| ORDER | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR. Consumer Complaint No. 296 of 2015 Date of Institution: 08.05.2015 Date of Decision: 04.03.2016 Dr.Joginder Singh Kumar son of Shri Kartar Singh, resident of 756-Housing Board Colony, Ranjit Avenue, Amritsar. Complainant Versus Impact SARE Magnum Township (P) Limited, having site office at Impact Garden, VPO Vallah, G.T.Road, Bye Pass, Amritsar, through its Manager/ Director/ Managing Director/ Principal Officer. Opposite Party Complaint under section 12 and 13 of the Consumer Protection Act, 1986. Present: For the Complainant: Sh. Rajdeep Sood, Advocate For the Opposite Party: Sh.S.M.Vermani, Advocate Quorum: Sh.Bhupinder Singh, President Ms.Kulwant Kaur Bajwa, Member Mr.Anoop Sharma, Member Order dictated by: Sh.Bhupinder Singh, President. - Present complaint has been filed by Sh.Joginder Singh Kumar under the provisions of the Consumer Protection Act alleging therein that the Opposite Party had given lucrative scheme namely ‘Book now pay after possession’ and as per the said scheme, the interested buyer was to pay only booking money and remaining amount was liable to be paid after taking possession of the flat with loan funds to be financed by the bank. The Opposite Party undertook to arrange loan facility to the complainant from their appointed bank. The complainant gave a cheque of Rs.2,07,562/- as initial amount towards the allotment of a flat, but the Opposite Party started lingering the matter on one pretext after the other for arranging advancement of finance facility from their appointed bank and consequently, the complainant desired to withdraw himself from the proposed allotment. The decision of withdrawing from the allotment was informed to Opposite Party and the Opposite Party refunded an amount of Rs.,1,82,987/- to the complainant on 31.7.2014 after making unlawful deduction of Rs.24,575/- on account of some commission out of total amount of Rs.2,07,562/- without giving any interest. The Opposite Party illegally withheld the amount of Rs.2,07,562/- w.e.f. 3.6.2010 till 31.7.2014 and the Opposite Party is also liable to pay interest @ 18% per annum because no commission was liable to be paid by the complainant to any 3rd party. Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite party to refund the amount of Rs.24,575/- to the complainant alongwith interest @ 18% per annum from 31.7.2014 till the realization of the actual amount. Opposite Party may also be directed to pay Rs.1,77,465/- on account of interest
@18% on the amount of Rs.2,07,562/- w.e.f. 3.6.2010 till 31.7.2014 which was illegally withheld and used by the complainant. Compensation and litigation expenses were also demanded. - On notice, Opposite Party appeared and filed written version in which it was submitted that the complaint filed by complainant is not maintainable as Harjot Kaur is joint applicant in the said application form and she is necessary party to the complaint. Complainant alongwith Harjot Kaur applied a flat bearing No.C2-103 (1BHK) in the colony of M/s.Impact Sare Magnum Township Private Limited and as a sequel thereto made a payment of booking amount of Rs.2,07,562/- as initial amount. The complainant and said Harjot Kaur thereafter were to execute Flat Buyer Agreement as per policy of the company. Thereafter, the complainant was required to make payments as per terms and conditions as laid down in the application form. The complainant and Harjot Kaur purchased the flat and they had to make payment after getting the loan approved from banker. The complainant could not arrange the loan as narrated by him, because of his age. Availing of such loan was wholly responsibility of the said complainant. It is made clear that it seems that complainant has applied the said loan singly without taking Harjot Kaur as applicant/ joint applicant (who is joint applicant in the application form submitted to Opposite Party. The complainant and Harjot Kaur did not come forward to complete the formalities and execute flat buyer agreement and make further payment. Actually the complainant alongwith Harjot Kaur agreed to purchase the said flat for speculative purpose with a motive to sell the same for profit; but as the reality market was not fovourable for the last 2-3 years, so the complainant could not get suitable buyer. Actually, the said colony Crescent Parc/ Ashberry Homes is fully developed within 2.5 years of its launch a number of persons/ buyer have taken possession in the said colony. Opposite Party had also issued reminder notice dated 5.6.2013 to Harjot Kaur to make further payment and to complete the formalities, but the complainant and Harjot Kaur failed to make further payment and complete the formalities. The complainant approached the Opposite Party and requested the Opposite Party to refund the amount deposited with the Opposite Party as they have no ready money to pay the balance sale consideration and they further narrated that inspite of repeated requests they have failed to find any suitable buyer. While denying and controverting other allegations, dismissal of complaint was prayed.
- Complainant tendered into evidence his affidavit Ex.CW1/A alongwith documents Ex.C1 to Ex.C8 and closed the evidence on behalf of the complainant.
- Opposite Party tendered into evidence affidavit of Sh.Ajay Singh Cheema, Director Ex.OP1 alongwith documents Ex.OP2 to OP5.
