Haryana

StateCommission

A/524/2016

BPTP LTD. - Complainant(s)

Versus

DR.MOHINI CHITKARA - Opp.Party(s)

HEMANT SAINI

17 Mar 2017

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      524 of 2016

Date of Institution:      09.06.2016

Date of Decision :       17.03.2017

 

Director, M/s BPTP Limited, Corporate Office at: BPTP Crest, Plot No.15, Udyog Vihar, Phase IV, Gurgaon.

                                      Appellant-Opposite Party

Versus

 

Dr.(Mrs.) Mohini Chitkara w/o late Dr.Som Dutt Chitkara, Resident of B-431, Ground Floor, Sushant Lok-1, Gurgaon.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Mr. Hemant Saini, Advocate for appellant.

                             Dr. (Mrs.) Mohini Chitkara-respondent in person.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

       Director, M/s BPTP Limited-Opposite Party (appellant herein) has filed the present appeal against the order dated March 29^th, 2016 passed by District Consumer Disputes Redressal Forum, Gurgaon (for short ‘the District Forum’) whereby Complaint No.374 of 2014 filed by Dr.(Mrs.) Mohini Chitkara, was allowed directing the opposite party to pay an amount of Rs.2.00 lacs to the complainant with interest at the rate of 9% per annum from the date of filing of the complaint, that is, 17^th October, 2014, till its realization. The opposite party has also been directed to pay an amount of Rs.3,000/- as litigation expenses.

2.                The complainant-respondent got booked a unit bearing No.B-74, 1^st Floor, measuring 1319 Square feet, in the project of M/s BPTP Limited (hereinafter referred to as ‘the builder’), under the name and style ‘Astaire Garden’ Sector 70A, Gurgaon, on 9^th September, 2011.  The Basic Sale price of the unit was Rs.76,88,000/- besides Development Charges (DC) Rs.3,67,000/-, Club Membership Charges (CMC) Rs.2,00,000/- lacs and Power Backup Installation Charges (PBIC) Rs.20,000/-. As per requirement, at the time of booking, the complainant paid Rs.7,00,000/- lacs vide two cheques, that is, cheque No.857158 dated 9^th September, 2011 amounting to Rs.5.00 lacs and cheque No.857159 dated 30^th September, 2011 amounting to Rs.2.00 lacs. The remaining sale price was to be paid as per construction linked payment plan. The cheque amounting to Rs.2.00 lacs was got encashed. The cheque amounting to Rs.5.00 lacs was dishonoured by the banker of the builder. The allotment of the unit was cancelled.

3.                Version of the complainant is that cancellation of the unit is wrong and illegal. The builder did not inform the complainant that the cheque was dishonoured and thereafter also the complainant made repeated efforts to make payment of the cheque amount of Rs.5.00 lacs with interest and other expenses. The complainant visited the office of the builder on 28^th March, 2012 to make payment again through cheque. The complainant also visited the office of the builder on 16^th July, 2012 and had written letter dated 13^th August, 2012 and few other letters. The complainant has prayed to restore the original booking of her unit No.B-74, 1^st Floor, ‘Astaire Garden’ Sector 70A, Gurgaon; to pay an amount of Rs.50,000/- as cost of litigation and to receive remaining instalments without interest.

4.                The opposite party-builder in its written version took plea that the complaint is not maintainable as the booking of the unit already stood cancelled due to non-payment of the entire booking amount.  The builder has already returned the amount of Rs.2.00 lacs received from the complainant after deducting an amount of Rs.25,000/- as process fee etc as per terms of the agreement. As per clause 8 of the terms of the agreement, if the entire booking amount is not received by the builder, then the provisional booking made by the builder  shall be treated as invalid and cancelled and the builder shall refund the partial booking amount without interest after deducting the process fee amounting to Rs.25,000/-. The complainant shall not raise any claim, objection or protest against the cancellation of the provisional booking. In this way, it was not a case of deficiency in service on the part of the builder. It is prayed that the complaint filed by the complainant be dismissed.

5.                After evaluating the pleadings and evidence of the parties, the District Forum vide impugned order dated 16^th March, 2016 allowed the complaint filed by the complainant. Relief granted in this complaint is mentioned in detail in paragraph No.1 of this order.

6.                Counsel for the parties have been heard. File perused.

7.                During the course of arguments, there was no controversy of any type that in response to an advertisement, the complainant had filed an application (Annexure-1) before the builder for allotment of a unit bearing unit No.B-74, 1^st Floor, ‘Astaire Garden’ Sector 70A, Gurgaon on 9^th September, 2011. The complainant issued two cheques amounting to Rs.5 lacs and Rs.2.00 lacs, as mentioned in the earlier part of this order, towards the booking amount of Rs.7.00 lacs as per terms and conditions of the project. What happened, the cheque No.857159 amounting to Rs.2.00 lacs was encashed without any problem but cheque No.857158 amounting to Rs.5.00 lacs was dishonoured by the banker.  In this case, when the cheque was dishonoured, the builder did not inform the complainant immediately mentioning the reason of dishonouring of the cheque. For the first time, the complainant was informed through email message dated 20^th December, 2011 (Annexure A-8) that cheque No.857158 has been dishonoured and the complainant can make payment of the above mentioned amount with interest total amounting to Rs.518525.

8.                Photo copy of the cheque bearing No.626258 dated 29^th March, 2012 amounting to Rs.5,18,525/- is placed on the file which shows that the cheque was sent to the builder in response to letter dated 14^th March, 2012 whereby the complainant was required to pay the outstanding amount of Rs.5,18,525/- including interest, if he was willing for allotment of the unit in his favour. Vide letter dated 29^th May, 2012 the builder admitted that a cheque amounting to Rs.5,18,525/- dated 29^th March, 2012 was received but that cheque was returned to the complainant mentioning that the allotment had already become void. It is evident from the email message dated 4^th May, 2012 (Annexure A-14) placed on the file that cheque amounting to Rs.5,18,025/- was received by the builder well in time. Vide letter dated 14^th August, 2012 the complainant was informed that as the entire booking amount was not deposited, the booking was void ab initio and cancelled and the complainant was entitled to receive only Rs.1,74,500/- after deducting the amount of Rs.25,000/-  as well as the amount of Rs.500/- as cheque bouncing charges. Ultimately, few other letters were issued and the opposite party issued two cheques for payment of Rs.1,74,500/- to the complainant. It is evident from the record on the file and there was no controversy during the course of arguments on this point that the payment of Rs.1,74,500/- made through cheques was not received by the complainant.

9.                As per discussion above in detail, it clearly appears that the complainant had done no mistake at any step after she filed an application for booking of the unit in the project of the builder-opposite party. In fact, as and when cheque was dishonoured, the builder should have informed the complainant at the earliest that the cheque has been dishonoured, mentioning the reason of dishonour. It will be pertinent to mention here that the builder did not place on the file any document to show that the cheque amounting to Rs.5.00 lacs was dhshonoured due to insufficient funds. Unless any such document or report from the bank is received, findings cannot be given that cause of bouncing the cheque was “insufficient funds”. There may be other reasons also of cheque bouncing in bank. Sometimes, bouncing of cheque may be due to some act of negligence on the part of any employee of the bank or due to fault in the software system. Moreover, on 14^th March, 2012 the builder himself offered the complainant to make payment of an amount of Rs.5.00 lacs with interest and cost of bouncing cheque within 15 days. The complainant made all possible efforts and sent cheque amounting to Rs.5,18,525/- to the builder. The builder again changed his stand and informed the complainant that cheque cannot be accepted as the allotment has already become void ab initio and cancelled.

10.              It is clear that the complainant made all possible efforts to make payment of the total booking amount but the payment of Rs.5.00 lacs could not be possible due to faults of the opposite party. As per clause 8 of the terms and conditions if the booking is cancelled, the builder is required to pay the part payment amount already received, after deducting an amount of Rs.25,000/-. In this case, the builder has already received an amount of Rs.2.00 lacs and total amount has not been paid till now to the complainant. In considered view of this Commission, the findings of the learned District Forum are justified to hold that the complainant is entitled to receive the total amount of Rs.2.00 lacs and the builder cannot be allowed to deduct an amount of Rs.25,000/- because total amount could not be deposited in time due to faults of the builder.

11.              As per discussion above in detail, we have no hesitation in holding that the impugned order passed by the District Forum is well reasoned, correct and justified. Resultantly, findings of the learned District Forum stand affirmed. We find no merit in the appeal and the same stands dismissed.

12.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 17.03.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL