Case No.CC/628/2009

Date of Institution:-09.09.2009

Order Reserved on :-12.02.2024

           Date of Order :- 30.04.2024      

IN THE MATTER OF:

Sonie Daniel & Another

W/o Sh. Lawrence Walter,

R/o R-95B, First Floor, Left Side,

Khirki Extension, New Delhi – 110017.

          …..Complainants

VERSUS

M/s. Innovative ColonisersPvt. Ltd.

Registered Office:

4, Battery Lane, Rajpura Road,

Civil Lines, Delhi – 110054.

Sales Office:

312-316, Ansal Chamber-II,

BhikajiCama Place, New Delhi – 110066.

..…Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The present complaint has been filed under section 12 of the Consumer Protection Act, 1986 against Opposite Party (in short OP) alleging deficiency of service. Brief facts of the case are that OP is a company incorporated under the provisions of the Companies Act, 1956 and is inter alia engaged in the business constructing and developing housing and commercial projects.The complainants have applied for residential apartment/low rise floor in the project “Cosmos Green” of OP vide application dated 06.03.2008. The OP has allotted an apartment/flat to the complainants bearing Flat No. 541 in the above said project.  The complainants have paid Rs.7,53,500/- (Rupees Seven Lakh Fifty Three Thousand Five Hundred) in four installments towards part consideration for the flat of the complainants. The OP has duly acknowledged said payment by issuing receipts for each payment on 03.03.2008, 18.05.2008, 30.06.2008 and 26.08.2008 respectively to the complainants. Due to unfortunate and unavoidable turn of events, the complainants urgently required money,they have requested OP on 03.01.2009 to cancel their booking of the flat and refund sum of Rs.7,53,500/- to the complainants.   The OP has refunded Rs.6,16,400/- (Rupees Six Lakh Sixteen Thousand Four Hundred) on 27.05.2009 to the complainants through two cheques bearing no. 548221 and 548222 dated 20.06.2009 and 31.07.2009 respectively.  The OP has deducted 10% of the amount together with the brokerage.  It is alleged that OP has deducted Rs.1,37,500/- was illegal.  The OP has not explained reasons of 10% deduction to the complainants.  The Complainants have also suffered loss of interest from 03.01.2009 to 31.07.2009.  The complainants stated that they are consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 as the complainants have booked flat in the project of OP by partly paying the consideration. The complainants have prayed for refund of Rs.1,37,500/- (Rupees One Lakh Thirty Seven Thousand Five Hundred)alongwith interest @18% p.a. from date of request of refund i.e. from 03.01.2009 to 31.07.2009 on Rs.6,16,000/- and Rs.1,00,000/- (Rupees One Lakh) for mental agony and harassment.
2. Notice of complaint was served to OP. The OP has filed his reply and taking several preliminary objections that the complaint is not supported with the affidavit of the complainants as well as documents related upon.  The complaints do not fall under the ambit of Section 12 of the Consumer Protection Act, 1986 and hence the complaint is unsustainable in the eyes of law and deserves to be dismissed.  The OP has alleged that the complainants have signed the flat application form with the OP, wherein it was specifically mentioned that in the event of any member/flat buyer cancels his booking,OP shall  refund the money after deduction of the earnest money i.e. 10% of the total money as per the application form. The OP has paid Rs.6,14,400/- (Rupees Six Lakh Fourteen Thousand Four Hundred) after appropriate deduction to the complainants. Hence, the complaint is liable to be dismissed.
3. In response to the written statement, the complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
4. Both the parties have filed affidavit of evidence as well as written arguments in support of their respective case.
5. On 12.02.2024, the case was listed for arguments and none werepresent, the case is related to 2009, we feel it prudent to decide the case due to long pendency. Hence, the case was reserved for order.
6. We have carefully considered the material on record and thoroughly perused the documents placed on record by the complainant.
7. It is an admitted case of the OP thatthe complainants have applied for residential apartment/low rise floor in the project “Cosmos Green” of OP vide application dated 06.03.2008. The OP has allotted an apartment/flat to the complainants bearing Flat No. 541 in the above said project.  The complainants have paid Rs.7,53,500/- (Rupees Seven Lakh Fifty Three Thousand Five Hundred) in four installments towards part consideration for the flat of the complainants. The OP has duly acknowledged said payment by issuing receipts for each payment on 03.03.2008, 18.05.2008, 30.06.2008 and 26.08.2008 respectively to the complainants. Due to unfortunate and unavoidable turn of events, the complainants urgently required money, they have requested OP on 03.01.2009 to cancel their booking of the flat and refund sum of Rs.7,53,500/- to the complainants.   The OP has refunded Rs.6,16,400/- (Rupees Six Lakh Sixteen Thousand Four Hundred) on 27.05.2009 to the complainants through two cheques bearing no. 548221 and 548222 dated 20.06.2009 and 31.07.2009 respectively.  The OP has deducted 10% of the amount together with the brokerage.  It is alleged that OP has deducted Rs.1,37,500/- was illegal.  The OP has not explained reasons of 10% deduction to the complainants.  The Complainants have also suffered loss of interest from 03.01.2009 to 31.07.2009.  The complainants stated that they are consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 as the complainants have booked flat in the project of OP by partly paying the consideration.
8. The OP has placed reliance of Hon’bleNational Consumer Dispute Redressal CommissionRevised Petition no. 2719 of 2011,is as follows:

“We arethe considered view that the learned State Commission correctly held that the petitioner is nor more a ‘consumer’.Itmust be borne in mind that the complainant surrendered the plot voluntarily. He accepted the cheque sent by the respondent without demur. He should not have accepted the amount without raising any objection. It is well settled that after surrender of the plot and getting refund of the deposited amount, the complainant does not remain to be a ‘consumer’. Learned State Commission has quoted the authority of Punjab and Haryana High Court reported in Haryana Urban Development Authority versus M/s Zuari Industries, 2009 (3) RCR (Civil) 104 (P&H).”

The Hon’ble Supreme Court of India was pleased to hold that under such like circumstances, the competent authority will be fully justified in forfeiting the earnest money which had been deposited and not the 10% of the amount deposited as held by the High Court in HUDA vs. KewalKrishanGoel and Others SLJ 96 (4)2836.

9. The complainants have cancelled their booking of flat and received Rs.6,16,400/- (Rupees Six Lakh Sixteen Thousand Four Hundred) from the Opposite Party and hence the complainants are not consumers in this case. Accordingly, the case is dismissed with no cost.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announce in the open Court on 30.04.2024 at 3.30 PM.