District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.615/2019.
Date of Institution: 12.12.2019.
Date of Order: 29.09.2022.
1. Sumit Garg
2. Amit Garg
Both S/o Shri Gyan Chand Garg R/o H.No. 181, Sector-11D, Faridabad. …….Complainants……..
Versus
1. Puri Construction Pvt. Ltd., Corporate Regd office: 47B, Ground floor, Tolstoy House 15 & 17, Tolstoy Marg, New Delhi – 110 001.
Also at:
Puri Construction Pvt. Ltd. Office: 81, High Street, Faridabad through its Director.
2. M/s. Property Master, sector-14, through its partner/owner Mr. Paras.
Also at:
Plot NO.44, Near DPS School, Sector-81, Faridabad.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Complainant with Shri Ashok Narwat Advocate.
Sh. Gajender Singh, counsel for opposite party No.1.
Sh. Amit Singh Aggarwal, counsel for opposite party No.2.
ORDER:
The facts in brief of the complaint are that opposite party No.1 launched its project of residential plotted colony namely – Amar Vilas, Olive Court at Sector-89, Faridabad wherein the independent floors were being sold to the customers through the authorized agents/dealers of opposite party No.1 including opposite party No.2. The complainants being allured of the scheme/offers of opposite party No.1 for booking an independent floor of the said project of the opposite party No.1 through opposite party No.2. Consequently, the complainants approached to the opposite party No.2 who was the authorized dealer/agent of the opposite arty No.1 of the said project and being allured by opposite party No.2 made a booking in the said project of opposite party No.1 for a total sale consideration of Rs.57,00,000/-. The complainants deposited Rs.5,60,000/- to opposite party No.2 for the booking of the said floor thereafter deposit Rs.7,50,000/- in cash also to the opposite party No.2. As per the payment schedule of the opposite party No.1 the sale consideration of the said floor was to be paid within 24 months. The allottee/complainant had to pay Rs.5,60,000/- to the opposite party at the time of booking of the said floor thereafter Rs.7,16,000/- was to be paid within 3 months of the application of booking. Te complainants had deposited Rs,13,84,050/- through cheques and Rs.7,50,000/- in cash to the opposite party No.2 for deposit with the opposite party No.1 but the opposite party No.2 did not deposit the said amount of Rs.7,50,000/- to opposite party No.1. consequently, the opposite party No.1 sent a letter dated 09.09.2019 to the complainants of intimation of cancellation and to collect the refund of applicable balance amount of Rs.1,98,831/- was offered whereupon the complainants wrote an email dated 16.09.2019 to the opposite party No.1 that a payment in above said manner had been deposited by the complainants with the opposite party No.1 through opposite party No.2 but no response to the email dated 16.09.2019 was ever reverted by opposite party No.1. Thereafter the complainants inquired with the account department of opposite party No.1 and obtained the laser account of the complainants wherein the payment of Rs.7,50,000/- was not updated/mentioned and the complainants to utter surprise to see that the opposite party No.2 did not deposit the payment of Rs.7,50,000/- cash to the opposite party No.1 which was given by the complainants to opposite party No.2. The complainants also sent an email dated 27.072019 to the opposite party No.1 regard to the interest impose upon the complainants in regard to the payment of the said floor wherein the complainants intimated the opposite party No.1 in regard to the cash payment of Rs.7,50,000/- through opposite party No.2 but no response from opposite party No.1 was received. Thereafter, the complainant s made a phone call to the opposite party No.2 and record the said conversation wherein the opposite party No.2 admitted that he had received the payment of Rs.7,50,000/- from the complainants. Since the opposite party No.2 was the authorized agent of opposite party No.1 hence, the non deposit of payment of Rs.7,50,000/- was the deficiency on the part of opposite party collectively which amount to unfair trade practice on the part of the opposite parties. The complainants also moved an application dated 20.09.2019 to the Commissioner of police in this regard which was marked to the DCP Central, Faridabad vide diary NO. 8164/CC/P dated 23.09.2019 and further marked to the SDO BPTP vide dairy NO. 2236-CP dated 26.09.2019. The aforesaid act of opposite parties amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) recall letter of cancellation and refund dated 09.09.2019 with immediate effect.
b) update the payment of Rs.7,50,000/- given by the complainants to the opposite party No.2 in the laser account of opposite party No.1.
c) pay damage/expenses to the complainants of Rs.2,00,000/- on account of short and deficient services rendered by the opposite aprties in a negligent manner.
d) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
e) pay Rs. 33,000/- as litigation expenses .
