EX- P A R T E O R D E R
PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Opposite Party is a Company having registered under the Indian Companies Act, 1956 and it is carrying on business of construction and sales of tenements. The Opposite Party having its registered office at 514, Dalamai Tower, Nariman Point, Mumbai – 21. In the year 2007 the Opposite Party represented to the intending flat purchaser that they are undertaking proposed project at Belvoir Building at Hiranandani Place Gardens Township, Singaperumalkoil. The Complainant approached Opposite Party in May, 2007 and booked a Flat No.1004 in Opposite Party’s aforesaid proposed project and paid an amount of Rs.11,72,880/- by two separate cheques dtd.14/05/07 and 20/07/07. In response to the said payment, Opposite Party vide their letter dtd.16/08/07 forwarded money receipt no.332 alongwith original allotment letter for Flat No.1004 to the Complainant. The entire agreed construction of the said flat was Rs.58,64,400/-. Out of agreed consideration the Complainant had already paid an amount of Rs.11,72,880/- being 20 % of the total amount due and payable. Inspite of payment of 20 % of the agreed consideration, no separate agreement was executed by the Opposite Party.
2) It is submitted that Opposite Party represented the Complainant that the plans were submitted and awaiting approvals and in case the approvals were not received by 31/12/07, the amount paid till then would be refunded in full, albeit without interest. Till 31/12/07, the Opposite Party did not receive the necessary approvals for the proposed construction and therefore, Opposite Party ought to have to refund the entire money received form the Complainant.
3) On 12/12/2007 Opposite Party forwarded alongwith money receipt no.332, original allotment letter for Flat No.1604 (which flat was allotted in lieu of earlier allotted Flat No.1004) to the Complainant. The Complainant had returned earlier original documents to Opposite Party to issue fresh letter of allotment with due correction. It was told to the Complainant that allotment of flat was required to be changed as 10th floor was required to be maintained as refuge area.
4) By email dtd.12/05/08, Opposite Party informed the Complainant that they are confident of getting approvals for the entire building by July, 08. However, till 12/05/08, the Opposite Party had not received permissions to start construction of the proposed building.
5) Thereafter, the Complainant met R. Chatterjee, Asst. Vice President of the Opposite Party on 26/09/08, to check progress of project and realised that no construction was started even though 8 months was passed after the deadline of 31/12/08. By email dtd.04/11/08, the Opposite Party informed the Complainant that they have received approvals for their multi storey buildings in addition to their low rise structure. However contended that this being in the process of gazetted and thereafter finally stamped by Tamil Nadu DTCP authorities. Till 15/01/2009, Opposite Party did not receive necessary permission for construction. In view of the inordinate delay in implementation of the project and being left with no alternative by letter dtd.06/05/09, the Complainant called upon Opposite Party to refund entire amount of Rs.11,72,880/- paid as earnest money by exercising the option of cancellation. The Opposite Party did not comply with the notice. On the contrary email dtd.11/06/07 was sent to the Complainant by Relationship Manager of Opposite Party interalia stating that work upto plinth was to be completed. In such circumstances, the Complainant exercised option of cancellation of booking but inspite of his repeated demand, the Opposite Party failed and neglected to refund the amount therefore, on 16/09/09 the Complainant served notice on Opposite Party through advocate and called upon to refund booking amount. Opposite Party through their advocate sent reply dtd.30/10/09 in which they raised false and incorrect contention and denied their liability to refund the money. Therefore, complainant has filed this complaint.
6) The Complainant has requested to direct Opposite Party to pay to the Complainant an amount of Rs.11,72,880/- with interest @ 18 % p.a. from January, 08 till realization of entire amount. The Complainant has also prayed to direct the Opposite Party to pay Rs.50,000/- as a damage for mental harassment and cost of this proceeding to the Complainant.
7) In support of complaint, the Complainant has filed his affidavit. He has filed an application under Sec.13(3)(B) of the Consumer Protection Act, 1986 to direct Opposite Party to deposit an amount of Rs.11,72,880/- before this Forum. The Complainant has produced copies of the allotment letters, money receipt, correspondence between the parties, legal notice, etc.
8) Opposite Party was duly served with the notice by R.P.A.D. However, inspite of service with the notice, Opposite Party has not appeared before this Forum. Therefore, on 26/10/2010 ex-parte order passed against Opposite Party.
9) It is the case of the Complainant that in the month of May, 2007, Opposite Party made representation that they are starting their project at Belvoir Building at Hiranandani Place Gardens Township, Singaperumalkoil. So he booked a Flat No.1004 in Opposite Party’s aforesaid proposed project and paid an amount of Rs.11,72,880/- by two separate cheques dtd.14/05/07 and 20/07/07. The Complainant has produced copy of money receipt no.0332 of total amount of Rs.11,72,880/- issued by the Opposite Party on 06/08/07 and photo copy of allotment letter of Flat No.1004 and subsequently allotment of Flat No.1604. In the complaint para no.6, the Complainant has specifically stated that it was represented to the Complainant by the Opposite Party that the plans were submitted and they were awaiting approvals and in case the approvals were not received by 31/12/07, the amount paid till then would be refunded in full, albeit without interest. The aforesaid averments of complaint para no.6 are not only remained unchallenged but supported by the contents of allotment letter dtd.06/08/07 issued by Opposite Party to the Complainant in respect of Flat No.1004 in which it is stated that “we informed you that plan for the above said building have been submitted to the Government Authorities for their approval. Kindly note that till such time the approval sanctioned is obtained from the Government Authorities for the building, all the amounts paid by you shall be treated as interest pre-deposit with us. On obtaining permission from the Government Authorities this letter would be replaced by allotment letter. In case the sanctions (as envisaged by us) are not received by 31/12/09, all the amounts paid shall be refunded in full without any interest and without any liabilities/claim damaged against us”.
