ORDER Date: 06 October 2016
Manju Bala Sharma, Member
Facts relevant for the disposal of this complaint are that the complainant filed this complaint on 08-01-2015, stating that she booked one flat with the OP in the Project ‘’ Earth Gracia’’ and paid Rs. 4,55,000/- (Rs. Four Lacs Fifty Five Thousand) on 12/02/2013 vide booking No. EGR 0282. At the time of booking itself the complainant told the OP that in case she does not wish to continue with the project she may cancel the same and on 22/07/2013, complainant sent an email to the OP with a request to cancel the booking and refund the amount with interest. OP asked the complainant to make written request and submit proforma application for cancellation along with verified signature from her banker, affidavit in support of refund and the NOC along with Aadhar Card and Driving Licnese. After completing all these formalities complainant visited the office of the O.P. on 21/10/2013, 12/11/2013 and 01/01/2014 but OP kept on avoiding to receive the cancellation application along with documents. Despite several requests and visits the office of OP, OP threatened the complainant and her husband with dire consequences of which the complainant lodged a report with the police vide DD No. 66 B dtd 03/10/2014. Legal notice dated 29-11-2014 was sent to the OP on 06/12/2014. OP sent its reply and flatly refused to refund the booking amount along with interest. Pleading deficiency on the part of the OP the complainant prayed that OP be directed to refund the booking amount of Rs. 4,55,000/-(Rs. Four Lacs Fifty Five Thousand) along with the interest of 12% per annum, Rs. 2,00,000/- (Rs. Two Lacs Only) as compensation and Rs. 22,000/- (Rs. Twenty Two Thousand) as cost of litigation.
Notice was issued to the OP. OP entered appearance and filed its reply, denying all the allegations contained in the complaint except the booking of flat and further stated that demand letters of various dates mentioned in the reply were duly served on the complainant but the complainant neither responded to the said demand notices nor made any further payment to the OP.
In the Rejoinder the Complainant has reiterated the facts stated in the complaint. Evidence has been filed by both the parties. In support of her case, the complainant has filed copy of statement of account Ex CW 1/B, welcome letter, CW 1/C e-mail sent on 22/07/2013 for cancellation of the booking Ex CW 1/D. Refund application Form Ex CW 1/ E (Colly), e-mail sent by the complainant on various dates after 22/07/2016 and the response received from OP as Ex CW 1/F (Colly), complaint to SHO Police Station Ex CW 1/G, Legal Notice CW 1/H and reply to the legal notice CW 1/I. OP has filed payment request letters sent to the complainant on various dates as Ex OP/1 (Colly).
We have heard learned Counsel for the parties, gone through the written arguments and the documents placed on the file. It is argued on behalf of the Complainant that OP sent acknowledgement letter dated 04/09/2013 (Ex CW1/C) to Complainant whereas the complainant has sent e-mail for cancellation of the booking on 22/07/2013 (Ex CWI/D) much before the receipt of the acknowledgement letter. It is further argued by the Counsel for the Complainant that Complainant sent several e-mails to OP after 22/07/2013 (Ex CW 1/F ‘Colly’) regarding cancellation of the booking but the OP was, time and again, sending payment request/reminder letters to the complainant. The payment request reminder letters filed on record by the OP on Ex OP/1 (Colly) relate to the period after the complainant has sent e-mail to the OP for cancellation of the provisional booking of the flat.
The arguments of Counsel for the OP that several payment request/reminder letters Ex OP/1 (Colly) were sent to the complainant but the complainant defaulted in making the payment and except the booking amount of Rs. 4,55,000 (Four Lacs Fifty Five Thousand) the complainant did not make any payment, Counsel for the complainant argued that as the complainant had already sent the e-mail for cancellation of the booking on 22/07/2013 much before the receipt of acknowledgement of the booking of Flat Ex CW/1C and thereafter also several emails Ex CW1/F (Colly) were sent to the OP question of making further payment does not arise hence no default can be attributed on the part of the complainant.
It is trite to mention here that the complainant filed the complaint in this Forum on 08/01/2015 and notice to the OP was issued on 15/01/15 and the complainant filed a cancellation letter Ex CW 1/J dt 23/01/15 sent by the OP asking the Complainant to provide the details of payments made against the booking in question along with bank statement and self attested ID and residence proof to process the refund. Bare perusal of this letter shows that the OP came into action only after the receipt of notice of this Forum. This fact has also been mentioned by the complainant in the evidence filed by her that it is only after receiving the summons of this Forum that the OP sent cancellation letter asking the complainant to submit the papers for processing her refund. The fact that OP asked the complainant to submit refund application form along with certain documents can be fortified by the documents placed on the file and exhibited as CW 1/E (Colly) but the OP did not accept the same and processed it for refund.
From the foregoing discussion it is proved that there was deficiency in service on the part of OP. Hence OP is directed to refund the complainant the booking amount of Rs. 4,55,000/- (Rs. Four Lac Fifty Five Thousand) along with interest @ 10% PA from the date of institution of the Complaint till realization, Rs. 1,00,000/- (Rs. One Lac) as compensation and Rs. 10,000/- (Rs. Ten Thousand) as cost of litigation.
This order shall be complied with by the OP within a period of 30 days from the date of receipt of this order failing which interest @ 10% shall be payable on the entire above mentioned amount from the date of receipt of this order till realisation. Copy of this order be sent to all the parties free of cost. File be consigned to Record Room.
Announced on this 06/10/2016.
MEMBER MEMBER PRESIDENT
