State Consumer Disputes Redressal Commission
Ms. Sagarika Mishra vs Arun Dev Builders Ltd. & Anr. on 4 January, 2024
C/322/2014 MS. SAGARIKA MISHRA VS. ARUNA DEV. BUILDERS LTD. & ORS. D.O.D.: 04.01.2024
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 16.07.2014
Date of reserving the order: 17.11.2023
Date of Decision: 04.01.2024
COMPLAINT CASE NO.- 322/2014
IN THE MATTER OF
MS. SAGARIKA MISHRA
R/O 65/23, NEW ROHTAK ROAD,
KAROL BAGH, NEW DELHI-110005
(Through: Mr. Ganesh Kanojiya, Advocate)
...Complainant
VERSUS
1. ARUNA DEV BUILDERS LTD.
AT: 612, HOLY CHOWK, DEVLI,
NEW DELHI-110062
ALSO AT: F-1211, C.R. PARK,
NEW DELHI-110019
2. MR. MANOJ BHARDWAJ
3. MS. NEENA BHARDWAJ
4. MR. PRAVEEN BHARDWAJ
R/O F-89/11, OKHLA PHASE-I,
NEW DELHI-110020
(Through: None for the OPs)
...Opposite Parties
CORAM:
HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: Mr. Ganesh Kanojiya, counsel for the Complainant
None for the OPs
ALLOWED PAGE 1 OF 7
C/322/2014 MS. SAGARIKA MISHRA VS. ARUNA DEV. BUILDERS LTD. & ORS. D.O.D.: 04.01.2024
PER: HON'BLE MR. RAJAN SHARMA, MEMBER (JUDICIAL)
JUDGMENT
1. The Complainant in the present Consumer Complaint, which was filed on 16.07.2014, has prayed for the following reliefs:
"(i) Direct the Opposite Parties to immediately allot the booked plot as per the terms of the booking forthwith.
(ii) Direct the Opposite Parties to pay a sum of Rs.10,00,000/- per year along with @ 18% interest p.a. to the Complainant from the date of promised delivery of said plot till the date of actual delivery of the plot.
(iii) Direct the Opposite Parties to pay additional sum of Rs.5,00,000/- to the Complainant on account of deficiency of service on the part of the Opposite Parties and metal agony & harassment suffered by the Complainant.
(iv) Direct the Opposite Parties to pay Rs.1,00,000/-
towards litigation charges.
(v) Direct the Opposite Parties to pay all the amounts along with interest @ 18% p.a. to the Complainant from the date of promised delivery of said plot till the date of actual delivery of the plot.
(vi) Any other order[s] or relief[s], which the Hon'ble Commission may deem fit and proper, in the facts and circumstances of the case may also be passed in favour of Complainant and against the Opposite Parties."
2. Brief facts necessary for adjudication of the present complaint are that in the month of September 2008, Mr. Digvijay Singh, one of the officials of the Opposite Party No.1/company approached the Complainant to book the plot of 100 sq. yards in their newly project namely 'Dev City' at Bhiwadi, Rajasthan. Being lured by the brochures of the project and on the assurance of the officials of the Opposite Party No. 1, on 29.02.2008 the Complainant booked the 100 sq. yards plot with the Opposite Party No. 1 and had paid an amount of Rs.1,00,000/- to the Opposite Party No. 1 towards advance ALLOWED PAGE 2 OF 7 C/322/2014 MS. SAGARIKA MISHRA VS. ARUNA DEV. BUILDERS LTD. & ORS. D.O.D.: 04.01.2024 registration amount. The Complainant over a period of time had paid a total sum of Rs.1,84,000/- to the Opposite Party No. 1, as and when it was demanded by the Opposite Party No. 1.
3. It is the case of the Complainant that in the month of February-
March 2011, the Opposite Parties intimated the Complainant that the project work was going slow and the Complainant was told not to make any payment and thereafter, in year 2012, the Opposite Parties told the Complainant to wait further and thereafter, the Opposite Parties kept on lingering the project on one or the other flimsy grounds. The Complainant had also visited the site on 25.08.2010, 16.05.2011, 28.03.2012 & 29.03.2014 respectively, when he found that no development was being carried out at the site and some goon type persons were loitering around. Aggrieved by the aforesaid, the Complainant filed police complaint against the Opposite Parties and also served a legal notice dated 21.05.2014 upon the Opposite Parties. But, the Opposite Parties did not reply to the same.
4. Thus, the Complainant was left with no other option but to file the present complaint alleging deficiency of service and unfair trade practice on the part of the Opposite Parties.
