DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.124 of 2015
Date of institution: 16.03.2015 Date of decision : 19.09.2016
Vipin Sheoran son of Shri C.R. Sheoran, resident of H.No.45, Ajay Vihar, HUDA Road, Sirsa, Haryana presently resident of H.No.217, 2nd Floor, Sector 40-A, Chandigarh.
……..Complainant
Versus
1. M/s. Country Colonisers Pvt. Ltd., P.O. Rayon & Silk Mills, adjoining Coca Cola Depot, G.T. Road, Chheharta, Amritsar, Punjab 143105, through its Authorised Signatory Mr. Harmandeep Singh Kandhari.
2. Chief Executive Officer, M/s. Country Colonisers Pvt. Ltd., Wave Garden situated at Wave Estate, Sector 85, SAS Nagar, Mohali.
………. Opposite Parties
Complaint under Sections 12 to 14
of the Consumer Protection Act
Quorum
Shri Ajit Pal Singh Rajput, President Shri Amrinder Singh Sidhu, Member.
Mrs. R.K. Aulakh, Member.
Present: Shri Barjesh Mittal, counsel for the complainant.
Shri Satinder Malhi, counsel for the OPs.
ORDER
By Ajit Pal Singh Rajput, President
Complainant, Vipin Sheoran son of Shri C.R. Sheoran, resident of H.No.45, Ajay Vihar, HUDA Road, Sirsa, Haryana presently resident of H.No.217, 2nd Floor, Sector 40-A, Chandigarh, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The representative of the OPs contacted the complainant and induced him to purchase an apartment in their project “Wave Gardens”, Sector 85, SAS Nagar by assuring that the development was in full swing and possession of the apartment would be handed over to him within a period of 30 months with an extended period of 6 months from the date of execution of apartment allottee agreement. On this assurance of the representatives of the OPs, the complainant applied and was allotted 2 BHK apartment having chargeable area of approximately 1380 sq. ft. with built up area of 1178.8 sq. ft. having basic sale price of Rs.51,75,000/- @ Rs.3750/- per sq. ft. for super area of the apartment which also included External Development Charges (EDC) @ Rs.117/- per sq. ft. Apart from this amount, the complainant was to pay separately charges of Rs.2,58,750/- @ Rs.187.5 sq. ft. towards preferential location charges + other amounts for car parking, club membership and interest free maintenance security etc. Thus, the total sale consideration was to the tune of Rs.57,27,750/-. The complainant paid a sum of Rs.3.00 lacs as booking amount vide cheque dated 24.05.2012 receipt thereof dated 25.05.2012 was issued by the OPs. However, the amount of the cheque could not be cleared and the complainant got the amount of Rs.3.00 lacs transferred in the account of the OPs through RTGS on 04.06.2012. Thereafter, the complainant requested the OPs to execute the Apartment Allottee Agreement. The OPs informed the complainant that the said agreement would be executed only once he makes payment of another 15% of the sale price (minus the booking amount). Accordingly, the complainant paid Rs.5,00,237/- vide cheque dated 28.07.2012 receipt thereof dated 30.07.2012 was issued by the OPs. Inspite of making this payment, the agreement was not executed by the OPs. The complainant received demand notice dated 06.08.2012 from the OPs vide which another amount of Rs.5,34,490/- was demanded. The complainant made repeated requests by visiting the OPs to execute the agreement. Ultimately, the OPs sent a copy of the Apartment Allottee Agreement vide letter dated 08.08.2012. After going through the agreement the complainant found that the payment plan mentioned in the agreement was entirely different than that explained to him. The entire terms and conditions were favourable to the OPs and were not which were informed to him by the representatives of the OPs. The complainant immediately called the concerned representative of the OPs and informed him about the discrepancies in the agreement but the representative completely backed out from his earlier statement and stated that whatever is written in the agreement is the final terms and conditions. The complainant in order to avoid cancellation of the apartment and forfeiture of 15% of the basic sale price signed the agreement and sent it to the OPs. The complainant received demand notice dated 22.11.2012 vide which the OPs demanded an amount of Rs.10,67,981/- upto the stage of commencement of construction. The complainant contacted the representatives of the OPs and informed them that he is only required to make payment of 10% of the basic price within 90 days of allotment i.e. from 08.08.2012 the date of allotment but he has received demand notice for payment of 20% upto the stage of commencement of construction. The complainant was assured that it was a routine procedure and he was not required to pay the said amount immediately. The complainant again received reminder dated 05.01.2013 asking him to make payment of Rs.10,68,013/- on or before 20.01.2013. On again approaching, the officials of the OPs asked the complainant not to make this payment till the stage of commencement of construction. Vide another demand notice dated 03.10.2013, an amount of Rs.14,68,131/- was demanded from him, which was followed by letter dated 07.10.2013 wherein the outstanding amount was shown as Rs.10,66,982/- and interest amount of