Haryana

StateCommission

A/818/2016

SRS REAL ESTATE LTD. - Complainant(s)

Versus

GAUTAM MALHOTRA - Opp.Party(s)

ARVIND SOOD

08 Mar 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :   818 of 2016

Date of Institution:   07.09.2016

Date of Decision :    08.03.2017

M/s SRS Real Estate Limited, SRS Multiplex, City Centre, Sector-12, NIT Faridabad through its authorised signatory Sh. Suresh Arora.

                                      Appellant-Opposite Party

Versus

 

Gautam Malhotra son of late Sh. Anil Malhotra, Resident of 8/225, Ground Floor, DDA Flats, Kalka, New Delhi

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Arvind Sood, Advocate for appellant.

                             Shri Gautam Malhotra-respondent in person.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        Appellant-Opposite Party-M/s SRS Real Estate Limited has filed the present appeal against the order dated July 21^st, 2016 passed by District Consumer Disputes Redressal Forum, Faridabad (for short ‘the District Forum’), whereby complaint, filed by Gautam Malhotra-complainant/respondent, was allowed with costs and litigation expenses assessed as Rs.2200/-. The opposite party was directed to refund an amount of Rs.5,80,000/- to the complainant with interest at the rate of 18% per annum from the date of respective payments till realisation and an amount of Rs.50,000/- as compensation on account of un-necessary harassment and mental agony.

2.                The appellant-opposite party developed a residential project called Group Housing Colony, SRS Pearl, Independent Floors, Sector-57, Greater Faridabad. The complainant-Gautam Malahotra and his mother Smt. Savita Malhotra got their names registered for allotment of a flat to be allotted, vide registration No.A/FBD/PEARL/CL/59162, on payment of an amount of Rs.2.00 lacs, vide receipt dated 20^th August, 2009. The complainant also paid Rs.2.00 lacs and Rs.1,80,000/- vide receipts dated 22^nd June, 2010. In this way, the complainant paid the total amount of Rs.5,80,000/- up to 2^nd June, 2010.   Ultimately, as per draw of lots, floor No.12/D, 3^rd Floor, Pocket P2, measuring 1069 Square feet, Sector-57, Greater Faridabad, was allotted vide letter dated 24^th September, 2010, mentioning total Basic Sale Price as Rs.19,42,373/-.

3.                A Floor Buyer Agreement, dated 8^th October, 2010 (Exhibit R-2) was also executed between opposite party and complainant as well as his mother-Savita Malhotra. Vide letter dated 25^th December, 2010, Mrs. Savita Malhotra-mother of the complainant was informed to deposit an amount of Rs.4,75,989/-, on or before 25^th January, 2011 failing which the allottees were liable to make payment with interest @ 18% per annum. Thereafter, during the period June, 2011 to August, 2011, the complainant time and again requested the opposite parties to issue fresh letter of demand including interest. Email messages were also sent on 13^th September, 2011 and 28^th September, 2011. A legal notice was also issued by mother of the complainant on 10^th January, 2012. Vide letter dated 4^th February, 2012, the allottees were informed that allotment of the flat in their favour was cancelled vide letter dated 21^st February, 2011. Mrs.Savita Malhotra, died on 30^th December, 2011.  Considering time and again requests of the complainant from the month of November, 2013 up to the month of May, 2014, the opposite party agreed to refund only an amount of Rs.4,80,000/- i.e. less Rs.1.00 lac, less than that of the amount paid by the complainant.

4.                Alleging deficiency in service on the part of the opposite party, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 praying that the opposite party be directed to hand over possession of flat No.12/D, 3^rd Floor, Pocket P2, measuring 1069 Square feet, Sector-57, Greater Faridabad, after receiving payment of the remaining instalments and in the alternative, the opposite party be directed to pay an amount of Rs.5,80,000/- to the complainant with interest at the rate of 18% per annum from the date of deposit. The complainant has also claimed an amount of Rs.5.00 lacs as compensation on account of damages and mental agony.

