ORDER                     Date: 22.08.2016

            ManjuBala Sharma, Member

Brief facts relevant for the disposal of this complaint filed on 19.05.15 are that the Complainant had booked a unit in the project ‘’Earth Titanium Studios’’ admeasuring 495 Sq. ft. on 27/09/12 and paid Rs. 4,70,000/- (Four Lacs Seventy Thousand) i.e.25% of the basic sale price to the OP on the assurance that the project will be completed within 3 years.  OP issued receipt in lieu of the payment made.  OP increased the area of booking from 495 Sq. ft to 520 Sq. ft without any request of the complainant vide letter dated 11.01.14 and on 04.11.14 OP sent a reminder indicating that at the start of the excavation work the complainant issupposed to pay 40% of the basic sale price.  It is further stated that the complainant visited the site and found that no excavation work has taken place and took photographs of the site.  The complainant requested the OP to refund the booking amount as no excavation activity has taken place vide letters dated: - 02.12.2014, 09.12.2014, 31.03.2015 and 02.04.2015.  On 24.03.2015 O.P. sent a letter asking the complainant to pay 40% of the basic sale price along with applicable service tax and interest on delayed payment within 15 days failing which the booking shall be cancelled and the earnest amount amounting toRs. 4,70,000/- (Four Lacs Seventy Thousand) shall be forfeited without any further notice and on 09.04.2015 OP informed the complainant that the booking has been cancelled on account of non-payment of installments.  Pleading deficiency on the part of the OP the complainant prayed for the refund of Rs. 4,70,000/- (Four Lacs Seventy Thousand) and interest thereon@ of 15% from the date of payment till realisationRs. 50,000/- (Fifty Thousand) as damages for mental agony and cost of litigation.

Notice was sent to the OP.   OP filed its reply and except the booking of the unit in the project Earth Titanium Studios at measuring 520 Sq. ft. instead of 495 Sq. ft. as alleged by the complainant has denied all the allegations contained in the complaint.  OP further stated that the complainant did not pay the due and outstanding installments despite repeated reminders sent through messages, phone calls, request letters and reminders.

Complainant filed its replication and denied the allegations contained in the reply of OP and reiterated the facts stated in the complaint.  Evidence has been filed by both the parties.

 In order to prove its case complainant has filed welcome letter dated 23/07/13 issued by OP along with booking details and payment schedule.  Complainant also filed receipt of Rs. 4,70,000/- (Four Lacs Seventy Thousand) issued by OP in favour of complainant and reminder letters dated 04/11/2014 sent by OP to the complainant.  The complainant also filed letters dated 07/11/2014 and 02/12/2014 sent to OP for refund of the amount of Rs. 4,94,745/- (Four Lacs Ninety Four Thousand Seven Hundred Forty Five), sent to the OP.  The complainant also filed final opportunity letter dated 24/03/2015 sent by OP and in response to the letter the complainant sent letter dated 31/03/2015 for refund of the amount.  The complainant filed cancellation letter sent by OP on 09/04/2015. The complainant also filed the photographs of the site.  The documents filed by the complainant are marked as Annex C 1 to C 10 respectively. 

The OP has filed Ex.  P1 the application form along with the payment plan, Ex.  P2 (Colly) payment request letters written to the complainant in proof of its case.

We have heard Learned Counsel for the parties and gone through the documents placed on the file.  We have also gone through the written arguments submitted by both the parties.  It is an admitted case of the OP that complainant booked a unit in Earth Titanium Studios and paid 25% of the basic sale price amounting to Rs. 4,70,000/- (Four Lacs Seventy Thousand).  It is also admitted by the OP in his affidavit of evidence that the complainant booked the flat on 27/07/2012.  As per the payment plan 10% of SLP was to be paid at the time of booking, 15% within 60 days from the date of booking and 15% at the start of excavation work.  The complainant paid 25% of booking amount and 15% was to be paid at the start of the excavation work as stated by the complainant and not controverted by the OP.  The OP states that it sent several demand letters, reminders to the complainant for depositing the 15% of the amount which was due from the complainant but the complainant has filed Photographs of the site at Annexure C – 10 (Colly), in order to prove that till 03/05/2015 the day when the complainant took the photograph of the site no excavation work had started at the site.  On receipt of the letter dated 24/03/2015 from the OP the complainant visited site and found that no construction work has yet been started at the site and on 09/04/2015 OP informed the complainant about the cancellation of the booking due to non-payment of installments.   The booking of the unit in this case was made on 27/07/2012 and the photographs which have been on the record by the complainant are taken on 03/05/2015 and till then no construction at the site is shown as per the photographs and the OP has not categorically denied the photographs or that the photographs are not of the OP site in question or that havenot averred that the construction has started.   We have no other option but to believe the version of the complainant that the construction has not yet started.    The application form filed in by the complainant contains the terms and conditions which are unilateral in nature as it does not contain even a single clause in favour of purchaser and also does not specify the period within which the construction is to be completed and possession to be delivered. 

In view of the forgoing discussionwe of the opinion that the complaint has proved deficiency in service on the part of the OP.  We therefore, direct the OP to refund the amount of Rs. 4, 70,000/- (Four Lacs Seventy Thousand) paid by complainant by way of booking amount with interest at the rate of 12% from the date of payment till the date of realisation, pay Rs. 10,000/- (Ten Thousand) as cost compensation and Rs. 5,000/- (Five 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 @ 12% shall be payable on the entire above mentioned amount till realisation.  Copy of this order is sent to all the parties free of cost.

File be consigned to Record Room. 

          Announced on this  ______________.    

          MEMBER                  MEMBER                           PRESIDENT