Punjab

StateCommission

CC/191/2017

Balwinder Singh Walia - Complainant(s)

Versus

M/s Hero Reality Pvt. Ltd. - Opp.Party(s)

K.K.Khalon

02 May 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,       PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   Consumer Complaint No.191 of 2017

 

                                                          Date of Institution   : 03.04.2017

                                                          Order Reserved on : 30.04.2018

                                                          Date of Decision     :  02.05.2018

 

Balwinder Singh Walia s/o Sh. Partap Singh Walia, Walia Market Sunder Nagar, Pathankot -145001                                                                                                                                            ….Complainant

                                      Versus

 

1.      M/s Hero Reality Private Limited through its Authorized   Signatory/Managing Director.

 

          Registered office : E-2, Qutab Hotel Complex, Shaheed Jeet Singh Marg, New Delhi 110016.

 

          Corporate office : 264, Ground Floor, Okhla Industrial Area,     Phase-3, New Delhi 110020

 

2.      Site Manager, M/s Hero Reality Private Limited, Project Name          Hero Homes, Sector 88, Mohali, Punjab.

                                                                       …. Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :  Mrs. Kulwant Kaur, Advocate

          For opposite parties         :  Sh. Rajan Kohli, Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs, on the premise that he enquired about the project launched by OPs on telephone and also visited the spot in Sector 88 Mohali. It was represented to him that project would start by January 2016 and OPs had obtained all necessary approvals therefor. He asked for the possibility of some other payment plan from OPs, as he disagreed with the payment plan offered by OPs. Rather, he would book flat, if OPs were ready to take monthly installments of Rs.75,000/- from him. The offer of complainant was confirmed by OPs for payment of the amount through monthly installment of Rs.75,000/-. The application form on which such acceptance was made  by OPs is Annexure C-1 and OPs also accepted the fact of receipt of monthly installment of Rs.75,000/- from complainant in reply dated 07.03.2017. The complainant booked three bedroom flat measuring area 1,565 sq. ft @ Rs.3400/- sq. ft in Tower 3/G02 and paid the booking amount of Rs.2,50,000/-, vide cheque no. 010139 dated 12.11.2015 of OBC Bank  and receipt dated 16.06.2016 was issued to him. The complainant visited the spot in January 2016 and enquired about written consent of OPs and asked for start of the project. OPs stated that letter would be handed over in 15 days and project would start by February 2016. Same excuse was given to him, when he visited the spot in February 2016. He moved cancellation letter to OPs and sought refund of the booking amount, vide letter dated 30.03.2016 due to flouting the terms and conditions, as agreed at that time. The complainant sent another letter dated 08.04.2016, vide speed post no. EP 38337569551N dated 08.04.2016 for refund of the booking amount of Rs.2,50,000/- . He was shocked to receive invoice no. HHM/00316/16-17 dated 10.05.2016 calling upon him to make payment of Rs. 8,59,767/- , which was against the terms and conditions, as agreed upon for making the payment of Rs.75,000/- per month. The complainant had already cancelled his booking of the flat, vide letter dated 30.03.2016. OPs have not adhered to the terms and conditions, as agreed upon. He sent another letter dated 21.05.2016 through speed post no. EP0366904661N and EP  036690470IN dated 21.05.2016 stating that demand letter sent by OPs is  not in accordance with the settled terms of the  booking. OPs kept on sending demand letters to complainant against agreed terms of the  booking of the flat. OPs stated in reply dated 07.03.2017 that they received the cancellation letter dated 21.05.2016 from him. OPs have indulged in unfair trade practice by going against the agreed terms and conditions regarding payment schedule. The complainant sent legal notice dated 22.12.2016 to OPs seeking refund of the booking amount of Rs.2,50,000/- with interest @ 18% per annum. The complainant has filed complaint with below noted reliefs  against OPs :-

i)        OPs be directed to refund Rs.2,00,000/- as compensation for           mental and physical harassment.

ii)       OPs be directed to pay Rs.20,000/- as costs of litigation.

2.                Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred that OPs have undertaken the construction and development of a Residential Group Housing Project at Group Housing Site No. 1 Sector 88 SAS Nagar Mohali Punjab, known as "Hero Homes Mohali.". The complainant submitted an Expression of Interest to book the said property on 27.11.2015 and specifically undertook to pay further installments  and also accepted this fact that failure to pay further installments would entitle OPs to forfeit the amount of Rs.2,50,000/-. The complainant had initially expressed his interest to book the said property under a special monthly installment plan by paying Rs.75,000/-, as per letter dated 11.11.2015 addressed to OPs.  The complainant submitted a formal application for allotment of the said property on 30.03.2016. The complainant had then opted to book his apartment under the Regular Construction Linked Plan, as specified by him in the  said application. As per clause 13 of the said application, the complainant had agreed to forfeit the earnest money and other charges in the event of a cancellation of the allotment of the said property by OPs. OPs raised demand for payment of Rs.3,03,434/-, vide letter dated 31.03.2016 from the complainant. In response to the demand letter dated 31.03.2017, complainant without assigning any reason communicated his desire to get back the booking amount of Rs.2,50,000/-. Vide demand letter-cum-service invoice dated 20.05.2016, OP no.1 raised demand for payment of Rs.8,59,767/- from the complainant. In response to the demand letter dated 10.05.2017, the complainant once again communicated his desire to get back the booking amount of Rs.2,50,000/-. Vide demand letter-cum-service invoice dated 14.07.2016, OP no.1 raised a demand for payment of Rs.11,47,814/-  from complainant. Vide demand letter cum service invoice dated 20.09.2016, OP no.1 raised demand for payment of Rs.11,71,781/- from complainant. Vide legal notice dated 20.12.2016 sent through Amrit Pal Singh Kahlon Advocate, complainant leveled false allegations and sought refund of the booking amount of Rs.2,50,000/- from OP no.1. OPs controverted other averments of the complainant and prayed for dismissal of the complaint.

