Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.
Quorum:-
Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present:-
For the complainant : Sh. Arav Gupta, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, “the Act”), against the opposite parties, seeking following directions to them:
i) to release the outstanding amount of ₹50,69,905/-, including outstanding amount of ₹8,52,195/- (₹74,96,850.00- ₹66,44,655.00), amount of 8% interest, compounded annually (as per calculation sheet Ex.C-12) as per Clause 3 (II) of the Letter of Intent dated 22.05.2012; and
ii) to pay ₹5,00,000/- each on account of mental agony and harassment suffered by the complainant as well as for the deficiency in service on their part.
Facts of the Complaint
- Brief facts, as set out in the complaint, are that the complainant had applied for allotment of a flat of Type-III Category in the scheme of the opposite parties, namely “Purab Premium Apartments”. The draw of lots was held on 20.03.2012; in which the complainant was declared successful, vide Sr. No.1013, and Letter of Intent (LoI) dated 22.05.2012 was issued to him. Payment schedule was given therein and as per Clause 3 (II) of the LoI, opposite party No.1 was obligated to deliver possession of the flat within 36 months from the date of issuance of LoI i.e. by 22.05.2015, failing which the allottee had the right to surrender his allotment and get back his entire deposited amount, along with interest at the rate of 8%, compounded annually. The complainant duly abided by the payment schedule given in the LoI and paid all the instalments before time upto 17.05.2014, totaling ₹58,67,300/-, against the total consideration of ₹74,96,850/-. Thereafter, he visited the site and was shocked to see that the construction had not been commenced and sensing that there was no scope of delivery of possession by the due date i.e. 22.05.2015, he withheld the last two instalments. The opposite parties failed to raise any construction even after expiry of stipulated period for delivery of possession and, as such, the complainant approached them in May, 2015, to know the status of the project, as he had already deposited a huge amount of ₹58,67,300/- with them. They assured to expedite the work and to deliver possession of the flat soon. However, the complainant was shocked to receive letter-cum-demand notice dated 25.08.2016 from opposite party No.1, raising a demand of outstanding amount of ₹20,29,742/-. He immediately approached the opposite parties and on their further assurance to deliver possession soon, he deposited remaining two instalments of ₹16,29,550/- on 21.09.2016. Thus, he had deposited a total sum of ₹74,96,850/- with the opposite parties towards the price of the flat. However, even then the opposite parties failed to deliver possession of the flat to him. So he surrendered the allotment of the flat to the opposite parties, vide letters dated 19.07.2017 and 20.07.2017, exercising his right as per Clause 3 (II) of the LoI. Thereafter, opposite party No.1, without verifying the actual account of the complainant, issued another letter-cum-demand notice dated 09.08.2017 to the complainant, raising a demand of ₹16,29,550/-; which in fact was the amount of remaining instalments and which had already been deposited by the complainant on 21.09.2016. Thereafter, the complainant again reiterated his decision of surrendering the flat, vide letters dated 23.08.2017 and 24.08.2017. However, opposite party No.1 issued allotment letter dated 21.09.2017 to him; which shows negligent conduct of the opposite parties. The complainant asked the opposite parties to refund the entire deposited amount, along with interest at the rate of 8%, compounded annually, under Clause 3 (ii) of the LoI. However, the opposite parties, vide office order dated 06.11.2017, ordered that since the complainant was in defaulter list, so they forfeited 10% of the total amount of consideration money and consequently, they issued a cheque of ₹66,44,655/- in his favour, after deducting 10% amount of ₹8,30,874/-. The complainant never defaulted in payment of instalments, as mentioned above and the opposite parties themselves failed to deliver possession of the flat within the stipulated period. The aforesaid act and conduct of the opposite parties amount to deficiency in service. Hence, the present complaint.
Contentions of the Complainant
- We have heard learned counsel for the complainant at the admission stage of the complaint and have gone through the record carefully.
- Learned counsel for the complainant has vehemently contended that the opposite parties failed to deliver possession of the flat, in question, within the stipulated period despite receipt of substantial amount from the complainant towards the price thereof. No development activity was started at the site and the opposite parties kept on utilizing the hard earned money of the complainant, for their own cause. Since there was no possibility of delivery of possession of the unit, in question, within the stipulated period as per terms of the LoI, so the complainant surrendered the allotment and sought refund of the entire deposited amount, along interest at the rate of 8%, compounded annually, under Clause 3 (II) of the LoI. However, the opposite parties issued a cheque of ₹66,44,655/- in his favour after deducting 10% amount of ₹8,30,874/- out of the total deposited amount. He never committed any default in payment of instalments and kept on depositing the instalments, as and when demanded and fault lies on the part of the opposite parties, who failed to deliver possession of the flat within the stipulated period. Thus, there is grave deficiency in service on their part and, as such, the complaint is liable to be admitted and decided on merits, after issuance of notice to the opposite parties.
Consideration of Contentions
- We have given our thoughtful consideration to the contentions raised by the learned counsel for the complainant.
