ORDER                     Date: 06 October 2016

Manju Bala Sharma, Member

1.       Brief facts relevant for the disposal of this complaint filed on 13-08-2015 are that the complainant had booked Studio Apartment of area admeasuring 495 sq. ft. in the project “ Earth Titanium”, situated at Tech Zone Greater Noida, Gautam Budh Nagar, UP and paid Rs. 6,69,763/- against booking amount of Rs. 22,41,375/- and signed the MOU on 31.10.2012.  Till October, 2014, there was no communication from the side of the OP and when complainant contacted the OP she was verbally informed that the area has been increased from 495 to 520 sq.ft. and complainant was asked to pay additional amount for the increase in area to which the complainant agreed. On receiving the details of  RTGS  from the OP on 06.01.2015, the complainant transferred the amount of Rs. 1,10,237/- for the increase in  area from 495 sq. ft. to 520 sq. ft. on 07.01.2015 and on the same day  RTGS details were also forwarded.  On 21-01-2015, the complainant received cancellation letter through e-mail from the OP for the reason of non-payment and delay in payment which is completely vague and baseless.   The complainant tried to contact OP but there was no response from their end.  Pleading deficiency in service and unfair trade practice, the complainant prayed that OP be directed to refund the amount of  Rs 8,00,075/-(Eight Lac Seventy Five only)S with interest @ 24 % and to pay Rs. 4,00,000/- towards mental agony suffered by the complainant and Rs 1,000/- as cost of litigation.

2.       Notice was issued to the OP. OP filed its reply and took preliminary objections that the complainant has raised the issues which do not fall within the realm of the Consumer Protection Act as the complainant booked the Studio Apartment for commercial purposes and the purpose of booking was to earn profit and  therefore this forum has no jurisdiction to adjudicate the present complaint as the  transaction is purely commercial.   It is further stated that the complainant applied for a unit and opted for Construction Linked Payment Plan in place of Down Payment Plan and agreed to Super Area Admeasuring 520 Sq. Ft and the complainant was not able to give the due installments on time.  It is further submitted that despite repeated reminders sent through messages and phone calls and payment request letters dated 26.09.2014 , 04.11.2014, OP did not receive the due installments.  It is further submitted that as per the application form filled in by the complainant, the complainant was required to pay 10% of the sub-lease premium at the time of booking i.e. 08.07.2010, next installment of 15% within 60 days of booking i.e. 07.09.2010 and further 15% of the sub-lease premium at the time of start of excavation work i.e. on 07.01.2011 and the complainant miserably failed to make the payment as per the schedule. Despite repeated reminders the complainant did not turn up nor clear the outstanding due amount and OP was left with no other option but to cancel the booking of the complainant due to non-payment of outstanding installments on time.   On 13.01.2015, OP sent cancellation letter to the complainant and also asked to submit all original documents mentioned in the  letter so that refund of complainant’s amount could be smoothly processed as per the terms of booking but the complainant deliberately did not send the original documents and details to the OP.   Hence, the complainant herself is  at fault for not complying  with the criteria and  conditions for refund of the deposited amount.  It is further stated that as per terms and conditions of the application form and MOU,  it is clear that OP will not intimate and is not duty bound to inform the complainant about her due installments and will not raise any  demand for the same. On the other hand, it is the duty of the complainant to pay his pending balance installments on time.  On merits, OP accepts the booking of amount in “Studio Apartment” in the project “ Earth Titanium’’, at Tech Zone Greater Noida, Gautam Budh Nagar, UP.  The OP has denied all the allegations contained in the complaint.

3.       In rejoinder, the complainant reiterated the facts as stated in the complaint and denied all the allegations leveled against her.

4.       Evidence has been filed by both the parties and in support of their case. The complainant has filed copy of Special Power of Attorney as Ex. CW-1/1, Copy of MOU as Ex. CW-1/2 , Payment receipts as Ex CW-1/3 , Copy of e-mail dated 27.07.2015 and 20.01.2016 as Ex. CW-1/4, copy of RTGS  details as Ex CW-1/5, copy of cancellation letter as Ex. CW-1/6 , copy of payment request letter dated 26.9.2014 as Ex. CW-1/7, copy of reminder dated 04.11.2014 as Ex. CW-1/8, copy of email communication as Ex. CW1/9 and Copies of letter dated 21.04.2015 and Courier receipt as Ex CW-1/10 and Ex. CW1/11 respectively.  OP filed copy of letter requesting for change in payment plan as Ex OP/1, copy of application form as Ex. OP/2 and copies of the payment request letters dated 26.09.2014 and 04.11.2014 as Ex. OP/3 (Colly).

5.       We have heard learned counsel for the parties and gone through the written submissions and documents placed on the file. 

6.       It is not denied by the OP that the complainant has booked a Studio Apartment in its project and paid Rs. 8,00,075/- (Eight Lac Seventy Five only).  The Plea of the OP that complainant is not the consumer within the meaning of the provisions of the Consumer Protection Act has been dealt with by the Hon. Supreme Court in Lucknow Development Authority Vs. N K Gupta III (1994), CPJ 7 Supreme Court while holding that housing is a service and when possession is not delivered within the stipulated period the delay so caused is denial of service.  Accordingly, the complainant who booked a Studio Apartment with the OP but was not provided the same is very much consumer of OP.  Regarding preliminary objection in the written statement that the complainant has purchased the Studio Apartment for commercial purpose the complainant has categorically denied stating that the Studio Apartment has been booked for the personal use of the complainant and this fact has been uttered by the complainant in her complaint itself.  OP has not produced anything on record to prove that the Studio Apartment was purchased for the purpose of commercial use.  The OP stated in its reply that payment request letters dated 26-09-2014 and 04-11-2014         Ex OP/3 (Colly) were sent to the complainant to which the complainant in her complaint and in the Rejoinder has stated that one demand letter and one reminder was sent to the complainant which they received much later from the date of letter and this fact can be ascertained by the OP from the courier details.  It is further stated by the complainant that it is the complainant on whose repeated follow ups forms were received by the complainant by email and the same were submitted by email and the same were submitted with OP but still amount was not given and after continuous follow ups and e-mails details of payment were received by the complainant.  The OP did not give the RTGS details even at that time which the complainant received only on 06/01/2015 and transferred the amount of Rs. 1,10,237/- (One Lac Ten Thousand Two Hundred Thirty Seven) on 7/01/2015 and RTGS details were also forwarded to the OP on the same day.  The OP has not categorically denied the above stated facts of the complainant but sent the cancellation letter dated 21/01/2015 Exhibit CW 1/ 6 when RTGS details were received by the complainant from OP 1 and 6/01/2015 and amount of Rs. 1,10,237/- (One Lac Ten Thousand Two Hundred Thirty Seven) was transferred on 07/01/2015 and details of  the same were forwarded on the same date by the complainant, hence the Act of cancellation of provisional booking of the Studio Apartment is arbitrary. 

7.       In view of the above, discussion we are of the opinion that the cancellation of the Studio Apartment booked by the complainant with the OP is arbitrary and is not based on any cogent ground.   Thus the complainant is entitled to refund the amount of Rs. 8,00,075/- (Eight Lac Seventy Five only) along with interest  of 10% p.a. from the date of institution of the complaint till the date of realization, Rs. 50,000/- (Fifty Thousand) as compensation for mental agony suffered by the complainant and Rs. 10,000/- (Ten Thousand) as cost of litigation.

8.       This order shall be complied with by the OPs 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 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   ………..

MEMBER                  MEMBER                           PRESIDENT