3.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-17 and closed the evidence. As against it; OPs tendered evidence affidavit of Sh.Manish Singhal AGM of OP no.1 as Ex.RW-1/A, affidavit of Sh. Depinder Singh DGM Sales of OP No.1 as Ex.RW-2/A,  along with copies of documents Ex.RW-1/1 to Ex.RW-1/17 and closed the evidence.

4.                We have heard learned counsel for the parties and have also examined the record of the case.

5.                The evidence on the record has been alluded to by us in this case. Balwinder Singh Walia complainant tendered in evidence his affidavit Ex.C-A on the record. He stated in his affidavit that he disagreed with the payment plan offered by OPs, rather he was ready to book the flat, if OPs were prepared to accept to take monthly installment of Rs.75,000/- per month from him. He further stated that his offer was confirmed by OPs for payment of the amount through monthly installment of Rs.75,000/- and demand letter was to be issued by them in accordance therewith. Payment of Rs.75,000/- was to be made till 15th floor slab and after that, lump sum payment was to be made at the time of delivery of possession. Application form on this acceptance was made by OP Ex.C-1 on the record and same was signed by first applicant only, who is Balwinder Singh and it is not signed by second applicant. The complainant paid amount of Rs.25,000/- to OP on 12.01.2015, vide receipt Ex.C-2 and OPs issued receipt Ex.C-3 in this regard. The complainant wrote letter to OP on 30.03.2016 for putting above deal and seeking refund of the deposited amount of Rs.2,50,000/- with interest, vide Ex.C-4. Ex.C-5 is letter dated 08.04.2016 sent by complainant to OPs for refund of his booking amount of Rs.2,50,000/- followed by another letter Ex.C-6 dated 21.05.2016 followed by another letter Ex.C-7 dated 08.08.2016. Letters Ex.C-4 to Ex.C-7 have proved this fact that complainant sought refund of the amount by quitting this project since 30.03.2016. Ex.C-8 is demand letter-cum-service invoice sent by OPs to complainant raising demand of Rs.8,59,767/- on 10.05.2016. Ex.C-9 is another demand letter sent by OPs to complainant on 14.07.2016 raising demand of Rs.1,185,993.00. Ex.C-10 is reminder letter dated 17.08.2016 sent by OPs to complainant raising demand of Rs.1,159,067.00. Ex.C-11 is another reminder letter dated 20.09.2016 sent by OPs to complainant directing him to pay the amount of Rs.1,171,781.00. Third reminder notice sent by OPs to complainant on 28.10.2016 is Ex.C-12. Demand letter-cum-service invoice raising demand of Rs.1,774,948.00 from complainant on 24.01.2017 is Ex.C-13 and another reminder is Ex.C-14 raising demand of Rs.1,800,601.00. These demand letters Ex.C-8 to Ex.C-14 have proved this fact that OPs continued raising demand of the due amounts from the complainant in this case. The complainant sent legal notice Ex.C-15 to OPs on 20.12.2016 to the effect that he disagreed with the payment plan offered by OPs and agreed to make the payment of Rs.75,000/- per month, which was accepted by OPs. OPs have been wrongly sending him the demand notices for payment of the amount against the agreed terms. It has been further stated that in January 2016 OPs assured to start the project by February  2016 and it was not started in February 2016. It has been further stated that complainant applied for cancellation of the  booking and seeking for refund of the deposited amount. OPs sent legal notice Ex.C-17 reply to legal notice of complainant, wherein it has been admitted in para no. 3 of the  reply to legal notice that OPs agreed to receive the amount of Rs.75,000/- as monthly  installment from the complainant and it was duly communicated to him. The construction of the project would commence  by January 2016. OPs controverted other contentions, contained in legal notice by complainant. To refute this evidence, OPs relied upon affidavit of Manish Singhal AGM Legal of OP no.1 Ex.RW-1/A on the record. He stated that he is authorized to pursue the case, vide resolution passed by Board of Directors of OPs. He stated that complainant submitted Expression of Interest  to book apartment no.T-3/G02 at Hero Homes Group Housing Site No.1 Sector 88 SAS Nagar Mohali and agreed to pay further installments and accepted that failure to pay further installments by him,  would make OPs entitled to forfeit the amount of Rs.2,50,000/-. He further stated that complainant submitted formal application for allotment of the said property on 30.30.2016. As per Clause 13 of the said application, complainant had agreed to forfeit the earnest money deposited by him and other charges in the event of cancellation of the  allotment of the said property, vide application Ex.RW-1/4. OPs raised demand for payment of Rs.3,03,434/- from complainant, vide Ex.RW-1/5. The complainant was informed that terms of the allotment, as per said application did not provide for refund of the booking amount. OPs raised demand of Rs.8,59,767/- from the complainant, vide Ex.RW-1/8 dated 10.05.2016. In response to demand letter dated 10.05.2017, complainant once again communicated his desire to get back the booking amount of Rs.2,50,000/- vide letter dated 21.05.2016. The complainant sent another request for refund of the booking amount, vide email dated 03.08.2016 and OPs reiterated that booking amount would be forfeited vide Ex.RW-1/12. OPs raised demand for payment of Rs.11,59,067/- from complainant, vide Ex.RW-1/13 and further sent reminder vide Ex.RW-1/15. OPs refuted the false allegations made by complainant in reply to legal notice sent by complainant.

