BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.585 of 2014
Date of institution: 17.09.2014
Date of Decision: 04.06.2015
Sanjay Tikku resident of House No.859, Excel Housing Society, Sector 48-A, Chandigarh 160047.
……..Complainant
Versus
Janta Land Promoters Limited having its registered office at 538, Phase-X, Sector 64, Mohali (Punjab).
And
Corporate Office at SCO 39-42, Sector 82, SAS Nagar (Mohali) Punjab 140306.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member
Mrs. R.K. Aulakh, Member.
Present: Ms. Harpriya Khaneka, counsel for the complainant.
Shri Gaurav Jindal, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Party (for short ‘the OP’):
(a) to refund him Rs.8,71,603/- with interest @ 8% per annum from the date deduction till payment.
(b) to pay him Rs.42,135/- as processing fee paid by him to HDFC Bank.
(c) to pay him Rs.1,00,000/- for mental harassment.
(d) to pay him Rs.50,000/- as costs of litigation.
The complainant’s case is that he booked with the OP flat No.703 in Tower-C with area of 3012 sq. ft. in Falcon View project situated in Sector 66-A, Mohali. The complainant opted for down payment plan @ Rs.3700/- for area of 3012 sq. ft. which comes to Rs.1,11,44,400/-. The down payment plan was with an offer of 7% rebate on the basic sale price. Thus there was discount of Rs.7,80,108/- on the basic sale price. The complainant was assured that the net purchase price of the flat would be Rs.1,03,64,292/-. The complainant made payment of Rs.10.00 lacs vide cheque dated 08.11.2013 receipt whereof Ex.C-3 was issued by the OP. Allotment letter dated 16.11.2013 Ex.C-4 was issued by the OP thereby allotting flat No.C-703 measuring 3012 sq. ft. However, as per clause 2.2 the payment was contradictory to the payment plan devised earlier as it did not include the 7% rebate offered in the down payment plan. It also included exorbitant amount of service tax which the complainant was never apprised of. The complainant refused to receive the letter. The complainant sent a letter dated 06.12.2013 Ex.C-5 to the OP raising objection regarding payment of service tax etc. The OP issued letter dated 11.03.2014 in complete contradiction to letter dated 16.11.2013 asking the complainant to pay 85% of the purchase price within 30 days of initial payment of Rs.10.00 lacs. Inspite of this the complainant was still having intention to purchase the flat he got approached a loan to the tune of Rs.75 lacs from HDFC Bank by paying process fee of Rs.42,135/-. The loan was approved vide letter dated 29.05.2014. The bank also demanded certain documents from the complainant which the complainant sought from the OP and the OP informed the complainant 3 months time would take to give those documents to the complainant. Instead of giving him the documents, the OP vide letter dated 17.06.2014 cancelled the allotment on the ground that as the complainant had failed to deposit the amount stipulated in clause 2.2. of letter dated 16.11.2013. The allotment was cancelled by deducting 7½% of the amount of sale consideration which amounts to Rs.8,71,603/ and the balance Rs.1,28,397/- was refunded to the complainant. The complainant vide e-mail dated 01.07.2014 informed the OP that 75% of the payment as per down payment plan has been approved by the bank and after supply of documents it would be released. The OP vide e-mail dated 08.07.2014 informed that the documents could only be provided to him after restoration of cancellation. The complainant vide e-mail dated 18.07.2014 informed the OP that only booking of the flat was made an all the dues would be paid upon allotment or in the alternative the payment could be made as per construction link plan by making payment of Rs.30.00 lacs and further amount after release of loan by the bank. The OP vide email dated 18.07.2014 asked the complainant to complete all formalities after which allotment letter and other documents regarding loan could be issued. The complainant vide email dated 21.07.2014 demanded list of formalities to be completed to which the OP never replied. Deduction of Rs.8,71,603/- and cancellation of allotment is an act of deficiency in service on the part of the OP.
2. The OP in the written statement has pleaded the complainant himself has failed to deposit the overdue amount as per terms and conditions of the allotment letter dated 16.11.2013. As per policy of the OP if a person withdraws from the allotment before the allotment letter is issued then 5% of the deposited amount is forfeited and if the withdrawal is within 90 days of issuance of allotment letter then 7 ½ % of the total sale price is forfeited and if it is after 90 days then 10% of the total price is forfeited. The price of the flat was calculated at Rs.3700/- per sq. ft. instead of Rs.3890/- per sq. ft. after rebate of 7% which means discount of Rs.5,32,220/- was offered to the complainant provided he deposited the 85% of basic sale price (excluding car parking and PLC) within 30 days instead of 75 days. Vide allotment letter dated 16.11.2013 the complainant was asked to make payment under Time Linked Plan as the down payment plan was not materialized due to fault of the complainant. The cancellation was done vide letter dated 17.06.2014 as the complainant had failed to deposit the overdue amount. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-15.
4. Evidence of the OP consists of affidavit of H.B. Garg, its General Manager Ex.OP-1/1 & copies of documents Ex.OP-1 to OP-3.
5. We have heard the learned counsel for the parties and have gone through the written arguments filed by them.
6. Admittedly the complainant has paid a sum of Rs.10.00 lacs to the OP on 08.11.2013 as part payment towards the allotment of flat No.703 in Tower-C with area of 3012 sq. ft. in Falcon View project situated in Sector 66-A, Mohali. Admittedly the complainant has been issued allotment letter dated 16.11.2013 by the OP. Admittedly, the complainant was not satisfied with the terms of allotment letter and sought certain clarifications from the OP and returned the original allotment letter with the request to issue corrected letter incorporating the points raised by him in the said letter. The letter dated 18.12.2013 duly acknowledged by the OP is Ex.C-5. Instead of responding to the letter Ex.C-5 on the issues raised by the complainant, the OP has altogether altered the contents of the queries raised in the letter Ex.C-5. The response of the OP is Ex.C-6 letter dated 11.03.2014. Even while issuing the response letter Ex.C-6, the OP has retained the original allotment letter and till date has not issued the original allotment letter. Therefore, in the absence of original allotment letter containing terms and conditions governing the payment schedule etc. the complainant has not made any further installment or payment awaiting response and return of the original allotment letter from the OP. Rather than satisfying the complainant regarding his queries the OP has issued cancellation of apartment vide cancellation letter Ex.C-9 on the plea that the complainant has failed to deposit the remaining installments and, therefore, his allotment has been cancelled and the out of the deposited amount of Rs.10,00,000/- forfeited a total amount of Rs.8,71,603/- and refunded an amount of Rs.1,28,397/- vide cheque dated 09.06.2014. The grievance of the complainant is that the act of the OP in forfeiting the amount and cancellation of the apartment without any reason attributable to the complainant is an act of deficiency in service and unfair trade practice.
7. The OP has taken a categoric stand that the cancellation and forfeiture is as per terms of allotment and there is no deficiency in service and unfair trade practice on its part.
8. In order to resolve the controversy/dispute it will be appropriate to appreciate the contents of Ex.C-5 and the reasons for not making payment on the part of the complainant. Ex.C-5 clearly states the issues raised regarding para 2.2 of the allotment letter i.e. clarification sought regarding the time linked plan/construction linked plan and regarding service tax to be charged in advance or as per Govt. norms further regarding details and specifications of assessories to be provided with the flat like wall finishing, floor tiles, kitchen bathroom furnishing, doors and windows and other fittings etc. As per Consumer Protection Act, it is the right of the consumer to know the quality, quantity, specifications, detail of the articles before purchasing and the complainant has not done anything wrong or contrary while invoking his right to know in Ex.C-5. It is the duty of the seller to satisfy the complainant/buyer regarding the queries raised by him which in the present complaint the OP has failed miserably as there is nothing on record to show that the specific queries raised by the complainant in Ex.C-5 have been properly responded to by the OP. So much so the OP has acknowledged having received the original allotment letter but has not shown anything on record that the original allotment letter after incorporating the necessary changes or clarifications as sought by the complainant in Ex.C-5 has ever been returned to the complainant. Thus, in the absence of any terms and conditions in his hand, the complainant was well within his right to withhold the balance payment till such clarification sought comes forward from the side of the OP. Therefore, the forfeiture of the deposited amount after deduction as per policy of the OP and cancellation of allotment vide Ex. C-9 on the part of the OP is an act of unfair trade practice and deficiency in service on its part. During the course of proceedings the complainant has shown his disinterest to have any legal relationship with the OP as he has already purchased the property from other source and is not interested in buying this property anymore. Therefore, the complainant has sought refund of the deposited amount i.e. Rs.10,00,000/- from the date of deposit till realization. As stated above, the unilaterally cancellation and forfeiture of the amount by the OP without any contributory reasons on the part of the complainant, is an act of deficiency in service and unfair trade practice for which the complaint deserves to be allowed and the complainant deserves to be compensated.
9. Since the complainant has never received back the allotment letter with improved conditions, neither signed any buyers agreement, therefore, the condition of forfeiture of the deposited amount in the event of default in making payment, does not apply. The OP has no right to forfeit the amount deposited and the act of forfeiture and cancellation on the part of the OP is an act of deficiency in service and unfair trade practice for which the complaint deserves to be allowed and the complainant deserves to be compensated.
10. Hence, the complaint is allowed with the following direction to the OP:
(a) to refund the deposited amount of Rs.10.00 lacs (Rs. Ten lacs only) alongwith interest @ 9% per annum w.e.f. 08.11.2013 till realization minus Rs.1,28,397/- (Rs. One Lac twenty eight thousand three hundred ninety seven only) paid to the complainant on 09.06.2014.
(b) to pay a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) to the complainant on account of mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
June 04, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