According to the Complainant, from time to time he made inquiry with the Opposite Party regarding progress of the project but Opposite Party gave evasive reply by sending email. The Complainant has produced copies of the email received from the Opposite Party. It is submitted on behalf of the Complainant that till 06/05/09 the Opposite Party could not receive necessary permission and no construction work was started and therefore, Complainant was constrained to ask the Opposite Party to refund his entire amount of Rs.11,72,880/- by exercising option of cancellation of transaction. By letter dtd.06/05/09, the Complainant called upon Opposite Party to refund the entire amount but Opposite Party did not comply with the notice. Thereafter from time to time Opposite Party sends email giving false information regarding progress of the project. The complainant on 16/09/09 sent notice to the Opposite Party through his advocate and called upon Opposite Party to refund his booking amount. The Opposite Party through his advocate sent reply dtd.30/10/09 to the Complainant in which Opposite Party has raised false and incorrect contention and denied liability.
The Complainant has produced reply notice dtd.30/10/09 sent by the Opposite Party through Bharucha and Partners Advocate and Solicitors. In the reply notice the Opposite Party have categorically admitted that they have issued letter of allotment of Flat No.1604 to the Complainant and they have received an amount of Rs.11,72,880/- as earnest money from the Complainant. It is stated that Flat No.1004 had to be converted to a Refuge Apartment and therefore, Opposite Party issued another allotment letter dtd.06/09/07 in respect of Flat No.1604 on the 16th floor in place of Flat No.1004.
As mentioned above the Complainant version that Opposite Party had agreed to refund the amount if in case they could not obtain necessary permission for construction by December, 07 is supported by documentary evidence on record. It is submitted on behalf of Complainant that till 06/05/09 the Opposite Party could not obtain necessary permission and no construction work was started. Absolutely there is no evidence on record that till 06/05/09 Opposite Party had obtained necessary permission from competent authority for the proposed project. According to the terms and conditions of the allotment letter in view of unreasonable delay caused by the Opposite Party, in starting construction, the Complainant had called upon to refund his entire amount with interest but Opposite Party have not complied with the notice. Instead of refunding the amount to the Complainant, Opposite Party in their reply notice dtd.30/10/09 have stated that “our clients have repeatedly informed your clients that on respect of 20 % of total consideration, a Development Agreement is to be executed between your clients and our clients and an Agreement for Sale of Undivided Shares of Land is also to be executed between Green Habital Private Limited (Owners of the land), your clients and our clients. Our clients has also constantly clarified to your clients that the Sale of Deed for the Undivided Share of Land would be executed only on receipt of the entire consideration”. The content of aforesaid notice reply clearly shows that Opposite Party was demanding entire consideration before starting construction of the proposed building. Considering the facts and circumstances, we think it just to direct Opposite Party to refund an amount of Rs.11,72,880/- to the Complainant.
The Complainant has claimed interest @ 18 % p.a. on aforesaid amount of Rs.11,72,880/- from January, 2008. The Complainant paid total sum of Rs.11,72,880/- to the Opposite Party in the month of May, 2007. As per terms and conditions of allotment letter, in case of failure of the Opposite Party’s obtain necessary permission for construction of building then all the amounts paid by the Complainant shall be refunded to the Complainant without any interest. Opposite Party has not refunded the amount by the end of 31/12/07. The Complainant has not claimed interest for the period prior to 31/12/07 in accordance with the terms and conditions of allotment letter in the allotment letter itself. The Opposite Party has stipulated term and condition in the allotment letter in case of delay in payment of installment, interest shall be charge @ 18 % p.a. Considering the aforesaid facts, we think it just to direct Opposite Party to pay interest @ 18 % p.a. on Rs.11,72,880/- from 01/01/08 till realization of the entire amount to the Complainant.
The Complainant has prayed for 50,000/- for mental agony and harassment and he has also prayed for cost of this proceeding. Considering the facts and circumstances of the case, we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.10,000/- as compensation for mental agony and Rs.5,000/- as cost of this proceeding. Hence we pass the following order -
O R D E R
i. Complaint No.205/2010 is partly allowed.
ii. Opposite Party shall pay an amount of Rs.11,72,880/- (Rs. Eleven Lacs Seventy Two Thousand Eight
Hundred Eighty Only) to the Complainant with interest @ 18 % p.a. from 01/01/2008 till realization of the
entire amount.
iii.Opposite Party shall pay an amount of Rs.10,000/- (Rs.Ten Thousand Only) as compensation for mental
agony and Rs.5,000/-(Rs. Five Thousand Only)towards cost of this proceeding to the Complainant.
iv.Opposite Partyshall comply with this order within 1 month from the date of receipt of this order.
v.Certified copies of this order be furnished to the parties.
