DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.761/10
Sh. Saurabh Kumar
G-230, Jalvayu Vihar,
Greater Noida,
Gautam Budh Nagar, U.P. ….Complainant
Versus
1. M/s GTM Builders & Promoters Pvt. Ltd.
GTM House, G-5, Pushkar Enclave,
Outer Ring Road, Paschim Vihar,
New Delhi-110063
2. Mr. Jaideep Mathur
9/75, Sec-3, Rajindra Nagar,
Sahibabad, Ghaziabad, U.P. ….Opposite Parties
Date of Institution : 30.12.10 Date of Order : 25.03.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated, the case of the Complainant is that in the year 2006, OP No.1 had launched a housing project namely, ‘GTM Forest and Hills Luxury Apartments’, Dehradun and invited the public at large to invest in the said project through print and electronic media. Complainant, an NRI, through his father-in-law Mr. Munish Chandra Srivastava on the advice of OP No.2 (agent) booked a flat in the aforesaid project of the OP No.1 by paying a sum of Rs.3,80,000/- as booking amount vide cheque No.723657 drawn on ICICI Bank dated 08.11.06 to OP No.1 and the Complainant also paid Rs.1 lac to the OP No.2 as commission vide cheque bearing No.723658 drawn on ICICI Bank dated 15.11.06. It is stated as follows:-
“…. there was no mentioning of the payment of the EMI after the possession in the application form. When the complainant’s father-in-law inquired about the same from the OPs who told him to fill the construction linked plan as the said scheme comes under that plan. They further informed the complainant’s father-in-law that the bank will pay the balance amount after sectioning the loan and the complainant will have to start paying the EMI after the passion as per the scheme. That under such an assurance the complainant filled the form as per the advice of the OPs.”
It is submitted that the Complainant received a letter dated 10.03.07 from OP No.1 whereby he was informed about the change of the payment plan to construction linked plan which he objected and the OPs assured him to adhere with their earlier promise of the payment scheme where the Complainant had to pay after the possession of the flat. But the Complainant again started receiving the letters from the OPs whereby they informed the problem faced by them from the Govt. Agencies to get clearance for the said project. In the meantime, the OP No.1 once again sent a letter dated 24.04.08 to the Complainant whereby he was given last chance to clear the dues and in case of default OP No.1 threatened to cancel the allotment of the non-existing property. When the Complainant fed up with the hide and seek policy of the OPs then a letter dated 08.05.08 was sent to the OPs through his father-in-law on his behalf and once again reminded them about their promises which were made at the time of the said flat and the OPs were also reminded about the meeting held on 19.04.08 between “himself” and the Vice-Chairman and Managing Director of the OP No.1, namely, Mr. Tussar Kumar and OP No.2 in which besides other things it had been agreed between the parties that the OP No.1 will arrange loan for the rest of the payment to the said project and the Complainant will have to pay the EMI after possession as agreed in the beginning. It was also reminded to the OPs that in case of any further delay the OPs will refund the booking amount and compensate the Complainant @ Rs.700/- per sq. ft. being the difference in the sale price of the said property from beginning to that day. OP No.1 instead of refunding the money of the Complainant kept writing for further payment and finally vide letter dated 16.10.2009 the OP No.1 arbitrarily forfeited the booking amount of the Complainant and also cancelled his allotment of the flat in the said project. The list of the banks given by the OPs who as per their claim had approved their project had not sanctioned the loan. It is submitted that the OP No.1 had also acknowledged the difficulties they were facing vide their letter dated 03.11.2008 which was issued almost after 2 years from the booking of the said flat in which it was clearly mentioned that they were facing problem to keep their initial offer of payment of the EMI after the possession and requested the Complainant to bear the cost which clearly shows that the OP No.1 had taken the booking amount without having all the required clearance from the concerned authorities which amounts to deficiency in service and the OPs are liable to refund the money of the Complainant with interest and compensation. Hence, pleading deficiency in service on the part of the OPs, the Complainant has filed the present complaint for the following reliefs:-
- Direct the OP No.1 to refund the booking amount of Rs.3,80,000/- to the Complainant with interest @ 24% till the making of the payment,
- Direct the OP No.1 to refund Rs.1 lac with 24% interest to the Complainant with 24% interest till the making of the payment,
- Direct the OPs to pay to Rs.10 lacs as compensation to the Complainant towards mental agony, mental torture, harassment, financial losses etc.,
- Direct the OPs to pay Rs.35,000/- to the Complainant towards the litigation and miscellaneous expenses.