6.                From hearing respective submissions of counsel for the parties and perusal of material evidence on the record, we find that application form Ex.C-1, which is not signed by OPs is material document on the record. OPs have not denied this application form Ex.C-1 dated 27.11.2015 and as such it can be read in evidence by us on account of admission of OPs. There is clause in this application that on allotment of residential apartment, complainant agreed to pay further installments against the allotment, failing which his right of allotment will cease and lapse and he will not have recourse to any legal action against OPs. OPs will be entitled to forfeit the amount paid by complainant. This clause had made it clear that in case of default of the complainant in making the payments, a right has been given to OPs to forfeit the deposited amount. This application form is dated 27.11.2015 Ex.C-1 on the record. The complainant paid booking amount of Rs.2,50,000/- on 12.11.2015 to OPs, vide Ex.C-2 on the record. The point for adjudication in this case, as to whether complainant is entitled to seek refund of the deposited booking amount for default of OPs or not. The emphasis of the  complainant is that OPs agreed to accept the payment plan @ Rs. 75,000/-per month, as offered by complainant  and they have admitted this fact in the written reply sent to legal notice served by complainant upon them as well. Even if, we take that OPs accepted the payment plan of Rs.75,000/- per month from the complainant, then the next issue before us to decide is as to whether the complainant has paid rest of the monthly installments to OPs or there was any justification on the part of the complainant in stopping the installments. We find that there is clause in expression of interest Ex.C-1 for forfeiture of earnest money in case of failure of complainant to pay the amount. The complainant relied upon letter Ex.C-4 dated 30.03.2016 sent to OPs for relinquishing this project. We find that there is no postal receipt on the record to prove that this letter was ever sent to OPs by complainant as there is no endorsement of its receipt by OPs on the record.  The complainant sent letter dated 08.04.2016, which is supported by postal receipt for refund of the  amount followed by letter Ex.C-6 dated 21.05.2016. If OPs agreed to receive Rs.75,000/- per month from complainant, then in that eventuality the demand notices sent by OPs to complainant Ex.C-8 to Ex.C-14 are against the spirit of above agreement. At the most, amount of Rs.9,00,000/- would accrue for one year @ Rs.75,000/- per month towards monthly installment. These demand notices sent by OPs to complainant are against the agreement arrived at between the parties as not denied by OPs towards payment of installments of Rs.75,000/- per month.

7.                Now, we touch the core point in this case, as to whether complainant is entitled to seek refund of the deposited amount from OPs or not. Ex.C-1 is expression of interest between the parties, which is admitted and not disputed. There is one clause in 'expression of interest' that amount offered by complainant shall be retained by OPs for a maximum period of six months. If OPs does not allot the residential apartment to complainant and does not refund the amount within a period of six months, then simple interest @ 6% per annum will be paid by OPs for the period of delay beyond such six months. Even period of six months from the date of deposit of the amount can be counted from 12.05.2015 and not prior to that. Period of six months has not yet expired for retention of this amount by OPs. Six months period has not been elapsed and complainant seeks refund of the amount, which is outside the purview of the provision of expression of interest Ex.C-1 on the record. No unfair trade practice has been proved on the part of the OPs justifying the complainant to seek refund of the booking amount.

8.                Consequently, we have come to this conclusion that since six months has not yet expired from the date of deposit of the booking amount and as such application of the complainant for seeking  refund of the booking amount is not permitted by the terms and conditions of the Expression of Interest between the parties. As such, complainant is not entitled to refund of the deposited amount within a period of six months, which is beyond the purview of terms and conditions, as agreed upon in the Expression Interest Ex.C-1 on the record. Hence, we find no merit in the complaint and same is hereby dismissed.

9.                Arguments in this complaint were heard on 30.04.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

10.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

May 2,  2018                                                                  

(ravi)