State Consumer Disputes Redressal Commission
Basant Prabhat Joshi vs Eth Group & Others on 28 November, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
CONSUMER COMPLAINT NO. 18 / 2016
Sh. Basant Prabhat Joshi
R/o Krishna Devki Vihar
Bithoria - 1
Haldwani, District Nainital
......Complainant
Versus
1. Managing Director / Person Incharge
ETH Group / ETH Infra Pvt. Ltd.
Site Office - Emerald Riviera
Rajaji National Park, Ghaziwala
Haridwar - 249408
Corporate Office at 1015, 10th Floor, D Mall
Netaji Subhash Place
Pitampura, New Delhi - 110034
2. Sh. Rajesh Sani, M.D.
ETH Group
Corporate Office at 1015, 10th Floor, D Mall
Netaji Subhash Place
Pitampura, New Delhi - 110034
3. Sh. Naresh Sani, Project Manager
ETH Group
Corporate Office at 1015, 10th Floor, D Mall
Netaji Subhash Place
Pitampura, New Delhi - 110034
......Opposite Parties
Complainant present in person
None for the Opposite Parties
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 28/11/2017
ORDER
(Per: Justice B.S. Verma, President):
This consumer complaint under Section 12 read with Section 18 of the Consumer Protection Act, 1986 has been filed by Sh. Basant 2 Prabhat Joshi (hereinafter referred to as "complainant") against the opposite parties, alleging deficiency in service as well as unfair trade practice on the part of the opposite parties.
2. Briefly stated the facts of the case are that the complainant - Sh. Basant Prabhat Joshi is a retired post graduate Principal residing at Haldwani, District Nainital. During his service tenure, he had worked as Lecturer to Principal and Zonal Higher Education Officer at various places in the State of Uttar Pradesh. The complainant booked a flat in Shikhar Apartment, ETH upcoming project known as Emerald Riviera, Haridwar under flexi scheme vide Application Form No. ETH 808 dated 01.11.2012. Prior to 06.12.2012, the ETH Group was known as Emerald Tourist Home Pvt. Ltd. The complainant paid more than 50% amount of the total cost of the flat at the time of registration and demand made by the opposite parties through letter dated 06.11.2012. The complainant has paid a sum of Rs. 1,32,000/- to the opposite parties through cheque dated 01.11.2012 and Rs. 8,71,750/- through cheque dated 10.12.2012, but the opposite parties did not execute the sale deed in favour of the complainant inspite of receiving the substantial advance amount. Condition No. 5 of the terms and conditions / declaration of the application provides that the allotment of property plots / flat / villas / commercial / farm house by the company against the registration of the application shall be done within 6 to 10 months from the date of registration as per company discretion. Condition No. 2 of the obligations of the company provides that if the company fails to deliver possession of the said premises within the stipulated period as mentioned hereinabove and within the grace period of 90 (ninety) days thereafter, the applicant shall be entitled to compensation for delay thereafter @10% p.a. of the total amount of the said premises.
33. Since 2013, the complainant has been visiting the office of the opposite parties as well as the construction site. Even after 3 years and 10 months, there was no sign of completion of project and the progress of the work has almost stopped. The complainant made several enquiries with the opposite parties with regard to dead slow progress of the construction work and the reason for stopping the work, but only evasive and misleading replies were given to the complainant and he was delivered false assurances. In a period of 4 years, the company has changed its Corporate Office four times. The opposite party No. 1 sent a letter dated 21.11.2014 to the complainant, stating therein that he has been allotted 1BHK Flat Block C-01 Unit No. C-03, Ground Floor, area 600.00 sq. ft. in Emerald Riviera, Haridwar, but the ground reality was zero because there was no construction of flats. Through the said letter, the opposite party No. 1 demanded certain amount from the complainant, which has already been paid by the complainant in the year 2012 itself. The complainant demanded refund of the amount from the opposite parties, whereupon the opposite parties offered a flat to the complainant in their other project in place of the booked flat. While going through the papers of the offered flat, the complainant came to know that the company is involved in benami transaction. The company claims that Rudra Apartment, Bhupatwala is their project and sells the flats in the said Aparment, but the owners of the land are Smt. Parmeshwari Devi and Smt. Gauri Sharma. In the month of August, 2013, the complainant wrote a letter to the District Magistrate, Haridwar regarding the suspicious activities of the opposite parties. Vide letter dated 16.08.2013, the complainant asked the company to refund his amount with 16% interest, but false promises were made to the complainant. On 11.06.2016, the complainant sent a legal notice to the company, claiming refund of the amount with interest totaling Rs. 17,40,347/-, but the same was received back by the complainant. The complainant 4 sent another legal notice dated 23.06.2016 to the company, claiming the aforesaid amount of Rs. 17,40,347/-, but the same was not replied. The complainant also sent several mails and messages to the opposite party No. 2, but no reply was given by him. The complainant made several visits to the site and the office of the company and talked with the officials of the company, but to no avail. The opposite parties are enjoying the complainant's money and harassing complainant for the last 3½ years and have no intention to refund his hard-earned money. The complainant suffered a huge loss due to malafide and dishonest intention of the opposite parties. Therefore, the complainant filed the present consumer complaint, claiming total sum of Rs. 40,00,000/- under various heads, as mentioned in the relief clause of the consumer complaint.