Rs.1,77,648/- was also mentioned. It was further mentioned in the letter that if the complainant clears the entire outstanding amount within 30 days from the date of letter, the interest accrued on the entire outstanding amount would be waived off. Vide another notice dated 24.05.2014 the OPs demanded from the complainant the outstanding amount of Rs.24,13,702/- upto the stage of completion of 8th Floor Roof Slab alongwith 50% PLC charges. The complainant contacted the representatives of the OP who informed that construction nearing 4th floor roof slab was in progress. But when the complainant visited the site he found that construction upto the stage of 1st floor roof slab was completed. The complainant was also informed by the representatives of the OPs that the amount demanded vide demand notice has to be deposited by the OPs in full failing which interest @ 18% per annum shall be levied for the period of delay and nonpayment can also lead to cancellation of allotment. The complainant visited the office of the OPs and took up the matter of arbitrary demand of money upto 8th floor roof slab. OP No.2 got infuriated and threatened the complainant that either he should make the payment of Rs.24.00 lacs as per demand notice dated 24.05.2014 on or before 15.06.2014 or else the allotment shall be canceled. However, in view of the status of development at site, the complainant did not deposit the payment. The OPs thereafter issued final notice dated 28.06.2014 for cancellation of allotment of the apartment and final and last opportunity was granted for clearing the outstanding payment of Rs.27,88,327/- on or before 13.07.2014. It was also mentioned that failure to deposit the amount will result in forfeiture of amount to the extent of 15% of basic sale price alongwith arrears on account of approved interest, brokerage and other expenses/tax, if any. The complainant got in touch with the OPs and intimated that he is ready and willing to pay the amount upto completion of ground floor roof slab and asked the withdrawal of notice dated 28.06.2014. Inspite of this, the OPs vide letter dated 15.07.2014 cancelled the allotment of apartment of the complainant. Thereafter, the OPs sent communication dated 16.08.2014 for execution of cancellation of apartment of the complainant. Demand of illegal amounts and then cancellation of allotment of the apartment, amounts to efficiency in service on the part of the OPs. Hence this complaint for quashing/setting aside the demand notices dated 24.05.2014, 28.06.2014, 15.07.2014 and also execution of cancellation dated 16.08.2014 or in the alternative giving directions to the OPs to refund the deposited amount of Rs.8,00,000/- alongwith interest @ 24% per annum; compensation of Rs.1,00,000/- for harassment and stress etc.; Rs.55,000/- alongwith interest @ 24% per annum as costs of litigation.
3. The complaint is contested by the OP by filing reply, in which it had raised certain preliminary objections, inter alia, that the complainant is not consumer of the OPs. The complainant and his father booked two different apartments with the OPs and it cannot be said to be for their residential purposes but amounts to investment for commercial purposes. This Forum does not have territorial jurisdiction to entertain and decide the complaint. The complainant has no cause of action as he had decided to buy the flat after getting satisfied with the project. As per the booking application, the complainant undertook to execute/sign apartment allottee (s) arrangement with all the annexures and to pay the amounts due. The complainant has failed to make the payments due well within time. The OPs issued various reminders to the complainant on 04.06.2013, 05.10.2013, 20.01.2014, 27.06.2014 and finally on 28.06.2014 for making payments. Thereafter cancellation notice dated 15.07.2014 and execution of cancellation dated 16.08.2014 were sent to the complainant. The total amount of Rs.33,59,302.56 is outstanding towards the complainant till date. The complaint is also not maintainable before this Forum in view of existence of arbitration clause in the Apartment Allottee (s) Arrangement dated 08.08.2012. The OPs were empowered to forfeit the money as per provisions of the Apartment Allottee (s) Arrangement in case of default on the part of the complainant for making payment. On merits, the OPs have denied that their representative contacted the complainant rather the complainant approached the OPs through Satya Estates Pvt. Ltd., Chandigarh. The complainant decided to buy the apartment after making independent assessment and requisite enquiries. The complainant opted for construction linked plan and the total amount was calculated as Rs.57,27,750/-. The complainant himself delayed to execute and sign the Apartment Allottee (s) Arrangement dated 08.08.2012 on account of his making arrangement for paying the amount. The complainant has signed the Apartment Allottee (s) Arrangement out of his own free will and consent without raising any objection. The complainant has failed to make timely payment despite repeated demands. Thus, denying the averments of the complaint, the OPs have prayed for dismissal of the complaint.
