State Consumer Disputes Redressal Commission
S.N. Bhargava vs Jmd Ltd. on 19 September, 2023
C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 27.11.2008
Date of reserving the order: 14.03.2023
Date of Decision: 19.09.2023
COMPLAINT CASE NO.- 268/2008
IN THE MATTER OF
MR. S.N. BHARGAVA
R/O 304, FANCY SOCIETY,
19, VASUNDHRA ENCLAVE,
DELHI-110096
(Through: Complainant, in person)
...Complainant
VERSUS
M/S JMD LTD.
(THROUGH: MR. SUNIL BEDI, CMD)
6, UPPER GROUND FLOOR,
DEVIKA TOWER, NEHRU PLACE,
NEW DELHI-110019
(Through: Mr. Arsh Sawhney, Advocate)
...Opposite Party
CORAM:
HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: Complainant in person
Mr. Arsh Sawhney, counsel for the OP
ALLOWED PAGE 1 OF 19
C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023
PER: HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
JUDGMENT
1. Briefly stated the facts of the present case are that on 12.04.2005, the Complainant & and his wife Mrs. Kumud Bhargava had earlier purchased a showroom space bearing no. GF-10, Ground Floor in multi-storied complex namely "JMD Regent Plaza" located at Mehrauli- Gurgaon Road, Sikanderpur, Gurgaon from Span Properties Pvt. Ltd. Thereafter, on the assurance of the Opposite Party that its new project "JMD Gardens" at Sohna Road, Gurgaon is coming soon, and that the Complainant should book a flat in its project, the Complainant had paid an amount of Rs.18,10,640/- to the Opposite Party vide cheque bearing no. 519369 dated 21.04.2005 drawn on ICICI Bank, in favour of CMD of the Opposite Party (as is evident from the statement of accounts filed by the Complainant along with the complaint).
2. It is the case of the Complainant that the Opposite Party had also assured that in case the space was not allotted to the Complainant, the Opposite Party would refund the entire money to the Complainant along with interest @ 15%. But, the Opposite Party did not inform the Complainant regarding their incoming project. The Complainant came to know that the property, where the said construction was to take place had not even been allotted to the Opposite Party, and for this reason, the Complainant made several requests to the Opposite Party to refund the amount so paid by him. When the amount was not refunded by the Opposite Party, the Complainant served a legal notice ALLOWED PAGE 2 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 dated 07.10.2008 through his advocate to the Opposite Party requesting them to immediately refund his money along with interest @ 15%, but the Opposite Party did not reply to this legal notice.
3. In spite of several personal visits to the Office of the Opposite Party, the Opposite Party did not give any plausible reply to the queries, which had been put forth by the Complainant regarding the allotment of the land as well as construction of the said project and when all things went in vain, the Complainant was left with no other option but to file the present complaint before this Commission seeking the following reliefs:
"(a) Direct the Opposite Party to allot a space to the Complainant;
(b) In case the said relief is not allowed then direct the Opposite Party to refund the entire deposited amount of Rs.18,10,640/-.
(c) Direct the Opposite Party to pay interest of Rs.9,50,596/- calculated w.e.f 21.04.2005 @ 15% per annum;
(d) Direct the Opposite Party to pay Rs.1,00,000/- to the Complainant as compensation for mental agony and harassment caused to the Complainant;
(e) Grant a cost of Rs.30,000/- towards litigation cost to the Complainant;
(f) Any other order, relief or direction which this Hon'ble Commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the Complainant and against the Opposite Party."
4. After the present complaint case was filed, notice of the complaint was issued to the Opposite Party on 17.12.2008.
5. Thereafter, the Opposite Party did not file the written statement and filed an application under ALLOWED PAGE 3 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 Section 24A & 26 of Consumer Protection Act, 1986 seeking dismissal of the complaint.
6. However, vide order dated 06.04.2010, the said application filed on behalf of the Opposite Party was dismissed by our Learned Predecessor.
7. Thereafter, on 12.10.2010, the Opposite Party filed Revision Petition No. 3112/2010 before the Hon‟ble National Consumer Disputes Redressal Commission against the order dated 06.04.2010 passed by this Commission.
8. The Hon‟ble National Consumer Disputes Redressal Commission dismissed that Revision Petition No. 3112/2010 vide its order dated 10.11.2010.
