Delhi

East Delhi

CC/950/2012

Alay Kakkar - Complainant(s)

Versus

Design Arch Infrastructure Pvt - Opp.Party(s)

18 Mar 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

                                        CONVENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CASE NO-950/12

IN THE MATTER OF:

Sh. Alay Kakkar

109,Gujrat Vihar,

Vikas Marg, New Delhi-110092

 

                                                                                                                        Complainant

Vs

Design Arch Infrastructure Pvt. Ltd.

C-82, 2^nd Floor,

Preet Vihar,

Vikas Marg,

New Delhi-110092

 

Opposite Party

 

 

                                                                                       DATE OF ADMISSION-15/01/2013

                                                                                      DATE OF ORDER          -03/09/2015

 

SH. N. A. ZAIDI, PRESIDENT

This complaint has been filed with the allegation that the complainant has applied for a flat in May 2011, with the respondent and Flat No. 603 in ‘Design Arch e-homes’ at Plot No.HRA 8 Surajpur Site-C, Greater Noida was allotted. A sum of Rs. 20,000/-was deposited at the time of allotment. The respondent had promised to arrange loan of Rs.10,40,000/-through Divan Housing Finance and they demanded Rs.5,550/- for loan services. Accordingly, cheque of Rs.5,515/- dated 10/06/2011 bearing No.412372 in favour of Diwan Housing Finance  was given to the OP which was encashed on 12/06/2011. Their broker Sh. Ranjan also took the loan papers but the loan was not sanctioned. In July2011, he paid Rs.50,000/- through Cheque No.41008 dated 22/07/2011 again Rs.50,000/- through Cheque No.414009 dated 25/07/2011 and Rs.62,925/-through Cheque No.414010 dated 28/07/2011. After making payment he requested the opposite party to get the loan sanctioned or return the original papers so that he could arrange loan from some other Bank. In October 2011, Mr.Ranjan informed that the finance company demanding 4% commission on the loan amount and only thereafter the loan will be sanctioned. He refused to pay the commission and demanded his money back but his amount was not refunded. The OP did not return the Allotment and Agreement papers. He visited the office of the respondent alongwith his brother Sahil and Rohit. They were made to wait outside where the Guard threatened them to leave the office premises. On 12/11/2011, the letter of cancellation of the booking on the ground of non-payment and forfeiture of the earnest money was received. They illegally deducted Rs.1,34,592/- and sent a cheque of Rs.48,333/-. The cheque was dishonored and thereafter the payment was made through RTGS into his account. The deduction of the amount mentioned above is illegal. It is a case of deficiency on their part for not arranging the loan. The complainant has prayed for the refund of Rs.1,40,107/-with 24% interest,  compensation of Rs.3 lakhs and cost of litigation.

            Respondent filed their reply wherein they have taken the plea that the complainant has signed the agreement and have agreed that the respondent have right to cancel the booking without notice and forfeiting the earnest money in the event of failure of the flat buyer to perform his part of obligation or fulfil the terms and conditions or there is any delay in payments. The terms of the earnest money are well defined in the document executed by the complainant with the Respondent. The complainant failed to pay the amount due towards the cost of the flat as per the agreed schedule despite request and reminder and phone calls. Respondent was left with no option but to invoke its right as per the contract/agreement for the cancellation of the allotment and forfeiture of the amount. The story of complainant with regard to the arrangement of the loan amount has been denied. The complainant has himself did breach the terms of the agreement. Rest all the allegations has been denied.

            The amount after cancellation letter dt. 12/12/2011 was sent to the complainant as per the terms and conditions of the agreement.

            Complainant has filed his rejoinder, reiterated the earlier stand taken in the complainant and denied the respondent’s allegations.

Both the parties have filed evidence on record.       

Heard and perused the record.