4. In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of receipts Ex.C-1 and C-2; payment demand notice Ex.C-3; letter dated 08.08.2012 Ex.C-4; apartment allottee arrangement Ex.C-5; payment demand notice dated 22.12.2012 Ex.C-6; reminder dated 05.01.2013 Ex.C-7; demand notice dated 03.10.2013 Ex.C-8; one time interest waiver scheme dated 07.10.2013 Ex.C-9; demand notice dated 24.05.2014 Ex.C-10; final notice dated 28.06.2014 Ex.C-11; cancellation notice dated 15.07.2014 Ex.C-12; execution of cancellation dated 16.08.2014 Ex.C-13 and original six photographs Ex.C-14. In rebuttal, the OPs tendered in evidence affidavit of Yadwinder Singh Bains, President Ex.OP-1/1.
5. We have gone through the pleadings, evidence and written arguments of the parties and heard the oral submissions addressed by the learned counsel for the parties. The complainant booked one flat with the OPs by depositing Rs.3.00 lacs vide receipt Ex.C-1 and thereafter he was allotted apartment No.1203 (2BHK) size 1380 sq. ft. and a sum of Rs.5,00,237/- was deposited by the complainant on 30.07.2012 vide receipt Ex.C-2. After that Apartment Allottee(s) Arrangement Ex.C-5 was executed between the parties on 08.08.2012 whereby the complainant has opted for constructed linked payment plan which is as under:
On booking | | 3.00 Lacs for 2 BHK |
Within 45 days of booking 15% of sale price less booking amount | 15% | |
Within 90 days of booking | 10% | |
On commencement of Construction | 10% | |
On completion of ground floor roof slab of the tower | 7.5% | |
On completion of 4th floor roof slab of the tower | 7.5% | |
On completion of 8th floor roof slab of the tower | 7.5% | +50% of PLC if applicable |
On completion of 12th floor roof slab of the tower | 7.5% | +50% of PLC if applicable |
On completion of final roof slab of the tower | 7.5% | |
On completion of external plaster of the tower | 7.5% | |
On completion of internal flooring | 7.5% | + 50% of car park usage Rights |
On completion of services | 7.5% | + 50% of car park usage Rights |
On intimation for possession | 5% | + other applicable charges + Stamp Duty & Registration charges. |
| 100% | |
No doubt the complainant had paid 15% of the basic sale price within 45 days but he was required to pay another 10% within 90 days of booking. However, the OPs vide demand notice dated 22.11.2012 demanded payment of Rs.10,67,981/- and another reminder dated 05.01.2013 was received followed by another communication dated 03.10.2013 and 07.10.2013 offering one time interest waiver scheme under which the detail of payment outstanding against the complainant is as under:
Unit No. | BSP | Outstanding as on date | Interest on date |
WG/B/1203 | Rs.5175000/- | Rs.1066982/- | Rs.177648/- |
On 24.05.2014 another notice was issued to the complainant, then on 28.06.2014 notice was issued to the complainant to deposit the outstanding amount of Rs.27,88,327/- on or before 13.07.2014 failing which the deposit amount will result forfeiture of amount to the extent of 15% of basic sale price. The complainant did not deposit any payment. Cancellation notice dated 15.07.2014 was issued by the OPs and thereafter another communication dated 16.08.2014 of execution of cancellation of apartment of the complainant was issued by the OPs. It was argued by learned counsel for the complainant that the payment was to be made according to stages of construction. The stage of construction was not as claimed by the OPs, therefore, the complainant did not make the payment. Thus, the cancellation is bad in the eyes of law. During the course of arguments, counsel for the complainant was confronted what is the evidence with him that the construction was not at the stage when due installment was demanded, but he failed to pin point any evidence on record. The complainant even did not send any letter, SMS or any e-mail to the Ops that the stage of construction is not as claimed by them. In case the complainant has failed to make installment despite demand, then he cannot say that the OPs are deficient in service. In support of his contention, the learned counsel for the OPs has relied upon the decision of Hon’ble Punjab State Consumer Disputes Redressal Commission dated 09.08.2016 in Consumer Complaint No.193 of 2014 titled as C.R. Sheoran Vs. M/s. Country Colonisers Pvt. Ltd. The facts of the present case are squarely covered by the aforesaid decision of Hon’ble State Commission. Therefore, the cancellation is justified according to Clause 4.4, 9.4 and 12-A/1 of the agreement dated 08.08.2012. The OPs had a right to cancel the allotment and to forfeit the amount equal to 15% of the BSP. Therefore, we do not see anything wrong on the part of the OPs to cancel the allotment of apartment of the complainant on account of default on his part to deposit the due installment. Accordingly, the amount paid by the complainant in excess of 15% of the BSP, is ordered to be refunded to the complainant alongwith interest @ 9% per annum from the date of cancellation till the date of payment.
Accordingly, we direct the OPs to the refund the amount paid by the complainant in excess of 15% of the BSP alongwith interest @ 9% per annum from the date of cancellation i.e. 16.08.2014 till the date of payment and also to pay him Rs.5000/- (Rs. Five thousand only) as litigation expenses. The present complaint stands partly allowed.
The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of this order. The arguments on the complaint were heard on 05.09.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 19.09.2016
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