9. Thereafter, the Opposite Party filed the written statement, wherein it was stated that it did not conceive the idea of group housing residential complex „JMD Garden‟ at the time, when the Complainant had made the payment. The said project was started by the „OMAXE Housing and Developers Ltd.‟ in July 2005 and they came into picture in April 2006 only after execution of 11 sale deeds in their favour. The licenses of the project were transferred in the name of Opposite Party in November 2006. The Complainant had not come with clean hands before this Commission and concealed the fact that the amount of Rs.18,10,640/- given by him was towards earnest money for booking of IT Unit in OP‟s newly launched IT project namely "JMD Megapolis" and not for "JMD Gardens" which had not even been conceived by the Opposite Party at relevant time. The Complainant had earlier booked a unit in the project of Opposite Party namely „JMD Regent Plaza‟ and was happy ALLOWED PAGE 4 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 with the quality of work. Thus, he desired to buy another property of 4500 sq. ft. Since, no other space was readily available for sale and few cancellations were expected, the Opposite Party requested the Complainant to give 10% of the expected consideration of 4500 sq. ft. property. As no cancellations were made, the Complainant, in June 2005 requested the Opposite Party for an area in some other project. At that time, IT Sector was booming, therefore, the Complainant decided to buy an IT unit in the project of Opposite Party namely "JMD Megapolis". The Complainant‟s budget was of rupees two crores. Accordingly the Units No. FF-453, 454 & 455 each admeasuring 1421 sq. ft. were locked for the Complainant for a total consideration of Rs.1,70,52,000/-. The Opposite Party, thereafter, adjusted the amount of the Complainant of Rs.18,10,640/- towards the booking of the said units. The Opposite Party further stated that the Complainant was a Senior Income Tax official at that time and he took away the Buyer Agreement on the pretext of studying before signing but thereafter, did not turn up to execute the Unit Buyers Agreement. The Opposite Party further stated that the Complainant went missing instead of executing the Unit Buyers Agreement. In these circumstances, the Opposite Party had no option but to cancel the booking and forfeit the earnest money. Accordingly, the booking was cancelled and earnest money was forfeited. The units were subsequently sold to other party. That the complaint is barred by limitation. The Opposite Party also stated that legal notice dated 04.10.2008 was never received by it. The Opposite Party had also stated that this Commission has no jurisdiction to decide the matter ALLOWED PAGE 5 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 and the Complainant is not a "consumer" as prescribed under the Section 2 (d) of the Consumer Protection Act, 1986.
10. Thereafter, the Complainant filed rejoinder rebutting the contentions raised in the written statement filed by the Opposite Party and reiterated the averments contained in the complaint.
11. Both the parties had also filed their evidence by way of affidavits in order to prove their averments on record.
12. Written arguments on behalf of both the parties were also filed.
13. Learned Predecessor of this Bench heard the arguments of both the parties and vide his judgment dated 17.02.2017, dismissed the complaint on the ground that the Complainant had booked a commercial space and Complainant was not a consumer as commercial space was not covered under the Consumer Protection Act.
14. Thereafter, the Complainant filed an appeal No. FA- 811/2017 against the judgment dated 17.02.2017 before the Hon‟ble National Consumer Disputes Redressal Commission and the Hon‟ble National Consumer Disputes Redressal Commission set aside the judgment dated 17.02.2017 passed by this Commission. The matter was remanded back with directions to decide the same on merits after hearing both the parties. The parties were directed to appear before this Commission on 04.07.2018.
15. On 04.07.2018, counsel for both the parties had appeared and the Complainant filed an application for interrogatories. However, vide order dated ALLOWED PAGE 6 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 07.08.2018, the application for interrogatories was not allowed and dismissed by Learned Predecessor.
16. Thereafter, the Complainant again filed an appeal No. 1532/2018 against the order dated 07.08.2018 before the Hon‟ble National Consumer Disputes Redressal Commission, which allowed the application vide its order dated 10.09.2018.
17. Thereafter, the Opposite Party filed the review application No. 345/2018 against the order dated 10.09.2018 passed by the Hon‟ble National Consumer Disputes Redressal Commission, which was also dismissed by the Hon‟ble National Consumer Disputes Redressal Commission vide its order dated 01.10.2018.
18. Thereafter, the Complainant filed fresh written submissions vide diary no. 5309 dated 10.03.2023. However, the Opposite Party did not file fresh written submissions, despite opportunities.
19. We have heard Learned counsel for both the parties and perused the material available on record.
20. The first question that arises for consideration is whether the Complainant is a „consumer‟.
21. To resolve this issue, we deem it appropriate to refer to Section 2 (1) (d) of Consumer Protection Act, 1986:
"Section 2(1)(d) Consumer" means any person who- i. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is ALLOWED PAGE 7 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or ii. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose] Explanation - For the purpose of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
22. To comment on this issue, we deem it appropriate to refer to Aashish Oberai Vs Emaar MGF Land Limited reported in I (2017) CPJ 17(NC) wherein it is held as under:
"6. .......A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose."
23. It is imperative to refer to the dicta of the Hon‟ble National Commission in CC-1122/2018 titled Narinder ALLOWED PAGE 8 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 Kumar Bairwal and Ors. vs. Ramprastha Promoters and Developers Pvt. Ltd. and Ors. decided on 01.11.2019, wherein, the Hon‟ble National Commission has held as under:
"19. The contention of the Learned Counsel that the said Flats were purchased for commercial purpose is not supported by any documentary evidence as the onus shifts to the Opposite Parties to establish that the Complainant have purchased the same to indulge in 'purchase and sale of flats' as was held by this Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31. The Opposite Parties failed to discharge their onus and we hence hold that the Complainant are 'Consumers' as defined under Section 2(1)(d) of the Act.
24. Further, In Avtar Singh Bhatia Vs Raheza Developers Ltd IV (2022) CPJ 94 (NC), wherein the Hon‟ble National Commission has held as under:
"Opposite party should establish by way of documentary evidence that complainants were dealing in real estate or in purchase and sale of subject property for the purpose of making profits".
25. Further, in Anju Vinod Saraswat (Mrs.) Vs. Sahara Prime City Limited IV (2022) CPJ 206 (NC), it was held as under:
"Onus of establishing that complainant was dealing in real estate, i.e., in purchase and sale of plots/flats for commercial purpose to earn profits lies upon opposite party."
26. Thus, from the aforesaid dicta of the Hon‟ble National Commission, it flows that it is for the Opposite Party to prove that Complainant is not a consumer and a mere bald statement is not sufficient to raise adverse inference against the Complainant.
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27. In the present case, it is the case of
Opposite Party that Complainant had paid a sum of
Rs.18,10,640/- towards earnest money for the booking of IT Unit in their IT Project namely „JMD Megapolis‟ and not for the project „JMD Garden‟ which was not even conceived by Opposite Party at the relevant time. It is also submitted by the Opposite Party that Complainant had earlier booked a unit in their project „JMD Regent Plaza‟. Since, he was happy with the quality of work and was desirous of buying another unit in their project. Since, no other space was readily available in their project and few cancellations were expected, the Opposite Party requested the Complainant to give 10% of the expected consideration of 4500 sq. ft. Since no cancellation was made and the IT sector was booming then the Complainant decided to buy the IT unit in its project "JMD Megapolis" to let out the same to IT companies. However, no documentary evidence has been placed on record by the Opposite Party in support of its contentions.
28. On the other hand, the Complainant has categorically deposed in his complaint as well as evidence that the Opposite Party gave an assurance to him that the Opposite Party was coming soon with its new project „JMD Garden‟ on Sohna Road, Gurgaon and on the assurance of the Opposite Party, he booked a flat and deposited a sum of Rs.18,10,640/- vide cheque bearing no. 519369 dated 21.04.2005 drawn on ICICI Bank in favour of "JMD Promoter Ltd." It is worth noting that the Opposite Party was served in the matter in the month of February 2009 but it did not file the written statement/reply to the complaint and rather filed an application under Section 24A & 26 of Consumer Protection Act, 1986 seeking dismissal of the complaint. It is also worth noting that in that ALLOWED PAGE 10 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 application no such averments were made by the Opposite Party that the Complainant had paid a sum of Rs.18,10,640/- towards earnest money for booking the commercial space in the project of the Opposite Party namely „JMD Megapolis‟. It is also worth noting that it is an admitted case of the Opposite Party in its written statement that in July 2005 Housing Project namely „JMD Garden‟ belonged to „OMAXE Housing and Developers Ltd.‟ and the Opposite Party came into picture in April 2006, when 11 sale deeds were executed in its favour and licences were also transferred in the name of Opposite Party in November 2006. This fact itself shows that the Complainant had booked the flat in the project, on the assurance of Opposite Party that it was coming soon with new project, which was initially belonging to „OMAXE Housing and Developers Ltd.‟ It is further worth noting that the IT Project of Opposite Party namely „JMD Megapolis‟ was not in existence in the year 2005, when the Complainant made the payment to the Opposite Party. It is the case of the Complainant that he was neither informed by the Opposite Party about its upcoming project, nor was allotted any flat by the Opposite Party, despite the fact that he visited its office many times. It is also worth noting that when this Commission dismissed the application of the Opposite Party under Section 24A & 26 of Consumer Protection Act, 1986 on 24.07.2009, the Opposite Party filed Revision Petition No. 3112/2010 against that order before the Hon‟ble National Commission, which made queries from the Opposite Party "as to for what purpose an amount of Rs.18,10,640/- was received by the Opposite Party, then the counsel for the Opposite Party stated that ALLOWED PAGE 11 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 the said amount was received in some other connection." However, till date the Opposite Party has not been able to place on record any material to show as to for what connection the said amount of Rs.18,10,640/- was received by it from the Complainant. It is worth noting that while disposing of the Revision Petion, the Hon‟ble National Commission had categorically observed that the Opposite Party did not make any submissions in its application under 24A & 26 of Consumer Protection Act, 1986 and now it cannot be permitted to travel beyond what was stated in the application and the preliminary objections were filed by the Opposite Party only to delay the proceedings. It is significant to note that Hon‟ble National Commission also imposed costs of Rs.10,000/- on the Opposite Party, when the Revision Petition was dismissed, as the Revision Petition filed by the Opposite Party was found frivolous in nature. It was also ordered by Hon‟ble National Commission that if the costs of Rs.10,000/- was not paid by the Opposite Party, the Opposite Party cannot file the written statement and if the written statement was already filed, the same would be taken off the record.
29. It is also worth noting that during the pendency of the matter, the Complainant moved an interim application for injunction on 23.04.2009, wherein he clearly mentioned that the Opposite Party was allotting and handing over the possession of flats to the parties and large number of flats had been allotted by the Opposite Party, after filing of the complaint by the Complainant. In that injunction application, the Complainant had prayed that directions be given to Opposite Party, to reserve one flat for ALLOWED PAGE 12 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 him till his complaint is decided by the Commission. In para no. 3 of the interim application, it was categorically mentioned by the Complainant that he deposited the sum of Rs.18,10,640/- on 21.04.2005 towards the full and final payment of flat, in the upcoming project of the Opposite Party. The Complainant has further mentioned in para no. 4 of the interim application that he came to know from one Mr. Pradeep, Representative of Opposite Party that out of 508 flats, in the complex, only 12 flats were left for allotment and if all flats were allotted, then the Complainant would be left high and dry. In para no. 5 of said application, the Complainant has also mentioned that he was waiting for 𝟏 the allotment of the flat for last more than 4 years. He and 𝟐 his wife were senior citizens and did not have any house anywhere. He further stated that irreparable damage would be caused to them if the flat was not given to them. Thus, a prayer was made in the interim application that Opposite Party be directed to reserve one flat for the Complainant in their project „JMD Garden‟ on Sohna Road, Gurgaon, till pending disposal of his complaint.
30. It is further noteworthy that the Opposite Party did not file reply to this interim application for the reasons best known to the Opposite Party, despite having been granted several opportunities and did not rebut the allegations of the Complainant stated in the application. Further, the Complainant has placed on record the copy of the FA No. 135/2013 decided by the Hon‟ble National Consumer Disputes Redressal Commission on 07.02.2014, which was filed by the Opposite Party against the order ALLOWED PAGE 13 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 dated 06.12.2012 passed in CC No. 19/2012 titled as "Meenu Aggarwal Vs. M/s. JMD Promoters Ltd." In that case, Learned State Commission had allowed the complaint of the Complainant „Meenu Aggarwal‟ and the Opposite Party i.e. „JMD Promoters Ltd.‟ was directed to allot the flat bearing no. D-1201 on 12th Floor in its project namely "JMD Garden"
Sohna Road, Gurgaon.
31. Thus, in view of the above discussions, we find no merits in the contentions of the Opposite Party that Complainant is not consumer as he booked the commercial space in the project of Opposite Party.
32. Accordingly, this issue is decided in favour of the Complainant and against the Opposite Party.
33. The second question for consideration is whether this Commission has the territorial jurisdiction to adjudicate this complaint.
34. The counsel for the Opposite Party stated that all the negotiations, discussions between the Complainant and Opposite Party took place at Gurgaon, therefore, this Commission does not have territorial jurisdiction to entertain the present complaint.
35. To resolve this issue, it is appropriate to refer to the case of Rohit Srivastava Vs. Paramount Villas Ltd. reported at 2017 SCC OnLine NCDRC 1198, it has been held as under:
"It is not in dispute that the Registered Office of Opposite Party No 1 Company is situated in Delhi, i.e. within the territorial jurisdiction of the State Commission at Delhi and therefore, in the light of clear provision contained in Section 17(2) (a), which stipulates that a Complaint can be instituted in a State ALLOWED PAGE 14 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 Commission, within the limits of whose jurisdiction, the Opposite Party actually carries on business. In view of the said provision, we have no hesitation in coming to the conclusion that since the Registered Office of the first Opposite Party is situated in Delhi, the State Commission did have the territorial jurisdiction to entertain the Complaint."
36. On perusal of the above settled law, it is clear that if the registered office of the Opposite Party is situated in Delhi, this Commission will have the territorial jurisdiction to adjudicate the complaint.
37. In the present case also, the registered office of the Opposite Party is situated at 6, Upper Ground Floor, Devika Tower, Nehru Place, New Delhi-110019.
38. Applying the above settled law, since the registered office falls within the territory of Delhi, this Commission has the territorial jurisdiction to adjudicate the present case.
39. The next question for consideration is whether the Opposite Party is deficient in providing its services to the Complainant or not.
40. The expression Deficiency of Service has been dealt with by the Hon‟ble Apex Court in Arifur Rahman Khan and Ors. vs. DLF Southern Homes Pvt. Ltd. and Ors. reported at 2020 (3) RCR (Civil) 544, wherein it has been discussed as follows:
"23. .......The expression deficiency of services is defined in Section 2 (1) (g) of the CP Act 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a ALLOWED PAGE 15 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 person in pursuance of a contract or otherwise in relation to any service.
24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression 'service' in Section 2(1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfilment of a contractual obligation.
41. In the present case, on the assurance of the Opposite Party, the Complainant had paid an amount of Rs.18,10,640/- to the Opposite Party on 21.04.2005 for their incoming project which was earlier belonging to „OMAXE Housing and Developers Ltd.‟ However, the Opposite Party did not intimate the Complainant about its incoming project and did not allot any flat in its project. Further, the Opposite Party did not refunded the amount of Rs.18,10,640/- to the Complainant and whimisically ALLOWED PAGE 16 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 cancelled the booking and forfeited his amount on the pretext that Complainant did not sign the Builder Buyers Agreement, which was taken by him for the purpose of studying, before putting the signature.
42. At this stage, we deem it appropriate to refer to First Appeal no. 344/2016 titled as Vibhor Vaibhav Infrahome Pvt. Ltd. and Ors. Vs. Azam Ali and Ors. decided on 20.07.2020, wherein the Hon‟ble NCDRC has held as under:
"13. Clearly, there is no substance in the argument of the appellant that the complainant is not a consumer of the Appellant because there is no allotment letter and no builder buyer agreement. It was the responsibility of the appellant to have issued the allotment letter after booking was made by the complainant, however, the same was not issued by the OPs. As there was no allotment letter issued and the money paid only remains as booking amount, the complainants are entitled to refund of the same."
43. From the aforesaid dicta of the Hon‟ble National Commission, it flows that it is the responsibility of the builder to issue the allotment letter and execute the flat buyer agreement after booking and in case the same was not issued, the buyer is still entitled to the refund of the amount paid by him/her. In the present case, it is clear that neither the allotment letter was issued nor the builder buyer agreement was executed by the Opposite Party with the Complainant, still, the Opposite Party does not have any right to sit over the Complainant‟s hard-money which the Complainant had paid to the Opposite Party in the way back year 2005. Therefore, we hold that the Opposite Party was deficient in providing its ALLOWED PAGE 17 OF 19 C/268/2008 MR. S.N. BHARGAVA VS. M/S JMD LTD. D.O.D.: 19.09.2023 services to the Complainant as no builder buyer agreement was executed by the Opposite Party with the Complainant and the Complainant is entitled to refund the amount deposited by him for the space in question.
44. Accordingly, the complaint filed by the Complainant is hereby allowed.
45. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Party to refund the entire amount paid by the Complainant i.e., Rs.18,10,640/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which the payment was received by the Opposite Party till 19.09.2023 (being the date of the present judgment); B. The rate of interest payable as per the aforesaid clause (A) is subject to the condition that the Opposite Party pays the entire amount on or before 18.11.2023;
C. Being guided by the principles as discussed above, in case the Opposite Party fails to refund the amount as per the aforesaid clause (A) on or before 18.11.2023, the entire amount is to be refunded along with an interest 9% p.a. calculated from the date on which the payment was received by the Opposite Party till the actual realization of the amount.
46. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party is directed to pay a sum of:
A. Rs.1,00,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs.50,000/-
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47. Applications pending, if any, stand
disposed of in terms of the aforesaid judgment.
48. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
49. File be consigned to record room along with a copy of this Judgment.
(RAJAN SHARMA) MEMBER (JUDICIAL) (BIMLA KUMARI) MEMBER (FEMALE) Pronounced On: 19.09.2023 ALLOWED PAGE 19 OF 19