Coram: Mohd. Anwar Alam, President

Vikram Kumar Dabas, Member

ManjuBala Sharma, Member

ORDER Date: 25 November 2016

Manju Bala Sharma, Member

Instant complaint has been filed by the complainant on 30/04/2015 stating

therein that the complainant booked a Flat with OP in its project Earth Gracia on

26/12/2012 for a total consideration of Rs. 49,07,533/- (Forty Nine Lacs Seven

Thousand Five Hundred Thirty Three only). He paid Rs. 2,44,000/- (Two Lacs

Forty Four Thousand) as booking amount on 26/12/2012 itself, Rs. 2,44,000/-

(Two Lacs Forty Four Thousand) on 31 Jan 2013 and Rs. 3,76,306/- (Three Lacs

Seventy Six Thousand Three Hundred Six only) on 07/10/2013. Broucher

containing master plan different unit plans and location of master plan at the time

of booking was given to the complainant and as per that alleged project contained

major green area in its master plan. It is further stated that recently the

complainant received Builder Buyer agreement from OP which contained

completely different master plan as from the one contained in the broucher

received by the complainant at the time of booking, feeling cheated and scammed

by OPs owing to completely different master plan contained in the builder buyer

agreement and in the broucher complainant registered several complaints through

email vide complaint nos. T3408, T3595, T4541, T5390 and T7195 but to no avail

complainant also filed the Consumer Redressal form with the grievance wing of

the OP but no response was received. Pleading deficiency in service on the part of

the OPS the complainant prayed that OPs be directed to refund the amount of Rs.

8,64,306/- (Eight Lacs Sixty Four Thousand Three Hundred Six only) along with

interest at the rate of 18% per annum compounded annually, Rs. 4,00,000/- (Four

Lacs) as compensation for the mental agony and Rs. 10,000/- (Rs. Ten Thousand)

as cost of litigation.

3

Notice was issued to the OPs and OPs and OPs filed their joint reply stating

that the complainant has not complied with the terms of booking application form

which was duly signed by him. Consequently, the relief sought in the complaint

cannot be granted. It is further stated that consequent to the booking of the flat the

complainant was intimated to complete 20% of DSP on or before 05 April 2013

and despite several letter dated 28/02/2013, 19/06/2013 and 24/06/2013 the

complainant failed to make the payment. The complainant on 27/07/2013 sent a

letter with a request to change the address of communication and on 05/10/2013

complainant again sent letter requesting therein for change of booking from 1545

Sq feet unit to 1310 sq feet due to some money constraints. Subsequently,

complainant executed Earth Gracia booking form with his free consent and

allotment letter dated 22/11/2013 was issued to the complainant. It is further

stated by the OP that as far as the image is found on the broucher of the firm there

is special disclaimer by the OP about it being the artistic specialization and all

plans, specifications lay out plans etc are tentative and subject to variations and

modifications by the company at the discretion of the Competent Authority and the

company does not bear any legal consequences. In fact, the complainant has failed

to fulfill his part of obligation and looking for the concocted execuses to wriggle

out from his part of the obligation in terms of the booking application form which

was duly executed by him. In its para wise reply OP has stated that the allotted

amount of Rs. 2,44,000/- (Two Lacs Forty Four Thousand only) paid vide cheque

4

nos. 399263 and 399265 were refunded to the complainant vide cheque nos.

308268 and 308267 of Rs. 2,44,000/- (Two Lacs Forty Four Thousand only) each

and the same were got encashed by the complainant through his banker on

16/03/2014. The complainant in lieu of the aforesaid amount issued two cheques

bearing no. 415376 dated 17/03/2014 and 415377 dated 10/04/2014 for Rs.

2,44,000/- (Two Lacs Forty Four Thousand) each as replacement cheques for the

aforesaid amount in the name of OP. It is further stated that the broucher enclosed

by the complainant clearly indicates that “”

‘’visual representations shown in the master plan are purely conceptual.

That this plan is tentative and is subject to variations and modifications by

the company or the competent authorities and the company does not bear

any legal consequences for it. ’’

and the complainant has agreed for the change of plan in terms of the aforesaid

application form duly signed and executed by the complainant. It is further stated

that the complainant has miserably failed to fulfill his part of obligation in terms of

the booking application form and that there is no deficiency in service on the part

of the OPs as alleged by the complainant.

Complainant has filed his rejoinder to the reply filed by the OPs and

reiterated the facts stated in the complaint and denied all the allegations contained

in the Written Statement. In reply to part 3 of the reply the Ops the complainant

has stated that it is the OP who insisted the complainant to provide cheques in

favour of the Earth Gracia Buildcon Pvt. Ltd., instead of Earth Infrastructure Pvt.

5

Ltd., and therefore refund of the two cheques issued in the name of Earth

Infrastructure Pvt. Ltd. was given to the complainant and complainant issued

cheques in favour of Earth Gracia Buildcon Pvt. Ltd. The contents on Para 4 of the

reply has been denied by the complainant and complainant has relied upon the

guidelines of Advertising Standards Council of India.

It is further stated by the complainant that at the time of obtaining the

booking amount OPs had no sanctioned plan from the concerned authority and

they obtained the same on 04/04/2013 hence they booked the flat by showing

fake master plan which was clearly different from the actual sanctioned plan.

Complainant further stated that the plot was allotted to the OPs on 12/10/12 but

despite this OPs showed different master plan in the broucher which is technically

not possible to build on a plot which was allotted to the OPs. It is further stated

that as per Uttar Pradesh Apartment (Promotion of Construction, Ownership and

Maintenance) Act 2010, OPs cannot change the plan without informing in writing

to the intending purchasers but in the present case OP changed the Master Plan

without informing the complainant in writing.