- Admittedly, the complainant applied for allotment of a residential apartment of Type-3 in the scheme floated by the opposite parties. He remained successful in the draw of lots held on 20.03.2012 and was issued Letter of Intent (LoI) dated 22.05.2012, Ex.C-1. The tentative price of the apartment was ₹69,00,000/-. As per sub Clause 2.1 (I) of the LoI, payment of ₹13,80,000/- being 20% price of the flat was to be made by 22.06.2012 to complete 30% of the flat and as per Clause 2.1 (II) of LoI, in case of failure to make payment within the stipulated period, the amount was to be refunded with 10% deduction and allotment was to be cancelled. However, the said period could be further extended up to 30 days with 2% penalty, up to 60 days with 3% penalty and up to 90 days with 5% penalty on prior written request. As per Plan-A given in Clause 2.2 of the LoI, a sum of ₹42,60,750/- being balance 65% of the tentative price of the flat was payable within 60 days of the issue of LoI with a rebate of 5% on the balance amount payable. As per Plan-B, a sum of ₹44,85,000/- being 65% of the tentative price could be paid with 12% interest in 6 half yearly instalments from the date of issue of LoI, as per payment schedule given therein.
- As per Clause 3 (II) of the LoI, possession of the flat was to be delivered within 36 months from the date of issuance thereof i.e. upto 22.05.2015, which reads as under:
“Possession of the apartment shall be handed over after completion of development works at site in a period of 36 months from the date of issuance of Letter of Intent. In case for any reason, the authority is unable to deliver the possession of apartments within stipulated period, allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer, in which case the Authority shall refund the entire amount deposited by the applicant along with 8% interest compounded annually. Apart from this, there shall be no other liability of the Authority.”
- As per Payment Schedule given in the LoI, 5th and 6th instalments were payable on 22.11.2014 and 22.05.2015 respectively, but the complainant intentionally withheld the same. He himself admitted in Para No.3 of the complaint that after depositing the instalments totaling ₹58,67,300/- upto 17.05.2014, he stopped paying the same on the ground that there was no construction raised at the site at that time. However, since the stipulated period for delivery of possession was yet to be expired on 22.05.2015, so the complainant was not justified in withholding the further instalments after 17.05.2014 itself. The opposite parties raised a demand of outstanding amount ₹20,29,742/- against the complainant, vide demand notice dated 25.08.2016, Ex.C-3. Only thereafter, he deposited the remaining two instalments of ₹16,29,550/- without any interest on 21.09.2016 i.e. after more than two years after withholding the instalments. Had the stipulated period for delivery of possession been expired, then the withholding of remaining two instalments by the complainant could be said to be justified, but since the said period was not over at that point of time, so it is clear that the complainant committed wilful breach of the terms and conditions, as embodied in the LoI.
- The opposite parties issued allotment letter dated 21.09.2017, Ex.C-8, to the complainant, allotting him Apartment No.1052, Tower-5, Block-A, Floor-14, Type-3 in the said scheme. As per Clause-3 of the allotment letter, balance 5% price of the apartment was payable within 30 days from the issuance thereof; failing which interest at the rate of 12% was chargeable up to next 60 days and thereafter, action as per provisions of Punjab Regional & Town Planning and Development Act, 1995 was to be taken. He failed to deposit the due amount and sought refund of the deposited amount along with interest, vide letters dated 19.07.2017 and 20.07.2017, Ex.C-5 (colly.), but since he himself committed breach of the terms of the LoI, so he was not entitled to the refund of the entire amount along with interest.
- As per Clause 2.3 (II), delays in payment of instalments would result in cancellation of the allotment. However, on request establishing genuine grounds, the delays up to 12 months could be condoned by the Estate Officer by charging 18% interest for the period of delay. However, delays beyond 12 month would not be condoned under any circumstances and would result in cancellation of allotment and refund of the amounts paid, after forfeiture of 10% of the amount. The possession was not to be delivered till all the dues were cleared. As per payment plan, 5th instalment was due on 22.11.2014. As such, in the present case, there is delay of more than one and half year from 22.11.2014 to 21.09.2016, when the due amount was paid by the complainant and, as such, as per Clause 2.3 (II) of the LoI, the said delay beyond 12 month has rightly not been condoned by the opposite parties. Accordingly, the opposite parties rightly ordered for refund of ₹66,44,655/- after deducting ₹8,30,874/- i.e. 10% of the total amount of consideration money, interest and other dues payable under Section 45(3) of the Punjab Regional & Town Planning and Development Act, 1995, vide office order dated 06.11.2017, Ex.C-9. Similar question had came up for hearing before the Hon'ble Punjab and Haryana High Court in case Rajiv Arora v. State of Punjab and others CWP No. 16153 of 2014 decided on 21.07.2015 and it was held that in case the complainant himself is defaulter, then he is not entitled to the refund of the entire amount as per Clause 3(II) of the LoI. Rather, he will be entitled to refund after forfeiting 10% amount, under Clause 2.3(II) of the LoI. It was observed as follows:
“As the petitioner failed to pay the installments which became due before he surrendered the flat, he also incurred the liability to pay interest to the respondent and therefore, we are unable to find any error much less illegality in the impugned order whereby the respondents forfeited an amount of ₹8,00,683/- towards 10% of the amount while making refund of an amount of ₹12,05,769/-.”
- In view of our above discussion, it stands proved that complainant himself committed wilful breach of the terms and conditions of the LoI and there is no deficiency in service on the part of the opposite parties. As such, there is no ground or justification to issue notice of the complaint to the opposite parties.
- Accordingly, the complaint is dismissed in limine.
(JUSTICE PARAMJEET SINGH DHALIWAL)
PRESIDENT
(KIRAN SIBAL)
MEMBER
April 22, 2019.
(Gurmeet S)
