Haryana

Gurgaon

CC/454/2012

Rajnish Banga - Complainant(s)

Versus

M/s Landmark Apartments Pvt. Ltd - Opp.Party(s)

28 Jun 2016

ORDER

                                              DISTRICT   CONSUMER   DISPUTES   REDRESSAL FORUM, GURGAON-122001

                                                                                                      Consumer Complaint No: 454 of 2012                                                                                                                                               Date of Institution: 16.11.2012                                                                                                                                                       Date of Decision:  28.06.2016

Rajnish Banga S/o late Sh.J.K.Banga, R/o 534, Vikas Kunj, Vikas Puri, New Delhi-110 018.

 

Reena Banga w/o Sh. Rajnish Banga, R/o 534, Vikas Kunj, Vikas Puri, New Delhi-110 018.
                                                                                                                                                                                                                                                                           

                                                Versus

M/s Landmark Apartments Pvt. Ltd, 4, Vipul Square, Sushant Lok-1, Gurgaon, Haryana through its CMD Sandeep Chillar.

                                                                                             ..Opposite party

                                                                                               

Complaint under Sections 12 & 14 of Consumer Protection Act,1986                                                                  

 

BEFORE:     SHRI SUBHASH GOYAL, PRESIDENT

SMT JYOTI SIWACH, MEMBER

                   SH.SURENDER SINGH BALYAN, MEMBER.

 

Present:        Shri  Ramit Kumar Lalit, Adv for the complainants.

                    Shri S.K.Singla, Adv for the OP.

 

ORDER       SUBHASH GOYAL, PRESIDENT.

The case of the complainants, in brief, is that they have booked Three Bedroom Apartment Type B super area 2143 sq.ft 4th floor in the project of the OP namely “Landmark Residency” in Sector 103, Gurgaon vide application dated 09.05.2011 and paid the booking amount of Rs.7,39,335 vide receipt dated 09.05.2011. It was represented by the OP that the possession of the apartment shall be handed over to the complainants within 36 months from the date of booking. Immediately after making the said booking it transpired that the land on which the apartment was to be built was in dispute with the landlords. The complainants had booked the said apartment in the hope and anticipation that they will get a residential apartment in due course of time for their own residence i.e. within three years from the date of booking. However, the opposite party has cheated and duped the complainants by dishonestly inducing them to part with their hard earned money. The complainants were informed by the OP that their booking has been cancelled.  Thereafter the complainants moved an application for refund of the amount deposited by them with OP on 12.03.2012. The complainants had also sent reminders vide letter dated 10.07.2012 and 30.07.2012 but of no use. Thus, there was deficiency in service on the part of the opposite party. The complainants prayed that the opposite party be directed to refund the booking amount of Rs.7,39,335/- with interest  and to pay compensation of Rs. 10 Lacs for harassment and mental agony and also to pay Rs.30,000/- for litigation expenses.

2                 The OP in its written reply has alleged that the complainants had booked flat/apartment in the project being carried out by the OP by making the initial payment of Rs.7,39,335/- at the time of booking and as such the amount of Rs.7,39,335/- was paid under application dated 09.05.2011 with the intention of getting some premium in a very short period. Since the complainants did not have sufficient funds with them as such they could not make the payment as agreed and as thus, the OP has rightly cancelled the booking of the complainants and rightly forfeited the earnest money i.e. 10 % of the BSP. The licence for the project has already been issued and subsequently building plan has also been approved by the competent authority on 27.04.2012 vide memo No.7261 and the construction work  was commenced accordingly and the OP company has invested huge amount in all. Since the complainants failed to make the payment as per the payment plan, the OP-Company rightly cancelled the booking of the complainants and as such the complainants were not entitled to refund and thus, there was no deficiency in service on the part of the opposite party.

3                 The complainants in their evidence have filed affidavit,  application for allotment of apartment (Ann C-2), copy of Cheque No.682061 dated 09.05.2011 (Ann C-3),  payment receipt issued by OP for Rs.7,39,335/- (Ann C-4),  application for cancellation of booking made by complainants dated 12.03.2012 (Ann C-5), applications dated 10.07.2012, 30.07.2012 and 13.08.2012 made by the complainants to OP (Ann C-6 colly) whereas the opposite party did not lead any evidence.

4                 We have heard the learned counsel for the parties and have perused the record available on file.

5                 Therefore, after going through the facts and circumstances of the case and the evidence placed on file it emerges that the complainants have booked an apartment in the project of the OP  in Sector 103, Gurgaon  on 09.05.2011 and paid the booking amount of Rs.7,39,335/- vide receipt dated 09.05.2011. However, possession of the apartment was to be delivered within 36 months from the date of booking but the opposite party even did not start the construction of the project within the stipulated period which tantamounts to deficiency in service on the part of the opposite party.

6                 However, as per the contention of the OP, the complainants failed to make the payment as per the payment plan and thus, the opposite party has rightly cancelled the allotment of the apartment and has forfeited the amount i.e. 10 % of the BSP. Learned counsel for the opposite party has contended that there was no negligence on the part of the opposite party rather the complainants vide their letter dated 12.03.2012 have approached them and expressed their inability to continue with the booking and as such there was no deficiency in service on the part of the opposite party and as such the amount was not liable to be refunded to the complainants.

7                 Therefore, after going through the facts and circumstances of the case and the evidence placed on file it emerges that the complainants failed to maintain the financial discipline in making the payment towards the flat in question whereas on the other hand, the opposite party had also failed to complete the project within the stipulated period and thus, in our opinion both the parties are at fault. Therefore, keeping in view the principle of natural justice and equity, we direct the opposite party to refund the amount of Rs.7,39,335/- with interest @ 9 % p.a. from the date of filing of the present complaint i.e. 16.11.2012 till realization. However, the complainants are entitled to litigation expenses to the tune of Rs.3100/-. The OP shall make the compliance of the order within 30 days from the date of receipt of the copy of this order. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance.

 

Announced                                                                                                    (Subhash Goyal)

28.06.2016                                                                                                         President,

                                                                                                           District Consumer Disputes

                                                                                                           Redressal Forum, Gurgaon

 

(Jyoti Siwach)        (Surender Singh Balyan)

Member                 Member