District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.7/2021.
Date of Institution: 05.01.2021.
Date of Order: 08.07.2022.
Urmila Devi Sharma, Aged 58 years W/o Shri Raj Kumar Sharma and Mr. Deepak Raj S/o Shri Raj Kumar Sharma, Flat No. T12/4B, The Ozone Park apartment, Sector-86, Tigaon road, Faridabad – 121002 (Haryana).
…….Complainant……..
Versus
Iris Plaza Private Limited, Corporate office at Plot No. 18, 5th floor, Sector -44, Gurgaon , Haryana.
…Opposite party……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Ms. Urmila Devi complainant in person.
Sh. Arpan Chaprana, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant had booked a 3BHK flat (Carpet Area 640.68 square feet) on 05.08.2018 vide application NO. 5574 in “Terra Lavinium” project, Sector-75, Faridabad with Iris Plaza Pvt. Ltd., a company incorporated under the Company Act, 1956 and having its corporate office at plot No. 18, 5th floor, Sector-44, Gurgaon granted license No. 79 of 2017 by the Director General Town & country Planning, Haryana, Chandigarh for construction and development of an Affordable Group Housing Colony, as per affordable housing policy 2013 on the said land. The flat was booked for total cost of Rs.25,42,736/- with booking amount of Rs.1,32,500/-. The Developer had executed “Builder Buyer Agreement on 06.12.2018. The complainants had noticed that agreement was entirely in favour of developer, one side agreement and there were unfair clauses also (in the case of one side agreement, The Competition Commission of India (CCI) under India’s antimonopoly regulator had imposed penalty on DLF for draft one side agreement with flat buyers of Belair Housing Complex in August 2011, CCI also asked the company to modify unfair conditions imposed on buyer within three months). Complainants had paid Rs.1,32,500/- vide receipt No. TLV/RN-0025 dated 05.08.2018, Rs.5,72,940/- vide receipt No. TLV/RN-0799 dated 26.12.2018, Rs.3,02,122/- vide receipt No. TE19-20REC000186 dated 17.06.2019 and Rs.3,33,123/- vide receipt NO. TE19-20REC000714 dated 05.12.2019. (Total amount paid Rs.13,40,685/-). The complainants had filed surrender/cancellation application dated 09.08.2020 for cancellation of allotment on 21.08.2020 at Developer’s office at Sector-75, Faridabad, due to financial problem arise in lockdown of COVID-19 and opposite party had forced them to get NOC from its agent M/s. Shri Balaji Group, through whom flat was booked. To get NOC, they had paid Rs.30,000/- cash to the agent, which was not in the line of Builder Buyer Agreement. The opposite party had refunded Rs.1055,319/- vide two postdated cheques No. 3590 dated 12.12.2020 for Rs.5,27,660/- and cheque No. 3592 dated 15.12.2020 for Rs.5,27,659/- in the first week of November 2020 against his total payment of Rs.13,40,685/-. Whereas the agreement’ clause 2,3 states that “It is specifically agreed that the amount of Rs.25,000/- plus taxes shall be treated as earnest money. The earnest money shall be liable to be forfeited in the event of surrender of allotment by the allottee and or cancellation on account of default/breach of the terms and conditions of allotment/transfer contained herein, including non-payment of installments. In the event of surrender/cancellation, the earnest money will stand forfeited and the balance amount, if any will be refunded to the allottee.” As per clause 2.5 of agreement states that “Upon the failure of the allottee to clear/make payment of the entire due amount within in the aforesaid additional period of 15 days, the allotment of the said apartment shall stand cancelled without the need for the developer to do or as per clause No.2.10 states that “in case of default in repayment of dues of the bank/financial institution/agency by the allottee, the alottee authorize the Developer to cancel the allotment of the said apartment and repay the amount received till that date after deduction of earnest money, directly to bank/financing institution/agency on receipts of such request from financing agency without any references to the allottee. In all case of cancellation of allotment, only earnest money will be deduct. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) Pay to the complainant Rs.2,90,366/- alongwith interest @ 15% p.a. from the date of payment and till date of refund.
b) pay to the complainants interest @ 15% for the period of refund, as opposite party took nearly 4 months for refund.
c) pay Rs. 20,000/- as compensation for causing mental agony and harassment .
d) pay Rs.10,000/- as litigation expenses .
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the complainant booked the 38HK flat/unit bearing NO. 401, Tower F, on 05.08.2018 in the project of opposite party namely “Terra Lavinium” situated at Sector-75, Faridabad and also executed an agreement with the opposite party company on 28.03.209 in respect of above said flat/unit. It was further submitted that the complainant had surrendered the abovesaid flat on 21.08.2020 after 2 years from the date of commencement of project and also wrote letter dated 24.12.2020 to opposite party in which complainant admitted that complainant had surrendered the abovesaid flat on 21.08.2020 at the site office at Faridabad. As per notification bearing NO. PF-27/15922 dated 05.07.2019 issued by Town and Country Planning department of Haryana Government, the opposite party was entitled to deduct 25,000/- plus 5% of the total cost of the project form complainant due to surrendered of above said flat after 2 years from the date of commence and also entitled to deduct GST from the complainant which were deposited by the opposite party to the government. It was submitted that the complainant had admitted in his calculation sheet that he had agreed to receive full and final payment , where after he admittedly received Rs.10,55,319/- vide cheque No. 3590 dated 12.12.2020 and 3592 dated 15.12.2020 for full and final satisfaction of his claim. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party – M/s. Iris Plaza Pvt. Ltd. with the prayer to : a) Pay to the complainant Rs.2,90,366/- alongwith interest @ 15% p.a. from the date of payment and till date of refund. b) pay to the complainants interest @ 15% for the period of refund, as opposite party took nearly 4 months for refund. c) pay Rs. 20,000/- as compensation for causing mental agony and harassment . d) pay Rs.10,000/- as litigation expenses .
