STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Complaint No.232 of 2018
Date of Institution: 16.04.2018
Date of final hearing:21.04.2023
Date of pronouncement: 28.04.2023
1. Smt. Manju Tyagi W/o Sunil Kumar Tyagi.
2. Smt. Babita Tyagi W/o Sudhir Kumar both R/o H.No. 3549-V, Sector-15, Part-III, Sonepat.
…..Complainants
Versus
1. M/s Omaxe Limited, Registered Office 7 Local Shopping Centre, Kalka Ji, New Delhi-110019, through its Managing Director.
2. M/s Omaxe Limited through its Branch Manager, Sh. Ramnik, Mall Plaza, “Omaxe City”, G.T. Road, Sonepat.
3. Pee Kay Properties, Office-183, Sector 14, HUDA Market, Part-2, behind UHBVN office Sonepat through its proprietor-Pardeep Kumar Dudeja.
…..Opposite Parties
CORAM: Naresh Katyal, Judicial Member
Present:- Sh. Raman Gaur, Advocate for the complainant along with Sh. Sunil Kumar Tyagi-husband of the complainant No.1 in person.
Sh. Munish Gupta, Advocate for the opposite parties No. 1 and 2.
None for opposite party No.3.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Complainants approached opposite party (OP) No.3 at his office, who informed them that he is authorized to book the independent floors constructed by OP No. 1 & 2 at “Omaxe City”, G.T. Road, Sonepat. After consultations with OP No. 3; complainants booked Floor No. OWF/Ground/2702 measuring 2050 sq. ft. in the project ‘Omaxe Wisteria Floors’ for Rs.30,00,000/- (approx.) and paid Rs.1,00,000/- through cheque No. 414580 dated 16.07.2014 of State Bank of Patiala. OP No. 3 at the time of booking pointed out that in case at any stage the construction of floor and price seemed not satisfactory; OP No. 1 & 2 will refund entire deposited amount against the flat in question. It has also been assured by OP No. 3 that receipt of the amount paid will be issued by M/s Omaxe Limited. OPs insisted upon complainants to sign some printed form on pencil dotted lines however the form was blank and pointed out that OP No. 1 & 2 will enter the particulars of Floor No., price, mode of payment, time of completion of project and delivery of possession thereof.
2. Complainants received copy of receipt from OP No. 1 & 2 for Rs.1,00,000/- vide receipt ID No. 1071730 dated 24.07.2014 (Annexure C-1 booking amount of floor in question viz OWF/Ground/2702) but printed form was not supplied to them. Complainants further deposited Rs.5,00,000/- vide receipt ID No. 1116857 dated 21.10.2014, Rs.5,00,000/- vide receipt ID No. 1116859 dated 21.10.2014 and Rs.5,00,000/- vide receipt ID No. 1116861 dated 21.10.2014 by cash, but in issued receipt, the payment of each receipt amounting to Rs.5,00,000/- shown adjusted from some floors of the ‘Omaxe Wisteria Floors’ mentioning as OWF/26 in receipt ID No. 1116857, OWF/24 in receipt ID No. 1116859 and OWF/25 in receipt ID No.1116861 (Annexure C-2 to C-4). Thereafter, on the assurance, complainants deposited Rs.11,75,923.62 and Rs.2,09,224.94 against floor No. OWF/Ground/2702 vide receipt ID No. 1149335, 1149336 dated 05.01.2015 (Annexure C-5 & C-6). Complainants paid Rs.29,85,148.56 against approximate amount of Rs.30,00,000/- but OPs have not issued allotment letter, offer of possession and even failed to execute “Builder Buyer Agreement”. Complainant visited OPs for supply of all required documents pertaining to allotment, agreement and proper receipt of deposited amount without mentioning the adjustment against someone floors. OPs failed to issue such documents to complainants. Complainants along with their family members visited office of OP No. 3 at Delhi. Official of OP No. 1 & 2 Sh. Desh Bandhu Gupta at Delhi assured complainants that price of floor in question is high, not Rs.30,00,000/- and in case same does not suit them, then entire deposited amount will be refunded along with interest. It is pleaded that particulars of floors referred in receipt C-2 to C-4 is nowhere related to complainants and this act of OPs clearly indicates that they being housewives, have been misrepresented at the time of booking. No allotment letter, indicating the price upto the time of depositing Rs.29,85,148.56 was ever supplied to complainants. In September, 2014, OPs very cleverly mentioned the price as Rs.57,50,004/-. Complainants contacted OPs, who assured them that matter will be looked into. Complainants on this assurance deposited amount as shown in receipt dated 05.01.2015 but OPs have not rectified the same. OPs issued demand letter showing the basic price as Rs.57,50,004/-. In response to that complainant stopped payment of booked unit and asked OP No. 3 to refund their deposited amount with interest. Vide letter dated 27.12.2016, OPs cancelled the booking of said unit/floor wherein it was mentioned that Rs.28,75,740.97 has been deposited whereas complainants have deposited Rs.29,85,148.56. Complainants