RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 416 OF 2016
- Yatharth Mishra
S/o Sri Vishnu Chandra Mishra
- Vishnu Chandra Mishra
S/o Late Adya Shankar Mishra
Both R/o Moh. Rahul Nagar Maraya
Opposite Old Power House
District Azamgarh
U.P. Pin 276001
...Complainants
Vs.
Ansal Properties and Infrastructure Limited
Through its Managing Director and others
R/o First Floor, YMCA-13
Rana Pratap Marg
District Lucknow, U.P. Pin 226024
...Opposite Party
BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
HON’BLE MR. MAHESH CHAND, MEMBER
For the Complainant : Sri Vishnu Chandra Mishra in person.
For the Opposite Party : Sri Vikas Kumar Verma, Advocate.
Dated : 22-05-2018
JUDGMENT
PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
By means of this complaint filed under Section 17 of the Consumer Protection Act 1986 before State Commission complainants Yatharth Mishra and Vishnu Chandra Mishra have sought following reliefs against opposite party Ansal Properties and Infrastructure Limited for redressal of their grievance arising out of booking of flat by them in Akanksha Enclave project of opposite party at Sushant Golf City, Lucknow.
“Wherefore, it is most respectfully prayed that this Hon’ble Commission may graciously be pleased to:-
- Direct to the opposite party to refund the deposited amounts alongwith interest @ 24% on the amount deposited by the
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complainant with effect from the respective dates of deposit till the date of payment, alongwith the damages stipulated in the agreement date.
- Direct the opposite party to pay a sum of Rs.5,00,000/- (Rupees Five lacs only) as damages for committing deficiency in service.
- Direct the opposite party to pay the difference in the cost of escalation which shall be incurred at the time of fresh allotment.
- This Hon’ble Commission may graciously be pleased to award separate compensation and damages to the complainants for the loss and inconvenience caused to them by the deficiency in service coupled with unfair trade practice committed by the opposite party.
- Direct the opposite party to pay appropriate punitive/exemplary damages on account of mental agony, harassment and trauma underwent by the complainants.
- Allow the complaint and direct the opposite party to pay a sum of Rs.50,000/- towards cost of the case.
- Any other relief which this Hon’ble State Commission may deem fit and proper in the circumstances of the case may also be passed.
It has been contended in complaint that the complainants relied on advertisement of opposite party and came to Lucknow on 09-11-2013. They inspected site of proposed Akanksha Enclave and inquired about requisite permission for construction of project and time limit of handing over possession of flat; whereupon Mr. Rahul Kumar Juyal, Vibhor and Amit authorised signatories told them that requisite permission has been obtained and construction shall be started soon. Possession shall be handed over within three years from the date of booking.
In complaint it has been further stated by complainants that they submitted application alongwith cheque of booking amount for booking of Unit No. AKA-K/A2-0302 total area 1948 square feet in Akanksha Enclave at Sushant Golf City, Lucknow placing reliance on above information given by authorised signatories of opposite party. Thereafter above mentioned Mr. Amit on behalf of opposite party sent through post to complainants two sets of flat buyer letter of agreement, receipt of booking amount and allotment
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letter. The complainants signed flat buyer letter of agreement and sent the same to opposite party through post. Thereafter as per payment schedule the complainants deposited Rs.15,24,534.54 till 18-09-2014. Details of payment have been given in para 6 of complaint.
In complaint it has been contended by complainants that they could not gain any information from opposite party about current position of construction and possession of booked unit. Therefore complainant No.1 visited office of opposite party on 11-08-2016 where Mr. Manoj Kumar Agarwal, DGM (S&M) of opposite party informed him that because of some force majeure circumstances beyond control of Company allotment of Unit No. 3612 AKA-K/A2-0302 is not possible at agreed location. He offered him booked flat at some other place in Sushant Golf City located just adjacent to greenbelt railway line. But the complainants did not accept this offer and demanded refund of Rs.15,24,534.54 deposited by them alongwith interest. Thereafter the opposite party vide its letter dated 26-09-2016 informed complainants that the Company will consider refund of amount deposited without any interest. Thereafter complainants sent notice to opposite party claiming refund of money deposited by them with interest. After notice sent by complainants instead of refunding amount deposited by complainants opposite party made demand for further instalment.
In complaint it has been stated by complainants that opposite party has committed deficiency of service as well as unfair trade practice.
Opposite party has filed written statement to oppose complaint wherein it has been stated that complainant is not a consumer as defined in Section 2(1)(d) of the Consumer Protection Act 1986.
In written statement it has been further stated by opposite party that the complainants have booked Unit No. AKA-K/AD-0302 admeasuring area 1948 square feet in Akanksha Enclave at Sushant Golf City Lucknow under the construction linked interest free instalment plan and buyer agreement has been executed by complainants and opposite party which is binding on both parties. Basic sale price of unit is Rs.49,53,959/- out of which complainants have deposited Rs.15,24,534.54. Rs.34,29,424.46 is balance for payment by
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complainants. Opposite party sent reminders and call notices to complainants to deposit dues but they have not paid dues. Therefore construction of unit was delayed.
In written statement it has been contended by opposite party that as per agreement the possession was to be given within 36 months from the date of sanction of the building plan but the permission for construction was delayed by competent authority.
