DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.735/2007
Sh. Anil Sharma
C/o B-62, NDSE Part-I,
New Delhi-110023 (Earlier Address)
Presently R/o
53A Gangotri Appartments, Pocket B,
Kalkaji, New Delhi ….Complainant
Versus
1. Ashiana Housing & Finance (India) Ltd.
through its Principal Officer
E-125, Masjid Moth,
Greater Kailash-III, New Delhi-110048
Also at:
Unit No.4 & 5 Plot No. D-2,
3rd Floor, Southern Park,
Saket District Centre,
Saket, New Delhi
2. Ashiana Gymkhana
(A unit of Ashiana Retirement Village Ltd.)
through its Principal Officer
Ashiana Bagicha Complex,
Bhagat Singh Colony,
Bhiwadi, District Alwar,
Rajasthan ….Opposite Parties
Date of Institution : 28.06.2007 Date of Order : 06.01.2018
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Case of the Complainant, in nutshell, is that the OP No.1 through its agent/officials approached the complainant and represented that they are a builder and developer engaged in building and developing of townships named as “Ashiana Utsav” at Bhiwadi, District Alwar, Rajasthan. They further presented that in case after booking of the flat, the complainant does not wish to take the flat, then the same would be cancelled and the entire money including booking amount paid will be returned without any demur. They further represented that for the purpose of booking a flat a membership of OP No.2 shall also have to be taken which was compulsory for booking of the flat. It is stated that the complainant booked flat No.T-4128 in Ashiana Utsav, Bhiwadi, District Alwar, Rajasthan and paid Rs.1,43,677/ which was duly received and acknowledged by the OP No.1 vide receipt No.10154 dated 17.03.2005. The complainant also paid Rs.15,000/- towards the membership fee of OP No.2 vide receipt No.690 dated 17.03.2005. It is submitted that no agreement to sell, allotment letter, booking letter or any other document conferring the right, interest, title was handed over to the complainant despite making demand. It is stated that in the month of July, 2005 the complainant informed the OPs on telephone regarding cancellation of the flat as he did not want to continue the same. The agent/official of the OP informed that the same can be sold out in the open market for which they would search for the prospective buyer and for the services so rendered they would charge a very minimum amount. They further represented that in case a suitable buyer was not available then the amount paid till that date shall be refunded. Believing the representations of OPs’ officials/agents the complainant agreed and vide letter dated 01.08.05 asked the OPs to cancel the booking and sell out the flat. However, till date neither the flat has been sold out nor the money has been refunded by the OPs despite various requests. When nothing was done by the OPs the complainant sent a legal notice dated 26.03.2007 to refund Rs.1,58,677/- but to no avail. Hence, pleading deficiency in service on the part of the OPs the complainant has filed the present complaint for issuing the following directions to the OPs:-
- Direct the OPs to refund the amount of Rs.1,43,677/- and Rs.15,000/- to the Complainant alongwith interest @ 18% per annum,
- Direct the OPs to pay a sum of Rs.20,000/- as damages and compensation towards mental agony, pain and sufferings undergone by the complainant,
- Direct the OPs to pay the cost and litigation charges towards the service of notice and the prosecution of the complaint.
OPs in their written statement have inter-alia stated that the complainant has not come to this Forum with clean hands as in all the four complaints (complaint nos. 732 to 735 of 2007) the same address i.e. B-62, NDSE Part-I, New Delhi has been mentioned. The complainant had booked the flat with OP No.1 for speculative gain and as such the complainant is not a consumer as per section 2(d) (i) of the Consumer Protection Act. It is stated that the complainant approached the OP No.1 for booking of a flat in their project “Ashiana Utsav” at Bhiwadi, Rajisthan. The complainant intended to book a flat not for bonafide use but for speculative gains as OP No.1 had executed large residential colonies and group housing in Bhiwadi and has a very good reputation in the market and the complainant had expected great appreciation in price of the flat after booking itself. The complainant decided to buy a flat costing Rs.13,36,670/-. The complainant was specifically informed by officials of OP No.1 that he was required to pay 10% of the total cost of the flat as booking amount and balance 90% was to be paid as per schedule of payment and the first installment of 10% of the total cost in addition to the booking amount of 10% was to be paid within 30 days of booking. It was further made clear to the complainant that in case he does not clear all the outstanding installments/dues alongwith 18% interest per annum within 60 days from the due date on which the said amount became payable, the OP No.1 would be entitled to liquidate damages of 10% of the total cost of the flat. The complainant agreed to terms and conditions for allotment of the flat and also agreed to make payment as per schedule of payment. The complainant after a complete understanding of all the terms and conditions of booking voluntarily opted to book a flat and paid 10% of total cost as booking amount on 17.03.2005 for which the receipt was issued. The complainant was allotted a flat No.T-4128. It was never represented by the OPs that for booking a flat, the membership of OP No.2 was compulsory. The said membership was optional and the complainant out of his own free will and without any pressure opted for membership of OP No.2 and paid 50% of membership fee amounting to Rs.15,000/- and also agreed to pay 50% later. It is stated that agreement to sell could be executed only when the complainant had made the entire cost of the flat as well as the requisite stamp duty for registration. The complainant paid only the initial 10% of the total cost as booking amount and thereafter did not pay further installments despite repeated written reminders dated 06.04.15, 09.05.05, 07.06.05, 05.07.05, 04.08.05, 06.09.05, 04.10.05 & 24.10.05 sent by the OP No.1 to the complainant but in vain. OP No.1 was constrained to cancel the booking of the flat and the same was intimated to the complainant vide communication dated 16.11.2005. OPs replied the legal notice denying all the allegations made therein. The OPs are neither morally nor legally bound to refund the booking amount of 10% as alleged. The OPs did not receive any communication dated 01.08.05 or of any other date from the complainant for cancellation of the flat. Other averments made in the complaint have been denied. OPs have prayed for dismissal of the complaint.