5.                The opposite party in its written version admitted that the complainant and his mother deposited an amount of Rs.5,80,000/-, as mentioned in the complaint on different dates for allotment of a flat in the above mentioned project. It is also admitted that Floor Buyer Agreement was executed between the parties on 8^th October, 2010. The buyer did not make payment of the instalments of the sale price amount as per Construction Linked Payment Plan.  Vide letter dated 24^th September, 2010 the complainants were informed that Flat No.12/D, IIIrd Floor, Pocket P2 was allotted to them and they (complainants) were asked to pay an amount of Rs.2,97,394/- on or before 15^th October, 2010. The complainants did not pay the amount mentioned above. Thereafter, vide letter dated 25^th December, 2010, the complainants were informed to deposit an amount of Rs.4,75,989/-. Again, vide letter dated 1^st February, 2011, reminder was given to the complainant to deposit the outstanding dues on or before 19^th February, 2011. As the allottees did not deposit the amount, the allotment stood cancelled vide letter dated 21^st February, 2011 due to violation of the terms and conditions of the buyers agreement. It is denied that the opposite party ever agreed to refund a sum of Rs.4,80,000/-. It is prayed that the complaint filed by the complainant be dismissed.

6.                After hearing arguments, the District Forum, vide order dated 21^st July, 2016, allowed the complaint. The relief granted in this complaint is mentioned in the earlier part of this order.

7.                Counsel for the parties have been heard. File perused.

8.                In this case, it is admitted fact that Flat No.12/D, 3^rd Floor, Pocket P2, Sector-57, Greater Faridabad, having super area measuring 1069 Square feet, was allotted in the name of the complainant and his mother, as per draw of lots, mentioning sale price as Rs.19,42,373/-. An information in this regard was given to the mother of the complainant vide letter dated 24^th September, 2010. A residential project known as Group Housing Colony, SRS Pearl, Independent Floors, Sector-57, Greater Faridabad, was developed by the opposite party. The payment of the remaining amount was to be made as per Construction Liked Payment Plan. It is also not in dispute that the opposite party vide letter dated 24^th September, 2010 informed complainant’s mother that Flat No.12/D, IIIrd Floor, Pocket P2 was allotted and she was asked to pay an amount of Rs.2,97,394/- on or before 15^th October, 2010. The complainant did not pay the amount mentioned above. Thereafter, vide letter dated 25^th December, 2010, the allottee-Savita Malhotra was informed to deposit an amount of Rs.4,75,989/-. Again, vide letter dated 1^st February, 2011, reminder was given to deposit the outstanding dues on or before 19^th February, 2011. However, amount not being deposited, the opposite party cancelled the allotment vide letter dated 21^st February, 2011.

9.                Now situation in this case is quite clear. The allotment of the flat was cancelled as the allottees could not deposit the instalments of the remaining sale price amount in time on or before 19^th February, 2011. Version of the opposite party is that as the installment of an amount of Rs.4,75,989/- was not deposited despite reminder, the allotment stood cancelled due to violation of the terms and conditions of the of the Floor Buyer Agreement (Exhibit R-2).

10.              Clause 1.15 of the agreement (Exhibit R-2) reads as under:-

“1.15.         In every case of default in making payment of any installment, irrespective of the type of Payment Plan, purchaser(s) shall be liable to pay interest @ 18% per annum for the period of delay up to three months and thereafter this rate of interest shall be increased to 24% per annum. However in case any of the installment remains due for a period of more than 3 (three) months seller shall have the right to cancel the allotment/agreement.”

