Before the District Consumer Disputes Redressal Commission, Rohtak.
Complaint No. : 582.
Instituted on : 04.10.2022.
Decided on :22.12.2023.
Surender Singh (age 61 years), son of Shri Satpal, resident of H.No.40/10, Jasbir Colony, Near Sheela Bye Pass, Rohtak.
………..Complainant.
Vs.
- M/s BPTP Ltd., through its proprietor/owner/authorized person O/A, M-11, middle circle, Connaught Circus, New Delhi-110001.
- M/s Countrywide Promoters Pvt. Ltd. & Others-through its proprietor/owner/authorized person O/A M-11, Middle Circle, Connaught Circus, New Delhi-110001.
- Himalaya realators Shop no.616, Galaria Tower, 6th Floor, DLF galaria Road, Dlf Phase IV, Sector 28. Gurgaon, Hr.-122009.
……….Opposite parties.
COMPLAINT U/S 35 OF CONSUMER PROTECTION ACT.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR. TRIPTI PANNU, MEMBER.
DR.VIJENDER SINGH, MEMBER.
Present: Sh.Sandeep Kumar, Advocate for the complainant.
Sh. Arun Samota, Advocate for opposite parties.
ORDER
TRIPTI PANNU, MEMBER:
1. Brief facts of the case, as per the complainant are that he booked a 3BHK flat under project ASTAIRE GARDENS in Sector 70A, Gurgaon, through opposite party No.3 from opposite party No.1 & 2. The complainant had paid an amount of Rs.600000/-as booking amount through cheque no.912204 dated 10.02.2011 and opposite party no.1 also issued a payment receipt no.2020/1400033887 dated 01.03.2011 to the complainant. In May 2011 opposite party no.1 send a demand letter to the complainant for asking the payment of Rs.600598/- which was paid by the complainant through cheque no.912210 dated 19.05.2011 . But so far the opposite parties have not started any construction of flats. On 11.07.2011 complainant asked for the current status and allotment of flats but opposite party no.1 gave the allotment letter of flat no.E-30-FF dated 11.07.2011 to the complainant. Complainant also deposited a cheque dated 12.08.2011 amounting to Rs.733653/- on the demand of opposite party no.1. Complainant repeatedly visited to the office of opposite parties to know the status of flat and after six months, he came to know through an employee of opposite parties that his flat no.E-30FF had been cancelled due to non payment of the rest of the amount on demanding but they never send any demand letter except above mentioned 2 demand letters, on which the complainant made payments. Opposite party No.1 intentionally cheated the complainant. Opposite party used the complainant’s
money and never gave any flat to the complainant and even did not return the money back. Later on the complainant came to know that they had sold the flat to another person on more profit. Complainant repeatedly visited the office of respondents for past 11 years and finally they denied to give the flat and said that the complainant would have to accept their conditions if he wants to get his money back i.e. to sign on blank papers. Then they took sign of the complainant on blank papers and issued a cheque no.226029 dated 05.04.2022 for Rs.1934251/- to complainant which was the only principal amount paid by the complainant to the opposite party No.1. Due to delay in making payment by the opposite parties, the complainant had to suffer extra burden of Rs.500000/- as interest on loan amount and had incurred other expenses of Rs.180000/- in past 11 years. The act and conduct of the opposite parties is illegal and amounts to deficiency in service. Hence this complaint and it is prayed that opposite parties may kindly be directed to pay interest @ 24% p.a. from first payment to till now, to pay Rs.680000/- on account of loss/damages, to pay Rs.100000/- as compensation on account of harassment and Rs.22000/- as litigation expenses to the complainant.
2. After registration of complaint, notice was issued to the opposite parties. Opposite parties filed their written reply and has submitted that it is denied that complainant had never received any demand letter from the opposite parties. It is further submitted that despite selecting the payment plan of his own choice, the complainant defaulted in making timely payment for the unit in question vide payment request dated 09.01.2012 for an amount of Rs.7564437/-. Hence the opposite parties on various occasions sent reminder notices dated 21.02.2012, 21.04.2012 and letter of final opportunity dated 29.05.2012. Despite issuing various reminders the complainant failed to remit the outstanding due and ultimately the opposite parties were compelled to issue termination letter dated 08.05.2013. It is further submitted that despite the unit being terminated on 08.05.2013, the opposite parties without any forfeiture of earnest money, in good faith have refunded back the entire principal amount of Rs.1934251/- to the complainant vide cheque dated 05.04.2022 and the same was duly received and accepted by the complainant in full and final settlement to his claims. Therefore, no claim remains of the complainant and in view of which the complaint should be dismissed at the outset. The complainant had accepted the entire principal amount in full and final settlement to his claims. All the other contents of the complaint were stated to be wrong and denied. As such there is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
3. Ld. counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C6 and closed his evidence on dated 28.03.2023. Ld. counsel for the opposite parties has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R7 and closed his evidence on dated 16.08.2023.