Complainant has filed a rejoinder and reiterated the averments made in the complaint. It is stated as hereunder:
“7 …. No communication as alleged was ever received by the complainant more so since the complainant has intimated the cancellation of the booking vide letter dated 01.8.2005 there arises no question of any such communication as alleged or notice of cancellation as alleged.”
It was never agreed by the complainant that the respondent No.1 would be entitled to deduct the 10% of the total cost of the flat in the eventuality of cancellation of booking. The representative of respondent No.1 represented that in case the complainant does not wish to take the flat after booking then the same may be cancelled and entire amount including booking amount paid till date shall be returned without any demur. Thus, believing the representation of the representative of the complainant booked the flat and paid the booking amount as stated in the complaint. The terms and conditions were never read upon or explained to the complainant by the representative of the respondent No.1 who represented that what he has stated regarding the terms and conditions of cancellation is written in the application and hence there is no need for reading the same by the complainant and believing the said representation, the complainant signed the said forms. More so no copy of the alleged terms and condition was ever provided to the complainant.
It is further submitted that the alleged condition of forfeiture is not only unjust, harsh, but also amounts to unfair trade practice and can not be permitted to continue, which deprive the complainant of its hard earned money. The respondent no.1 & 2 being builders and engaged in construction after misappropriating the deposit in the grab of alleged agreement must have sold the booked flat to some other person and can not be permitted to retain the heard earned money of the complainant.”
Complainant has filed his own affidavit in evidence. On the other hand affidavit of Sh. Nitin Sharma, AR has been filed in evidence on behalf of the OPs.
Written arguments have been filed on behalf of the complainant. No written arguments have been filed on behalf of the OPs.
We have heard the arguments on behalf of the parties and have also perused the material available on the record.
Parties have not marked Exhibit Nos. on their respective documents as per the Exhibit Nos. given to them in their witnesses’ affidavits. We have ourselves gone through the copies of the documents and find that the copy of the letter dated 01.08.05 sent by the Complainant herein and Ms. Anu Sharma has been filed which we mark as Mark A for the purposes of identification. The relevant portion of the said letter reads as under:-
“Now due to some personal problems we are unable to continue with it, so we would request you to kindly find some appropriate Customers on our behalf to sell both the Flats at the best prices prevailing in the market. We agree to pay you the commission for the best deal done on our behalf.
Please do the needful as soon as possible and oblige.
Looking forward for a positive response from your side.”
[Emphasis added]
From this document filed on behalf of the complainant himself it stands proved on the record that it was the Complainant who himself had cancelled the booking for some personal problems and made a request to the OPs to sell the flat at the best prices prevailing in the market. Therefore, it becomes crystal clear that the complainant had not simply cancelled his booking but had asked the OPs to dispose off the flat at the best prices available in the market meaning thereby that the intention of the Complainant was to earn profit from the investment/payment made by him with the OPs so far. Therefore, the bonafide of the Complainant that he had booked the flat in question for residential purpose and not for the purpose of gain/profit has become quite doubtful. Copy of the letter dated 16.11.05 written on behalf of the OPs to the Complainant has been filed on the record which we mark as Mark B for the purposes of identification. Vide this letter, the OPs had cancelled the flat in question due to non- receipt of installments with a further stipulation that the OPs shall deduct cancellation charges and interest due to non payment and refund balance, if any, after 120 days from the date of issue of this letter as per rules. However, it appears that the Complainant did not respond to the said letter. Mere denial of receipt of communication from the OPs by the Complainant is not sufficient because no ill will or malafide has been pleaded against the OPs. The case of the complainant in the rejoinder inter-alia is that the alleged condition of forfeiture is not only unjust, harsh but also amounts to unfair trade practice. We do not agree with him. When a contract or agreement contains some terms and conditions to be complied with by the parties and one of the parties is not agreeable to any of the such term, he/she should always lodge his/her objection before signing of the contract. If he/she does not do so, he/she cannot be allowed to plead subsequently that particular condition is not only unjust, harsh, but also amounts to unfair trade practice. Even otherwise, from such a stipulation no unfair trade practice can be attributed on the part of the OPs because the Complainant was never made to believe some facts which were never in existence at the time of the payment/booking.
In view of the above discussion, we hold that the Complainant has failed to prove any deficiency in service or unfair trade practice on the part of the OPs. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 06.01.2018.