- We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
- From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant booked one unit (flat) and gave a cheuqe of Rs.2,07,562/- as initial payment to the Opposite Party. The Opposite Party allotted one flat bearing No.C2-103 (1BHK) in the colony namely M/s.Impact Sare Magnum Township Private Limited, to the complainant. Complainant submitted that Opposite Party had assured the complainant that he has to pay only booking money and the remaining amount was liable to be paid after taking the possession of the flat with loan fund to be financed by the bank and the Opposite Party undertook to arrange the loan facility to the complainant from the appointed bank, but the Opposite Party failed to arrange the advancement of finance facility from their appointed bank. So, the complainant desired to withdraw himself from the said allotment and the complainant approached the Opposite Party for the refund of the amount, but the Opposite Party refunded an amount of Rs.,1,82,987/- only to the complainant on 31.7.2014 after making deduction of Rs.24,575/- on account of some commission and that too without giving any interest. Opposite Party has withheld the amount of Rs.2,07,562/- w.e.f. 3.6.2010 till 31.7.2014 without making the payment of any interest. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite party.
- Whereas the case of the Opposite Party is that the Complainant alongwith Smt.Harjot Kaur applied for a flat bearing No.C2-103 (1BHK) in the colony of M/s.Impact Sare Magnum Township Private Limited and made a payment of booking amount of Rs.2,07,562/- as initial amount. The complainant and Harjot Kaur were to execute Flat Buyer Agreement as per policy of the company. The complainant and Harjot Kaur were required to make payment as per terms and conditions as laid down in the application form. The complainant and Harjot Kaur had to make payment after getting the loan approved from their banker, but they could not arrange the loan as narrated by the complainant. Availing of such loan was wholly responsibility of the complainant. Opposite Party never assured the complainant that they would get arrange the loan facility for the complainant and Harjot Kaur. The complainant alongwith Harjot Kaur had purchased the said flat for speculative purpose with a motive to sell the same for profit; but the reality market was not fovourable for the last 2-3 years, so the complainant could not get suitable buyer. Said colony Crescent Parc/ Ashberry Homes is fully developed and number of buyers have taken possession of their respective flats in the said colony. After allotment of the aforesaid flat to the complainant and Harjot Kaur, they failed to pay any installment to the Opposite Party. Ultimately, the complainant approached the Opposite Party on 19.5.2014 for the refund of the amount deposited with the Opposite Party. As per the terms and conditions of the agreement between the parties, mentioned in the loan application in case the buyer fails to pay the installments, whole amount deposited by the buyer is liable to be forfeited, but as a goodwill gesture, the Opposite Party returned an amount of Rs.,1,82,987/- after deducting an amount of Rs.24,575/- only as nominal charges which included process fee, etc. Further, the Opposite Party has inadvertently written that this amount is deducted as commission. Ld.counsel for the opposite party submitted that there is no deficiency of service on the part of the Opposite Party qua the complainant.
- From the entire above discussion, we have come to the conclusion that complainant booked one flat in the colony developed by Opposite Party namely Crescent Parc/ Ashberry Homes through application form Ex.OP2 and deposited Rs.2,07,562/- as initial booking amount, on 3.6.2010 vide receipt Ex.C1. Consequently, flat on first floor bearing No.C2-103 (1BHK) in the colony of M/s.Impact Sare Magnum Township Private Limited was allotted to the complainant. The balance amount was to be paid by the complainant in installments after getting loan from his banker, but the complainant could not arrange loan amount from any bank. Plea of the complainant that Opposite Party assured the complainant that the Opposite Party would get arranged loan facility to the complainant, is not tenable because the complainant could not produce any evidence in this regard that the Opposite Party had assured the complainant that Opposite Party would get arranged loan facility for the complainant to pay the balance amount in installments. Even after the allotment and after taking possession of the aforesaid flat, the complainant did not make the payment of any installment and the Opposite Party issued notice dated 5.6.2013 Ex.OP3 through registered post and also served demand letter cum service invoice Ex.OP4, but the complainant did not pay the balance amount to the Opposite Party through installments. However, ultimately the complainant approached the Opposite Party on 19.5.2014 for the refund of the amount on the plea that the banker of the complainant has rejected his loan request. As per the application form duly filled in and signed by the complainant Ex.OP2, the complainant/ applicant has undertaken that if he fails to pay further installments as per the payment plan, or to execute the Flat Buyer’s Agreement, the company shall be entitled to treat this application/ Flat Buyer’s Agreement as cancelled and forfeit the entire Booking Amount/ earnest Money, for which the complainant shall not raise any objection in this regard. Apart from this, as per the terms and conditions of the application for allotment and agreement between the parties: Clause No.7, the earnest money shall be liable to be forfeited in the event of withdrawal of allotment by the intending allottee and/ or cancellation of allotment on account of default/ breach of the terms and conditions of allotment/ transfer. But inspite of that Opposite Party as a goodwill gesture refunded an amount of Rs.,1,82,987/- to the complainant on 31.7.2014 after deducting small amount of Rs.24,575/- only due to process fee/ commission, etc.
- Consequently, we hold that the Opposite Party was justified in deducting this amount of Rs.24,575/- only, however, as per clause 7 of the allotment, the Opposite Party was entitled to forfeit the entire booking/ earnest amount of the complainant.
- Resultantly, we hold that the complaint is without merit and the same is hereby dismissed with no order as to cost. Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Dated: 04.03.2016. (Bhupinder Singh) President hrg (Anoop Sharma) (Kulwant Kaur Bajwa) Member Member | |