received another letter dated 27.01.2017 for deposit of mentioned amount taking basic price of floor as Rs.57,50,004/- and thereafter again received cancellation letter dated 31.01.2017 & 16.03.2017 (Annexure C-7 to C-10). Vide letter dated 16.03.2017 wherein it was mentioned that Rs.5,75,000.40 is to be deducted from the total deposited amount but only earnest money i.e. Rs.1,00,000/- is required to be deducted. Complainants were again assured that matter will be sorted out amicably, and insisted to submit letter mentioning surrender of the unit and payment after deducting the amount so mentioned in the letter. Accordingly, on their assurance complainant wrote letter but till date not a single penny has been received by them. OPs sold the same floor to someone for Rs.29,00,000/- including all charges whereas from complainants, OPs demanded Rs.63,02,674/- (basic price Rs.57,50,004/-). By alleging deficiency in service of OPs and by asserting the cause of action; complainants have filed this complaint thereby seeking refund of Rs.29,85,148.56 with 12% interest p.a. on the deposited amount. They have also claimed Rs.1,00,000/- towards mental agony, inconvenience and hardship caused to them and Rs.55,000/- for litigation.
3. Notice was issued to OPs and Ops filed their separate written statements. OP No. 1 and 2 in their written statement raised preliminary objections with regard to territorial jurisdiction, pecuniary jurisdiction, false allegations and averments being without basis, concealment of vital facts and documents, complainants not being consumers and maintainability of complaint. It is pleaded that matter be referred to arbitration. On merits, OP No.1 and 2 have submitted that complainants have concealed relevant facts that initial payment of Rs.15 lacs made in October, 2014 was adjusted from 03 other units on their request. Annexure C-2 to C-4 reflects that amount has been adjusted from other units with property details OWF/24, OWF/25 & OWF/26 in the same projects. The value of floor was not Rs.30 lacs. Infact, the total cost of the said floor was Rs.61.24 lacs apart from statutory charges and other expenses. Complainants have not make further payment pursuant to booking and in January, 2015 complainants got adjusted Rs.13,85,150/- from another plot booked by them in Sonepat project of OPs, which also finds mention in Annexure C-5 and C-6. Complainants booked various properties in the project of OPs in Sonepat and got adjusted their amount towards price of this property from said investments. OP No. 1 and 2 have no knowledge regarding assurance given by OP No. 3 for refund of amount etc. Detailed application form along with documents was supplied to complainants along with booking amount and thereafter booking was accepted. Annexure R-1 is the booking form submitted by complainants which also reflects value of the unit. It is denied that complainants singed on blank form. Complainants never paid the amount in cash and there is no provision to accept the cash in such big quantity. No assurance of any heavy discount was given to complainants. Deposit of amount was pre-requisite of booking and complainants were required to make payment as per schedule opted, but they never made payment of any amount, rather got adjusted amounts from other units. OP No.1 and 2 denied that total amount of unit was Rs.30 lacs and no allotment letter/offer of possession or builder buyer agreement was executed. Complainants were asked to make balance payment from time to time but they failed to make the same, which resulted in cancellation of allotment and forfeiture of earnest money and complainants are entitled to balance amount after deduction of forfeiture amount and that too after deposit of original documents including receipts etc. and execution of relevant documents as required. Complainants approached OPs through registered document dated 28.07.2017 (ExR-2) asking for refund of balance amount with interest. Complainants were telephonically asked to execute certain documents but they failed to do so, resultantly the refund could not be made to them. After cancellation letter dated 27.12.2016, complainants approached OPs and requested 60 days time to make payment and for deletion of name of complainant No.2. OPs issued demand letter forthwith and gave the same to complainant by hand on 27.01.2017, but complainants did not make payment and therefore, cancellation followed again. As per terms and conditions of booking form; 20% of the sale consideration shall be treated as earnest money and upon failure to make payment, earnest money shall be forfeited, but OPs ordered only 10% of basic sale price i.e. Rs.5,75,000/- to be forfeited as a bonafide gesture. Other averments were denied and dismissal of compliant has been prayed.