2. Opposite party No.1 put in appearance through counsel and filed written statement wherein Opposite party No.1 refuted claim of the complainant and submitted that the complainant had intentionally concealed the true and material facts from this Hon’ble Forum and had not come with clean hands. The complainants had booked a plot bearing NO. OC/B/167/P/N in the project, Amanvilas in July 2016 in the names of Ms. Ritu Garg and Ms. Salshi Garg. The above allottees, Ms. Ritu Garg and Ms. Salshi Garg had paid an amount of Rs.8,00,000/- against the allotment of the said plot but the same booking was not processed as the allottees were facing financial crisis. Thereafter, opposite party No.1 as per the request of the allottees swapped their plot with floor and transferred their amount of Rs.8,00,000/- against new unit No. OC/B/095/SF in the favour of new allottees Mr. Sumit Garg and Mr. Amit Garg who were related to the previous allottees. The complainants again defaulted in making the payment of the unit swapped at their request hence the complainants wee defaulters in making payments as they did not ever intend to buy the property but to invest and make money and accordingly trying to abuse the process of law to get undue and unlawful advantages.
It was submitted that the complainants paid only Rs.13,45,000/- against the demands raised by opposite party No.1 and no cash for an amount of Rs.7,50,.000/- had ever been received by the opposite party No.1. The demands raised to the complainants specifically provide for the mode of payments either through cheque, DD or digitally through RTGS or NEFT and further that the opposite party No.1 never accepts sale consideration in cash nor can accept any amount greater than Rs.20,000/- in cash, hence all allegations regarding payment in cash were false. The complainants had not placed on record any receipt of any such payment. Further it was submitted that inspite of sending several reminders for making the balance payment dated 30.10.2018, 26.11.2018 and final reminder dated 02.01.2019 and again reminders dated 17.04.2019 and 16.05.2019 and again a final reminder dated 19.06.2019 and further raising of reminders dated 08.07.2019 & 23.07.2019 and a final call notice dated 1.08.2019, the complainants failed to make the balance payment against the demands raised by opposite party No.1. It was further submitted that opposite party No.1 issued twice the reminders for execution and registration of Buyer’s Agreement dated 5.11.2018 and 12.07.2019 respectively. Due to the defaults made by the complainants, opposite party No.1 was forced to finally issued a refund letter dated 09.09.2019 to the complainants. Thereafter on the queries of the complainants the official of opposite party No.1 wrote an email dated 4.10.2019 to one of the complainants informing that the opposite party No.1 never accepts any payment in cash from the allottees or any of its channel partners. Opposite party No.1 denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. Opposite party No.2 put in appearance through counsel and filed written statement wherein Opposite party No.2 refuted claim of the complainant and denied all the allegations leveled in the complaint and prayed for dismissal of the complaint.
4. The parties led evidence in support of their respective versions.
5. We have heard learned counsel for the parties and have gone through the record on the file.
6. In this case the complaint was filed by the complainant against opposite party – Puri Construction Pvt. Ltd. & Ors. with the prayer to : ) recall letter of cancellation and refund dated 09.09.2019 with immediate effect. b) update the payment of Rs.7,50,000/- given by the complainants to the opposite party No.2 in the laser account of opposite party No.1. c) pay damage/expenses to the complainants of Rs.2,00,000/- on account of short and deficient services rendered by the opposite parties in a negligent manner. d) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . e) pay Rs. 33,000/- as litigation expenses .
To establish his case the complainant has led in his evidenceEx.CW1/A – affidavit of Shri Sumit Garg, Ex.C-1 – Receipt, Ex.C-2 – payment schedule,, Exs.C-3 – letter dated 09.09.2019 – letter regarding refund of applicable balance amount,, Ex.C-4 – email, Ex.C-5 – Sales Customer Ledger, Ex.C-6 – email, Ex.C-7 – CD of telephonic conversation, Ex.C-8 – police complaint.
On the other hand counsel for the opposite party No.1 strongly agitated and opposed. As per the evidence of the opposite party No.1, Ex. RW1/A – affidavit of Shri Dheeraj Kumar having his office at 4-7b, Ground floor, Tolstoy House, 15 & 17 Tolstoy Marg, New Delhi,, Ex.R-1 – Resolution letter, Ex. R2 (colly) – Application Form,, Ex.R3(colly) – letter dated 01.08.2019 regarding final call notice in terms of builder buyers agreement for the outstanding dues, Ex.R4(colly) – letter dated 05.11.2018 regarding reminder for execution and registration of buyers agreement,, Ex.R5(colly) – letter dated 09.09.2019,, Ex.R6 – email dated 04.10.2019, Ex.R7 – reply to complaint.
7. Counsel for the complainant argued that the complainants approached to the opposite party No.2 who was the authorized dealer/agent of the opposite party No.1 of the said project and being allured by opposite party No.2 made a booking in the said project of opposite party No.1 for a total sale consideration of Rs.57,00,000/-. It is evident from receipt and provisional allotment of unit NO. OC/B/095/SF in Olive court, Aman Vilas, Sector-89, Faridabad vide Ex.C-1 (colly) the complainants deposited Rs.5,60,000/- to opposite party No.2 for the booking of the said floor thereafter deposit Rs.7,50,000/- in cash also to the opposite party No.2. As per the payment schedule of the opposite party No.1 the sale consideration of the said floor was to be paid within 24 months. The allottee/complainant had to pay Rs.5,60,000/- to the opposite party at the time of booking of the said floor thereafter Rs.7,16,000/- was to be paid within 3 months of the application of booking vide Ex.C-2. Te complainants had deposited Rs,13,84,050/- through cheques and Rs.7,50,000/- in cash to the opposite party No.2 for deposit with the opposite party No.1 but the opposite party No.2 did not deposit the said amount of Rs.7,50,000/- to opposite party No.1. The opposite party No.1 sent a letter dated 09.09.2019 vide Ex.C-3 to the complainants of intimation of cancellation and to collect the refund of applicable balance amount of Rs.1,98,831/- was offered whereupon the complainants wrote an email dated 16.09.2019 vide Ex.C-4 to the opposite party No.1 that a payment in above said manner had been deposited by the complainants with the opposite party No.1 through opposite party No.2 but no response to the email dated 16.09.2019 was ever reverted by opposite party No.1. Thereafter the complainants inquired with the account department of opposite party No.1 and obtained the laser account of the complainants wherein the payment of Rs.7,50,000/- was not updated/mentioned and the complainants to utter surprise to see that the opposite party No.2 did not deposit the payment of Rs.7,50,000/- cash to the opposite party No.1 which was given by the complainants to opposite party No.2 vide Ex.C-5.. As per Ex. C-6, The complainants also sent an email dated 27.07.2019 to the opposite party No.1 regard to the interest impose upon the complainants in regard to the payment of the said floor wherein the complainants intimated the opposite party No.1 in regard to the cash payment of Rs.7,50,000/- through opposite party No.2 but no response from opposite party No.1 was received. It is evident from Ex.C-7, the complainants made a phone call to the opposite party No.2 and record the said conversation wherein the opposite party No.2 admitted that he had received the payment of Rs.7,50,000/- from the complainants. Since the opposite party No.2 was the authorized agent of opposite party No.1 hence, the non deposit of payment of Rs.7,50,000/- was the deficiency on the part of opposite party collectively which amount to unfair trade practice on the part of the opposite parties.
On the other hand, counsel for the opposite party argued that it is evident from application form and swapping requests made by the complainants vide Ex.R-2 that the complainants had booked a plot bearing NO. OC/B/167/P/N in the project, Amanvilas in July 2016 in the names of Ms. Ritu Garg and Ms. Salshi Garg. The above allottees, Ms. Ritu Garg and Ms. Salshi Garg had paid an amount of Rs.8,00,000/- against the allotment of the said plot but the same booking was not processed as the allottees were facing financial crisis. Thereafter, opposite party No.1 as per the request of the allottees swapped their plot with floor and transferred their amount of Rs.8,00,000/- against new unit No. OC/B/095/SF in the favour of new allottees Mr. Sumit Garg and Mr. Amit Garg who were related to the previous allottees. The complainants again defaulted in making the payment of the unit swapped at their request hence the complainants wee defaulters in making payments as they did not ever intend to buy the property but to invest and make money and accordingly trying to abuse the process of law to get undue and unlawful advantages. The complainants paid only Rs.13,45,000/- against the demands raised by opposite party No.1 and no cash for an amount of Rs.7,50,.000/- had ever been received by the opposite party No.1. The demands raised to the complainants specifically provide for the mode of payments either through cheque, DD or digitally through RTGS or NEFT and further that the opposite party No.1 never accepts sale consideration in cash nor can accept any amount greater than Rs.20,000/- in cash, The complainants had not placed on record any receipt of any such payment. Inspite of sending several reminders for making the balance payment dated 30.10.2018, 26.11.2018 and final reminder dated 02.01.2019 and again reminders dated 17.04.2019 and 16.05.2019 and again a final reminder dated 19.06.2019 and further raising of reminders dated 08.07.2019 & 23.07.2019 and a final call notice dated 1.08.2019 Vide Ex.R-3 (colly).As per Ex.R-5(colly) due to the defaults made by the complainants, opposite party No.1 was forced to finally issued a refund letter dated 09.09.2019 to the complainants.On the queries of the complainants the official of opposite party No.1 wrote an email dated 4.10.2019 vide Ex.R-6 to one of the complainants informing that the opposite party No.1 never accepts any payment in cash from the allottees or any of its channel partners.
8. After going through the evidence led by the parties, the Commission is of the opinion that the complainant deposited Rs.5,60,000/- to the opposite party No.2 for the booking of the said floor thereafter deposit Rs.7,50,000/- in cash also to opposite party No.2 for deposit with opposite party No.1 but the opposite party No.2 did not deposit the said amount of Rs.7,50,000/- to the opposite party No.1. Hence, the Commission is of the opinion that there is deficiency in service on the part of opposite party No.2 is proved because he has received the cash amount of Rs.7,50,000/- from the complainant and did not deposit the said amount to opposite party No.1. Hence, the complaint is allowed against opposite party No.2.
9. Opposite party No.2 is directed to refund the deposited amount alongwith interest @ 9% p.a. from the respective dates of deposits. Opposite party NO.2 is also directed to pay Rs.5500/- as compensation on account of mental tension, agony and harassment alongwith Rs.5500/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 29.09.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Mem
ber
District Consumer Disputes
Redressal Commission, Faridabad.
