Haryana

StateCommission

A/512/2014

M/s Business Park Town Planner Ltd - Complainant(s)

Versus

MEENA GARG - Opp.Party(s)

HEMANT SAINI

02 Feb 2017

ORDER

 

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                First Appeal No.512 of 2014

                                                          Date of Institution: 16.06.2014                         Date of Decision: 02.02.2017

 

1. M/s Business Park Town Planner Ltd. (BPTP Limited). M-11, Middle Circle, Connaught Circus, New Delhi-110001 through its Authorized Representative Mr.Rahul Dahiya.
2. Mr. Kabul Chawla, Managing director, M/s BPTP Ltd, M-11, Middle Circle, Connaught Circus, New Delhi-110001.
3. B.P.T.P. ltd. Site Office, Sector-82, Nahar Paar, Faridabad, Distt. Faridabad.

…..Appellants

                                      VERSUS

Meena Garg W/o Sh.S.S.Garg, Shiv Kutir, Near Civil Hospital, Distt. Palwal.

          …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Hemant Saini, Advocate counsel for the appellants.

Mr.Tanmoy Gupta, Advocate counsel for the Respondent.

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It was alleged by complainant that she booked an apartment through opposite party (O.P.) No.4 and handed over cheque of Rs.5,50,000/- bearing  No.101908 dated 12.05.2006 at that time. He was requested to handover brochure of the project, but, he told that formalities would be completed lateron.  On 13.05.2006 he handedover provisional receipt No.13538 and told that  final receipt would be issued lateron.  When final receipt was not received for six months a letter was written to O.P.No.1 on 09.12.2006. Vide letter dated 18.12.2006 they confirmed receipt of cheque No.009872 dated 12.12.2006 for Rs.1,86,250/-, whereas she paid Rs.5,50,000/- as mentioned above. When this fact was brought to their notice it was found that similar letter was also written by O.Ps to one Roop Chand son of Kundan Lal.  Vide letter dated 18.01.2007 she demanded refund of Rs.5,50,000/-. Realizing their mistake O.Ps. sent letter dated 06.02.2007 wherein number of her flat was mentioned as D-1403 in “Park Grandeura” and also demanded Rs.Three lacs.  It was told that said flat was allotted in draw  of lots on  30.01.2007 whereas no intimation was ever sent to her about draw of lots. As flat was situated on 14^th floor she requested them to allot an alternative flat on ground floor or first floor because her husband was physically handicap. Instead of accepting her request, they were insisting to pay Rs.Three lacs and vide letter dated 06.03.2007 threatened to cancel  allotment. Finding no other alternative she deposited Rs.Three lacs vide cheque NO.101912 dated 12.03.2007 and provisional receipt No.12033 was issued by O.ps. In this way she deposited Rs.8,50,000/- in all.  The behavior of the opposite parties was rude and  non-cooperative since very beginning so she requested them to refund the amount already deposited by her, but, to no use. So they be directed to refund amount alongwith interest as mentioned in the relief clause.

2.      O.ps. filed reply controverting her averments and alleged that District Forum was not having territorial jurisdiction to try the complaint because their office was situated at Delhi. She did not exhaust all  other remedies available under flat buyers agreement and as such complaint was not maintainable. She never sent letters to them as alleged in the complaint.  Even letters about  request to change floor of the flat were not received and these averments were raised just to create evidence which was clear from the fact that they were photocopies, but, signatures were in blue ink. Timely payment was essence of agreement. After aforesaid payment she did not pay even a single penny. When she did not respond to several letters,  a reminder cum Final Notice dated 21.07.2007 was issued to her to deposit the remaining amount of Rs.7,71,750/-. Even last opportunity was afforded vide letter dated 19.07.2008, but, even thereafter she did not deposit any amount. Finding no other alternative allotment was cancelled and earnest money was forfeited as per terms and conditions.  Through this  complaint she was trying to revive allotment and get the entire amount refunded. It was not possible to allot alternative flat because all the flats were already allotted. There was no discrimination in allotting the flat. Other averments were also denied and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Faridabad allowed the complaint  and directed as under:-

“Resultantly, complaint is allowed.  Opposite Parties are directed to pay  Rs.8,50,000/- with interest @ 11% per annum from the date of filing of this complaint till its realization to the complainant jointly and severally within 30 days.  Opposite Parties are further directed to pay Rs.20,000/- as compensation towards mental agony and harassment alongwith Rs.5500/- as litigation expenses.”

