DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.770/2006
Sh. Arvind Singh Pasricha
S-304, Greater Kailash II,
New Delhi ….Complainant
Versus
1. M/s Central Park Estates Pvt. Ltd.
through its Company Secretary
21/48, Malcha Marg,
Diplomatic Enclave,
New Delhi-110021
2. M/s Sweta Estates Pvt. Ltd.
through its Company Secretary
21/48, Malcha Marg,
Diplomatic Enclave,
New Delhi-110021
3. M/s Babson Engineers & Developers Pvt. Ltd.
through its Company Secretary
21/48, Malcha Marg,
Diplomatic Enclave,
New Delhi-110021
4. M/s Cornell Engineers & Developers Pvt. Ltd.
Through its Company Secretary
21/48, Malcha Marg,
Diplomatic Enclave,
New Delhi-110021
5. M/s Darmouth Engineers & Developers Pvt. Ltd.
Through its Company Secretary
21/48, Malcha Marg,
Diplomatic Enclave,
New Delhi-110021
6. M/s Harvard Engineers & Developers Pvt. Ltd.
through its company Secretary
21/48, Malcha Marg,
Diplomatic Enclave,
New Delhi-110021
7. M/s Yale Engineers & Developers Pvt. Ltd.
Through its Company Secretary
21/48, Malcha Marg,
Diplomatic Enclave,
New Delhi-110021 ……Opposite Party
Date of Institution : 01.11.06 Date of Order : 14.07.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Sh. S. S. Fonia, Member
O R D E R
Initially the complaint was filed before the State Commission and registered as complaint No.C-145/2006. Vide order dated 27.09.2006, the State Commission sent the matter to this Forum by observing that in case the complaint is allowed the compensation will not exceed Rs.20 lacs.
Briefly stated, the case of the Complainant is that he had applied for three bedroom apartment measuring 3250 sq. ft. in the residential apartments complex proposed by the OPs called as Central Park II at Sector 48, Gurgaon, Haryana and he paid Rs.5 lacs to the OP No.1 vide cheque No. 253948 dated 23.10.04. The total cost of the apartment was calculated as per buyers agreement at Rs.43,35,750/-. The OP No.1 vide letter dated 16.11.04 acknowledged the receipt of payment of Rs.5 lacs and allotted a priority No.430 to him. The OP No.1 was to handover the possession within 3 years from the commencement of construction and the commencement of construction was 30.04.05. The OP No.1 vide letter dated 14.06.05 intimated to him that the work of setting up of a site office had already been initiated and the planning of the Central Park-II had been completed by the private architectural firm. The OP No.1 gave wrong assurance regarding commencement date of the project and demanded payment of 1st installment which would be due on 15.07.05. The OP No. 1 sent a standard apartment buyer agreement alongwith the layout plan vide the letter dated 29.06.05 and asked the 1st installment of payment. The OP No. 1 called the agreement as the draft agreement but the complainant was forced to sign the agreement which was totally in favour of the OPs including that the obligation of the OPs under the agreement was contingent upon the approval of building plans by the Director, Town & Country Planning, Haryana. He informed the OP No.1 and they gave assurance that all the Govt. approvals were taken and construction was already going on at the project site. He was not satisfied with the reply of OP No.1. He personally visited the project site on 20.09.05. He was shocked to see that the land was lying vacant and no construction activity was going on. He informed the OP No.1 and asked as to why they were demanding money in respect of 1st installment. The OP No.1 had no answer but unilaterally cancelled the acknowledgement-cum-priority number vide letter dated 09.09.05 and returned the booking amount vide cheque No. 635873 dated 03.09.05 drawn on Canara Bank without interest to him. He did not deposit the said cheque in his bank account and never accepted the illegal termination of the acknowledgement-cum-priority number of the Complainant. He sent a letter dated 27.09.05 to the OP No.1 and requested the OP No.1 to revive his acknowledgement-cum-priority number but being in a grave need of the apartment and left with no option he sent a cheque bearing No. 743365 of Rs.4,81,500/- dated 20.09.05 towards first installment alongwith signed draft copy of the standard apartment buyer agreement to the OP No.1. The OP No.1 did not accept the first installment cheque and did not revive the acknowledgement-cum-priority number. He sent a legal notice on 30.05.06 to the OPs. The OPs vide letter dated 01.07.06 replied the legal notice and stated that the booking of the apartment was done after obtaining all the necessary permission/sanction. The OP No.1 recently announced the official launch of the project in the daily newspaper on 03.09.06 and hence the complainant had a doubt that OP No.1 will be going to start the allotment of the apartments without taking his name into consideration. Hence, the complainant filed the complaint before the State Commission praying for issuing directions to the OPs to pay Rs. 47,00,000/- (Rs. Forty Seven Lacs only) towards compensation for mental agony and harassment caused to him. As stated hereinabove the complaint was sent to this forum vide order dated 27.9.06.
From a perusal of the order-sheets, it transpires that thereafter the complainant sought amendment in the complaint and amended the prayer clause and prayed that OPs be directed to revive the priority No. of the complainant and to include his name in the allotment list.
