CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

    Case No.68/2016

POONAM BARNWAL

W/o MANEESH BARNWAL

R/o HOUSE NO. 101, II FLOOR, STREET NO. 05,

SOUTH GANESH NAGAR, DELHI                          …..COMPLAINANT

KW INTERNATIONAL HOLDING

THROUGH ITS DIRECTORS

HAVING ITS REGISTERED OFFICE/ SITUATED AT

E-162, GREATER KAILASH II,

NEW DELHI

ALSO AT:

COLISTA TOWERS

DELHI-GHAZIABAD LINK ROAD, VAISHALI,

NEAR 41 PAC BATALION,

UTTAR PRADESH                                                      ….OPPOSITE PARTY

 Date of Institution-17.02.2016

               Date of Order-16.08.2024

  O R D E R

DR. RAJENDER DHAR-MEMBER

1. The complaint pertains to the mis-selling of the property, deficiency in services and unfair trade practice on the part of the OP.
2. The complainant in his complaint has stated that OP is a property developer operating from sector 1, Vaishali, Ghaziabad, Uttar Pradesh and has registered office at E-162, Greater Kailash-II, New Delhi.
3. Complainant has stated that OP approached the complainant in the month of August, 2012 through its agents/employees and they convinced the complainant with fake promises that the said location i.e. Colista Towers is a coming up project at Vaishali, Ghaziabad will be a great location and it will be completed within two years and also has sanction for construction from Ghaziabad Development Authority and soon various banks will start disbursing loan on the property. The OP has made all mis-representations and false promises. The complainant was influenced and made a payment of Rs.7,50,000/- and booked a flat of 1,140 square feet at a basic sale price of Rs.4,375/- per square feet. Copy of the application form submitted by the complainant to OP is annexed as Annexure A-1.
4. Rs.7,50,000/- was paid to OP through RTGS from his bank account. Receipt was issued by OP which is duly signed and stamped by authorised signatories of OP and has been annexed as Annexure A-2.
5. The agents of OP promised to give the possession of the flat within two years starting from 2012 at the time of filing of application by the complainant. However, the plot or land is still lying vacant and no construction work has been undertaken. Complainant has further stated that he has made repeated efforts telephonically as well as physically by visiting the OP to refund his money but has failed.
6. On 09.11.2015, complainant sent a notice through speed post demanding refund of money along with interest but same was received back unclaimed. Copy of the notice sent to the OP along with the service report is annexed as Annexure A-3.
7. OP has not replied to any of the communications made by the complainant which has led to irreparable and wrongful loss to the complainant. Hence, the OP has been negligent and has adopted unfair conduct towards the complainant. The OP by not delivering the possession of the flat has breached his own verbal assurances.
8. Complainant has further stated that till date OP has not entered into builder- buyer agreement despite passage of three years, this amount to deceivement and unfair trade practice. Complainant had filed a complaint before the Hon’ble State Commission which was dismissed as withdrawn with the liberty to approach the concerned District Forum on 18.01.2016. In the end, complainant has prayed that OP be directed to refund the advance amount of Rs.7,50,000/- along with interest @24% per annum from the date of application till realisation, Rs.7,50,000/- on account of mental agony, harassment, loss of time and health to the complainant and Rs.1,00,000/- towards cost of litigation.
9. Parties went for mediation, but however, no settlement could take place.
10. OP in its reply has stated that the complaint is not maintainable for want of territorial jurisdiction as flat was booked with Colista Towers situated in the Vaishali, Ghaziabad, UP.
11. OP has also stated that the complaint is not maintainable on the ground that the property was hired for commercial purposes for resale. Therefore, the complainant is not a consumer as per Section 2(d) of Consumer Protection Act, 1986.
12. OP has stated that there is no deficiency in services nor unfair trade practice on the part of the OP. OP has further stated that complainant has defaulted in making the payments. However, complainant had booked the unit measuring 1,140 square feet with basic sale price of Rs.4,375/- per square feet with other charges. Complainant has paid Rs.7,50,000/-. However, the earnest money that is 10% of the total consideration amount paid by the complainant is liable to be forfeited. Since, the complainant has defaulted in making further payments, therefore, earnest money i.e. 10% of the total cost of consideration has also been forfeited. OP has also quoted judgement of Hon’ble Supreme Court in the matter of HUDA Vs. Kewal Krishna wherein the court has laid down that builder would be entitled to forfeit the amount paid by way of installment in a case where the allottee defaulted in making the payment of the remaining installments, hence, the builder is justified in forfeiting the earnest money. The OP has also quoted another judgement of Hon’ble Supreme Court titled as Prashant Kumar Sahi Vs. Ghaziabad Development Authority 2004 SCC 120 reiterating the judgment on similar facts.
13. On merit, OP has stated that no agent of OP approached the complainant rather complainant himself approached the OP for allotment. OP has also denied that there has been no mis-representation for allotment. OP stated that  complainant has defaulted in making the payments.
14. OP has further stated that no loss has been caused to the complainant due to him. The allegations made by the complainant are false and hence denied. In the end, OP has prayed that there is no substance/merit in the complaint and hence, same should be rejected.
15. Complainant has filed rejoinder and has reiterated the complaint
16. Complainant has filed evidence by way of an affidavit and has exhibited the following document:

1. Copy of application form is exhibited as Ex.CW-1/1.
2. Copies of receipts issued by OP are exhibited as Ex.CW-1/2.
3. Copy of the notice sent to OP along with service report is exhibited as Ex.CW-1/3(Colly).
4. Copy of the order dated 18.01.2016 passed by Hon’ble State Commission is exhibited as Ex.CW-1/4.

17. Written arguments were also filed by the complainant reiterating the contents of the complaint.
18. OP was provided adequate opportunities to file evidence. However, OP preferred not to file the same and hence, right of OP to file evidence was closed in the proceedings held on 20.11.2017.
19. This Commission is of considered opinion that it is a clear case wherein the  complainant had booked a flat of 1,140 square feet at a basic sale price of Rs.4,375/- per square feet and made a payment of Rs.7,50,000/- and despite passage of three years no Builder Buyer Agreement has been executed. This itself amounts to mis-selling and also to unfair trade practice on the part of OP. As far as jurisdiction issue is concerned it is observed that the OP is located in Greater Kailash-II and therefore, the present territorial jurisdiction of this complaint is correct. It is also seen that the OP has also forfeited earnest money of 10% of total cost of consideration which is generally forfeited and balance amount is refunded to the complainant as is the trade practice in the construction sector. No reason for balance amount which has not been refunded to the complainant has been mentioned by the OP. OP has tried to give a different picture to this Commission which is totally incorrect and different from the present circumstances.
20. Hence, under these circumstances it is clear that the OP has been making false promises and mis-selling to the complainant. The conduct of OP is also clear by not refunding the remaining/balance amount rather the OP has forfeited complete amount despite repeated requests for refund from the complainant. The OP has failed to deliver the possession of the booked flat within two years which amounts to deficiency in services. It is also seen that despite complainant’s vide letter dated 09.11.2015 for refund of amount OP has not refunded to the complainant.
21. In view of the above explained circumstances, it is clear that services of OP are found deficient by not delivering the possession of the booked flat in time to the complainant. In addition to it OP has also indulged into unfair trade practice by not entering into builder buyer agreement despite passage of considerable time which is 3 years. Ends of justice would be served for which following direction issued against OP:

1. OP to refund Rs. 7,50,000/- within one month from the date of issuance of this order failing which the amount shall carry interest @ 6%p.a. till its realisation.
2. An amount of Rs. 50,000/- as compensation on account of mental agony, harassment, loss of time and for adopting unfair trade practice.
3. An amount of Rs. 25,000/- as cost of litigation 

22. Order to be uploaded and to be complied with within 30 days from the date of the order. File consigned to record room.