MR. ARVIND KUMAR GUPTA v. M/S. D.G LAND DEVELO...

under the Companies Act, 1956 and having their address mentioned in the clause title of the complaint.

[2] The case of the Complainant in short is that he has booked Residential Flat No. 204, Second Floor, E Wing, Building No. 9, known as Sheetal Deep in the Township Project 'Viva Swastik Township' At Village Nilemore, Vasai, District Palghar, adm. 33.46 sq.mtrs., carpet area for total consideration of Rs.17,85,000/-. Both the parties entered into an Agreement for Sale dtd. 10/01/2016, which is duly registered and stamped.

[3] According to the Complainant, he has paid Rs Rs.18,62,325/- by cheque and cash to the Opponent and the receipts of the payment are annexed with the complaint.

[4] The Complainant has alleged that he has paid the entire consideration to the Opponent alongwith Tax liabilities. Though he made timely payment of every instalment as and when stipulated by the Opponent. The Opposite Party as per the Clause in the Agreement dtd. 10/01/2016 failed to give the possession of said flat by the year 2017. Agreement clearly mentions that time shall be essence of the contract but the Opposite Party did not heed their end of the traction, as no possession was given to the Complainant also no OC was issued by the Competent Authority. The Complainant being aggrieved by this, sent many letters to the Opponent demanding the possession of the said flat to which there was no reply by the Opponent. As the Opponent was supposed to hand over the possession of the said flat to the Complainant on or before year 2017 but they failed to comply their part as per the Agreement dtd. 10/01/2016. Therefore, the Complainant approached this Commission with the prayer to hand over the physical possession of the said flat or return the purchase price of Rs. 17,85,000/- alongwith interest,

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compensation and cost. The Complainant has also prayed for a lumpsum amount of Rs.3,60,000/- as rent amount paid by the Complainant from the time he got the possession letter of the said flat.

[5] The complaint was admitted. The notice was issued to the Opponent to file his Written Statement though the Opponent appeared before this Commission but failed to file written statement within stipulated period, hence, No WS order was passed against him on 03/02/2020.

[6] The Complainant filed Affidavit of Evidence and Written Arguments. Though the Opponent was given an opportunity to file Written Arguments on law points and a last chance was given to appear and argue the said matter, he failed to appear before us. We heard the arguments of the Ld. Advocate for the Complainant.

[7] The following points arose for our consideration. We have recorded our findings thereon with the reasons stated below :

Reasoning:

[8] As to Point Nos. 1 & 2 :- The Complainant has produced on record the copy of receipts of payment made by the Complainant in favour of the Opponent, Registered Agreement to Sale dtd. 10/01/2016. We have perused all the documents produced on the record as per the Registered Agreement dtd. 10/01/2016. The

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Opponent agreed to give the possession of the said flat on or before 2017 for total consideration of Rs.17,85,000/-. The perusal of the payment receipts clearly indicates that the Complainant has paid Rs.18,62,325/- to the Opponent including the Tax liabilities and has annexed the receipts issued by the Opponent alongwith Registered Agreement at Exh. 'A'.

[9] After perusal of the complaint and evidence in support thereof, it is evident that the Opponent failed to perform his part of the contract and as the time is essence of the contract, the Opponent is guilty of deficiency in service.

[10] The Complainant has also filed Citation of the Hon'ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd. v/s. Govindan Raghavan ([2019] 5 SCC 725 in Civil Appeal No. 12238 of 2018) held that :

"In Lucknow Development Authority v. M.K Gupta .. Gupta, this Court held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a

"service" as defined by Section 2(o) of the Consumer Protection Act, 1986. The inordinate delay in handing over possession of the flat clearly amounts to deficiency in service.

In Fortune Infrastructure & Anr. V. Trevor D'Lima & Ors., this Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation."

[11] The Hon'ble National Consumer Disputes Redressal Commission in CC/2336/2017 decided on 24/02/2023 in the matter of Rahul Aggarwal & 2 Ors. v/s. Parsvnath Developers Limited held that :

"In the instant case, there is an inordinate delay in handing over the possession of flat by the OP. Even now OP is not in a position to give any firm timeline for delivering possession with OC. The Complainant(s) cannot be made to wait for an indefinite time and suffer financially. Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan And Aleya Sultana and

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Ors. Vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512 and in Ireo Grace Realtech Pvt.Ltd. (Supra), held that failure of the developer to comply with contractual obligations to provide flats within contractually stipulated period would amount to deficiency in service. Hence, the Complainant(s) in the present circumstances have a legitimate right to claim refund alongwith fair delay compensation interest from the OP.

[12] We have gone through both the Citations, the facts of these citations are squarely applicable to the complaint before us, hence, the Opponent is not only guilty of deficiency in service, but has also, committed unfair trade practice.

[13] As the evidence of the Complainant has gone unchallenged and is supported by documentary evidence produced on the record. We are of the view that as the Opponent neither gave the possession of the said flat nor refunded the paid consideration, which has definitely caused financial loss to the Complainant. Hence, we direct the Opponent to deliver the vacant and peaceful possession of the flat and also to pay interest @ 9% p.a. for delayed possession from 01/01/2017 till handing over the peaceful possession of the flat or in alternate, at the option of the Complainant to refund the sum of Rs.17,85,000/- alongwith interest thereon @ 9% p.a. from the respective date of payment till its realisation and compensation of Rs.1,00,000/- and cost of Rs.25,000/- to the Complainant. However, even though the Complainant has prayed for the rent of Rs.3,60,000/- from the Opponent, the same cannot be allowed, as no rent receipts or Rent Agreement has been filed by the Complainant on the record.

[14] In the result, we record our findings on point No. 1 in affirmative and point No.2 partly in affirmative and pass the following order :

//O R D E R//

(i) Complaint No. CC/19/816 is partly allowed.

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(ii) Opponent to deliver the vacant and peaceful possession of the Flat No. 204, Second Floor, E Wing, Building No. 9, known as Sheetal Deep in the Project 'Viva Swastik Township' At Village Nilemore, Vasai, District Palghar, adm. 33.46 sq.mtrs., carpet area and also to pay interest @ 9% p.a. for delayed possession from 01/01/2017 till handing over the peaceful possession of the flat or in alternate, at the option of the Complainant to refund the sum of Rs.17,85,000/- alongwith interest thereon @ 9% p.a. from the respective date of payment till its realization.

(iii) The Opponent is directed to pay compensation of Rs.1,00,000/- and cost of Rs.25,000/- to the Complainant.

(iv) The Opponent is directed to comply the aforesaid order within a period of two months from the date of receipt of this order.

(v) Certified Copies of this order be furnished to both the parties free of costs.

Pronounced on : 16/02/2024

[Mukesh V. Sharma]

Presiding Member

[Poonam V. Maharshi]

Member

vns

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