PRIYAJEEV NARAIN TRIKA vs BHASIN INFOTECH AND INFRASTRUCTURE PVT. LTD.

The complainant booked a shop/showroom/food court/restaurant/ATM space/commercial space admeasuring 3066.60 sq.ft. in a commercial project, namely, Grand Venezia which the opposite party has developed in Greater Noida in Uttar Pradesh. Vide allotment letter dated 28.4.2008, the aforesaid commercial space was allotted to the complainant for a total consideration of Rs.2,39,19,480/-. The possession of the unit was to be delivered within 36 months from the date of the said allotment letter, meaning thereby that the possession ought to have been delivered by 28.4.2011. The complainant claims to have paid 90% of the sale consideration. Vide demand notice/offer of possession dated 28.1.2015, the opposite party informed the complainant that the unit was nearing completion and asked him to pay a sum of Rs.56,46,624/-. The aforesaid demand was, however, disputed by the complainant who has approached this Commission by way of this consumer complaint seeking refund of the entire amount paid by him along with interest @ 24% per annum. It has been alleged in para 4 of the complaint that in January 2007, the complainant was looking for an office space in or around Delhi, to set up his own computer and software retail business to earn his livelihood by means of self-employment when he chanced upon the website of the opposite party displaying pictures of the proposed mall and also came across the news item published in the Hindustan Times on 27.1.2007 with respect to the aforesaid project.

On admission of this complaint, notice was issued to the opposite party which put in appearance on 24.9.2015. The opposite party was permitted on that date to file its written version within four weeks. The written version, however, was not filed. When the matter came up for hearing on 27.11.2015, the opposite party was granted two more weeks to file its written version. The written version, however, was not filed even within two weeks from 27.11.2015. It came to be filed only on 8.2.2016. The right of the opposite party, therefore, was closed vide order dated 12.2.2016 which to the extent it is relevant, reads as under:-

"There was an appearance on behalf of the opposite party on 24.09.2015 meaning thereby that the opposite party had been served on or before that date. The written version ought to have been filed within 30 days from that date. Vide order dated 24.09.2015, we directed the opposite party to file its reply alongwith vakalatnama within four weeks from that date. The written version however, was not filed. When this matter was taken up for hearing on 27.11.2015, it was noted that reply had not been filed. Considering the reason explained by the learned counsel for the opposite party, it was granted two more weeks to file its reply. However, the reply/written version was not filed even within two weeks computed from 27.11.2015, which expired on 11.12.2015. The reply/written version has been filed only on 08.02.2016. In view of the decision of the Hon''ble Supreme Court in New India Assurance Company Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd., Civil Appeals No. 10941-10942 and connected matters decided on 04.12.2015 , the time to file written version/reply cannot be extended beyond 45 days from the date of service of the opposite party. The said period of 45 days computed from 24.09.2015, having expired on 08.11.2015 and the opposite party having not filed its written version/reply even within the time extended by this Commission on 27.11.2015, the reply/written version filed on 08.02.2016 cannot be taken into consideration. The right of the opposite party to file written version/reply is therefore, closed. The complainant is directed to file affidavit by way of evidence within six weeks from today. The parties can file their written synopsis within eight weeks from today."

When this complaint was heard on 3.10.2016, the complainant was directed to file an affidavit, disclosing therein the following information:-

"(i) What was the immigrant status of the complainant and in which business, profession or vocation he was engaged at the time the space in question booked by him.

Why the complainant has not relocated to India in the last more than 9 years after booking the space in question.

What was the annual income of the complainant w.e.f. the calendar year 2007 onwards."

In compliance of the aforesaid direction, the complainant has filed an affidavit dated 3.11.2016 which to the extent it is relevant, reads as under:-

"2. That my "immigrant status" at the time the space in question was booked by me in Grand Venezia Mall was "Citizen of India", i.e., I was an Indian Citizen, and was engaged in the computers and software retail business as well as IT consulting and software & website development, at that time. The space in question was going to be used in conjunction with my business goals.

That because the possession of the space in question was not delivered tome within the promised timeframe, the multiple year delay in delivering its possession caused me to divert both my business and personal objectives; therefore, I have not relocated to India in the last 9 years after booking the space in question.

That my annual income w.e.f. calendar year 2007 onward was an under:-

Calendar Year Income (in US$)

2007 -41,416(loss)

2008 20,077

2009 27,962

2010 10,830

2011 121,084

2012 139,085

2013 159,740

2014 156,268

2015 131,974"

It is contended by the learned counsel for the opposite party that had the complainant booked the unit in question which otherwise is a commercial unit, for the purpose of earning his livelihood by way of self-employment, he would have shifted to India in or around April 2011 when he was expecting possession of the unit booked by him and would have started his business in India by taking some other premises either on rent or on purchase basis. The learned counsel for the complainant, on the other hand, submitted that since the complainant could not get possession of the unit booked by him, he was unable to relocate to India and as explained in para 3 of his affidavit dated 3.11.2016, he had to divert both his business and personal objectives and could not relocate to India on account of the possession of the unit in question not being delivered to him within the promised time frame.

In my view since the right of the opposite party to file its written version has already been closed, it cannot be allowed to contest the averment made in the complaint that the complainant was seeking to relocate to India and start his business in the unit booked by him in the aforesaid project. The averments made in the complaint, if taken on their face value and in the light of the affidavit dated 3.11.2016 filed by the complainant, clearly show that he wanted to earn his livelihood by engaging himself in the business which he was to carry out in the premises in question.

The learned counsel for the opposite party relies upon the decision of this Commission in Nirmal Pal Virdee Vs. M/s Emaar MGF Land Ltd. - Consumer Complaint No.609 of 2016 decided on 2.5.2016. I have perused the aforesaid judgement. This is of no help to the opposite party since in the aforesaid case the complainant had purchased as many as four shops and this Commission was of the view that he could not run four shops at one time and would have to employ 10 persons in each shop.

For the reasons stated hereinabove, I hold that the opposite party was deficient in rendering services to the complainant by not delivering possession of the unit booked by him, within the time stipulated in this regard. The complaint is, therefore, disposed of with the following directions:-

(i) The opposite party shall refund the entire amount received from the complainant along with compensation in the form of simple interest @ 9% p.a. from the date of each payment till the date on which the said amount is refunded.

(ii) The payment in terms of this order shall be made within three months from today.

(iii) There shall be no order as to costs.