4. OP No. 3 in his written statement submitted that OP No 3 is just a booking agent and price was to be finalized by the builder and allotment letter etc. have also to be supplied by them. It is pleaded that complainants have deposited Rs.29,85,148.56 against booked/allotted floor in question with OPs No. 1 & 2 and receipts in this regard have been issued, time to time. It is admitted that complainants booked the floor and deposited Rs.1,00,000/-. It is admitted that complainants approached him for refund of deposited amount, in view of issued demand letter of basic price i.e. Rs.57,50,004/- but deposited amount was to be refunded by builder viz OPs No. 1 & 2. It is pleaded that Rs.29,85,148.56 is lying with builder viz OPs No. 1 & 2.
5. Complainants filed their duly sworn affidavit Ex.CW-1/A & Ex.CW-2/A on 10.07.2019 and placed reliance upon documents Ex.C-1 to Ex.C-10. They closed their evidence on 10.07.2019. Learned Counsel for OP No. 1 & 2 filed affidavit of Deepanjit Singh, authorized signatory of M/s Omaxe Limited as Ex.OPW1/A and rely upon documents Ex.OP-1 and OP-2 and closed the evidence on 16.03.2020. Pardeep Kumar Dudeja-OP No.3 filed his duly sworn affidavit Ex.OPW2/A and closed his evidence on 16.03.2020. Thereafter, complaint was adjourned for arguments. Arguments was heard on 21.04.2023.
6. Learned counsel for complainants has urged that appropriate relief as prayed in the complaint be granted to the complainants on the given facts, which are substantiated by evidence of complainants oral as well as documentary evidence Ex.C-1 to C-10. It is urged that no allotment letter have been issued and no buyer agreement between the parties has been executed. Complainants have deposited heavy amount of Rs.29,85,148.56. Instead, of deducting earnest money of Rs.1,00,000/- OPs have deducted Rs.5,75,000.40 as per their letter dated 16.03.2017 and till date complainants have not received single penny from OPs. It is also urged that on the totality of given facts and evidence; deficiency in service on the part of OPs is clearly demonstrated.
7. On the other hand, learned counsel appearing for OPs with one voice have urged that OPs have deviated from the clause 9 of application booking form (Ex.R-1) which otherwise empowers OPs to treat 20% of the sale consideration amount as earnest money and if this clause is interpreted strictly then Rs.11,50,000/- (20% of Rs.57,50,004/-) should have been earnest money. Still, by adopting a consumer-oriented approach it has forfeited (10% of Rs.57,50,0004/-) which come to Rs.5,75,000/-. It is urged that OPs, in any case are liable to pay only Rs.24,10,148.56 to the complainants, as this is their (Ops) admitted liability towards complainants. It is urged that complainants have booked this floor for purpose of securing monetary gains as previously they booked as many as three units in the project of OPs No. 1 & 2.
8. Contentions mentioned aforesaid of both the parties have been subjectively analyzed in the light of record of the case.
9. Contention of learned counsel for OPs No. 1 & 2 that act and conduct of complainants while booking unit with OPs No. 1 & 2 attire a purposeful character to them to earn handsome profits. This contention carry no weightage. Just because, complainants happen to adjust amount from their previous three units, towards the basic sale price of unit in question, will not mean that their approach while booking the unit in question was accentuated by malafide intention.