5. After the present complaint case was filed by the Complainant, notice of the complaint was issued to the Opposite Parties on 04.08.2014.
6. Upon service, Mr. Vinay Kumar appeared on 21.01.2015 on behalf of all the OPs and copy of the complaint was supplied to him and the Opposite Parties were directed to file written statement.
7. Despite directions vide order dated 21.01.2015 & 26.08.2015, the Opposite Parties did not file written statement, thus, vide ALLOWED PAGE 3 OF 7 C/322/2014 MS. SAGARIKA MISHRA VS. ARUNA DEV. BUILDERS LTD. & ORS. D.O.D.: 04.01.2024 order dated 28.10.2015 cost of Rs.2,000/- was imposed on the Opposite Parties for not filing the written statement.
8. Pursuant to order dated 28.10.2015, the Opposite Parties filed written statement and the counsel for the Opposite Parties paid Rs.2,000/- as costs to the counsel for Complainant.
9. The Complainant filed rejoinder on 07.07.2017, rebutting the averments made in the written statement filed by the Opposite Parties. Complainant has also denied the allegations raised by the Opposite Parties and recapitulated the facts stated by him in the complaint.
10. Complainant had also filed his evidence by way of affidavit in order to prove his averments on record.
11. Despite directions vide order dated 10.07.2017, 11.12.2017 & 25.10.2018, the Opposite Parties did not file evidence by way of affidavit. Since the Opposite Parties failed to file the evidence by way of affidavit and no one had appeared on behalf of the Opposite Parties on 10.05.2019 & 05.12.2019, the Opposite Parties were proceeded ex-parte vide order dated 05.12.2019 passed by our Learned Predecessor.
12. The Complainant had also filed written arguments vide diary no.
8958 dated 12.05.2023.
13. As the evidence by way of affidavit and written arguments were not filed by the Opposite Parties, the averments made by the Opposite Parties in the written statement cannot be considered in the present case and the submissions made by the Complainant remain unrebutted.
14. The only question for adjudication before us is "whether the Opposite Parties are deficient in providing its services to the Complainant."
ALLOWED PAGE 4 OF 7 C/322/2014 MS. SAGARIKA MISHRA VS. ARUNA DEV. BUILDERS LTD. & ORS. D.O.D.: 04.01.2024
15. 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 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 ALLOWED PAGE 5 OF 7 C/322/2014 MS. SAGARIKA MISHRA VS. ARUNA DEV. BUILDERS LTD. & ORS. D.O.D.: 04.01.2024 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.
16. In the present case, the Complainant had paid an amount of Rs.1,84,000/- (evident from the photocopies of the receipts annexed from page no. 37 to 39) to the Opposite Party No. 1 way back in the year 2011. However, the Opposite Parties failed to allot any plot to the Complainant. Till date the Opposite Parties had not refunded the money of the Complainant which he had paid to the Opposite Party No. 1 way back in the year 2011.
17. Consequently, we hold that the Opposite Parties are deficient in providing its services to the Complainant as the Opposite Parties had given false assurance to the Complainant with respect to their upcoming project 'Dev City'.
18. Keeping in view the facts of the present case and the extensive law as discussed above, we direct the Opposite Parties to refund the entire amount paid by the Complainant i.e., Rs.1,84,000/- along with interest as per the following arrangement:
A. An interest @ 6% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party till 04.01.2024 (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 04.03.2024;
C. Being guided by the principles as discussed above, in case the Opposite Party fail to refund the amount as per the aforesaid clause (A) on or before 04.03.2024; the entire amount is to be refunded along with an interest @ ALLOWED PAGE 6 OF 7 C/322/2014 MS. SAGARIKA MISHRA VS. ARUNA DEV. BUILDERS LTD. & ORS. D.O.D.: 04.01.2024 9% p.a. calculated from the date on which each instalment/payment was received by the Opposite Party till the actual realization of the amount.
19. 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.50,000/- as cost for mental agony and harassment to the Complainant; and B. The litigation cost to the extent of Rs.50,000/-.
20. Accordingly, the complaint filed by the Complainant is hereby allowed.
21. Applications pending, if any, stand disposed of in terms of the aforesaid judgment.
22. 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.
23. File be consigned to record room along with a copy of this Judgment.
(RAJAN SHARMA) MEMBER (JUDICIAL) (BIMLA KUMARI) MEMBER (FEMALE) Pronounced On: 04.01.2024 ALLOWED PAGE 7 OF 7