Delhi

East Delhi

CC/899/2015

MARIMMA JOSEPH - Complainant(s)

Versus

FALCON REALTY SERVICE. - Opp.Party(s)

23 Apr 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 899/15

 

Mrs. Mariamma Joseph

R/o 144 H, Pocket A2

Mayur Vihar-III,

Delhi – 110 096                                                          ….Complainant

Vs.    

 

M/s. Falcon Realty Services Private Limited

Regd. Off.: 602, 6^th Floor

Kanchenjunga,

18, Barakhamba Road

New Delhi – 110 001       

Also at:

801, 8^th Floor, Neew Delhi House 27

Barakhamba Road, New Delhi – 110 001                          …Opponent

 

Date of Institution: 28.11.2015

Judgement Reserved on: 23.04.2019

Judgement Passed on: 29.04.2019

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

            This complaint has been filed by Mrs. Mariamma Joseph against M/s. Falcon Realty Services Private Limited (OP) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.         The facts in brief are that complainant Mrs. Mariamma Joseph booked a flat in “Gulmohar Woods”, project of M/s. Falcon Realty Services Private Limited (OP) by paying registration amount of Rs. 51,000/- on 06.08.2009 vide cheque no. 032975 drawn on Bank of Baroda.  The complainant was assured that in case the company is not in a position to make offer of allotment for a residential flat within a period of 6 months from the date of application, he shall have the right to withdraw the money with interest. 

            It was stated that the complainant paid a total amount of                Rs. 3,84,790/- as follows:

Amount (in Rs.)	Cheque No.	Date
51,000./-	032975	06.08.2009
85,500/-	032979	08.10.2009
88,500/-	098389	31.12.2009
55,000/-	280937	13.05.2011
1,00,000/-	000029	21.04.2012
4,790/-	000030	21.04.2012

 

            OP issued a memorandum of understanding/agreement on 10.06.2010 and as per condition no. 13 of this agreement, the possession of the flat was to be given within 24 months from the date of agreement.    The complainant made the last payment on 21.04.2012, but when he asked for possession, he did not get any response. 

It was also stated that in the month of June, 2014, the complainant visited the project site and was shocked to see that there was no progress in the project.  He wrote a letter on 18.11.2014 to OP for refund of the deposited amount and was assured that he will get the refund within a period of 15 days.  When the complainant again visited at the office of OP, he was asked to submit all original documents regarding the booking.  The complainant submitted all original documents with OP on 09.12.2014 which was duly received. 

The complainant was shocked when he received a cancellation letter on 03.06.2015 mentioning “reference to above cited subject and your meeting with us please be informed that the total amount of refund arrives to Rs. 3,81,793/- only after deduction of service tax.  The company shall refund the said amount into 3 equal installments @ Rs. 1,27,264/- each.  You are requested to collect the cheque on 15^th instant towards full and final settlement of your account on cancellation of booking”.

The complainant received another letter on 20.06.2015 which was in continuation of letter dated 03.06.2015 mentioning that due to market turn down, the refund cheques on cancellation of booking shall be given in        6 equally monthly installment commencing from 12.08.2015, but the complainant did not get any cheque from OP till date 

It was further stated that the project was delayed due to the sole negligence of OP.   Hence, the complainant has prayed for directions to OP to refund the amount of Rs. 3,84,790/- alongwith 18% interest; compensation of Rs. 90,000/- on account of harassment, mental agony and pain and Rs. 25,000/- towards cost of litigation.   

3.         In the reply, OP have taken various pleas such as this Forum have no territorial jurisdiction to entertain this complaint; as per terms and conditions, OP raised the demands for payments, however the complainant had deliberately failed to pay the amount. 

It was stated that the basic sale price of the flat was Rs. 18,70,000/- excluding other charges and as per clause 13 of the Allotment Letter, the earnest money which was 20% of the basic sale price shall be forfeited in case of cancellation of unit.

Since the demands were raised by OP, the requisite service tax @ 3.05% was paid by the respondent.  Accordingly, in case of cancellation, complaint was liable to pay as follows:-

1. Cancellation charges (20% of basic sale price)             Rs. 3,74,000/-   
2. Reimbursement of brokerage @ 3% of BSP                  Rs.    56,100/-
3. Reimbursement of service tax in terms of Cl. 12            Rs.    22,814/-
4.  

  It was stated that as per above calculation, OP has to recover from the complainant.  Other facts have also been denied.    

4.        The complainant has filed rejoinder to the WS of OPs, wherein she has controverted the pleas taken in the WS and reasserted her pleas. 
5. n support of its case, the complainant have examined herself.  She has deposed on affidavit.  She has narrated the facts which have been stated in the complaint.    

OP has not filed any evidence in support of his written statement and stopped appearing.

6.         We have heard Ld. Counsel for the complainant and have perused the material placed on record.  It has been argued on behalf of complainant that OP have failed to refund the deposited amount and even have delayed the project.  Not only that, they have further argued that there has been delay in making the refund due to market turn down as stated by OP. 

            From the documents placed on record, it is evident that complainant have paid an amount of Rs. 3,84,790/-.  It is also evident that she surrendered the property due to personal reasons.  Further, the documents such as letter of dated 03.06.2015, it has been stated that the complainant was to be paid an amount of Rs. 3,81,793/- after deduction of service tax.  This amount was stated to be refunded in three equal installments. 

Further, through another letter of dated 20.06.2015, it has been stated that the amount must be paid in 6 equal monthly installments due to market turned down.  The fact that complainant have not been paid this amount of Rs. 3,81,793/- since 20.06.2015, she was entitled for the full amount of Rs. 3,84,790/- as they have failed to pay the amount in 3/6 monthly installments.  When they have not honored their commitment, their refunding the amount by making deduction does not arise. 

When complainant have not been paid the amount as agreed, certainly, she has suffered mental pain and suffering for which she has to be compensated. 

In view of the above, we order that complainant be paid the full amount of Rs. 3,84,790/- alongwith 9% interest from the date of filing the complaint.  Further, we award compensation of Rs. 50,000/- toward mental pain and suffering which includes the cost of litigation.  The awarded amount be paid within a period of 45 days.  If not paid, the amount of compensation of Rs. 50,000/- shall also carry 9% interest from the date of order.    

Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

       Member                                                                             Member 

  

            (SUKHDEV SINGH)

                   President