11.              The procedure regarding termination of buyers agreement, cancellation of allotment and forfeiture of the earnest money is mentioned in Clause 6.1 and 6.2 of the buyers agreement dated 8^th October, 2010.  After close perusal of Clause 6.1 of the buyers agreement, it is clear that if the allottee is not able to make payment of any installment of the sale price amount as per the Construction Linked Plan, the allottee can make payment within 90 days of the demand fallen due, with interest. However, if the purchaser fails to pay any of the installments with interest within 90 days from the due date of outstanding amount, the seller may at its sole discretion forfeit the entire amount of earnest money and other charges including the late payment charges and the interest amount deposited by the purchaser. After cancellation of the agreement and allotment, the amount, if any, paid over and above the earnest money, shall be refunded to the purchaser after deduction of interest accrued on the delayed payment. So, it is clear that the builder was entitled to refund the amount deposited by the allottees after forfeiture of the earnest money being 10% of the total sale price.

12.              As per terms and conditions of the buyers agreement, the payment of the total sale price amount was to be made as per Construction Linked Plan. In this case, the allottees failed to make payment of the sale price amount as per Construction Linked Plan.  In this way, it stands established and proved that the installment amount of Rs.4,75,989/- was not deposited by the allottees within the stipulated period of 90 days because for the first time the opposite party had raised the demand of Rs.2,97,394/- vide letter dated 24^th September, 2010 and the same was to be deposited on or before 15^th October, 2010. Thereafter, vide letter dated 25^th December, 2010, mother of the complainant was informed that a sum of Rs.4,75,989/- was payable on or before 25^th January, 2011. However, the amount was not deposited even after issuing reminder dated 1^st February, 2011 (Exhibit R-3) by the opposite party. Consequently, vide letter dated 21^st February, 2011 (Exhibit R-4) the allotment was cancelled.

13.              Now the question arises as to what extent the opposite party is liable to refund the amount to the complainant.  In Shri Harjinder S. Kang versus M/s Emaar MGF Land Limited, Consumer Case No.482 of 2014 decided on July 4^th, 2016, Hon’ble National Commission held that the opposite party is liable to refund the amount to the complainant after deducting 10% of basic sale price. 14.                   In view of the facts and legal position enunciated above, the opposite party can forfeit 10% of the total basic sale price of the flat.  In the present case, the total basic sale price of the flat was Rs.19,42,373/-  and 10% of it comes to Rs.1,94,237/- which can be forfeited by the builder. The complainant deposited Rs.5,80,000/-. Thus, the amount refundable to the complainant by the builder comes to Rs.3,85,763/- i.e. (Rs.5,80,000 – 1,94,237). The District Forum has failed to appreciate the controversy involved as per facts and circumstances of the case in hand and as such the order of the District Forum deserves to be modified.

15.              The District Forum has given directions to the opposite party to refund the amount of Rs.5,80,000/- to the complainant with interest at the rate of 18% per annum from the date of payment. The complainant has also been awarded an amount of Rs.50,000/- as compensation on account of un-necessary harassment and mental agony. Learned counsel for the appellant has argued that compensation amount as well as interest amount awarded by the District Forum is highly excessive.

16.              Keeping in mind the facts and other surrounding circumstances of this case, it will be justified to award an amount of Rs.25,000/- as compensation to the complainant on account of un-necessary harassment and mental agony instead of an amount of Rs.50,000/- awarded by the District Forum.  Apart from it, keeping in mind the facts and circumstances of this case as well as the prevailing rate of interest in the open market and other financial institutions regarding such type of transactions during the relevant period, it will be justified to award interest to the complainant at the rate of 9% per annum from the date of respective payments instead of 18% per annum awarded by the District Forum.

17.              With the aforesaid modification in the impugned order, the appeal stands partly allowed. The builder is directed to refund the amount of Rs.3,85,763/- to the complainant with interest at the rate of 9% per annum from the date of payments till its realisation; an amount of Rs.25,000/- as compensation on account of un-necessary harassment and mental agony with cost of litigation expenses to the tune of Rs.2200/-.

18.              The statutory amount of Rs.25,000/- at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 08.03.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL