DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.39/2023
Ms. Neha Tomar
D/o Late Shri Narender Pal Singh Tomar
R/o 512,Block 13, Lodhi Colony
New Delhi-110003.
Shri Ashish Dalal S/o Shri Sahib Singh
R/o 512,Block 13, Lodhi Colony
New Delhi-110003. .…Complainants
VERSUS
M/s Presidency Infraheights Pvt. Ltd.
Corporate Identification Number
(CIN)-u70102up2012ptc049845, 2201
Second Floor, Express Tower-2, Sector 132
NOIDA, Uttar Pradesh-201301.
Shri Owais Usmani (DIN-02963660)
2201, Second Floor
Express Tower-2
Sector-132, NOIDA
Uttar Pradesh-201303.
Shri Mushi Ahmad (DIN – 08491594)
2201, Second Floor
Express Tower-2
Sector-132, NOIDA
Uttar Pradesh-201303.
Shri Tahir Usmani (DIN – 08488425)
2201, Second Floor
Express Tower-2
Sector-132, NOIDA
Uttar Pradesh-201303. ….Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Present: Complainant in person.
Present: Ms. Zainab Ansari, Counsel for OP.
ORDER
Date of Institution:06.02.2023
Date of Order :09.10.2024
President: Ms. Monika A Srivastava
Complainant has filed the present seeking refund of Rs.9,50,000/- along with interest @12% per annum; Rs.4,00,000/- for mental agony, pain and loss of time and harassment. OP is Presidency Infraheights Pvt. Ltd.
- It is the case of the complainants that they have booked a residential flat No.2201 T-5, (super area-2332 sq. ft.) in the Presithum Project of OP. by paying an amount of Rs.1,00,000/- on 06.09.2022 at Rs.3700 per sq. ft. plus charges. However, the OP raised the price overnight to Rs.4500/- per sq. ft. plus charges. OP was brought down the price to Rs.4200/- per sq. ft. as an email regarding withdrawal from the project.
- It is further stated that after signing the booking form when complainant insisted on proper details of the flat including carpet area, OP kept stating that the carpet area of the said flat would be just less than the super area by 15-20% and assured to provide the documents soon however, the OP instead of providing the documents kept insisting on further payments. The complainants had paid Rs.9,50,000/- on various dates till 29.09.2022 after which they insisted on documents first before making any further payments. On receiving the documents from OP through email on 30.09.2022, the complainants were shocked to find that the difference between carpet area (1420 sq. ft.) and super area (2332 sq. ft.) of the flat was excessively high.
- It is further stated that complainants decided to withdraw from the project and an email regarding this sent to the OP dated 01.10.2022 and reminder on 04.10.2022. The complainants had made the decision on the account of acute deficiency in services and unfair trade practices on the part of OP. However, the OP instead of complainant’s withdrawal went ahead and paid the stamp duty on 06.10.2022 to harass the complainants. The OP threatened the complainants of forfeiting the entire amount of Rs.9,50,000/- by declaring them as default in payments.
- It is stated by the complainant that they have not entered into any agreement of sale of signed any payment plan with the OP. The withdrawal was at the initial stage (within a month) and on account of huge deficiency in services and unfair trade practices on the part of OP.
- It is stated that the booking form is not only a one-sided agreement signed only by the complainants and not the OP but is also against the RERA norms. The booking form is hugely inclined towards the benefit of OP. The complainants had no option but to sign on the dotted line, on the Booking Form framed by the OP. This act of OP constitutes un fair trade practice falling under Section 2 (47) of CPA, 2019.
- The complainants contacted the OP on various occasions and sent various emails, however the OP did not bother to address the matter. The complainants had taken up the matter with various authorities. The complainants had also registered their complaint with Consumer Helpline No. bearing Docket No.4039225. The complainants had sent a legal notice to the OP on 14.12.2022.
- It is further stated by the complainants that they approached the OP with clear intention to purchase the flat but the OP instead cheated them since the inception of the deal on price as well as the area of the flat. The complainants had made payments as and when demanded. However, the OP clearly did not bother to provide full details and documents to the complainants even after payment of sumptuous amount of Rs.9,50,000/-.
- On withdrawal of the complainants from the project on deficiency in services and unfair trade practices, the OP wrongly invoked default charges on them to gain advantage of their dominant position to withhold the entire amount of Rs.9,50,000/-. The payment of stamp duty even after withdrawal from the project clearly indicates the malafide intentions of the OP to harass the complainants and wrongfully hold their hard earned money. Complainants have placed on record Provisional allotment letter annexed as annexure A-3, receipts and payments Rs.9,50,000/- annexure A-5, email regarding erroneous GST calculations annexed as annexure A-6, emails for withdrawal from the Project annexure A-8 and Presidency Infraheights Pvt. Ltd. email regarding forfeiture of amount annexed as annexure A-9.
- In its reply, OP has stated that on 30.09.2022 a welcome letter was issued to the complainants which contains the detail of consideration along with the provisional allotment letter dated 30.09.2022 which specified the payment schedule and specifically mentioned that any increase or decrease in the super area of apartment/flat at Presithum, Unit No.T5-2201, Tower-5 (Type-E), Penthouse shall be adjustable on pro rata basis. The complainants made the payment of Rs.9,50,000/- to the OP in regard to the above mentioned booked flat. As per the terms and conditions of the application form/welcome letter the OP raised demand letter for payment of Rs.23,16,259/- but to the utter shock, the complainant did not pay any heed to the request of the OP despite having knowledge of the terms and conditions of the application form duly signed and agreed by the complainant. In clause 3.3 it is clearly stated that:-
“The applicant/allottee shall make regular and timely payment of instalment, which is the essence of this contract. It shall be incumbent on the applicants/allottees to comply with the terms of payment and other terms and conditions of sale, failing which the applications/allottees shall have to pay interest @ MCLR+1 9% per annum on the delayed time in case of delayed payments and developer reserves its right to forfeit upto 20% of the total sales consideration of the unit in the event of any irregularity/delayed payments/non-fulfillment of terms of payment and of the allotment letter. The allotment may be cancelled at the discretion of the developer under the applicable provisions of RERA. Provided that where the allottee proposed to cancel/withdraw from the project without any fault of the Promoter, the (Promoter herein is entitled to forfeit the booking amount paid for the allotment. The Promoter shall return 50% of the balance amount of money paid by the allottee within 45 days of such cancellation/withdraw and the remaining 50% of the balance amount on re-allotment of the apartment/plot or at the end of one year from the date of cancellation/withdrawal by the allottee, which is earlier.”
- OP has further stated that on 13.12.2022 the OP issued various demand letter and reminders regarding the payment of pending instalments as per agreed payment plan as well as informed about the interest and charges despite that the complainant failed to make payment. In between the complainant sent a mail for cancellation of booking of the flat by giving excuses of her mother’s health but when the complainant realised that she cannot breach the terms and conditions of the application form suddenly from nowhere she raised another objection such as GST percentage and area of the flat however the area and percentage was already mentioned in the application form and that is very obvious that the complainant would have signed the application form after reading each and every point and content of the application from. After various reminders and requests on 20.02.2023 the OP sent cancellation notice to the complainant due to the non-payment of the due amount. Even after receiving the cancellation letter the complainant did not pay any attention to the OP left with no other option than cancelling the said booking due to default in payment from the complainant side.
- OP further stated that the complainants from the very first day were aware with the terms and conditions and at the time of signing the application from the complainants have not raised any objection in regard to the terms and conditions and signed the aforesaid document without any force and pressure. However, the complainants themselves violated the clause of the application form.
- It is stated by OP that the act of complainants caused financial loss to the OP as the complainants cancelled the booking after months and to sale the aforesaid flat the OP had to pay brokerage and commission again to the broker to find a new buyer. OP has also placed on record cancellation notices dated 10.03.2023 and 20.02.2023.
- Both the parties have filed their evidence affidavits as well as written arguments. This Commission has gone through the entire material on record. The welcome letter sent by OP dated 30.09.2022 describes the unit type as “Penthouse (2322)” and another letter dated 30.09.2022 which is provisional allotment letter clarifies the super area of 2322 and carpet area of 1420.21 sq. ft. It is also seen that complainant has made payments amounting to Rs.9,50,000/- on 29.09.2022 & 30.09.2022. It is also seen that on 07.10.2022 complainant had written an email informing the OP regarding her mother’s condition and requested the OP to refund Rs.9,50,000/- and the reply of OP on 12.10.2022 wherein OP has relied on Clause 3.3 of booking form which reserves OP’s right to forfeit upto 20% of the sale consideration and where the allottee proposes to cancel/withdraw from the project without any fault of the promoter, the promoter was entitled to forfeit the booking amount paid for the allotment.
- It is seen from the complaint that the complainant has sought for refund on the ground that the area mentioned in the welcome letter and which was projected orally as well as the one given in provisional allotment letter do not match. It is the case of the complainant that she was not able to make an informed choice as she was charged on the basis of super area while the area of her flat i.e. the carpet area was only 1416 sq. ft. Complainant claims that it amounts to unfair trade practice and that the agreement is a one sided agreement. OP, on the other hand, has cancelled the provisional allotment of the complainant on 10.01.2023.
- After going through the entire material on record this Commission is of the view that a substantial sum of Rs.9,50,000/- was paid by the complainant between 29.09.2022 & 30.09.2022 and after receiving the provisional allotment letter dated 30.09.2022 complainant raised the issue of refund as early as 07.10.2022 with the OP. Complainant has complained of the reduced area difference between carpet area (1420 sq. ft.) and super area (2332 sq. ft.) of the flat.
Therefore this Commission is of the view that OP has indulged in unfair trade practice in not providing correct and clear facts to the complainant before payment was made by her. The area of the flat was changed unilaterally in the allotment letter after receiving the money from the complainant. Complainants did not get time to mull over or change their decision in the light of the changed important facts having paid the money before. OP cannot be allowed to take advantage of his own wrong by accepting money first and changing the area of the flat subsequently unilaterally and thereafter relying on the forfeiture clause to keep the money of the complainant.
OP is therefore directed to refund Rs.9,50,000/- to the complainant with interest @ 9% p.a from the date when the refund was sought within three months from the date of pronouncement of order failing which OP would be liable to pay interest @ 12% per annum till realisation.
Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website.