4. We have heard learned counsel for the parties and have gone through the written submission filed by the ld. Counsel for the opposite parties as well as material aspects of the case very carefully.
5. In the present case grievance or the complainant is that he booked a flat with the opposite parties in February 2011 and had deposited an amount of Rs.1934251/- on different dates as per the demand of opposite parties i.e. Rs.600000/- on 10.02.2011, Rs.600598/- through cheque dated 19.05.2011 and Rs.733653/- through cheque dated 12.08.2011. Thereafter, opposite parties did not issue any demand letter to the complainant and had cancelled the flat of the complainant. Lateron, complainant came to know that the alleged flat had been sold by the opposite parties and the opposite parties have refunded only principal amount to the complainant on dated 05.04.2022. As per the complainant there is a mutual oral agreement took place between the complainant and opposite parties that they will pay interest @ 9% p.a. to the complainant on his deposited amount and in compliance of this agreement the opposite parties have paid an amount of Rs.1934251/- as part payment on dated 05.04.2022 and remaining payment has not been made. On the other hand respondents have contended that the unit was terminated on 08.05.2013 and the complaint is filed on 04.10.2022 i.e. much beyond the statutory period of limitation. It is further contended they had already paid the principal amount i.e. Rs.1934251/- as full and final settlement to the complainant. We have minutely perused the documents placed on record. As per written statement para no.6 & 7 of parawise reply, it has been submitted that : “It is further submitted that the despite the unit being terminated on 08.05.2013, the OPs without any forfeiture of earnest money, in good faith have refunded back the entire principal amount of Rs.1934251/- to the complainant vide cheque dated 05.04.2022 and the same was duly received and accepted by the complainant in full and final settlement to his claims. Therefore, no claim remains of the complainant and in view of which the complaint should be dismissed at the outset”. As per the above mentioned reply it is clear that full and final settlement had been taken place between the parties regarding the deposited amount but the respondents failed to place on record any documents regarding settlement before this Commission to prove that the complainant has accepted the amount of Rs.1934251/- as full and final settlement without any objection. Hence it is crystal clear that only principal amount has been paid by the respondents after a lapse of 9 years. As per the respondents they have terminated the unit on 08.05.2013. It is the prime duty of the respondents that when they terminated the agreement with the complainant, they should refund the amount to the complainant on the same day i.e. 08.05.2013. It is proved through the documents and also admitted by the respondents that they have paid the principal amount on dated 05.04.2022. Hence the present complaint is filed within limitation. It is also observed that as per document Ex.R6, it was a construction linked payment plan and after payment of amount within 150 days of booking, the complainant was required to deposit the amount at the time of start of construction. But complainant was never informed by the opposite parties that construction was started. We have also perused the payment request letter dated 09.01.2012 placed on record as Ex.R7 issued by the opposite parties for demand of an amount of Rs.764437/- and other letters dated 21.02.2012, 21.04.2012 and 29.05.2012 attached with this letter. But no proof of registered post, email, copy of RC, receipt of courier etc. has been placed on record to prove the fact that these letters were delivered to the complainant or not. Opposite parties have never intimated the complainant about termination of unit and has refunded the amount of complainant after 9 years and that too without interest. Hence there is deficiency in service on the part of opposite parties and opposite parties are liable to pay interest on the alleged amount to the complainant.
6. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite parties to pay the interest @ 9% p.a. on Rs.1934251/-(Rupees nineteen lac thirty four thousand two hundred and fifty one only) w.e.f. 08.05.2013 to 05.04.2022 and shall also pay Rs.10000/-(Rupees ten thousand only)as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant. Order shall be complied within one month from the date of decision, failing which opposite parties shall be liable to pay interest @ 9% p.a. on the alleged awarded amount of interest from the date of this order till its realization to the complainant.
7. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
22.12.2023.
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Nagender Singh Kadian, President
………………………………..
Tripti Pannu, Member.
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Vijender Singh, Member.