To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Urmila Devi Sharma,, Annx.C-1 – Builder Buyer Agreement,, Annx.C-2 – Acknowledgement, Ex.C-3 to C-6 – receipts, Annx.C-7 – application dated 09.08.2020 regarding surrender/cancellation of allotment of apartment, Annx.C-8 – Bank advice for cheque dishonored, Annx.C-9 – letter dated 24.12.2020 for detail of amount deducted.
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party, Ex.RW1/X – affidavit of Shri Nagender Verma, Authorized Representative of M/s. Iris Plaza Private Limited having corporate office at Plot NO 190, Ground floor, Udyog Vihar, Phase-IV, Sector-18, Gurugram., Ex.RW1/A – Authorization letter, Ex. RW1/B – application for allotment of residential flats under Affordable Group Housing Policy 2013 of Government of Haryana, Ex.RW1/C – Builder Buyer Agreement, Ex.RW1/D – application dated 24.12.2020 regarding surrender/Cancellation of allotment of apartment, Ex.RW1/E - notification.
6. In this case, the complainant had booked a 3BHK flat (Carpet Area 640.68 square feet) on 05.08.2018 vide application No. 5574 in “Terra Lavinium” project, Sector-75, Faridabad with Iris Plaza Pvt. Ltd., and having its corporate office at plot No. 18, 5th floor, Sector-44, Gurgaon granted license No. 79 of 2017 by the Director General Town & country Planning, Haryana, Chandigarh for construction and development of an Affordable Group Housing Colony, as per affordable housing policy 2013 on the said land. The flat was booked for total cost of Rs.25,42,736/- with booking amount of Rs.1,32,500/-. The Developer had executed “Builder Buyer Agreement on 06.12.2018. The Complainants had paid Rs.1,32,500/- vide receipt No. TLV/RN-0025 dated 05.08.2018, Rs.5,72,940/- vide receipt No. TLV/RN-0799 dated 26.12.2018, Rs.3,02,122/- vide receipt No. TE19-20REC000186 dated 17.06.2019 and Rs.3,33,123/- vide receipt NO. TE19-20REC000714 dated 05.12.2019. (Total amount paid Rs.13,40,685/-). The complainants had filed surrender/cancellation application dated 09.08.2020 for cancellation of allotment on 21.08.2020 at Developer’s office at Sector-75, Faridabad, due to financial problem arise in lockdown of COVID-19 and opposite party had forced them to get NOC from its agent M/s. Shri Balaji Group, through whom flat was booked. To get NOC, they had paid Rs.30,000/- cash to the agent, which was not in the line of Builder Buyer Agreement. The opposite party had refunded Rs.1055,319/- vide two postdated cheques No. 3590 dated 12.12.2020 for Rs.5,27,660/- and cheque No. 3592 dated 15.12.2020 for Rs.5,27,659/- in the first week of November 2020 against his total payment of Rs.13,40,685/-.
7. During the course of arguments, counsel for the opposite party argued at length and given the policy of the RERA for the year 2019 in which he has stated that :
a) As per Secc.54 of the CGST Act 2017 “The only option left with the Builder is to go for efund of the taxes paid under GST within2 years from the date of cancellation of flat by the customer.”
b) A credit note to be issued u/s 34 by the Real Estate Developer in case unit was booked prior to Ist April 2019 on which GST was paid on part consideration received at the time of booking, but cancelled after Ist year, 2019.
Counsel for opposite party has also placed on record Terra Lavinium Cancellation/Surrender Summary. The details are as under:-
Deposite amount : Rs.13,40,685/-
Less
Cancellation charges : 155637/- (130637 +25000)
GST : 28015+101714 =(129729)
Other Charges : Rs,1830/-
Total amount : Rs.2,87,196/-
Refundable amount : Rs.10,53,489/-
8. On the other hand, counsel for the complainant has also place don record Extract from Haryana Govern ment Gazette (Extra), dated 19th August, 2013 in which he has stated that that:
h. In case of surrender of flat by any successful applicant, an amount of Rs.25,000/- may be deducted by the coloniser. Such flats may be considered by the committee for offer to those applciants failling in the waiting lists.
i. If any successful applicant fails to deposit the installments within the time period as prescribed in the allotment letter issued by the colonizer, a reminder may be issued to him for depositing the due installment within a period of 15 days from the date of issue of such notice. If the allottee still defaults in making the payment, the list of such defaulters may be published in one regional Hindi news-paper having circulation of more than ten thousand in the State for payment of due amount within 15 days from the date of publication of such notice, failing which allotment may be cancelled. In such cases also an amount of Rs.25,000/- may be deducted by the coloniser and the balance amount shall be refunded to the applicant. Such flats may be considered by the committeee for offer to those applicants falling in the waiting list.
9. After going through the evidence led by the parties, the Commission is of the opinion that the Affordable Housing Policy of 2013 is covered by the complainant’s case which is placed by the complainant during the course of arguments. Policy of 2019 issued by the opposite party is not applicable in this case. Keeping in view of the above, the Commission is of the opinion that the complaint is allowed.
10. Opposite party is directed to:
a) Opposite party is directed to refund the deposited amount paid by the complainant after a deduction of Rs.25,000/-.
b) Opposite party is also directed to refund the deposited amount without GST because GST amount is not refundable.
c) pay Rs.2200/- as compensation for causing mental agony and harassment.
d) pay Rs. 2200/- as litigation expenses.
Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 08.07.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
