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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
A.P. Sahi, President
Prem Kumar Chaudhary – Complainant
versus
M/s. Bestech India Pvt. Ltd. – Opp. Party
Consumer Case No.2913 of 2017
Decided on 9.1.2024
Counsel for the Parties:
For the Complainant:Mr. Parmanand Yadav, Advocate, Ms. Ankita, Advocate along with Mr. Prem Kumar Chaudhary, Complainant
For the Opp. Party:Mr. Rajeev Virmani, Sr. Advocate, Mr. Ashish Kumar, Advocate, Ms. Arushi Makkar, Advocate
IMPORTANT POINT
Refund The refund to the Complainant cannot be denied in the manner it has been pleaded by the Opposite Party according to whom the entire amount deposited by the Complainant has been forfeited with a further accounting indicating some more amount realisable by the Complainant.
Headnote:
Consumer Protection Act, 1986 – Section 21(1)(a)(i)[Consumer Protection Act, 2019 – Section 58(1)(a)(i)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – Entitlement of Refund - The Complainant had made a request for refund, which was subject to the terms and conditions of the Agreement in so far as they are not inconsistent with the law laid down on this subject - Thus, the refund to the Complainant cannot be denied in the manner it has been pleaded by the Opposite Party according to whom the entire amount deposited by the Complainant has been forfeited with a further accounting indicating some more amount realisable by the Complainant. In the background above, the Complainant deserves to be refunded the amount of Rs.48,80,000/- after deducting 10% as forfeiture amount together with service tax that has been deposited from the same to the Complainant without any interest as the Complainant himself had sought refund voluntarily –Complaint partly allowed.[Paras 8 to 22].
Result: Complaint partly allowed.
ORDER
A.P. Sahi, President—The Complainant applied and booked a flat in a project known as ‘Park View Sanskruti’ in Gurugram, Haryana developed by the Opposite Party. The proposed flat measured 1995 sq. ft. for a total sale consideration of Rs.1,35,64,255/-. The Opposite Party also admits having booked the apartment on 10.05.2013 and issued a letter of allotment on the same date. The Apartment Buyer Agreement was executed on 23.09.2013 whereafter the Complainant started making payments in respect of the other installments. The agreement period for handing over possession was 36 months + 6 months of grace period.
2. The Complainant alleges to have paid Rs.48,80,089/- upto 2014. According to the allegations made in the Complaint in Paragraph No.9, payments were received by the Opposite Party, at times even in advance and it is further alleged that in 2014 when the Complainant visited the site he made inquiries at the stage of construction and it is alleged that the project was much behind the schedule of construction. The Complainant alleges that he became suspicious as there was no likelihood of the project being completed, yet the Opposite Party was raising demands and had commenced raising a few towers. The Complainant alleges that he visited the officials of the Opposite Party / Builder who came out with stereo type answers calling upon the Complainant to make deposits under the agreement.
3. It is also alleged that even the basic phase of construction was not completed and some photographs downloaded from the website have been filed along with Complaint.
4. The Complainant then in Paragraph No. 16 and 19 states as follows:—
13. That the complainant thereafter suffered a huge loss in his business and looking at the unfair activities of the respondent, the complainant sought a refund of the money, as the respondent was unable to deliver on his promises of fairness and compliances as promised at the time of the promotions of the project by the respondent.
19. That accordingly, vide e-mails dated 10/02/2017 & 14/02/2017 the Complainant requested the Respondent to cancel the Apartment and make refund of the amount deposited; however, till date no cancellation has been affected or refund has been made. E-mails are Annexure - 4 & 5.”
5. Other submissions have been raised but basically the deficiency alleged against the Opposite Party is that they failed to offer possession within the stipulated time and therefore the Complainant was compelled to seek refund of the amount which he had paid. Consequently the claim of refund together with 18 % interest as well as other ancillary reliefs were prayed for.
6. Learned Counsel for the Complainant while advancing his submissions stated that inspite of mails having been sent to the Opposite Party for refund, no response was shown nor the refund was made and hence the Complaint deserves to allowed.
7. Learned Counsel has invited the attention of the Bench to the Written Synopsis filed and also placed reliance on the judgment in the case of Ireo Grace Realtech Private Limited versus Abhishek Khanna and Ors. reported in (2021) 3 SCC 241 Paragraph No. 21.2 (Chart B Allottees) to urge that in this case also refund was allowed where the flat buyers had paid part of the consideration and in most of the cases up to four installments. He submits that in the present case also the Complainant has paid four installments hence the aforesaid ratio should be applied and the Complaint deserves to be allowed.
8. In Paragraph No.9 of the Written Arguments, learned Counsel submits that the flat in question has been sold by the Opposite Party to one Col. Shamsher Singh Bijarania for a sum of Rs.1.35 crores and therefore no loss has been suffered to the Opposite Party who is enjoying the best of both worlds.
9. Responding to the aforesaid submissions learned Senior Counsel for the Opposite Party has urged that the Complainant is guilty of material suppression of facts, the Complaint also suffers from want of pecuniary
