ORDER                                 Date: 22.02.2017

ManjuBala Sharma, Member

Instant complaint has been filed by the complainant on 19/10/2015 alleging therein that the complainant on assurance and promise of OP to allot a unit within a period of 1 year from the date of booking the complainant booked a unit and paid a sum of Rs. 3,00,000/- to the OP in August 2013 and receipt of the same was issued by the OP on 06/11/2013 vide reference no. 343.  As per the directions and instructions of the OP complainant made a payment of Rs. 1,58,250/- for which OP issued acknowledgement on 27/02/2014 vide acknowledgement 4862 on account of registration amount project at Earth Titanium Studio in respect of unit reference no. EST – 2-568.  It is further stated that the complainant remained in continue touch with the OP but on not receiving satisfactory reply from OP, complainant was forced to cancel the unit and sent several e-mails within the period August 2014 to January 2015 for cancellation of the booking and on 21/01/2015 the OP cancelled the provisional booking of the above mentioned unit. 

It is further stated that OPs have illegally and unlawfully retained the amount of Rs. 4,58,250/- since 06/08/2012.  Pleading deficiency in service on the part of OPs the complainant has prayed that OPs be directed to refund the sum of  Rs. 4,58,250/- along with interest from 06/08/2012 till actual realization, Rs. 10,00,000/- as compensation on account of mental agony suffered by the complainant and Rs. 21,000/- as litigation charges. 

Notice was sent to OPs and OPs filed its reply while admitted the complainant applied for a flat in the OPs project and paid Rs. 4,58,250/- and further stated that as the complainant neglected to pay the balance amount despite several reminders complainant is entitled to refund only after necessary deductions mentioned in clause 12 (a) (ii).  OP denied that OP is liable to pay any sum on account of mental agony suffered by complainant.

In rejoinder the complainant denied the contentions taken by the OP in its written statement and reiterated the facts stated in the complaint.  Complainant has filed affidavit of evidence in proof of its complaint and also filed copy of acknowledgment receipts of payment as exhibit CW 1/1, CW 1/ 2 copy of cancellation letter CW 1/3, legal notice along with postal receipts exhibit CW 1 /4 and all the correspondence through e-mail as exhibit CW 1/5 (colly) in support of its case.  OP has also filed copy of the application form executed by the complainant as Exhibit OP/ 1, letters /reminders sent to complainant as Exhibit   OP /2 (colly) and cancellation letter as Exhibit OP /3 in support of its reply. 

We have heard complainant in person and learned counsel for OP and gone through the documents and written arguments filed by them.  Complainant has argued that he booked studio apartment in question only on the assurance of OP that the OP shall allot the flat to the complainant within a period of 1 year from the date of booking and that in case the flat is allotted within a year OP promised to refund the money paid by the complainant, for this he has relied upon clause 34 of the terms attached with the booking application  form which reads as under :

‘’In the event the Company is not in a position to allot the Apartment, for any reasons whatsoever within a period of 365 (Three Hundred And Sixty Five Days) days from the date of receipt of this Application by the Company (or within such period as is mutually extended beyond 365 days), the Company shall refund the Booking Amount paid by the Applicant(s) if desired by him.  The Company shall refund such Booking Amount thereon within 30 (Thirty) days of receipt of such notice from the Applicant(s).  The Company shall have no other liability of any kind except for refunding the Booking Amount due thereon as provided herein above. ‘’

          Counsel from OPs has argued that as complainant defaulted in making the payment despite several letters/reminders OPs cancelled the booking of the complainant vide its letter dated 21/01/2015.  OPs has further relied upon clauses 12 a (ii), 32 and 33 of the booking application from and argued that as the complainant has failed in making payment of due amount within the stipulated period OPs have to forfeit/ deduct the earnest money i.e. 20% of total SLP together with brokerage dealer commission from the amount paid by the complainant. 

We have considered the contention of learned counsel for the OP with which we do not agree.  As OP has failed to place on record the agreement entered into between the parties and no document showing what was the payment plan agreed between the parties has been placed on record.  The OP has not placed on record in evidence to show that the project has taken up and was in progress, we are therefore inclined to accept the contention of the complainant that the project had not met any headway and the complainant was free within his right not to pay any further sum to the OPs as demanded by it.  OPs have failed to justify its reason of further demands on the complainant despite receiving the letters from the complainant for cancellation of the unit.  We are therefore inclined to hold that OP was guilty of deficiency in service towards the complainant.

We therefore,  direct the OP the pay the complainant a sum of Rs. 458250/- along with interest at the rate of 10% from the date of 06/08/2012 till the date of realization  Rs. 50,000/- compensation for mantle agony and Rs. 5,000/- 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 till realisation.  Copy of this order be sent to all the parties free of cost.

File be consigned to Record Room. 

          Announced on this  ______________.