OPs in the written statement to the amended complaint have inter-alia stated that the Complainant had deposited a sum of Rs.5 lacs as a booking amount subject to compliance of various terms and conditions stated in the letter dated 16.11.2004. The Complainant had agreed to abide by the terms and conditions set out in the letter dated 16.11.2004. It was specifically mentioned that the allotment was subject to the execution of the apartment buyer agreement and it was also specified that the OPs reserve the right to refuse the allotment of an apartment or to abandon the project at their discretion without assigning any reason and in that event the initial deposit amount would be refunded. They sent the Apartment Buyer Agreement to the Complainant with a demand notice for the first installment on 29.06.05 alongwith a signed copy of the Apartment Buyer Agreement and the first installment was to be paid on or before 20.07.05. The Complainant failed to submit the document on 29.07.05 and also failed to pay the first installment to the OP No.1; that as the OPs did not receive the first installment, the OPs were left with no option but to cancel the priority number being 430 issued to the Complainant and refunded the amount of Rs.5 lacs paid by him vide letter dated 09.09.05 alongwith a cheque bearing No. 635873 dated 03.09.05 drawn on Canara Bank for an amount of Rs.5 lacs as refund of the earnest money. It is stated that no contract between the parties was signed or executed. It is stated that OP-1 has already allotted all apartments of Phase I to the persons who complied with the terms and conditions of the booking; that since the priority number of the complainant was cancelled because of lapse on his part, the question of considering his name for allotment does not arise. It is prayed that the complaint be dismissed.
Complainant has filed rejoinder to the written statement of OPs. He has pleaded as under:-
“e. ………………………….. The respondents had deliberately delayed the service of letter dated 29.06.2005 and the apartment buyer’s agreement. That the complainant had received the letter dated 29.6.2005 and the apartment buyer’s agreement only after the last date of payment of the first installment was over.
- That it was not possible for the complainant to send the first installment in time when he has received the request for the first installment after the date for the first installment was due. .……………………………”
Complainant has filed his own affidavit and additional affidavit in evidence while affidavit and additional affidavit of Sh. Ratan Kumar Gupta, Company Secretary of OP No.1 have been filed on behalf of OPs.
Written arguments have been filed on behalf of the parties. We have heard the arguments on behalf of the OP and have also gone through the file very carefully.
It stands proved from the record that the complainant had deposited Rs. 5 Lacs as a booking amount with the OPs for allotment of apartment measuring 3250 sq. ft. in the residential apartment complex known as Central Park II at Sector 48, Gurgaon, Haryana vide cheque No. 253948 dated 23.10.04; that thereafter vide letter dated 29.06.2005 the OP-1 raised demand of the first installment payable on or before 15.7.2005 but, however, the complainant did not make the payment of the first installment. The case of the complainant is that the draft copy of the standard buyer’s agreement sent by the OP-1 along with the layout plan alongwith demand letter was onerous and one sided inasmuch as the conditions stipulated therein were totally in favour of OP-1. Nowhere in the complaint the complainant has taken a plea that the letter dated 29.6.2005 asking for payment of first installment to be paid on or before 15.7.2005 was not received by him in time. It is in the replication that he has now taken a plea that the OPs had deliberately delayed the service of letter dated 29.6.2005 and the standard buyer’s agreement which were received by him only after the last date of payment of the first installment and it was for this reason that it was not possible for him to send the first installment in time to OP-1. However, very interestingly enough, he has not disclosed the date on which he had in fact received the letter dated 29.6.2005 from the OP-1. At the same time in the complaint his case is that he was not satisfied with the reply of OP-1 that the government approval had already been taken and the construction had begun and, hence, he personally visited the project site on 20.9.05 (as per the original complaint) and 20.9.2006 (as per the amended complaint); that he was shocked to see that the land was lying vacant and no construction was going on. It was only after receipt of letter asking for making payment of the first installment that the complainant had visited the project site on 20.9.2005. When OP-1 had already cancelled the acknowledge-cum-priority number of the complainant vide its letter dated 9.9.05 and returned the booking amount vide cheque dated 03.09.05, there was no use of the complainant for making visit to the project site on 20.9.05 or on 20.9.06.
The complainant did not make the payment of the first installment within the stipulated period. He sent the signed copy of the Standard Apartment Buyer’s Agreement along with a cheque for an amount of Rs. 4,81,500/- dated 20.9.05 vide his letter dated 27.9.05 to OP-1. OP-1 did not accept the said cheque and also did not consider the request for revival of the acknowledge-cum-priority number. As stated by OP-1, the allotment of all apartments of Phase I have already been made. Therefore, in our considered opinion, the prayer of the complainant for revival of his priority number and to include his name in the allotment list cannot be allowed at this stage. Therefore, we hold that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of the OPs. Complainant shall, however, be at liberty to claim the amount of Rs. 5,00,000/- from the OPs as per refund rules of the OPs.
In view of the above discussion, we do not find any merit in the complaint and dismiss it 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.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
Announced on 14.07.2016
Case No. 770/06
14.07.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
