Haryana

StateCommission

CC/230/2016

KAPIL GUPTA - Complainant(s)

Versus

MAPSKO BUILDERS PVT.LTD. - Opp.Party(s)

VISHAL YADAV

24 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.230 of  2016

Date of the Institution:12.08.2016

Date of Decision: 24.08.2018

 

Kapil Gupta S/o Sh.Ram Avtar, Shop No.36,
Anaj Mandi, Sampla, Distt. Rohtak.

                                                                   .….Complainant

Versus

M/s Mapsko Builders Pvt. Ltd., Office at 125, Ist Floor, Vipul Agora, M.G.Road, Gurgaon 122002 through its Director/Authorised Signatory.

                                                .….Opposite Party

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Vishal Yadav, Advocate for complainant.

Mr.Susheel Jain, Advocate counsel for opposite party.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts germane to the present complaint are that  complainant purchased flat No.503, 5^th Floor H-Block measuring 1490 sq. ft. in Maps Mount ville, Sector 78-79,gurgaon, Haryana for the total consideration of Rs.70,92,400/-.  The complainant deposited the amount of Rs.20,64,312/- in installments with the O.P.  The O.P. without any prior intimation has increased the price of the flat i.e. Rs.89,19,500/- instead of Rs.70,92,400/-.  As per the terms and conditions of the agreement, the O.P. has wrongly enhanced the price of the flat.  Thereafter, the O.P. has cancelled the above said flat without assigning any reasonable ground. The complainant requested the OP to restore the said flat, but, to no avail.  The complainant also requested the OP to refund the amount of Rs.20,62,312/- alognwith interest, but, OP was prolonging the matter on one pretext or the other. The O.P. wrongly forfeited the amount and he received only Rs.1,10,101/- by way of cheque dated 17.03.2016. A legal notice dated  16.03.2016 was sent to the O.P. to refund the amount tendered by him with interest, but, OP did not entertain the request of complainant.   Hence under the constraint circumstances the complainant had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.P. to make payment of a sum of Rs.20,64,312/- alongwith interest from date of its receipt.

2.      The complaint has been resisted by the OP and alleged that total sale price of the flat was 89,19,500/- instead of Rs.70,92,400/-. The complainant had signed the application form which clearly mentioned all the terms and conditions. The complainant opted the construction link plan. O.P. was issued a demand letters dated 04.12.2012, 24.12.2012,19.02.2013,08.03.2013, 31.07.2013, 04.09.2013,, 07.10.2013, 15.11.2013 16.01.2014 to the and 05.01.2015 and requested the complainant to deposit the installment, but, he failed to deposit the installments.  Due to non-deposit of installments by the complainant, OP has cancelled the booking of the flat on 23.01.2015.  As per the terms and conditions of the agreement, OP entitled to forfeit the earnest money alongwith interest.  Preliminary objections about concealment of material facts, maintainability of complaint, complainant was not consumer etc. were also raised and requested to dismiss the complaint.

3.       When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit  vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-5 and closed his evidence.

4.                On the other hand in order to rebut the evidence led on behalf of the complainant the O.P. had also tendered the affidavit Ex.RA that of Mr. Ajay Gupta company Secretary of Mapsko Builder Pvt. Ltd. and also tendered documents Ex.R-1  to R-16 and closed his evidence.

5.                The arguments have been advanced by Sh.Vishal Yadav learned counsel for the complainant as well as Mr.Susheel Jain, learned counsel for the opposite party.  With their kind assistance the entire records including documentary evidence as well as whatever the evidence had been led during the prosecution of the complaint had also been properly perused and examined.

6.                While unfolding the arguments it has been argued by Sh.Vishal Yadav, learned counsel for the complainant that  OP has illegally enhanced the price of the flat from Rs.70,92,400/- to Rs.89,19,500/-. An amount of Rs.20,62,312/- has already been paid. The complainant has purchased the flat for living purpose and not for speculation purposes or for the purpose of property dealing. OP has illegally cancelled the flat in question.  By that time, it was decided by him not to continue with the agreement and to seek the refund.  Even serving a legal notice had not brought any fruitful result.   Under these circumstances, the deposited amount be refunded alongwith interest  and other compensation as prayed for. 

7.                On the other hand it has been argued by Sh.Susheel Jain, learned counsel for the OP that admittedly, initially the flat was booked in the name of complainant for speculation purposes or for the purpose of property dealing, so complainant does not fall within the definition of “consumer”. O.P. was issued a demand letters on different phases and requested the complainant to deposit the installment, but, he failed to deposit the installments and due to non-deposit of installments by the complainant, OP has rightly cancelled the booking of the flat on 23.01.2015.  As per the terms and conditions of the agreement, OP was entitled to forfeit the earnest money alongwith interest.  The complainant himself was not interested to pay the balance amount, the plea of consumer, maintainability, concealment of material facts were also taken and finally it was prayed that the complaint may be dismissed.

9.                In view of the submissions and after careful perusal of the entire record it is true that initially the flat had booked in the name of complainant and basic sale price of the flat was Rs.70,92,400/-. The OP illegally cancelled the flat on 23.01.2015 Ex.C-3.  By that time, it has been decided by the complainant that, he would get his entire amount refunded.  He had made repeated requested to refund the amount but of no consequence. Even a legal notice Ex.C-6 was served but of no consequence.  Since the flat had booked for residential purpose and in view of the definition enshrined under section 2 (i) (d) of the Consumer Protection Act, the complainant is consumer of the opposite party as he has booked the premises for residential purpose.

10.               This commission has scrutinized the documents placed on record and prepared at the instance of the O.P.      The conditions are very stringent,  when there is a delay in making the payment of the installment, a heavy rate of interest would be charged as a penalty for non-performing the terms and conditions and even  due to certain exigencies, the investor is not in a position  to continue to make the payment of the installment or due to certain exigencies, he did not continue the remaining payment of the flat, in that eventuality  as per clause 10 the builder would be at his sole discretion is entitled to forfeit the 50% amount  deposited by the investor. The builders cannot be allowed to forfeit the hard earned money of the investors and in such like cases, it has to be reasonable check upon the terms and conditions inserted in the documents which are to be signed by the investor as well as builder. In the present case if there is a default in making the payment of the installment or withdrawn of the registration money or allotment of a unit, in that eventuality also, the builder has put a rider, there would be deduction of the 50% of the amount deposited by the investor.  It is a high handedness on the part of the builder and builder cannot be put to insert conditions which are suitable to them only and adversely affecting the interest of the investors.  Though there is apparent default on the part of the present complainant not to continue the payment of the installment may be due to certain exigencies or due to financial constraint at least in that eventuality, the complainant may be entitled to recover the amount, which has been deposited with the developer as the developer has utilized that particular fund, the amount deposited by the investors for the period for which the amount has been utilized.  As far as, as such the investors cannot be deprived his valuable rights to seek refund of the amount, which he has invested.  As far as the interest is concerned, which is absolutely the power of the court as to what rate of interest is to be allowed under the particular circumstances but in the interest of justice and equity, it would be in the interest of the investors and particularly in this case, a reasonable interest @ 6% is allowed.  With the above observation, the complaint is allowed and directions are issued to the O.P. to make the payment of Rs. Rs.20,64,312/- alongwith interest @ 6%  per annum from the date of its receipt, till the date of actual payment.   Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period  of  three months in that eventuality the complainant would further be entitled to get the interest @ 9% per annum, for the defaulting period.   It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

August    24th, 2018                                      Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

S.K.