. Rs.4,07,767/- vide cheque No.122478 dated 15.10.2011, Rs.7,36,356/- vide cheque No.735025 dated 21.06.2012, Rs.2,44,861/- vide cheque No.920778 dated 23.11.2012, Rs.2,27,000/- dated 08.03.2013, Rs.2,67,000/- vide cheque No.007812 dated 09.05.2013, Rs.2,44,398/- vide cheque No.008197 dated 24.10.2013, Rs.2,45,000/- vide cheque No.009018 dated 05.09.2014, Rs.24,663/- vide cheque No.000002 dated 20.04.2017. These payments are reflected in the account statement dated 18.09.2017 provided by the opposite party. The opposite party kept on demanding the amount from time to time. The original booking was done on 18.10.2011. The Floor Buyers Agreement was signed belatedly on 08.06.2015. Apartment No.EF-68 at First Floor, having an area of 1224 sq. ft. was allotted to the complainant with construction linked plan for payment. The aggregate sale consideration was fixed at Rs.29,19,708/-. In all, an amount of Rs.29,97,045/- was paid to the opposite party. As per the agreement, the possession of the flat was to be delivered within 30 months from the date of Apartment Buyers Agreement dated 08.06.2015 i.e. by 07.12.2017. The opposite party failed to deliver the possession of the flat to the complainant. The complainant also requested the opposite party to refund the deposited amount but the opposite party did not pay any heed. Hence, the complaint.
2. Notice of the complaint was issued to the opposite party. On 06.03.2018, Shri Vishal Yadav, Advocate put in appearance on behalf of the opposite party. But on the next date, nobody appeared on behalf of the opposite party and the opposite party was proceeded against ex-parte vide order dated 10.04.2018.
3. Aggrieved of the said order, opposite party filed first Appeal No.893 of 2018 before Hon’ble National Consumer Disputes Redressal Commission, New Delhi. Vide order dated September 17th, 2018, the appeal was accepted subject to deposit cost of Rs.50,000/-. The opposite party filed the written version.
4. The opposite party in its written version pleaded that the complainant is not a consumer; he purchased the flat for commercial purpose; the complainant was defaulter in making the payment of installment. It is further pleaded that due to the on going slump in the real estate market, the complainant is no longer interested in retaining the flat in question. The complainant is an investor, who wanted to gain undue profits out of the boom situation in real estate market at that time. The opposite party denied the remaining contents of the complaint and prayed for its dismissal.
5. The complainant in his evidence has tendered his affidavit Ex.CA alongwith the following documents:-
|2.||Copy of receipt||18.10.2011||Ex. C-2|
|3.||Account Statement||18.09.2017||Ex. C-3|
|4.||Apartment Buyers Agreement||08.06.2015||Ex. C-4|
6. After closing the evidence of the complainant, the case was adjourned for recording evidence of the opposite party. The opposite party did not put in appearance and was again proceeded against ex parte vide order dated 20.12.2019.
7. Heard. Record perused.
8. The only question which requires adjudication is as to whether the complainant is a consumer, if so whether he is entitled to get refund of the amount which he paid to the opposite party?
9. It is not in dispute that the complainant purchased the flat from one Sh. Parveen Kumar, who earlier purchased it from the original allottee Smt. Swaran Gandhi. The same was transferred in his name. This transfer is endorsed by the opposite party. Therefore, complainant falls within the definition of a consumer as he has stepped into the shoes of original allottee. The basic sale price of the flat aggregated to Rs.26,19,715/-. The total amount of Rs.26,97,045/- was paid to the opposite party. Floor Buyers Agreement was executed on 08.06.2015. As per Clause 28 of the agreement provided that if possession of the apartment is delayed beyond a period of 30 months, the complainant shall be entitled to compensation. Meaning thereby, the flat was to be handed over to the complainant within a period of 30 months from the date of execution of the agreement i.e. on or before 07.12.2017. The opposite party failed to deliver the possession of the flat to the complainant within the stipulated period. It is certainly a case of deficiency in service on the part of the opposite party. The complainant is entitled to get refund of the deposited amount form the opposite party. This Commission has earlier allowed a similarly situated complaint titled ‘Durga Sharma Vs. TDI Infrastructure Limited’ on 02.07.2019 in which similar issue was involved and the project was also the same as that in the present complaint.
10. In view of above, the complaint is allowed. The opposite party is directed to make the payment of Rs.26,97,045/- alongwith interest @ 9% per annum from the date of its
respective deposits till realization. The opposite party is also directed to pay Rs.50,000/- towards compensation for mental agony and harassment and also to pay Rs.25,000/- towards litigation expenses to the complainant. The entire amount be paid by the opposite party within a period of 45 days, from the date of receipt of the order, otherwise, it will carry interest at the rate of 18% per annum, till realization and it calls for pointed notice that under Section 27 of the Act, if the opposite party fail or omit to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine or with both.