Rajasthan

StateCommission

CC/17/2010

Ruchi Gulati Puri w/o Himansu Puri - Complainant(s)

Versus

Anukampa Proparty Pvt. Ltd - Opp.Party(s)

Tayyab Ali

21 Jul 2015

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

COMPLAINT CASE NO: 17 /2010

 

Ruchi Gulati Puri w/o Himanshu Puri r/o Flat No. 349, Advocate's Society, Sector 49-A, Chandigarh.

Vs.

Anukampa Properties Pvt.Ltd., 301 Anukampa Mension Ist, Opp.Raymond Showroom, M.I.Road, Jaipur through Director Prashant Gupta & ors.

 

Date of Order 21.7.2015

 

Before:

 

Hon'ble Mr.Vinay Kumar Chawla-Presiding Member

Mr. Liyakat Ali - Member

 

Mr.Avinash Jain counsel for the complainant

Mr.Surendra on behalf of Mr.Ramchander Sharma counsel for opposite party no.1

Mr.R.K.Sharma counsel for opposite party no.2

 

BY THE STATE COMMISSION

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1. The complainant had booked two flats in Kanak Vrindavan Scheme of opposite party no.1 situated at Sirsi Road,Jaipur on 24.8.2008. The opposite party on 17.9.2008 allotted Flat No. 803 and 804 on 8^th storey of the building. The complainant paid Rs. 1,01,000/- each in respect of these flats vide cheque nos. 685009 and 685010 respectively for which receipt no. 2001 and 2006 were issued Initially the booking amount of Rs.11,000/- for each flat was also paid by the complainant. On 16.1.2009 the complainant further paid a sum of Rs. 28,000/- for each flat vide cheque nos. 685015 and 685017 and further amount of Rs. 28,000/- each for the flat was paid through cheque nos. 685018 and 685019 dated 1.10.2009 and 1.11.2009 respectively. The complainant had taken housing loan against these flats from opposite party no.2 and two individual accounts number 526837757 and 52678254 were opened. The possession of the flats was to be handed over in the year 2009. It was also agreed under the agreement that till possession is handed over, the instalments of the housing loan in respect of the amount advanced to opposite party no.1 will be paid by the opposite party no.1. Thus the total Rs. 4,57,800/- had been paid in respect of each flat against the total cost of Rs.11,20,000/- for each flat. Meanwhile the complainant had shifted to Chandigarh and she had updated her address with

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opposite parties no. 1 & 2. It was also agreed between the parties that the complainant will be allowed discount @ Rs.100/- per sq.ft. of the total cost of the flat. It is revealed that after shifting to Chandigarh the complainant sent regular e-mails to opposite party no.1 for paying them the discount amount but this payment was not made by opposite party no.1. The opposite party no.1 in its reply have not disputed these facts of discount. The allotment of the complainant was cancelled by letter dated 1.2.2010 on the ground that complainant has not paid the balance amount of Rs. 4,94,200/- against each flat. The complainant filed this complaint praying that opposite party no.1 may be directed to handover the possession of the flats as per the agreement and to remit them the doscount amounts.

 

2. Both the parties have filed relevant documents in their favour and have supported their averments by way of affidavits. Both the parties have filed written submissions in the matter.

 

3. We have heard the respective counsels and have considered their arguments.

 

4. Most of the facts of this complaint are not disputed. Booking of the flats is admitted, price of the flat is also

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admitted, possession was to be handed over in the year 2009 is also not seriously contended. The only ground for cancellation of the bookings as stated by the opposite party is that the complainant failed to direct the opposite party no.2, the banker to release the balance amount despite notices. The learned counsel for the opposite party has also denied the allegations that the complainant was ever compelled to cancel her bookings. He has also submitted that the complainant had no right to deduct the amount of discount from the balance cost at her own. He has also denied the allegation that opposite party has refused to receive the amount from the banker. He has referred to the condition no. 3 (e) of the agreement that where the allottee fails to pay the amounts due and fulfills any conditions of the agreement, the opposite party is entitled to cancel the booking and refund the amount after deducting 10% of the original amount.

 

5. After perusing the record, we find that after shifting to the Chandigarh the complainant started sending e-mails regarding the discount amount. The complainant was allowed discount @ Rs.100/- per sq.ft. in both the flats is not disputed. Anx. 7 & 18 are the letters which offer discount to the complainant but this amount was payable by way of account payee cheque within

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two days after the fullfilment of loan disbursment and no dues remaining on the part of the complainant. It was not proper for the complainant to require the opposite party to send her the discount amount until the full disbursment of the cost was made to the opposite party. The learned counsel for the complainant has argued that they had directed the bank to deduct the amount of discount and balance amount may be paid to the opposite party. This is the crux of the dispute between the parties.

 

6. The discount was payable only after full payment to the opposite party. As regards the cancellation of these flats are concerned, the notices Ex. Anx. 34 was sent on 30.11.2009 by opposite party's counsel Mahendra Singh Solanki at complainant's address at Jaipur. While the opposite party has admitted that complainant had updated her address immediately after shifting to Chandigarh. This notice was sent under UPC and no acknowledgment of this notice has been produced. We do not believe that this notice was received by the complainant in time. Ex. Anx. 35 is reply to the notice dated 30.11.2009 which was sent by the complainant's advocate in which it was stated that notice was received on 14.12.2009 since the complainant had shifted to Chandigarh. The opposite party had cancelled the booking on 1.2.2010 exactly after two months

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from the notice dated 30.11.2009. It is also suspicious to our mind. There is nothing on record to show that before sending legal notice to the complainant, the opposite party did ever try to contact the complainant for payament of the dues. The complainant and the opposite party was in touch through e-mails. Under clause 3 (b) of the agreement it is provided that in case the instalments are delayed the purchaser shall be liable to pay the dues alongwith interest for delayed period @ 18%. The maximum period to make the delayed period shall be two months. Thus the opposite party should have afforded opportunity to the complainant to pay the balance amount within two months alongwith the penal interest. The haste in which the bookings were cancelled smacks of a conspiracy and supports the allegation of the complainant that complainant was pressurized to cancel her bookings as by that time the rates had gone up and the builder wanted to make money by selling these flats at higher prices.

 

7. In view of the above discussion, we are of the view that the complaint deserves to be allowed as follows:

 

(i) The cancellation of booking of the flats made by letter dated 1.2.2010 by the opposite party is quashed and set aside.

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(ii) The complainant is entitled to possession of the flats within one month of this order.

 

(iii) The complainant shall pay the balance amount to the opposite party and issue necessary instructions to her banker to remit the amount to the opposite party.

 

(iv) After the full amount of the cost of the flats has been remitted to the opposite party, the opposite party shall remit to the complainant the amount of discount promised by them by way of an account payee cheque.

 

(v) Both the parties shall bear their own costs.

 

 

(Liyakat Ali) (Vinay Kumar Chawla)

Member Presiding Member

 

 

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