DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.:1515 of 2009 Date of Inst:24.12.2009 Date of Decision:06.10.2010 Roopinder Singh s/o Sh.Jaspal Singh r/o H.No.152, Sector 27-A, Chandigarh. ---Complainant V E R S U S 1. M/s Realistic Realtors (P) Ltd., through Sh.Harmanpreet Kalra, 205, M.M.House, SCO No.120-122, Sector 17-C, Chandigarh. 2. Emaar MGF Land Limited, through its Managing Director, 3rd Floor (Offices), MGF Metropolitan, Saket District Centre, New Delhi. 2nd Address: Emaar MGF Land Limited, through its Managing Director, ECE House 28, Kasturba Gandhi Marg, New Delhi. 3. Emaar MGF Land Limited, through Mr.Anchal Raina, Emaar MGF Business Park, Mehrauli, Sector 28, Gurgaon Road, Gurgaon-122002. ---Opposite Parties QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER SMT.MADHU MUTNEJA MEMBER PRESENT: Sh.Vishal Bali, Adv. for complainant Sh.Arun Kumar Kaundal, Adv. for OP-1 Sh.Ajay Singh, Adv. for OPs No.2 & 3. --- PER LAKSHMAN SHARMA, PRESIDENT Sh.Roopinder Singh has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :- i) refund Rs.15.50 lacs being the booking amount of the unit. ii) Pay a sum of Rs.2 lacs as compensation for mental agony and harassment. iii) Pay a sum of Rs.1,00,000/- as physical harassment. iv) Pay a sum of Rs.25,000/- as litigation expenses. 2. The case of complainant is that OPs invited applications for allotment of residential accommodation which was to be constructed by them at Gurgaon. The complainant was interested in some residential accommodation at Gurgaon. So he applied for it and paid a sum of Rs.15.50 lacs vide cheque No.690420 dated 25.10.2007 as booking amount along with the application form dated 05.11.2007. However, later on, the complainant changed his mind and requested for refund of the amount vide letter dated 05.02.2008(Annexure C-1). Instead of refunding the amount, OPs sent allotment letter (Annexure C-4) to the complainant. It has further been pleaded that the project is not viable. The complainant insisted for refund of the amount but despite his several requests through e-mails and legal notice, OPs failed to refund the booking amount. According to the complainant, it amounts to deficiency in service. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the reply filed by OP No.1, it has been admitted that the complainant had applied for allotment of the unit by depositing Rs.15.50 lacs. According to OP-1, the complainant has also signed the terms and conditions and had undertaken to abide by the payment schedule at the time of filing up the application form. According to OP-1, the complainant has failed to mention any deficiency in service on the part of OP-1. It has been pleaded that the complainant himself backed out and sought the refund of the booking amount on the ground of unavoidable circumstances. It has been pleaded that due to the efforts of OP-1, OPs No.2 and 3 were ready to return the aforesaid amount but the complainant refused to accept the same and demanded more. It has further been pleaded that the complainant was allotted Unit No.1008 on the 10th Floor (Commercial Section) in the project of OPs. According to OP-1, after issuance of the allotment letter, the complainant could not seek refund of the booking amount. It has further been pleaded that the complainant has breached the terms and conditions and therefore, the earnest money stands forfeited. It has also been admitted that a number of e-mails were exchanged between OPs and the complainant. According to OPs No.1 and 2, there is no deficiency in service on their part and the complaint qua them deserves dismissal. 4. In the reply filed by OPs No.2 and 3, it has been admitted that the complainant had applied for allotment of the unit by depositing Rs.15.50 lacs. The complainant has also signed the broad terms and conditions and had undertaken to abide by the payment schedule at the time of filing up the application form. OPs No.2 and 3 have denied of having received letter dated 05.02.2008. It has been asserted that the project is viable. It has been denied that letter dated 05.02.2008 was either received or issued by OPs No.2 and 3 or that the project was not viable. According to the OPs No.2 and 3, as per the terms and conditions, they are only liable to refund the amount after deduction of 10% of the sale consideration besides delayed interest and other amounts. It has further been pleaded that as a good will gesture, they were prepared to issue a cheque for the full amount but the complainant refused to accept the same. It has also been admitted that a number of e-mails were exchanged between them and the complainant. According to OPs No.2 and 3, there is no deficiency in service on their part and the complaint qua them deserves dismissal. 5. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 6. The only question to be determined in the case is about the entitlement of the complainant for refund of Rs.15.50 lacs which was paid by him at the time of booking of the residential unit. Admittedly, the complainant made a written request vide letter dated 05.02.2008 (Annexure C-1) for refund of the booking amount. This letter was duly received by the OPs before the allotment of the unit. Annexure C-2 is the copy of the letter dated 24.03.2008 informing the complainant that he had been allotted a unit in the commercial project of the OPs. Annexure C-7 to C-27 are the copies of the e-mails exchanged between the complainant and OPs regarding refund of the booking amount. OPs have failed to refund the booking amount of the complainant despite service of the legal notice dated 22.07.2009 which itself shows that they are not interested in refunding the said amount to the complainant. It is pertinent to mention here that OPs No.2 and 3 expressed their desire to return the amount of Rs.15.50 lacs but instead of issuing the real cheque a photocopy was placed on record. Despite repeated requests of the complainant, the original cheque was not handed over to him. It appears that the offer made by the OPs No.2 and 3 to the complainant for refund of the booking amount was only an eye wash. In fact, OPs No.2 and 3 had no bona fide intention to refund the amount of Rs.15.50 lacs to the complainant. 7. Admittedly, the possession of the unit has not been delivered to the complainant so far despite the fact that amount was deposited in the year 2007. The complainants cannot be forced to wait for the delivery of possession for an unlimited period. So failure to deliver possession and failure to refund the booking amount to the complainant in such circumstances amounts to deficiency in service and unfair trade practice. 8. The complainant has failed to make out any case of deficiency in service against OP No.1 and therefore, the complaint qua OP-1 stands dismissed. 9. In these circumstances, the complaint is allowed with following directions to OPs No.2 and 3:- i) To refund the booking amount of Rs.15.50 lacs to the complainant along with interest @ 9% from the date of its deposit till its realization. ii) To pay a sum of Rs.10,000/- as costs of litigation. 10. This order be complied with by the OPs NO.2 and 3 within 45 days from the date of receipt of its certified copy, failing which the OPs No.2 and 3 shall be liable to refund Rs.15.50 lacs to the complainant along with penal interest @ 18% p.a. from the date of its deposit till its realization besides costs of litigation of Rs.10,000/-. 11. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 06.10.2010 sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (ASHOK RAJ BHANDARI) MEMBER Sd/- (MADHU MUTNEJA) MEMBER
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