10. Undisputedly, terms and conditions of application booking form cum pricing agreement Ex.OP-1 has a binding force, between the complainants and OPs as it bears signature of both complainant and representative of OPs. This is despite that there is no separate Builder-Buyer Agreement executed between the parties, qua unit in question. It specify basic sale price of unit in question as Rs.57,50,000/-. Complainants’ contention that they signed on pencil dotted line and form was blank and particulars regarding basic price etc. were entered subsequently, is bereft of credence. It is beyond the realm of acceptability in legal parlance. Complainants were not so novice and neophyte as they have pretended themselves to be. On strictly applying clause 9 of Ex.OP1 which stipulate terms and conditions; it is deciphered that 20% of sale consideration shall be treated as earnest money and upon failure to make payment the earnest money shall stand forfeited. Basic price of the floor as per stance of OPs was Rs.57,50,004/-. Obviously 20% of this price would amount, a sum, running over Rs.10,00,000/-; precisely it would be Rs.11,50,000/-. OPs have forfeited Rs.5,75,000/- from the sum deposited by complainants, which as per details mentioned in complaint is Rs.29,85,148.56 against booking of floor. By deviating from the rigor of clause 9 of application booking form Annexure R-1; and not strictly applying the same, would obviously depict a consumer-oriented approach of OPs. Contention of complainant that only earnest money of Rs.1,00,000/- was required to be deducted does not hold ground in the wake of above detailed discussion. If Rs.5,75,000/- is deducted from the total amount of Rs.29,85,148.56 deposited by complainants qua unit in question, then residue principal amount is arrived at Rs.24,10,148.56. This is the outstanding admitted liability to be discharged by OPs in favour of complainants and same is duly endorsed by complainant in their letter Ex.OP2 dated 28.07.2017. In their letter EX.OP2 dated 28.07.2017; complainants have commanded upon the OPs to refund their balance amount of Rs.24,10,149.60 with interest, within 7 days. This quality recital in Ex.OP2, would effectively pave the way to conclude that complainants have acknowledged the deduction of Rs.5,75,000/-. Legally, complainants have acquiesced to the deduction of Rs.5,75,000/- in their letter dated 28.07.2017 and they cannot wriggle out from consequences flowing from their own letter (Ex.OP2). Phraseology of letter Ex.OP2 mentions that previously on 22.07.2012 complainants have made identical request for giving them refund of Rs.24,10,149.60 within 15 days and this letter was stated to be submitted by them in office of OPs No. 1 & 2, wherein they claimed interest from 26.12.2016. Collectively, their letter Ex.OP2 will negates and thwart the force of their contention that Rs.1,00,000/- (earnest money) was required to be deducted, as this contention does not survive.
11. Ex-facie, it is proved that OPs have utilized the amount of Rs.24,10,148.56 deposited by complainants. It cannot enrich itself, at the cost of complainants. Certainly, complainants are entitled to reasonable interest on the principal amount (Rs.24,10,148.56) to be refunded by OPs. Ends of justice would meet if that principal amount of Rs.24,10,148.56, should carry interest @12% per annum from the date of filing of complaint till its actual realization. Accordingly, OP No. 1 & 2 are directed to refund amount of Rs.24,10,148.56 with interest @12% p.a. from the date of filing of complaint till its actual realization. In addition; Rs.25,000/- be paid to complainants towards deficiency in services of OPs, towards them which has led them to face harassment and encounter mental agony. Complainants are also entitled cost of litigation expenses to the tune of Rs.11,000/-. This complaint stands disposed of, being allowed, in above terms.
12. Two months’ time is given to OPs No. 1 & 2 to comply with the directions contained in this order, else, complainant would be at liberty to adopt appropriate legal recourse, for execution of this order and in that eventuality, amount of Rs. Rs.24,10,148.56 will carry interest @ 16% per annum from the date of filing of this complaint, till its actual realization.
13. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
15. File be consigned to record room.
Date of pronouncement: 28th April, 2023
Naresh Katyal Judicial Member
Addl. Bench-II