It has been stated in written statement by opposite party that as per agreement the buyer has already given consent for modification. Delay in demarcation of plot or delivery of possession is due to force majeure conditions beyond control of opposite party. Reliefs claimed by complainants are against law. Complaint is liable to be dismissed.
In written statement opposite party has stated that in response to letter dated 24-08-2016 sent by complainants, the opposite party vide letter dated 26-09-2016 has informed complainants that their request for refund with interest has not been approved. Company will consider refund of deposited amount only.
Complainant No.2 Sri Vishnu Chandra Mishra has filed affidavit on behalf of complainants in evidence.
Sri Nand Kishore, Manager Legal of opposite party has filed affidavit in evidence for opposite party.
We have heard both parties and perused records.
After having gone through pleadings of parties as well as affidavits filed by them it transpires that it is an admitted fact that complainants had applied for booking of flat in Akanksha Enclave at Sushant Golf City Lucknow proposed to be constructed by opposite party and has paid booking amount. Thereafter flat buyer letter of agreement was signed by complainants and opposite party. It is also an admitted fact that complainants have made total payment of Rs.15,24,534.54 to opposite party for the flat booked by him with opposite party.
It is also apparent from complaint as well as written statement filed by
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opposite party that the unit allotted to complainants has not been constructed and site of unit has been changed whereupon opposite party has offered allotment of another unit but the complainants have not accepted it and claimed refund of money deposited by them with interest.
It is also apparent from the perusal of complaint as well as written statement filed by opposite party that the opposite party has not approved request of complainants to refund money deposited by them with interest but has offered refund of money deposited by them without interest.
It has been contended by opposite party that as per agreement the possession was to be given within 36 months from the date of sanctioned of the building plan but the permission for construction was delayed by competent authority. As such opposite party has not deliberately delayed construction of unit.
It has been further contended by opposite party that as per agreement the buyer has already given consent for modification of construction. Therefore change in site of construction is not against flat buyer letter of agreement entered into between the parties.
We have considered the submissions made by both parties. As mentioned above the complainants are not inclined to accept flat at changed site and they have requested opposite party to refund money deposited by them with interest but the opposite party instead of accepting their demand to refund money with interest has made offer to refund their money without interest. Therefore, the point for determination is that as to whether the complainants are entitled to get their money back with interest and for determination of this issue clause 16 and clause 18 of flat buyer letter of agreement which has been signed by both parties are relevant. Relevant parts of said clauses of flat buyer letter of agreement are reproduced below:-
Clause-16
“...............................................................................................................
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If for any reason the Developer is not in a position to allot the
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property applied for the Developer, at its sole discretion, shall consider for any alternative property, or refund property or refund the amount deposited with simple interest @ 10% per annum.”
Clause-18
“THAT in any case the particular Apartment is omitted or the Developer in not able to handover to the allottee(s) the apartment for any reason other that those mentioned in clause ‘19’ and ‘20’ below, the Developer shall allot and the allottee(s) shall accept the alternative Apartment offered by the Developer. However in case the Developer in unable to allot any Apartment offered by the Developer, in that case the Developer shall be responsible only to refund the actual amount received with simple interest @ 10% p.a. by it and shall not be liable to pay any compensation or damages or interest thereon whatsoever.”
A reading of above lines of clause-16 of flat buyer letter of agreement shows that if developer is not in a position to allot the property applied he has three options. Firstly to allot any alternative property, secondly to refund property and thirdly to refund the amount deposited with simple interest @ 10% per annum. The opposite party itself in its written statement has accepted that the complainants made request for refund of amount deposited by them with interest but it did not accept this request of complainants rather it made offer to refund money deposited by them with without interest. Thus, it is apparent that the opposite party is ready to exercise third upon of clause-16 of flat buyer letter of agreement to refund money deposited by complainants. As such opposite party is liable to comply clause 16 of the flat buyer letter of agreement which has been signed by opposite party and complainants and is binding on both parties.
In view of discussion made above we are of the view that the opposite party is liable to refund money Rs.15,24,534.54 deposited by complainants with interest @ 10% per annum from the date of deposit till date of payment as per clause 16 of the flat buyer letter of agreement. The opposite party has adopted unfair trade practice by dishonouring above provision of clause 16
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while he has offered to refund the money deposited by complainants.
In view of above we are of the view that the complaint is liable to be allowed partially to the extent of refund of Rs. 15,24,534.54 deposited by complainants for the booking in question with interest @ 10% per annum from the date of deposit till date of payment.
In view of above clause 16 and clause 18 we are of the view that complainants are not entitled to get any further claim. The opposite party has offered alternative accommodation to complainants as per agreement but the complainants themselves have not accepted the offer of opposite party and opted to take refund of amount deposited which has been accepted by the opposite party to the extent of refund of money without interest. Therefore, considering all facts and circumstances of the case we are of the view that other reliefs claimed by complainants cannot be granted to complainants.
In view of above complaint is allowed partially and opposite party is ordered to refund Rs.15,24,534.54 to complainants with interest @ 10% per annum from the date of deposit to date of payment as per clause 16 of the flat buyer letter of agreement. The opposite party is further ordered to pay Rs.10,000/- as cost to complainants.
Let copy of this order be made available to the parties positively within 15 days as per rules.
( JUSTICE A H KHAN )
PRESIDENT
(MAHESH CHAND )
MEMBER
