Delhi

StateCommission

CC/676/2018

SH. SHAILENDRA SHARAN SINGH & ANR. - Complainant(s)

Versus

M/S GAURSONS PROMOTERS PVT. LTD. - Opp.Party(s)

PRAMOD KUMAR

17 Jan 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 17.01.2020

Date of Decision : 23.01.2020

Complaint No.676/2018

In the matter of :-

 

1. Sh. Shailendra Sharan Singh

S/o Sh. Mahima Sharan Singh

 

2. Smt. Meera Singh,

W/o Sh. Shailendra Sharan Singh,

Both R/o VP-145C, Pitampura,

•  

 

Versus

 

M/s. Gaursons Promoters Pvt. Ltd.,

Through its Managing Director/S

Sh. Manoj Gaur.

 

Registered Office at:

 

305, Arunachal Building,

19, Barakhamba Road,

Connaught Place, New Delhi.

 

Also having Corporate Office at:

 

D-12, Sector-13, Noida, UP.                                            ….....Opp. Party

                                                                

CORAM

 

Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                       Yes/No

2.      To be referred to the reporter or not?                                                                                                     Yes/No

          Sh. O.P. Gupta, Member (Judicial)

Judgement

1. Initially this complaint was filed in District Forum where it was registered as number C-1196/2012.  Lateron, the same was transferred due to lack of pecuniary jurisdiction in view of the decision of three member bench of Hon’ble National Commission in Ambrish Kumar Shukla vs Ferrous Infrastructure Private Limited in CC/97/2016 decided on 07.10.2016. The case of the complainant is that OP allotted apartment/flat No.1594 with an area of 148.650 sq. mtrs. on 14^th floor in Gaur City 2, GH-03,  Sector-16C, Greater Noida for total sum of Rs.30,03,000/-. He paid Rs.50,000/- as booking amount for which receipt dated 16.11.2010 was issued.  OP sent letter dated 10.01.2011 demanding Rs.2,58,033/-.  Complainant deposited Rs.58,033/- through cheque.  He could not deposit entire demanded amount due to non availability of finance by HDFC Bank on account of discrepancy in project of the OP.  OP did not obtain required NOC for raising construction from competent authority.

 

2. Complainant deposited Rs.2,00,000/- through cheque dated 09.07.2011.  Both complainants visited the site and were astonished to note that no construction was going on. There was dispute between original land owners and Noida Development Authority regarding difference between payment made by Noida and actual market value of the land. The original land owners approached Hon’ble High Court of Allahabad.  No financial institution was ready to finance the allottees due to which complainant could not deposit the demanded amount within the stipulated period.

 

3. Counsel  for OP sent letter dated 02.03.2012 stating that construction work in Noida in sanctioned plan was put on hold as per directions of the Allahabad High Court. In the same letter OP mentioned that in case the allottee was unable to pay next instalment due to discontinuation of payment by financial institution, it would not charge any interest for the delayed period. The market value of the flat has increased many folds.  As such OP became dishonest and did not send letter with malafide intention. Complainants are entitled to compensation of Rs.10 lacs on account of mental agony, harassment, conveyance hiring, legal services, lowering down of reputation in the eyes of society and near relative.  Hence this complaint for directing OP to handover possession of the flat after receiving balance sale consideration, pay Rs.10 lacs as compensation and Rs.21,000/- as cost of litigation.

 

4. OP filed WS stating that complainant has not approached with clean hands.  It took preliminary objections that Rs.50,000/- was paid as token.  It was mandatory to deposit 10% of the basic sale price for confirmation of the booking within 76 days from the date of booking. It demanded 10% vide letter dated 10.01.2011.  The complainant defaulted in making the payment.  The construction was stayed vide order dated 21.10.2011 when High Court of Allahabad directed Greater Noida to stop further construction till master plan was approved by National Capital Planning Board.  In  August, 2012 National Capital Planning Board approved the master plan and stay was vacated by the High Court.

 

5. It was on the request of complainant that for purpose of availing bank loan that allotment letter dated 30.01.2011 was issued.  OP again raised demand vide letter dated 14.02.2011 and 19.02.2011.  Further letter dated 16.04.2011 was issued making it clear that if complainant failed in making the payment, the booking would be treated as cancelled. The complainant applied for restoration vide representation dated 07.05.2011 on the ground that his wife was ill land admitted in AIIMS and had undergone surgery.  It was on that account that he was not able to make payment at time and prayed for some more time to make the payment due with interest @ 18% per annum on the delayed payment. OP sympathetically reinstated the unit. Complainant again defaulted in making the payment, gave application dated 25.06.2011 that his father has expired.  He deposited Rs.2 lacs i.e. 10% of the booking amount.  Cancellation done vide letter dated 16.04.2011 and 22.04.2011 attained finality as complainant has breached the condition at which flat was restored. As per clause 11 of the agreement, the 10% of the basic sale price was liable to be forfeited. This Commission has no territorial jurisdiction as the property is situated in Ghaziabad.  Letter dated 02.03.2012 sent by OP was applicable for those customers whose booking was already in continuation. The same was wrongly sent to the complainant.

 

6. The complainant filed rejoinder by way of affidavit of complainant-1.

 

7. OP filed affidavit of Sh. Rajiv Yadav, AR.

 

8. Both parties have failed to file written arguments.  I have gone through the material on record and heard the oral arguments. Booking by complainant and payment of amount is not in dispute. It is true that allotment of the complainant was cancelled due to non payment of the booking amount in time but since OP restored the allotment, cancellation lost its significance. For the same reason forfeiture of the booking amount by the OP is not justified. 

 

9. Anyhow, the complainants being defaulter are not entitled to any interest. In taking this view I am supported by decision of National Commission in FA No.06/14 titled as Randhir Singh Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd.  decided on 27.11.2014 and decision of Hon’ble Supreme Court in HUDA Vs. Raje Ram, AIR 2009 SC2030.

 

10. The objections of territorial jurisdiction is liable to be discarded in view the fact that OP has its registered office in Arunachal Building, 19, Barakhamba Road, Connaught Place, New Delhi.  To sum up, the OP is directed to pay Rs.3,08,033/- within 45 days from receipt of copy of this order, failing which OP will be liable to pay interest @9% per annum from the date of this order till date of refund.

 

11. Copy of the order be sent to both the parties free of cost.

 

12. File be consigned to Record Room.

 

(O.P. Gupta)

Member (Judicial)

Bench-2

                              

 

245.