4. Vide order dated 14.10.2016, the consumer complaint was admitted and notices were directed to be issued to the opposite parties. Thereafter, the complainant moved an amendment application, which was allowed vide order dated 22.11.2016 and the complainant was directed to take fresh steps to serve the opposite parties. Thereafter, the notices were again sent to the opposite parties, which were refused by them. Thus, on the basis of the refusal, service upon the opposite parties was deemed sufficient per order dated 02.01.2017 and the consumer complaint was fixed for complainant's evidence.
5. In evidence, the complainant has filed his affidavit dated 25.01.2017 along with certain documents.
6. None appeared on behalf of the opposite parties. We have heard the complainant in person and gone through the record.
57. The complainant has filed the original allotment letter dated 21.11.2014 (Paper No. 48) issued by opposite party No. 1 - ETH Group, wherein it has clearly been mentioned that 1BHK Flat Block C-01 Unit No. C-03, Ground Floor, area 600.00 sq. ft. in Emerald Riviera, Haridwar has been allotted in favour of the complainant. In the consumer complaint, the complainant has alleged that he has paid an amount of Rs. 1,32,000/- and Rs. 8,71,750/- respectively to the opposite parties towards the cost of the flat. The complainant has also filed the original acknowledgments / receipts dated 06.11.2012 and 18.12.2012 (Paper Nos. 42 and 43) issued by Emerald Tourist Home Pvt. Ltd. and ETH Group, thereby acknowledging the receipt of sum of Rs. 1,32,000/- and 8,71,750/- from the complainant. Through affidavit dated 16.10.2017 (Paper No. 67), the complainant has also filed the Statement of Account issued by ICICI Bank Limited, Haldwani and State Bank of India, Kusumkhera, Haldwani, which show that cheques for sum of Rs. 1,32,000/- and Rs. 8,71,750/- respectively issued by the complainant in favour of the company were duly honoured and the amount of the cheque was debited in the account of the complainant and was credited in the account of the builder.
8. Thus, it is amply clear that the complainant has paid sum of Rs. 10,03,750/- (Rs. 1,32,000/- plus Rs. 8,71,750/-) to the opposite parties towards cost of the flat allotted in his favour and possession whereof has not yet been delivered to him. As per the allotment letter dated 21.11.2014, the complainant was required to pay 10% of BSP at the time of booking; 40% of BSP+PLC within 45 days of booking and the balance 50% of BSP at the time of possession. Thus, the complainant has paid all the required amount and the balance 50% amount was to be paid by the complainant at the time of possession of the flat in question.
69. As is stated above, condition No. 5 of the terms and conditions / declaration of the application provides that the allotment of property plots / flat / villas / commercial / farm house by the company against the registration of the application shall be done within 6 to 10 months from the date of registration as per company discretion. There is no dispute with regard to the fact that the possession of the flat in question has not yet been delivered by the opposite parties to the complainant inspite of several visits of the complainant to the office of the opposite parties and repeated promises made at the end of the opposite parties. There has not been any fault on the part of the complainant in making the payment of the amount demanded by the opposite parties and the complainant has strictly adhered to the terms and conditions of the allotment and it is the opposite parties who have flouted the terms and conditions of the allotment and have failed to deliver the possession of the flat to the complainant within the agreed period of 6 to 10 months from the date of registration or even after the further grace period of 90 days. Thus, the opposite parties have been enjoying the hard-earned money of the complainant since the year 2012. Although the obligation of the company provide for payment of interest @10% p.a. as compensation for delay in delivering the possession of the flat, but we are of the view that the complainant is entitled to interest @12% p.a. on the amount deposited by him with the opposite parties from the date of deposit till the date of actual payment. This apart, since there has clear-cut deficiency in service on the part of the opposite parties in not delivering the possession of the flat to the complainant within the specified period and the same has not yet been delivered to the complainant and the complainant has been made to run from pillar to post and has been forced to come before this Commission by filing the present consumer complaint and has undergone mental pain and agony and, therefore, the complainant 7 is also entitled to sum of Rs. 50,000/- towards mental harassment suffered by him at the hands of the opposite parties as well as litigation expenses.
10. In view of above, consumer complaint is allowed and the opposite parties are directed to refund sum of Rs. 10,03,750/- (Rs. 1,32,000/- plus Rs. 8,71,750/-) to the complainant together with interest @12% p.a. from the date of deposit of the said amount till the date of actual payment and also to pay Rs. 50,000/- towards mental harassment as well as litigation expenses.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.S. VERMA) K