In the written statement OP No.1 has inter-alia stated that the “complainant opted the scheme of down payment plan and as per the down payment plan the complainant was to arrange the complete balance on its own or through loan, but the disbursement of the balance amount was to made within the specific time immediately after the booking payment, needless to say that the complainant neither arranged the funds own in its own nor submitted the requisite documents to the financial institutions for obtaining the loan. Although the opposite party to facilitate the complainant, shifted the complainant from the down payment plan to construction link plan, but the complainant despite giving consent on the schedule of payment, did not adhere to the payment chart, consequently the booking got cancelled on account of non-payment of the demanded amount. At this stage it is evident to point out here that the it is not the case of the complainant that the project was not approved by the financial institution therefore complainant failed to arrange the balance Loan amount.” In the aforesaid scheme, disbursement of the balance amount was the key factor to keep the booking alive. It is stated that the Complainant was not required to pay pre EMI/interest on loan amount till the issuance of the letter of possession. As the Complainant failed to honour his commitment of disbursement of balance amount to OP No.1 the OP No.1 in order to facilitate the Complainant, shifted the Complainant from the down payment plan to construction link plan but the Complainant despite giving consent on the schedule of payment did not adhere to the payment chart of either of the scheme as a result of which the aforesaid booking got cancelled on account of non-payment of the demanded due payment. From the conduct of the Complainant it is apparent that the booking was done just to earn profit. It is stated that the project of the OP has all the required sanctioning and approval and the same is on records. However, admittedly the Complainant opted the scheme of down payment wherein despite taking the loan from the bank the pre EMI was to start from the date of issuance of the possession certificate but admittedly the Complainant failed to obtain the loan from the bank and further did not disburse the balance amount due to the OP. It is further submitted that it was the duty of the Complainant to meet with all the requirements of the bank for the approval of the loan and OP prior to the signing of documents and receiving of payment explained entire procedural formalities and documentation with the bank and thereon with the OP. It is submitted that firstly the Complainant had paid the 10% of the BSP of the flat and he was liable to pay the remaining amount in consonance with the agreement which he failed to pay. As far as payment to OP No.2 is concerned, he was not an authorized agent of OP No.1 and so his payment clearly falls on the discretion of the Complainant. It is submitted that even after constant reminders from the OP No.1 the Complainant failed to reciprocate appropriately and due to this as per Clause 7 of the Terms and Conditions of the Booking Application the amount was forfeited on account of non-fulfillment of the payment and it was the matter of absolute right of the OP No.1 to forfeit the amount of the Complainant as per the said condition. The project of the OP was approved by number of financial institutions, it was for the successive allottee to approach the bank and submit the demanded documents with the bank to show his solvency and repaying capacity of the loan. It is apparent that the aforesaid booking was done to make out premium but due to recession in the property market in the year 2008 the Complainant willfully and intentionally abandoned the booking. Denying any deficiency in service on its part, the OP No.1 has prayed for dismissal of the complaint.
OP No.2 has been proceeded exparte vide order dated 15.10.12.
In his rejoinder to written statement of OP No.1 Complainant has controverted the averments made therein and has re-asserted the averments made in the complaint.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Rajesh Kumar, Manager Legal/Authorized Representative has been filed in evidence on behalf of the OP No.1.
Written arguments have been filed on behalf of the Complainant and OP No.1.
We have heard oral arguments of the Counsel for Complainant. None has appeared to advance oral arguments on behalf of the OP No.1. We have also gone through the file very carefully.
In order to decide whether the complainant has made the booking of the flat as per construction linked plan as contended on behalf of the complainant or down payment basis as contended on behalf of the OP No.1, we have to look into the Application Form and the other relevant documents. The complainant has filed a copy of the Application Form and other documents as Annexure CW/2 (Colly). The plan “Construction linked” has been ticked on behalf of the Complainant. It clearly means that the complainant had infact opted for the construction linked plan and not the plan under the down payment basis. Therefore, here we do not feel any hesitation in saying that the OP No.1 has intentionally tried to build a false case so far as the scheme which had been opted by the complainant is concerned.
Here we must say at once that as discussed in the immediate preceding para it has been proved on the record that the complainant had opted for construction linked plan. The submission made on behalf of the OP No.1 is that disbursement of the balance amount was a key factor to keep the booking alive which has to be upheld since as per the construction linked plan which has been described in document Ex. CW/2 (copy of the brochure) the complainant had to make the payment of the EMI as per the schedule given thereunder. However, it is an undisputed fact that after making the payment of Rs.3,80,000/- the complainant did not make any further payment to the OP No1.
First contention raised in this behalf is that it was the OP No.1 who had to get arranged the loan from the bank in respect of the balance amount and as the OP No.1 did not do so the complainant could not pay the amount in time. The contention made on behalf of the OP No.1 is that the complainant had to arrange the loan himself and the OP No.1 had no role to play in this regard. We find substantial weight in the submission made on behalf of the OP No.1 in the pleadings and the affidavit. Application Form does not provide that the OP No.1 shall arrange the loan in respect of the remaining amount from any bank. Similarly, the brochure is also silent in this regard. The OP No.1 sent a letter dated 24.04.08 to the complainant whereby the complainant was provided last and final opportunity to clear his entire dues including interest on delayed payment as per the schedule of payment within 10 days from the date of that letter failing which the amount already paid by the complainant was to be forfeited as per the norms of OP No.1. The father-in-law of the complainant wrote a letter dated 08.05.08 [(copy Ex. CW/4 (colly)] to the OP No.1 in response to the latter dated 24.04.08 wherein the father-in-law of the complainant pleaded as follows:
“That finally after much effort threats and coercion my representative Mr JAIDEEP MATHUR managed to bind you down to a meeting on the 19th, of April, 2008, in which your Vice Chairman and Managing Director Mr Tussar Kumar was present alongwith your senior representatives, when it was agreed we would not file any criminal proceedings against you subject to the following..