Evidence has been filed by both the parties in support of their case.

Complainant has filed booking acknowledgement details as Ex CW 1/1 (colly),

payment acknowledgements issued by OPs as Ex CW 1/2 (colly) copy of broucher

containing master plan Ex CW 1/3, Builder Buyer Agreement Ex CW 1/4 , copy of

mails sent by complainant to the OPs Ex CW 1/5 (colly), copy of the grievance

6

redressal form filed by the complainant with the grievance wing of the OPs Ex CW

1/6, letter to resolve the dispute to the OP Ex CW 1/7, courier receipt there of Ex

CW 1/8, speed post, postal receipts Ex CW 1/9 (colly), copy of the site plan of the

building along with the information provided by Greater Noida Industrial

Development Authority Ex 1/10 (colly). OPs have filed copy of allotment letter

dated 05 April 2013 Ex OP/1, letters/reminders sent to complainant for non

payment of due Installments Ex OP/2 (Colly) letter for change of address by

Complainant to the OP, Ex OP/3 (Colly), letter for change of booking from 1545

Sq feet unit to 1310 sq feet unit Ex OP 1 /4, Earth Gracia booking application

form executed by the complainant subsequently as Ex OP 1/5, specification

allotment letter dated 22/11/2013 issued to the complainant Ex OP/6 and

letters/reminders sent for outstanding dues Ex OP/7 (Colly).

We have heard learned counsel for the parties, carefully gone through the

written arguments and documents placed on the record. In this case, some of the

facts are admitted by both the parties. So far as booking of flat by complainant is

concerned it is admitted by both the parties that pursuant to the broucher issued by

the OPs the complainant paid a sum of Rs. 8,64,306/-(Eight Lac Sixty Four

Thousand Three Hundred Six only). It is also admitted by both the parties that

Cheque Nos. 399263 and 399265 issued by the complainant for Rs. 2,44,000/-

each (Two Lac Fourty Four Thousand only) each in favour of OP was refunded to

the complainant and the complainant in lieu of the aforesaid amount of Rs.

7

4,88,000/- (Four Lac Eighty Eight Thousand) issued cheque nos 415376 and

415377 dated 10/03/2014, 10/04/2014 in favour of OPs. The grievance of the

complainant is that the broucher containing master plan which was given by the

OP at the time of booking is completely different from the master plant as

contained in the Builder Buyer Agreement received by the complainant. So far as,

the payment of Rs. 8,54,000/- (Eight Lac Fifty Four Thousand only) is concerned

the complainant has acknowledgments issued by the OPs against the payments

made by him as Ex CW 1/2 (colly) which show that this amount has been paid by

the complainant and at no stage of the proceedings in the written statement a denial

has been made that this amount is not paid or acknowledgement receipts have not

been issued by the OP. Therefore, silence on the part of the OP with regard to the

payment and issue of acknowledgement receipts thereafter is an admission of the

OP with regard to the Payment of Rs. 8, 54,000/- (Rs. Eight Lacs Fifty Four

Thousand) by the complainant to the OP. So far as difference between the

broucher containing master plan received at the time of booking by the

complainant and a completely different master plan received by the complainant

with the builder buyer agreement is concerned, it is argued on behalf of the OP that

visual representations in the master plan are purely conceptual and the same is

tentative and subject to variations and modifications by the Company or the

Competent Authority. To rebut this argument Counsel for the complainant has

8

invited our attention with regard to the guidelines issued by the Advertising

Standard Council of India, which states that as under :

‘’Advertising shall not be so framed as to abuse the trust of customers

or exploit their lack of experience or knowledge. No advertisement

shall be permitted to contain any claim so exaggerated as to lead to

grave or widespread disappointment in the minds of consumers.

Advertisement shall neither distort facts nor mislead the consumer by

means of implications or omissions. Advertisement shall not contain

statements or visual presentation which directly or by implication or

by omission or by ambiguity or by exaggeration are likely to mislead

the consumer about the project advertised or the advertiser of about

any corner product or advertiser.’’

Counsel for the complainant has stated that the complainant booked the flat

after seeing master plan in broucher and the project shown in the master plan

contained major green area but when the complainant received builder buyer

agreement from the OPs it contained completely different master plan as

from the one contained in the broucher received at the time of booking. It is

further argued by the counsel for the complainant that demand letters as

stated by the OPs were received by the complainant but the same were duly

replied by the complainant vide Ex CW 1/5 (colly) in which the complainant

clearly stated that the complainant has not signed the builder buyer

agreement because the master plan in the builder buyer agreement and the

master plan which was shown at the time of booking is totally different and

a complaint in this regard has been made by the complainant to sale VP and

Customer Head of OP and further stated that the complainant is ready to

9

make the payment only after OP resolves his complaint to the satisfaction of

the complainant.

In view of the above discussion, it is obvious that the OPs has failed to fulfill

the commitment and there is sheer deficiency in service as well as Unfair Trade

Practice, committed by the OP to mislead and defraud the complainant by showing

a different broucher at the time of booking to attract the complainant for the

booking of the flat in the said project.

In view of the above discussion we direct as under:-

(i) That the OPs shall refund Rs. 8,54,000/- (Eight Lacs Fifty Four Thousand)

to the complainant together with interest at the rate of 10% per annum from the

date of deposit of the amount to the date of realization, pay Rs. 50,000/- (Rs. Fifty

Thousand only) as compensation for mental agony and harassment and Rs. 5,000/-

(Rs. Five Thousand only) as cost of litigation.

The above said amount shall be paid by the OPs within 30 days from the

date of receipt of this order failing which OPs shall pay interest at the rate of 10 %

on the whole above mentioned amount. Copy of this order be sent to all the parties

free of cost. File be consigned to Record Room.

Announced on this ……………......