Quorum: Mohd. Anwar Alam, President

                   Vikram Kumar Dabas, Member

                   Manju Bala Sharma, Member

ORDER                     Date:04-04-2017 

 Manju Bala Sharma, Member

1. Instant complaint has been filed by complainant on 23-11-2015 stating therein that in response to the advertisement by the OP on 17.5.2011 she booked a residential apartment with Booking No.ETH/HS/B/003730 in the proposed Group Housing Complex known as “Earth Towne” at Plot No. 611-04, Sector-1, Greater Noida (U.P.) by paying the booking amount of Rs.1, 56,600/- to the OP. Another amount of Rs.4, 69,800/- was deposited with the OP on 20.11.2011. On 29.11.2011, the opposite party issued Allotment letter and  allotted I BHK Unit No.106 at 1st Floor in JAL Tower with a super area of 540 Sq. ft (50.19 Sq. Mtr.) at a total agreed cost of Rs.17,97,700/-. Clause 12 of the Allotment letter dated 29.11.11 stipulates the time schedule of thirty six months for handing over possession of the allotted apartment. She visited the site couple of times and there was no tower in which the Apartment was allotted to her. Whenever she contacted office of the opposite party, she was advised to wait till the work on the Tower starts. She received a letter dated 25-5-2015 from the office of the opposite party thereby cancelling her booking of Apartment on the ground of non-payment of installments. The cancellation of booking was totally unwarranted and uncalled for as the work on the proposed Tower in which the Apartment was allotted to the Complainant had not yet seen the light of the day and having lost faith in the credibility and intentions of the OP to deliver the desired results, the Complainant decided to ask for the refund of the amount deposited with the OP along with interest. Clause 14 of the Allotment letter dated 29.11.2011  stipulates that in case the Company abandon the project or becoming unable to give possession within three years from the date of execution of the allotment letter, it shall refund the amount to the allotted. As opposite party has failed to provide possession of the apartment to the Complainant within the agreed period, OP is liable to refund the withheld amount along with interest. Complainant vide her letter dated 26.6.2015, registered her protest against cancellation of the booking and asked for the refund of the deposited amount along with interest and also sent a registered notice dated 13.7.2015 by Speed-Post through her Advocate to the OP for refund of the amount of Rs.6, 26,400/- as deposited with the opposite party along with interest @ 18% P.A. from the date of deposit till remittance. A reply to the legal notice dated 25.7.2015 was received by the Complainant and it only suggested the Complainant to visit the representatives of the opposite party at their Connaught Place office. Complainant received an email on 21.7.2015, asking the Complainant to contact the Customer Care Officials or visit at their Connaught Place office to discuss the procedure and formalities related thereto. Accordingly, She visited the office of the opposite party on 22.7.2015and met Mr. Ajay Gupta, who assured her that he would send her the details of the refund amount. However, no response was received from the side of the opposite party. Pleading deficiency in services on the part of OP the complainant prayed that OP be directed to pay Rs.6,26,400/- deposited by her along with interest @ 18% p.a. from the date of deposit of money till the date of realization of money towards mental agony and pain suffered by her with litigation expenses.
2. Notice was issued to OP who filed its reply and admitted that complainant had booked a residential apartment with Complex known as “Earth Towne” at Plot No. 611-04, Sector-1, Greater Noida (U.P.) by paying the booking amounts of Rs.1,56,600/- and Rs. 4,69,800/- to the OP.   OP objected that complainant had converted her plan into “Construction Linked Payment Plan” from the existing “Flexi Payment Plan” but the complainant despite receiving the said intimation letter didn’t prefer to visit the office of OP and she had failed to comply the payment as per schedule and in terms of clause 13 and OP was constrained to cancel the provisional booking vide cancellation letter dated 25.05.2015. OP denied rest of the allegations and prayed to dismiss the complaint with costs.
3.  In rejoinder complainants have denied the allegations contained in the written statement and reiterated the facts in the complaint. 
4.  In support of complaint complainant filed her own affidavit   along with documents i.e copy of allotment letter  (Annexure C-1), copy of cancellation letter dated 25.05.2015 (Annexure C-2), copy of letter dated 26.06.2015 (Annexure C-3)  , copy of  postal receipt (Annexure C-4), copy of email dated  02.07.2015 (Annexure C-5) , copy of acknowledgment email dated 02.01.2015 (Annexure C-6)  , copy of legal notice (Annexure C-7) , copy of postal receipt (Annexure C-8), copy of reply dated 25.07.2015 (Annexure C-9), copy of printed email (Annexure C-10) , copy of email (Annexure C-11) , copy of email by OP (Annexure C-12).
5.  In support of reply OP filed affidavit of Sh. Gulshan Aggarwal, (Authorised representative) along with documents i.e.   Copy of booking application form (Annexure-oP1) and copy of payment plan (Ex. OP/A), copy of various letters (Ex. OP1/B) (colly), copy of letter of intimation and cancellation (Ex. OP1/C & D).
6. We have heard the arguments and considered the evidence led by the parties and their written and oral arguments.  In this case points to be considered are as under:-

1. Whether complainant is a consumer?
2. Whether there is any deficiency in service on the part of the OP?
3. Relief?

7. In reply OP admitted the booking of a flat by the complainant as well as deposit of total booking amount of Rs.1, 56,600/- by complainant against the said booking hence complainant is a consumer.
8. Complainant deposed in her affidavit that OP has a time limit of 36 months for handing over possession of the allotted apartment  and she had already deposited Rs. 6,24,400/- i.e. 35 % of the total cost of the apartment but even though the construction work on the project had not commenced so she opted for the refund of the booking amount.  These facts were not denied in the reply on behalf of OP but it is only alleged that complainant did not pay their requisite payment so she opted refund which is justified on uncertainty of the complaint of this project.   Therefore, all the objections made by the OP in the reply are not sustainable. 
9. Looking to the above facts and circumstances of this case complainant was not satisfied with OP regarding the completion of the project; therefore, complainant demanded the refund of her deposited amount with OP which is not against the settled law.  As OP did not refund the deposited money despite the claim of refund by complainant, it amounts to the deficiency in service on the part of OP. Therefore we direct OP as under:

(i)To refund the deposited amount (Rs. 6, 26,400/-) with 18% interest from the date of deposit till its realization to the complainants

(ii) To pay a sum of Rs. 50,000/- as compensation to the complainants.

(iii) To pay a sum of Rs. 5,000/- as litigation cost to the complainants.

10.   All the above mentioned amount will be made by the OP within a period of 30     days from the date of this order failing which an additional interest of 18% will be payable on the assured return , compensation as well as cost of litigation
11.  Copy of the order made available to the parties free of cost as per law.    File be consigned to record room.

Announced on………