National Consumer Disputes Redressal
Deepak Rai vs M/S. Laureate Buildwell Pvt. Ltd. on 13 July, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 476 OF 2016 1. DEEPAK RAI A-104, SILVER CITY-2, GREATER NOIDA, U.P.-201308 ...........Complainant(s) Versus 1. M/S. LAUREATE BUILDWELL PVT. LTD. 323, AGARWALL PLAZA, PLOT NO. 3, DDA COMMUNITY CENTRE, SECTOR-14, ROHINI, NEW DELHI-110085 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR, MEMBER
For the Complainant : Mr. Alok Bhachawat, Advocate
Mr. Karan Chaudhary, Advocate
Mr. S. Jeeva Nandan, Advocate For the Opp.Party : NEMO
Dated : 13 Jul 2016 ORDER
HON'BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
IA No. 5681/2016
This is an application filed by the complainant seeking permission to place on record a missing page of the complaint. Heard. The application is allowed and the missing page of the complaint which has been filed with the application is taken on record. The registry is directed to place the said missing page at appropriate place in complaint.
IA No. 5724/2016This is an application for delay on the part of the complainant in filing the affidavit by way of evidence. The delay is condoned. The application stands disposed of.
C.C. No. 476/2016The complainant applied to the Opposite Party on 23.12.2011 for allotment of residential flat in a project namely Parx Laureate, which the Opposite Party was to develop in Sector 108 of Noida. The registration amount of Rs.6 lacs was paid to the Opposite Party on that day. Vide letter dated 06.01.2012, the Opposite Party offered flat no. 3022 in tower Cedar of the above referred project to the complainant. The above referred offer was subject to the complainant paying a sum of Rs.18,99,330/- to the Opposite Party within 30 days of the issue of the said offer. The case of the complainant is that payment in terms of the above referred over was duly made to the Opposite Party. Vide provisional allotment letter dated 01.03.2012, the Opposite Party allotted the above referred flat having super area of 3850 square feet to the complainant for a total consideration of Rs.1,76,13,150/-. As per the schedule of payment annexed to the said allotment letter, the balance amount was payable in as many as 16 installments linked with the stage of construction of the building. The complainant claims to have paid 9 installments and a total sum of Rs.1,25,94,217/- has been paid so far to the Opposite Party. Vide 2nd reminder dated 14.07.2016, the Opposite Party demanded the 10th installment from the complainant. In the said 2nd reminder the Opposite Party referred to its demand letter dated 11.08.2014 and its reminder letter dated 31.08.2014. The case of the complainant is that neither the demand letter dated 11.08.2014 nor the reminder dated 31.08.2014 was received by him from the Opposite Party. The complainant did not make payment of the 10th instalment since the time period stipulated for delivering possession to him had already expired by the time the reminder dated 14.07.2015 was received by him. It would be pertinent to note that as per clause 13(5) of the allotment letter, the Opposite Party was to make all efforts to issue offer of possession of the flat within period of 36 months from the date of provisional allotment or earlier, subject to force majeure conditions, such as non-availability of steel/cement or other building materials, or water supply or electric power or slow down strike or due to a dispute with the construction agency employed by the company, civil commotion or by reason of war, or enemy action or earthquake or any act of god or delay in certain decision / clearances from statutory body, non-delivery of possession as a result of any notice, order, rule or notification of the Government and / or any other public or competent authority or for any other reason beyond its control.
2. The case of the complainant is that the construction of the flat allotted to him by Opposite Party is still not complete, and it cannot be said when the Opposite Party will be able to complete construction of the flat and offer its possession. The complainant is therefore, before this Commission seeking refund of the amount paid by him to the Opposite Party alongwith interest and compensation etc.
3. This complaint was admitted on 15.03.2016 and notice was issued to the Opposite Party. The complainant served a copy of the complaint alongwith order of this Commission dated 15.03.2016, upon the Opposite Party on 16.03.2016 alongwith a forwarding letter from his advocates. The said forwarding letter and copy of the order dated 15.03.2016, purports to have been received by Mr. Avneesh Kumar Yadav on behalf of the Opposite Party on 16.03.2016. Both the above referred documents also bear seal of the Opposite Party. The complainant also filed an affidavit of service stating therein that he had served the copy of complaint alongwith a copy of the order dated 15.03.2016 upon Mr. Avneesh Kumar Yadav, Authorized Signatory of the Opposite Party on 16.03.2016 at the office of the Opposite Party at GH-01,02,03, Sector 108, Noida.
4. A perusal of the tracking report available on the file shows that the Registry sent notice of admission of the complaint to the Opposite Party by registered post, which was duly served at Rohini office of the Opposite Party on 04.04.2016.
5. When this matter came up for hearing on 13.05.2016, it was noticed that the Opposite Party had not filed its written version though 16.03.2016 and not 04.04.2016 was presumed to be the date of service. Even if we compute the statutory period of 30 days for filing the written version from 04.04.2016, when the notice sent by the registry was served by post at registered office of the Opposite Party, the prescribed period of 30 days already expired when this matter was taken up on 13.05.2016. No application seeking extension of time was filed by the Opposite Party. Computing 45 days from 16.03.2016 (wrongly typed as 15.03.2016), the right of the Opposite Party to file its written version was closed. What is material in this regard is that if 30 days are computed from 04.04.2016, the period of 30 days expired on 04.05.2016 and the period of 45 days expired on 19.05.2016. The Opposite Party has not appeared at any point of time and has not applied to this Commission for condonation of delay in filing its written version and seeking permission to file said written version at a later date.
6. The complainant has filed his affidavit by way of evidence. We have heard his counsel and considered the written submission filed by him. In the absence of any reply/written version from the Opposite Party, it cannot be said that the Opposite Party was prevented from offering of the flat to the complainant on account of any of the reasons mentioned in clause 13(5) of the allotment letter or for any other reason beyond its control. We therefore, will be justified in presuming that no such circumstance actually existed. The Opposite Party therefore, ought to have offered the possession to the complainant within 36 months from the date of provisional allotment. The date of provisional allotment being 01.03.2012, the stipulated period of 3 years expired on 01.03.2015. Since the Opposite Party failed to perform its contractual obligation of offering the possession or before 01.03.2015, the complainant was not under an obligation to make balance payment on receipt of letter dated 14.07.2015.
On account of the above referred deficiency on the part of the Opposite Party in rendering services to him, the complainant is entitled to seek refund of the amount paid by him to the Opposite Party alongwith appropriate compensation in the form of interest.
7. The learned counsel for the complainant on instructions taken on telephone from the complainant, submits that though he demanded interest @24% per annum, the complainant in order to avoid any further litigation in the matter, is pressing for compensation in the form of interest @ 12% from the date of each payment till the date refund is received by him alongwith compensation. Considering the cost of financing the construction of the houses at the relevant time, we are of the view that the complainant should be awarded compensation in the form of interest @ 12% per annum from the date on which each payment was made by him to the Opposite Party. The complaint is, therefore, disposed of with the following directions:
The Opposite Party shall refund the entire amount of Rs.1,25,94,217/- to the complainant within six weeks from today along with compensation in the form of simple interest @12% per annum from the date of each individual payment till whole of the said amount alongwith compensation in the form of interest in terms of this order is paid.
The Opposite Party shall pay Rs.10,000/- as cost of litigation to the complainant.
......................J V.K. JAIN PRESIDING MEMBER ......................J ANUP K THAKUR MEMBER