CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/757/14

            Date of Institution:-    26.11.2014

          Order Reserved on:- 04.04.2024

                     Date of Decision:-      09.05.2024

IN THE MATTER OF:

Mr.Vinod CL

C 2/15, SahyadriAppartment,

Plot No.-5, Sector-12,

Dwarka, New Delhi - 110075

.….. Complainant

VERSUS

1. Bestech India (P) Ltd.

Having its Registered office at:

Unit No.-5D, 5^th Floor,

Assets Area-4,

Delhi Aerocity Hospitality District, Dwarka,

New Delhi – 110037

Also at:

Office at; Bestech House,

124, Sector – 44, Gurgaon,

Haryana - 122002

.…..Opposite Party

R. C. Yadav, Member

1. The brief facts of the case are that the complainant was approached by a sale agent (Mr.RohitDhall from Saffron Reality) of the OP and has made representation to the complainant and requested to invest in one of the project i.e. “Park View Sanskriti” Sector 92, Gurugram which was in the pre-launched stage. The complainant was made to believe that if he would book flat as his project then he would get a heavy discount. The earnest money for the said booking was 20% of the total cost. The complainant has paid Rs.8 lakh vide cheque no.189304. After paying Rs.8 lakh, the OP has not started the construction for 6-7 months. The complainant further paid Rs.2 lakh vide cheque no.189313 however no form was ever signed by the complainant at any time. The complainant came to know that there was no progress on this project and he was not satisfied with the development of the project. The complainant has requested for refund of his deposited money. On 04.09.2013, the complainant received an email from Mr.GauravBansal, one of the authorised employee that the said unit was booked by complainant was cancelled. The said email is annexed as Annexure-1. On 17.09.2013, the complainant received a letter from the OP that the booking amount was referred as an earnest money by virtue of clause 11 invoked in the said application form, forfeited the said amount. The said letter is annexed as Annexure-2. On 26.05.2014, the complainant sent a legal notice to the OP but the OP has admitted in his reply that the booking made by the complainant was different from other conventional booking done under a signed agreement. The complainant further stated that due to arbitrary act of the OP the complainant has suffered mental and agony and the complainant has prayed for Rs.10 lakh along with Rs.1,50,000/- for mental harassment and Rs.35,000/- for litigation charges.
2. In response to the written statement, the complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations levelled in the written statement.
3. Both the parties have filed the affidavit of evidence as well as written arguments in support of his case.
4. Notice of the complaint was sent to the OP. OP has filed the reply taking several preliminary objection that the complainant was duly informed that as per terms and conditions of the booking, an amount of Rs.19,28,492/- being 20% of the sale consideration, was required to be deposited by the complainant at the time of booking. However, the complainant has deposited of Rs.10 lakh only and he promised to pay the remaining amount of Rs.9,28,492/- shortly. It was conveyed to the complainant that unless and until the entire booking amount was paid by the complainant, the OP would not considered for allotment of the apartment. The complainant has assured the OP that remaining amount would be paid at the time of formal booking of application and requested the OP to accept his payment. The complainant was given sufficient opportunity to pay the balance amount but the complainant has not paid the remaining money to the OP. Hence, the provisional allotment made to complainant was cancelled and the earnest money was forfeited. The OP has forfeited the earnest money in accordance with the terms and conditions of the allotment which was binding on the complainant. Hence, the complaint is liable to be dismissed. The OP has alleged that the present complaint is not maintainable and liable to be dismissed since the complainant is not a consumer and the property in question has been booked for commercial purpose that is making of the profit.
5. We have gone through the material on record carefully and thoroughly.
6. It is the case of the complainant that the complainant was approached by a sale agent (Mr.RohitDhall from Saffron Reality) of the OP and has made representation to the complainant and requested to invest in one of the project i.e. “Park View Sanskriti” Sector 92, Gurugram which was in the pre-launched stage. The complainant was made to believe that if he would book flat as his project then he would get a heavy discount. The earnest money for the said booking was 20% of the total cost. The complainant has paid Rs.8 lakh vide cheque no.189304. After paying Rs.8 lakh, the OP has not started the construction for 6-7 months. The complainant further paid Rs.2 lakh vide cheque no.189313 however no form was ever signed by the complainant at any time. The complainant came to know that there was no progress on this project and he was not satisfied with the development of the project. The complainant has requested for refund of his deposited money. On 04.09.2013, the complainant received an email from Mr.GauravBansal, one of the authorised employee that the said unit was booked by complainant was cancelled. The said email is annexed as Annexure-1. On 17.09.2013, the complainant received a letter from the OP that the booking amount was referred as an earnest money by virtue of clause 11 invoked in the said application form, forfeited the said amount. The said letter is annexed as Annexure-2. On 26.05.2014, the complainant sent a legal notice to the OP but the OP has admitted in his reply that the booking made by the complainant was different from other conventional booking done under a signed agreement.
7. It is the case of the complainant that when he did not get the possession of the flat, he asked for the refund of the deposited amount but the same has not been refunded despite repeated request. It is his case that this conduct of OP amounts to deficiency in service and unfair trade practice. The OP has not denied the booking of the flat in the written statement. It is also stated that they could not refund money as the complainant has not paid complete booking amount in time. The OP has stated that the case is contractual in nature and this case should not come to consumer commission for redressal. As far as the plea of arbitrator clause between the parties is concerned, the same is not relevant as section 3 and section 100 of CPC don’t bar in filing of such complaint despite their having arbitration clause between the parties. The OP has cancelled the flat due to non-payment of earnest money but even that the deposit money was not refunded by OP to the complainant. The OP was under obligation to handover the flat on payment of the booked amount and in case it was not possible then it should have refunded the amount as claimed by the complainant. Non delivery of possession of a flat on receipt of het booked amount within reasonable time amounts to deficiency in service.

“Arifur-u-Rehman Khan Vs. DLF Southern home Pvt. Limited (2020) 16 SCC 512 is an authority on this point”.

8. In the end, it is clear from the record that the complainant has paid money for the flat but the possession of the flat was not handed over to the complainant. On cancellation of the allotment of the flat, the OP has not refunded the deposited money to the complainant. We are satisfied that this act on the part of the OP constitutes deficiency in service and unfair trade practice. Accordingly, we allow the complaint of the complainant and direct the OP to refund Rs.10 lakhs with interest @6% p.a. from the date of booking of the flat along with Rs.2 lakh for mental agony and litigation charges within 45 days from the date of receipt of this order, failing which the OP shall be liable to pay entire amount with interest of 9% p.a. from the copy of receipt this order.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 09.05.2024.