            The Counsel for the Respondent at the very outset submitted that it is clear from the complaint that the complainant could not manage the amount for the purpose of the flat and he had only deposited the initial amount which was required for the allotment of the flat. It is for the complainant to prove that Respondent was under obligation to arrange all the finance for purchase of this flat through Deevan Finance or through any other financial institution. The burden lies upon the complainant to prove the facts as alleged. It is to be proved by him that under agreement, it was the obligation on the part of the Respondent for arranging the finance. The Allotment Agreement, Exhibit RW 1/3 has been placed on record from the side of the Respondent. It is admitted to both the parties. We have gone through the agreement in question. There is no such stipulation which requires the Respondent to help the complainant in arranging the finance through any Financial Institution. On the contrary Clause No.26 says “Flat buyer may obtain finance from any financial institution/bank or any other source but the flat buyer obligation pursuant to this agreement shall not be contingent on the flat buyer ability or competency to obtain such finance and the flat buyer will remain bound under this Agreement whether or not he/she has been able to obtain finance for the purchase of the said Flat”. It has been argued on behalf of the Ld. Counsel for the Respondent that the entire responsibility was upon the complainant to prove that any agreement was ever drawn up between the parties in this regard that finance shall be arranged by the Respondent Company. It is further contended that this fact is also to be proved that Mr. Rajan has anything to do with the arranging of the finance. It has been denied by the Respondent that Sh. Rajan ever took the Agreement and Allotment letter. They have denied that they have ever employed Mr. Rajan or he has any association with the Respondent. In the Affidavit of Mr. Pramod Panwar, working as an Estate Manager of the Respondent, it has been stated that Mr. Rajan is working under Saphire Estate, Sarita Vihar, New Delhi and this flat was booked by the complainant through Saphire Estate. The Respondent has further denied that they have never received the original copy of the allotment letter and the agreement of the complainant through any source for the purpose of arranging the finance. Counsel for the Respondent argued that the Saphire Estate is not a party to these proceedings. What has transpired between the complainant and Saphire Estate, the Respondent cannot be made answerable to it. The counsel for the complainant submitted that in view of the admission of the Respondent that the flat was booked through Mr. Rajan of the Saphire Estate, the allegation of the complainant stands proved and the action of the Saphire Estate shall be taken to be the action of the Respondent. We are not inclined to accept the contention of the complainant counsel, where there is a written agreement between the parties. The terms of the agreement are binding. The terms cannot be varied or altered as per the allotment letter, 10% of the total amount was to be deposited by 31/05/2011 i.e. within 15 days from the date of booking and 70% of the amount was to be deposited on 16/07/2011 within the 60 days from the date of booking. Admittedly, this amount has not been deposited by the complainant within the time frame agreed between the parties. It is the complainant who has not fulfilled his own obligation. As per Condition No.9, in case of any default in payment, the booking will be cancelled and the company will forfeit the earnest money i.e.10%, the total value of the flat. In case of cancellation of the flat, the company will take one month time to refund the balance amount. The total cost of the flat was Rs.13 lakhs, 10% of which comes to Rs.1,30,000/-. The total amount which has been deposited by the complainant comes to Rs.1,82,925/-. The amount which remains imbalance after deduction of the 10% amount is Rs.52,925/- . The Respondent have only refunded Rs.48,353/- which is much less than what was supposed to be refunded. The Ld. Counsel for the complainant argued that this amounts to unfair trade practice on the part of the Respondent. The counsel for the Respondent submitted that they deducted the amount as per the terms of the Agreement. They have also relied upon the Judgment of the Hon’ble Supreme Court in Civil Appeal No.7588 of 2012, Satish Batra Vs Sudhir Rawat, wherein, this question was answered by the Hon’ble Apex Court. As to whether the Respondent can retain the amount of the earnest money. The Hon’ble Apex Court have mentioned a number of decisions of the Apex Court where they have ruled that where the contract has failed, the earnest money which is in their terms and condition is a bind contract, the part of the purchase price can be forfeited. In the present case since the default was on the part of the complainant for not paying the amount to the Respondent as agreed upon, the forfeiture as per the agreement cannot be said to be unjustified but retaining the amount to which the complainant was otherwise entitled is certainly unfair trade practice although the amount is only Rs.4,572/- but this shows dishonesty on the part of the Respondent.

            We allow this complaint. The Respondent is directed to refund to the complainant the amount of Rs.4,572/- together with 12% p.a. interest thereon from the date of the cancellation of the allotment of the flat in question till it is finally paid. We,further, award the compensation of Rs. 25,000/- to the complainant on account of harassment, mental pain and agony and Rs.10,000/- towards the cost of litigation.

The copy of the order be sent to the parties as per rules.

 

  SUBHASH GUPTA                        POONAM MALHOTRA                                      N.A.ZAIDI

       (MEMBER)                                       (MEMBER)                                                            (PRESIDENT)