Haryana

StateCommission

CC/410/2016

ARCHANA SHUKLA - Complainant(s)

Versus

GODREJ PREMIUM BUILDERS PVT.LTD. - Opp.Party(s)

MANJU GOYAL

19 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No.       410 of 2016

Date of Institution:  20.12.2016

Date of Decision:    19.03.2018

 

 

1.      Archana Shukla wife of Shri Rajeev Kumar Shukla, resident of 67, Patrakar Colony, Ranital, Jabalpur-484002.

          At present staying in Ezdan-2, Flat No.1, Building No.13 at AI Wakrah Area-90, P.O. Box-47132 DOHA Qatar.

 

2.      Rajeev Kumar Shukla, resident of 67, Patrakar Colony, Ranital, Jabalpur-482002.

          At present staying in Ezdan-2, Flat No.1, Building No.13 at AI Wakrah Area-90, P.O. Box-47132 DOHA Qatar.

 

…..Complainants

 

Versus

 

1.      Godrej Premium Builders Private Limited, a subsidiary company of Godrej Properties Limited, duly incorporated under the Companies Act, 1956, having its registered office at Godrej Bhavan, 4^th Floor, 4A Home Street, Fort, Mumbai-400001 and its regional office at Unit No.215, Time Tower, Mehrauli Gurgaon Road, Gurgaon, Haryana.

 

2.      Magic Info Solutions Private Limited, a company incorporated under the Companies Act, 1956 and having its registered at D-13, Defence Colony, New Delhi and its sales office at L 24/10, DLF Phase II, Gurgaon, Haryana.

 

3.      Manoj son of Ajit Singh, resident of Village Gurgaon, Tehsil and District Gurgaon.

 

4.      Rajhans son of Baljeet Singh, resident of Village Gurgaon, Tehsil and District Gurgaon.

 

5.      Sheela Devi widow of Ajit Singh, resident of Village Gurgaon, Tehsil and District Gurgaon.

 

6.      Sukhbir Singh son of Bhim Singh, resident of Village Gurgaon, Tehsil and District Gurgaon.

 

……Opposite Parties

 

 

CORAM:   Mr. R.K. Bishnoi, Judicial Member.

                  

 

   

 

Present:     Shri Sumeet Goyal, Advocate for complainants.

                   Shri Kunal Dawar, Advocate for opposite parties.

                            

O R D E R

 

R.K. BISHNOI, JUDICIAL MEMBER

 

          It is alleged by complainants that they booked an apartment in a project to be constructed by Opposite Parties (in short ‘OPs’) under the name and style of “Godrej Summit”. They were allotted Unit No.E1202 vide allotment letter dated 18.10.2013 and tentative price of the unit was Rs.97,20,110/-. The allotment was terminated vide letter dated 17.01.2014, but, even thereafter they made further payments till 25.01.2016 amounting to Rs.37,88,855/-. They were not properly informed or made aware before cancellation. They made payments as and when desired by OPs. As the cancellation was altogether wrong, the allotment be reinstated and refund excess amount charged from them because they charged Rs.19,00,000/- less from other buyers. They be also directed to pay compensation as prayed for.

2.      In reply, it was alleged that this Commission was not having jurisdiction to try this complaint because value of the property was Rs.97,20,110/- plus interest etc. which was more than Rs.1 crore (though details are not given). As the complainants did not make payment as per agreement, reminders were sent to them time and again, as mentioned in reply. When payment was not made allotment was cancelled as per agreement executed in between them. Though as per their request the allotment was re-instated, but, even thereafter they did not make payment as per plan. Ultimately their allotment was cancelled vide letter dated 17.01.2014 and earnest money was forfeited. They deposited Rs.23,66,087/- only whereas deduction alongwith earnest money and interest was Rs.32,45,031/-. They were not entitled for reinstatement of allotment or refund of any amount as prayed by them. Other averments were also denied and requested to dismiss complaint.

3.      Arguments heard. File perused.

4.      Learned counsel for complainants vehemently argued that unit was allotted to them vide letter dated 18.10.2013 (Exhibit C-1). As per Clause 4.2 of Apartment Buyer’s Agreement (Exhibit C-2) possession of the unit was to be delivered within 39 months from the date of issuance of allotment letter i.e. Exhibit C-1. If 39 months are calculated from the said date, it comes to 18.01.2017 and if grace period of 06 months is added then it comes to 18.07.2017. As per Clause 1.2 of Agreement (Exhibit C-2) time was essence of contract and as per Clause 2.4 they were liable to pay installment after demand from OPs. There is no evidence on the file showing that they were failed to make any payment so their allotment was wrongly terminated vide letter dated 17.01.2014 (Exhibit C-3). Even thereafter payment was received from them upto 25.01.2016 and it is to be presumed that the said letter was withdrawn. When there is no evidence about subsequent demand, it cannot be presumed that there was fault on their part in payment. Even otherwise as per latest E-mail (Exhibit C-11), OPs forfeited Rs.32,45,031/-. It means that they made payment to this extent, so, it cannot be alleged by OPs that they paid Rs.23,66,087/- only. OPs wrongly terminated their allotment and the same be restored besides payment of compensation as prayed for.

5.      At the very outset it may be mentioned that as per complainants, time was essence of agreement. It means that complainants as well as OPs were liable to go by the agreement executed in between them. As per Clause 2.3 of the agreement (Exhibit C-2) balance payment was to be made by the complainants even without any specific requirement from the Developer as per schedule and it was a construction linked plan. As per Clause 2.4 of agreement, complainants were bound to make payment in time as mentioned in the letter. If they did not pay then OPs/Developer was entitled to terminate the allotment. From the perusal of termination letter dated 17.01.2014 it is clear that reminders dated 30.01.2013, 23.02.2014, 11.04.2013, 30.04.2013 and 21.06.2013 were sent, but, they did not make any payment. Thereafter when complainants requested to accept payment that letter was ignored and further payments were received from them. When there was any default on their part, the allotment was again cancelled vide letter dated 16.10.2015 as mentioned in Exhibit R-8. Thereafter complainants further paid some payment and again committed default which is clear from the perusal of statement of account (Exhibit R-19). When complete payment was not made, OPs were fully competent to cancel the allotment and forfeit earnest money as agreed in between them. Except copy of E-mail (Exhibit C-11) there is no document on the file to show that they paid Rs.32,45,031/-. This figure is in continuation of the previous paid payment. In the very beginning billed value, payment received, outstanding amount and accumulated interest are clearly mentioned which are as under:

Billed Value                            = Rs.9055407.35

Payments received so far    = Rs.2366087/-

Outstanding payment           = Rs.6689320.35

Accumulated Interest            = Rs.1283474.04

6.      This fact is also corroborated by statement of account (Exhibit R-19). It cannot be alleged by complainants that copy of agreement was not sent by OPs. In correspondence (Exhibit R-11) dated 30.01.2016, it is admitted that they sent copy of agreement to OPs. It shows that copy of agreement was already sent to them. Even otherwise due date of delivery of possession was 18.07.2017, but, this complaint was filed on 20.12.2016 i.e. before due date. As per Exhibit R-17 Occupation Certificate has been issued by concerned authorities on 07.04.2017, so, it cannot be presumed that there was any fault on the part of OPs and they wrongly forfeited the earnest money. So these arguments are of no avail. As a sequel to above discussions, complainants cannot ask for re-instatement of allotment. Hence, complainant is hereby dismissed.   

 

Announced 19.03.2018

(R.K. Bishnoi) Judicial Member, Addl. Bench

D.R.