ORDER Date: 17th October 2016
Manju Bala Sharma, Member
Brief facts relevant for the disposal of the complaint filed on 26-05-2015 are that the complainant book the residential flat in the Project known as ‘’Earth Gracia’’ under the scheme floated by the OPs and deposited a sum of Rs. 8,52,000/- (Eight Lacs Fifty Two Thousand) on the assurance that the possession of flat will be handed over on or before 31st December 2014. I t is further, stated that complainant requested the OP several times to hand over the possession and also wrote letters/ reminders to the respondents requesting them to inform about the progress of the project and tentative date for the delivery of possession. But no response from the side of OP was received.
The complainant also demanded the papers/documents from the Ops the details of which are as under:
(i) License issued by the U.P. Government
(ii) Ownership documents in respect of the land over which the company intends to develop the Project.
(iii) Specific plans approved by the concerned Govt., Department
(iv) Particular No. of the flat to be allotted to the complainant by the
respondents.
(v) Payment Plan & Schedule
(vi) The details of EDC and ID charges
(vii) Preferential Location charges
(viii) Car Parking charges
(ix) ECC/FCC charges
(x) Total area (super and covered of the flat in question) as well as the total cost thereof including all charges
(xi) Site plan of the project
(xii) Drawings of the flat in question
(xiv) The period in which the entire construction is to be completed and the date of handing over of the possession of the flat in question.
(xv) Builder Buyer Agreement.
The OP promised to send the details in due course of time but in spite of lapse of sufficient time the OP did not send the same. Notice dated 28/03/2015 was sent to the OP vide which the complainant got cancelled the booking and asked the OP to refund the entire amount deposited with them with up to date interest at the rate of 18%. It is further stated that the notice was duly served on the OPS they failed to comply with the same. Pleading deficiency in service on the part of the Ops the complainant prayed that OP be directed to refund the entire amount of Rs. 8,52,000/- (Eight Lacs Fifty Two Thousand) together with interest at the rate of 18% per annum from the date of deposit till the date of refund, to pay damages/compensation of Rs. 5,00,000/- (Five Lacs) for causing mental agony and harassment, to pay the pendent elite and future interest at the rate of 18% from the date of institution of the complaint till the date of realization and awarded cost of proceedings.
Notice was issued to the OP, in the reply filed by the OP, the Ops took preliminary objections that the complainant has not come before this Forum with clean hands and his guilty of suppression and concealment of material facts and crucial documents and that the complainant has not been ever pointed out deficiency in service offered by the Ops except admitting the fact the complainant booked a flat and paid Rs. 8,52,000/-. The OP has denied all the allegations contained in the complaint and stated that despite repeated reminder letters sent to the complainant through messages, phone calls and payment request letters dated 19/06/2013, 24/07/2013, 08/11/2013, 15/10/2013, 13/03/2014, 19/05/2014, 24/06/2014 and 20/05/2014, the complainant did not deposited the due installments. It is further stated that the complainant preferred to take constructive payment plan for making the payment for which the complainant was required to pay 30% of the basic sale price along with 50 per cent of car parking charges which the complainant miserably failed. Despite repeated reminder the complainant did not turn up, not cleared the pending outstanding due amount. It is further stated that on 15-05-2015 a flat bearing Unit No. D1101 on 11th floor of D Tower admeasuring 1310 square feet area was allotted to the complainant. It is specifically denied by the OP that OP never assured the possession of the flat, would be handed over to the complainant on or before 31/12/2014. While admitting the receipt of the legal notice sent by the complainant OP stated that a reply to the notice was sent and it was mentioned therein that if complainant wants any necessary information then she may approached the Customer Relation Department which serves and resolves the grievances of existing customer and the OP can not rely on the said legal notice for refund of the deposited amount as the OP is required to verify the signatures of the customers for approving the request for refund.
In rejoinder the complainant has reiterated the facts stated in the complaint. Affidavit of evidence has been filed by both the parties. Complainant has filed copy of the legal notice sent by the complainant to the OP, reply to the legal notice sent by OP, photocopies of the two receipts issued by the OP in support or her case along with special power of attorney given by the complainant in favour of her father. OP has filed copies of the demand request letters as Ex OP/1 (colly), copy of the provisionally allotment letter dated 15/05/2015 as Ex Op/2 copy of the application form provided to the complainant by the OP Ex OP/3 in support of his case.
We have heard learned counsel for the parties and gone through the written arguments and documents placed on the record.
It is an admitted fact that the complainant has booked a residential flat in the project of OP known as ‘Earth Gracia’ and paid Rs. 8,52,000/- (Eight Lacs Fifty Two Thousand). The plea of the Complainant that the possession of the flat was to be handed over on or before 31/12/2014 and that numbers of letters/reminders were sent to the OP requesting the OP to inform about the progress of project and demanding the documents, the details of which have been mentioned above, has not been supported by any document placed on record by the Complainant.
On the contrary Counsel for OP has contended that repeated reminders were sent to the complainant by OP through messages, phone calls and payment request letters dt 19/06/2015, 24/07/2013, 08/11/2013, 15/10/2013, 13/03/2014, 19/05/14, 24/06/14 and 20/05/2105 exhibited on OP/1 (colly) but the complainant paid no heed to it nor paid the installments due to her. Counsel for OP further contended that provisional allotment letter dt 15/05/2015 Ex OP/2 mentioning that Unit No. D - 11101 on 11 Floor of D Tower admeasuring tentatively 1310 Sq feet area was sent to her and despite this letter the complainant has neither contacted nor made any payment of the installments due to her and that the complainant did not intentionally sent back the application from Ex OP/3 provided to her. In reply to the legal notice sent by complainant for cancellation of the booking and refund of the deposited amount, Counsel for OP contended that as per refund policy the complainant is required to fill and submit a duly signed refund set in the office of OP which is to be scrutinized and verified and only then the refund amount can been released.
Keeping in view the above facts and circumstance of the case we are of the views that the complainant has failed to prove any deficiency in service on the part of the OP. Though complainant has booked a flat with the OP but despite several letter/reminders placed on the record by the OP the complainant has neither responded nor deposited any installment due to her and sent legal notice dated 28/03/2015. As it is clear from the facts that the complainant is not interested to continue with the booking and seeks refund of the booking amount, the complainant may approach the OP and complete the formalities required for the refund and the OP may process her application as per terms and conditions set out between the parties. The Complaint is disposed off accordingly. There is no order as to costs.
File be consigned to Record Room.
Announced on this 17/10/2016.
MEMBER MEMBER PRESIDENT