4.      Feeling aggrieved therefrom O.Ps. have preferred this appeal.

5.      Arguments heard.  File perused.

6.      Learned counsel for complainant vehemently argued that  when plot in question was allotted to her, O.Ps. were requested vide letter dated 12.02.2007 to allot a flat  on the ground floor because her husband was heart patient, but, there was no response.   She was never asked to deposit remaining amount as alleged by O.Ps.  Vide letter dated 06.03.2007 she was threatened to deposit Rs.Three lacs otherwise allotment would be cancelled, so she deposited Rs.three lacs. They did not deliver possession in time and their behavior was also non-cooperative that is why she asked for refund of the amount.  Learned District forum has rightly come to conclusion that there was deficiency in service on their part.

7.      Learned counsel for O.ps. alleged that the total cost of the flat was Rs.29,87,760/- lacs, but, she deposited Rs.8,50,000/- only, as mentioned above.  Letters were sent to her on 07.10.2007, 07.01.2008, 29.02.2008, 21.04.2008 and 21.05.2008 to pay the remaining amount, but, to no avail. Even last opportunity was afforded, but, to no use.  Latest demand was raised to the tune of Rs. 31,72,390/-, but, no reply was received from her. Ultimately allotment was cancelled and earnest money was forfeited as per agreement.  It cannot be presumed that she was not aware about the terms and conditions  and total amount. When she did not adhere to financial discipline the earnest money was forfeited  as per terms and conditions of the agreement. They are not liable to refund more money.

8.      Neither the arguments of the complainant’s counsel nor of the O.ps. counsel can be accepted in toto. It is alleged by Ops that earnest money was forfeited as per terms and conditions of agreement, but,  they have not produced any agreement on the file to show how the amount was to be deducted at the time of the cancellation. When O.ps. are raising averment to this effect it was their duty to prove this fact. It is also not  proved that flat buyers agreement was ever executed in between them. The copy produced by O.Ps. is not bearing  signature.  As per clause-C of the application, moved for provisional registration of plot, Ops were supposed to deliver possession within 12 months thereof. Otherwise they were supposed to refund the amount alongwith interest @ 09% per annum.  As per clause H of application in case of non-payment of entire amount, O.ps. were entitled to cancel allotment and refund entire  amount. When there is no document on the file, terms and conditions mentioned in this application are to be adhered to as already mentioned above. For ready reference clauses-C and H of application are reproduced as under:-

                   “Clause-C

In case the company is not in a position to make offer of allotment for the plot within a period of 12 months from the date of my/our application for any reason whatsoever, we shall only be entitled to refund of the advance for provisional registration paid by us alongwith simple interest @ 09% p.a. from the date of payment of such advance, subject to my/our giving you 30 days notice of the same.

Clause-H

I/We agree that in the event of default in making payment of any installment(s)/amounts as demanded by the company or any of the other terms and conditions agreed herein, my/our provisional Registration shall be treated as cancelled and I/we shall be left with no right, lien or interest herein save and except to claim refund of the actual amount paid by me/us.”

9.       When none of the parties have acted as per these terms and conditions they cannot blame anyone. When possession is not handed over in time complainant can ask for the refund of the amount, but, not the interest as she did not make payment in time, as opined by Hon’ble National Commission in First appeal No.06 of 2014 in  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014.  It is opined by Hon’ble National commission  in this case that if both the parties are at fault then complainant cannot ask for interest.  For ready reference Para No.10 of the said judgement is reproduced as under:-

“It is an admitted fact that both parties are at fault in this case.  As per above findings of the State Commission, admittedly the respondent had not developed the site and was not in a position to deliver the possession.  Be that as it may, the appellants also in this case were defaulters. When appellants themselves were the defaulters, therefore under such circumstances, they are not entitled for any interest.  On this issue, we are in full agreement with the reasonings given by the State Commission.”

10.    Impugned order is modified to the extent that the complainant is entitled only for the refund of the amount paid by her. With this modification, appeal stands disposed of.

11.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

 

February 02nd, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Member Addl.Bench

S.K.