(i) That you would confirm our booking of the flat @ Rs.1830/- per Sq. Ft. and would procure a loan for the flat which would be construction linked through INDIA BULLS./IDBI/ICICI
(ii) That you would allocate a specific flat to us on the 1st, Floor at a premium location after getting our approval.
(iii) That the installments would be paid construction linked.
(iv) That in case the project was further delayed or incase the loan was not procured by you the contract would be rescinded and you would refund as the initial deposit made including the cash component, and compensate us @ Rs.700/- per Sq. Ft. being the difference in the sale price of the flat on the date we booked it and the price you are selling them today as confirmed by you..”
Therefore, it is very crystal clear that it was the first time that in his letter dated 08.05.08 it was stated on behalf of the Complainant that as per the agreed terms OP No.1 was to procure a loan through IDBI/ICICI/India Bulls. As stated hereinabove, no such stipulation is given in the Application Form or in the brochure or in any subsequent correspondence taken place between the parties. Therefore, the complainant took this plea in order to escape from his liability to pay the remaining amount alongwith interest and other incidental charges. Still vide letter dated 07.11.08 [(part of document Ex. CW/6 (Colly)] the OP No.1 sent intimation that the loan could be availed from the banks specified in the letter and the addressee was advised to approach any of the banks for his loan requirements to pay the outstanding, if any, in respect of the flat in GTM Forest & Hills, Dehradun. However, it was the complainant who did not avail the services. Vide letter dated 14.11.08 (which is again a part of Ex. CW/6) the OP No.1 intimated that in case the remaining outstanding amount was not made within 10 days from the date of receipt of the letter the OP shall be left with no alternative but to cancel the booking and forfeit the deposited amount and would be free to sell the flat in question in open market. Therefore, the OP No.1 should be deemed to have cancelled the flat of the Complainant and forfeit the deposited amount after expiry of 10 days from the date of the receipt of the letter dated 14.11.08.
The complainant has not filed any document which may even remotely show that a meeting had taken place between “himself” and the Vice-Chairman and Managing Director of the OP No.1, namely, Mr. Tussar Kumar and OP No.2 and it was agreed between them that the OP No.1 shall arrange the loan for the rest of the payment to the said project and the Complainant will have to pay the EMI after possession as agreed in the beginning except an averment in the letter dated 08.05.08 written by the father-in-law of the complainant to OP No.1 and averments made in the complaint to the following effect:
“…the complainant due to the callous approach of the OPs had expressed his desire to withdraw from the said project through its letter dated 11/05/07 but after the meeting between the parties and on their assurance to stick with the initial understanding/offer the Complainant had decided to continue with the said property but due to repeated breach of the initial understanding/offer the Complainant had lost all the faith on the OPs and had told them that if they further deviate from the initial offer them he will be constrained to withdraw from the said project…”
The meeting was neither attended by the complainant nor by his father-in-law but by Mr. Jaideep Mathur, the representative of the father-in-law of the complainant (who has been impleaded as OP No.2). Therefore, in the facts and circumstances discussed hereinabove, we do not see any force in the contention raised on behalf of the Complainant that any such meeting had infact taken place on 19.04.08 and any such decision had been taken therein. The complainant has tried to build a castle on the foundation of bundle of lies which has demolished.
In the letter dated 29.10.2007 [(part of Ex. CW/4 (colly)] the OP No.1 stated as follows:-
“On behalf of the GTM Group, I would like to wish you and your family a very happy Diwali and a prosperous New Year.
On this auspicious occasion, it gives me great pleasure to inform you that our Dehradun’s Project, GTM Forest & Hills has finally taken off after a little delay resulting from certain objections raised by the Govt. of Uttarakhand.
The state government had certain reservations and had put the prestigious project on hold. However, we are able to address all the reservations/ objections and respond to them to the satisfaction of all concerned before the Commissioner, who has no decided the matter in favour of GTM Builders & Promoters Pvt. Ltd. & Sargam Estates Pvt. Ltd.
Following the go-head to the project from the state government, we have now commenced work in right earnest. I would like to assure all our valued customers, who have stood by us in this period of temporary delay, that we shall make all efforts to ensure completion of the project.
Thank you all for your unwavering support and cooperation and once again, wish you all a joyous festival.”
Further correspondence made on behalf of the OP No.1 clearly reveals that the construction work had been carried out. Therefore, only at one stage of the project in 2007 the OP No.1 had faced some problems from the State Govt.
In view of the above discussion, we do not find that the OP No.1 has committed any deficiency in service or unfair trade practice. Similarly, the complainant has not adduced any evidence to prove that the booking of the flat had been done through OP No.2. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 25.03.2017.
