CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.34/2017
- MR. PRASHANT VISHNU BHANDARE
641, 3RD FLOOR, STREET NO.7,
GOVINDPURI, KALKAJI,
NEW DELHI-110019
- MRS. SHEETAL
641, 3RD FLOOR, STREET NO.7,
GOVINDPURI, KALKAJI,
NEW DELHI-110019
…………. COMPLAINANTS
Vs.
- GRANITE GATE PROPERTIES PVT. LTD.
C-23, GREATER KAILASH ENCLAVE, PART-1,
NEW DELHI-110048
- THREE C UNIVERSAL DEVELOPERS PVT. LTD.
TECH BOULEVARD CENTRAL BLOCK, PLOT NO.6,
SECTOR 127, NOIDA-201301 (U.P.)
…………..RESPONDENTS
Date of Order:21.08.2018
O R D E R
A.S. Yadav - President
The case of the complainants is that they booked an apartment in the upcoming project named “Lotus Boulevard” at Noida, Uttar Pradesh and paid a sum of Rs.9,50,000/- vide two cheques dated 07.09.2013. Vide allotment letter dated 20.09.2013, the complainants were allotted apartment No.705 in Tower No.30 on 7th floor. The complainants could not get the loan sanctioned from bank for making further payment as such vide email dated 19.12.2013, the complainants sought refund the amount. OP responded to the same and brought to the notice of the complainants that booking amount/earnest money (which is 10% of the total consideration) is non-refundable as per terms mentioned in application form and allotment letter.
It is further stated that OPs threatened to invoke clause 4.7 of Apartment Buyer’s Agreement and the same was communicated vide letter dated 17.02.2014. It is submitted that reliance upon the Apartment Buyer’s Agreement is bad and impermissible because the said Agreement was never executed between the parties. Finally OP illegally issued cancellation letter dated 21.09.2016 so as to fraudulently misappropriate the amount deposited by the complainants. It is submitted that the complainants made request for refund of the amount vide email dated 19.12.2013 and OP took almost three years for cancellation of the allotment and for misappropriating the entire amount deposited by the complainants. It is submitted that the complainants sent number of emails including the legal notice but the amount was not refunded. Terming the action of OP as deficiency in service, the present complaint has been filed whereby the complainants have prayed for refund of Rs.9,50,000/- alongwith interest and also sought compensation and legal expenses.
OP-1 in reply took the plea that as per clause 32 of the General Terms & Conditions for Allotment dated 20.09.2013, it is agreed that ‘the Courts in Gautam Budh Nagar and the Hogh Court of Allahabad at Allahabad shall have the exclusive jurisdiction in all maters arising out of and/or concerning this Allotment’.
It is also stated that the complaint is bad for misjoinder of OP-2. There is no privity of contract hence relief sought for by the complainant cannot be granted by OP-2.
It is stated that this Forum lacks pecuniary jurisdiction as total cost of the apartment was Rs.94,52,646/- which is beyond the pecuniary jurisdiction. It is further stated that it is the complainant who has committed default by not making timely payment as demanded by OP which left OP-1 with no other option than cancelling the allotment of apartment vide letter dated 21.09.2016 in terms of clause 5 of the allotment letter.
It is submitted that the whole complaint is based on the fact that the complainant could not get loan sanctioned for the apartment from the bank hence asked for withdrawal of the allotment and refund of his amount. The said request was made by the complainant after OP-1 had duly issued an allotment letter dated 20.09.2013 and OP-1 in response to the said request duly informed the complainant vide email dated 27.12.2013 that the said withdrawal of the allotment is subject to the terms and conditions mentioned in application form and allotment letter.
It was further informed by OP-1 that booking amount/earnest money (which is 10% of total consideration) is non-refundable and liable to be forfeited in case of cancellation. It is submitted that sanctioning of loan is nowhere the condition precedent for the allotment. In fact in terms of provision of allotment letter getting the loan sanction and its disbursement is sole responsibility of the complainant.
It is further stated that as per clause 27 of the allotment letter, it shall be the sole responsibility of the allottee to ensure sanction of the loan and OP-1 has nothing to do with it. It is submitted that there is no deficiency in service on the part of OP-1. It is prayed that the complaint be dismissed.
We have gone through the case file carefully.
The first point for consideration is whether this Forum lacks territorial jurisdiction.
It is submitted by Ld. Counsel for the complainant that registered office of OP is C-23, Greater Kailash, Part-1, New Delhi and the payment was received at that office. It is further stated that OP has sent invoice of demand note dated 10.03.2013 and in that demand note, it is clearly stated that “please mention on the challan for payment the address of OP’s registered office i.e. C-23, Greater Kailash Enclave, Part-1, New Delhi”. Identical request was made in the letters dated 11.11.2013, 28.11.2013 and 20.12.2013. Hence it is evident this Forum got the territorial jurisdiction.
So far as pecuniary jurisdiction is concerned, it is submitted by Ld. Counsel for the complainant that as per the law laid by the Hon’ble National Commission in case of Vishwa Mohan Kumar Singh Vs Orris Infrastructure Pvt. Ltd. – II (2018) CPJ 332(NC), this Forum has got the pecuniary jurisdiction as the complainant is only seeking refund of the amount. In fact the present complaint is beyond the pecuniary jurisdiction of this Forum in view of the law laid by the Hon’ble National Commission in case of Ambrish Kumar Shukla & Ors. Vs Ferrous Infrastructure Pvt. Ltd. – 1(2017) CPJ (NC) and it has been subsequently reiterated by the Hon’ble National Commission in its judgment dated 09.02.2018 in case of Gurumukh Singh Vs Greater Mohali Area Development Authority & Ors.
The original complaint alongwith documents be returned to the complainant with liberty to file the same before the Forum of appropriate pecuniary jurisdiction. For the purpose of limitation, complainant will get the benefit of the period spent before this Forum.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C. SURI) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
