State Consumer Disputes Redressal Commission
Nitin Verma & Anr. vs Imperia Structures Ltd. on 30 November, 2022
CC/314/2019 MR. NITIN VERMA & ANR. VS IMPERIA STRUCTURES LTD. DOD: 30.11.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution: 18.03.2019
Date of hearing: 22.09.2022
Date of Decision: 30.11.2022
COMPLAINT CASE NO.- 314/2019
IN THE MATTER OF:
MR. NITIN VERMA
S/O MR. ASHOK KUMAR VERMA
R/O G-203, PALAM VIHAR,
GURGAON, HARYANA- 122017
MS. SIKHA VERMA
W/O MR. NITIN VERMA
R/O G-203, PALAM VIHAR,
GURGAON, HARYANA- 122017
BOTH PRESENTLY AT;
VILLA 21/40, STREET 22C,
AL SAFA 1, DUBAI
(Through: Ms. Mudita Sharda, Advocate)
...Complainants
VERSUS
IMPERIA STRUCTURES LTD.
THROUGH ITS AUTHORIZES REPRESENTATIVE
HAVING ITS REGISTERED OFFICE AT
A-25, MOHAN COOPERATIVE INDUSTRIAL ESTATE,
NEW DELHI - 110044
(Through: Athena Legal)
...Opposite party
ALLOWED PAGE 1 OF 7
CC/314/2019 MR. NITIN VERMA & ANR. VS IMPERIA STRUCTURES LTD. DOD: 30.11.2022
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: None for the parties.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
JUDGMENT
1. The present complaint has been filed by the complainants before this commission alleging deficiency of service and unfair trade practices on the part of Opposite Party and have prayed the following reliefs:
A. Pass an Order directing the Opposite Party to handover complete vacant physical possession of Apartment No. 1903, situated on Floor 19 of Tower No.4 of Opposite Party's upcoming project titled 'Imperia Mirage' to the Complainants within a period of three months from filing of the present Complaint; and B. Pass an order directing the Opposite Party to execute Sale Deed in favour of the Complainants for allotted Apartment No. 1903, situated on Floor 19 of Tower No.4 of Opposite Party's upcoming project titled 'Imperia Mirage' within a period of three months from filing the Complaint; and C. Pass an order directing the Opposite Party to pay interest calculated @ 24% per annum from the date when the payment was made by the Complainants till the date of handing over of the vacant physical possession of Apartment No. 1903, situated on Floor 19 of Tower No.4 of Opposite Party's upcoming project titled 'Imperia Mirage' and execution and registration of the Sale Deed in favour of the Complainants within three months from filing the Complaint; OR D. In the alternate, direct the Opposite Party to refund the amount paid by the Complainant to the tune of Rs.
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26, 46, 803/- (Rupees Twenty Six Lacs Forty Six Thousand Eight Hundred and Three Only) alongwith interest @ 24% p.a from the date of payment; and E. Pass an Order directing the Opposite Party to pay Penalty in terms of Original Penalty Clause in the Confirmation Letter/Builder Buyer Agreement for such delay caused in delivering possession of Apartment No. 1903, situated on Floor 19 of Tower No.4 of Opposite Party's upcoming project titled 'Imperia Mirage' in terms of which clause the Opposite Party is liable to pay Penalty to the Allottees @ Rs. Per sq. ft. of Unit Per month for any delay in Possession beyond the given date plus grace period of 3 months till the offer of possession or handing over of Unit whichever is earlier; and F. Pass an order directing the Opposite Party to pay a sum of Rs. 25,00,000/- (Rupees Twenty Five Lakhs Only) towards mental harassment and agony caused to the Complainant; and G. Pass an Order directing the Opposite Party to pay Rs.
75,000/- towards the cost of Litigation of the present Complaint; and H. Pass any Order(s) or Relief(s) as this Hon'ble Commission may find deem fit and proper in the facts and circumstances of this case."
2. Brief facts necessary for the adjudication of the present complaint are that on 29.01.2013, the Complainants booked an apartment with the Opposite Party in the project 'Imperia Mirage' situated at Greater Noida U.P for a total consideration of Rs. 51,79,250/-. The Opposite Party allotted apartment bearing no. 1903 admeasuring 1450 sq. ft. in the said project to the complainants vide provisional allotment letter dated 09.09.2013. As the time of booking, the Opposite Party assured the complainants to offer possession of the said apartment within 36 months from the date of booking. The ALLOWED PAGE 3 OF 7 CC/314/2019 MR. NITIN VERMA & ANR. VS IMPERIA STRUCTURES LTD. DOD: 30.11.2022 complainants over the time had paid a sum of Rs. 26,46,803/- to the Opposite Party for the said apartment, which includes Rs. 11,03,418/- transferred from Neeraj Verma's (brother of the complainant no. 1) Account no. IMP-M-0261. More so, the Opposite Party also willfully and clandestinely suppressed the date of possession in the Builder Buyer Agreement. The Opposite Party failed to handover the possession of the said apartment to the Complainants till date. The Opposite Party also submitted the 'proposed' end date for the project 'Mirage Phase -II' as 31.12.2024 before the Uttar Pradesh real Estate Regulatory (UPRERA). Aggrieved by this, the complainants sent legal notice dated 27.11.2018 to the Opposite Party seeking either deliver of possession of the said apartment or refund of the money deposited by them along with interest but was of no avail.
3. During the course of proceedings, the Opposite Party filed written statement alongwith an application for condonation of delay, which was accepted vide order dated 30.01.2020 subject to payment of Rs. 7000/- to the complainants but the Opposite Party failed to make payment. The Opposite Party also failed to file the evidence by way of affidavit till date despite multiple opportunities vide order dated 09.02.2021 & 31.03.2022. Since the Opposite Party failed to file the evidence by way of affidavit to prove his case, the contentions made in the written statement cannot be considered in the present case and thus, the averments made by the Complainants in the present complaint remains unrebutted.
4. The Complainants have filed the Evidence by way of Affidavit in order to prove the averments on record and also filed the written arguments alongwith the judgments relied upon.
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5. We have perused the material available on record and heard the counsel for both the parties.
6. The fact that the Complainant was allotted an apartment bearing no.
1903 admeasuring 1450 sq. ft.by the Opposite Party in the project 'Imperia Mirage' situated at Greater Noida, U.P is evident from the Provisional Allotment letter dated 19.09.2013 (Annexure -C8 of the complaint). Payment to the extent of Rs. 26,46,803/- made by the Complainants to the Opposite Party is evident from the material available on record (Annexure-C11 of the complaint).
7. The only question for consideration before us is whether the Opposite Party is deficient in providing its services to the Complainants or not. It is appropriate to refer to the First Appeal no. 348/2016 titled as "Ajay Enterprises Pvt. Ltd. and Ors. vs. Shobha Arora and Ors." decided on 10.05.2019, wherein the Hon'ble NCDRC has held as under:
"......under Section 46 of the Indian Contract Act, 1872, the following provision is there:
46.Time for performance of promise, where no application is to be made and no time is specified -
Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time.
Explanation - The question "what is a reasonable time"
is, in each particular case, a question of fact".
19. from the above provision it is clear that if there is no time limit for the performance of a particular promise given by one party, it is to be performed within a reasonable time. In most of the builder buyer agreements, the period ranges from 24 to 48 months and the most common agreement seems to be for 36 months plus grace period of six months for completion of ALLOWED PAGE 5 OF 7 CC/314/2019 MR. NITIN VERMA & ANR. VS IMPERIA STRUCTURES LTD. DOD: 30.11.2022 construction and delivery of possession. If the possession is delivered beyond 42 months or beyond 48 months, the deficiency in service on the part of the Opposite Party shall stand proved."
8. A perusal of the above settled law reflects that if the possession is delivered beyond 42 months or beyond 48 months, the deficiency in service on the part of the builder shall stand proved. In the present case, it is clear that the Opposite Party till date has not handed over possession of the said apartment and more than nine years had passed from the date of booking. Therefore, the deficiency on the part of Opposite Party stands proved.
9. The complainants cannot be expected to wait for an indefinite time period to get the benefits of the hard-earned money which they have spent in order to purchase the property in question. (Ref: Fortune Infrastructure v. Trevor D'Lima reported at (2018) 5 SCC 442).
10. 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. 26,46,803/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till 30.11.2022 (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 30.01.2023;
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 30.01.2023, the ALLOWED PAGE 6 OF 7 CC/314/2019 MR. NITIN VERMA & ANR. VS IMPERIA STRUCTURES LTD. DOD: 30.11.2022 entire amount is to be refunded along with an interest @ 9% p.a. calculated from the date on which each installment/payment was received by the Opposite Party till the actual realization of the amount.
11. In addition to the aforesaid and taking into consideration the facts of the present case, the Opposite Party are directed to pay a sum of:
A. Rs. 2,00,000/- as cost for mental agony and harassment to the Complainants; and B. The litigation cost to the extent of Rs. 50,000/-.
12. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
13. 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.
14. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
30.11.2022 ALLOWED PAGE 7 OF 7