CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.629/2013
- SH. ANIRBAN SARKAR
S/O SH. GOPAL CHANDRA SARKAR
- SMT. CHANDRIMA SARKAR
W/O SH. ANIRBAN SARKAR
BOTH RESIDENTS OF:
HOUSE NO.34, 3RD FLOOR RAMPURI,
(OPPOSITE KALKAJI J BLOCK),
KALKAJI, NEW DELHI-110019
…………. COMPLAINANT
VS.
- M/S SUPERTECH LTD.
WITH ITS REGISTERED OFFICE AT:-
1114, 11TH FLOOR, HEMKUNT CHAMBERS,
89, NEHRU PLACE, NEW DELHI-110019
AND
CORPORATE OFFICE AT:
SUPERTECH HOUSE,
B-28-29, SECTOR-58, NOIDA, U.P.
…………..RESPONDENT
Date of Order: 09.03.2016
O R D E R
A.S. Yadav – President
Complainants were interested in owning their own home and wanted to purchase a flat and came to know about the project of OP namely Eco-Village-3. Complainants met Mr. Abhigyan Basu(one of the employee of OP) who explained the terms and conditions relating to buying of a residential unit at Eco Village-3. It was told to complainants that the total cost of the flat was Rs.40,78,410/- and possession of the flat will be handed over within three years. It was assured by executive of OP that complainants could exit the scheme at any time but they have to sign the formal Agreement which was the Allotment Letter containing all terms and conditions. Complainants were told that they would have to book immediately by paying 10% of the total flat value otherwise all flats would get booked. Complainant paid a sum of Rs.4,07,841/- vide cheque dated 15.11.2012 to OP for booking a flat in the project of OP.
It is further stated that OP did not issue receipts at the time of receiving the booking amount from complainants and after continuous pursuance by complainants handed over the receipt dated 08.12.12 for the booking amount but even at that time the copy of booking form, draft of allotment letter, contract for sale purchase of the said flat was not handed over. Thereafter on 19.01.2013 OP called the complainants to their corporate office to execute and receive the allotment letter alongwith terms and conditions for sale-purchase of said flat.
It is further stated that complainant found that the allotment letter and the terms and conditions were totally one-sided and loaded in favour of OP. There was no fixed time period of making the construction or of giving possession, no surety about the flat which would be allotted to complainants, the cost was not fixed, no responsibility would be taken to provide external service of roads, sewer, electricity etc and even liability of payment to farmers(previous owners) would have to be borne by complainants. At the time of booking of the said flat, OP had concealed that possession of the said flat will be handed over after four years with a grace period of six months, 15% of the total cost of the said flat would be forfeited if booking is cancelled at any stage, additional charges viz. escalation charges, preferential location charges etc. were to be paid over and above the total cost of the said flat, extra financial costs/surcharges/compensation to farmers was to be paid. Complainant refused to place their signatures on the one sided and unilateral allotment letter alongwith terms and conditions drafted by OP till OP agreed to remove the objectionable clauses. OP informed complainants that allotment letter alongwith terms and conditions were as per their company rules and cannot be changed and complainants were at liberty to cancel their booking and take their booking amount back. Thus complainants immediately sent an email dated 28.01.2013 and a registered post letter dated 02.02.2013 to OP to cancel the booking of the said flat whereby complainants clearly mentioned that the clauses in the allotment letter alongwith terms and conditions were not acceptable to them.
OP in its reply took the plea that there was no unfair trade practice on their part. The allotment was cancelled as complainants have not adhered to the payment plan. It is stated that after paying booking amount of Rs.4,07,841/- on 15.11.2012, complainants did not pay further instalment. Complainants were supposed to pay another 10% of total cost of flat within 30 days from the date of booking. As per the terms and conditions of the allotment, OP is within its right to forfeit the booking amount. It is denied that any vague assurance was given to complainants. It is submitted that all the terms and conditions were duly brought to the notice of complainants including the condition of cancellation charges of 15% of the agreed sale consideration. It is stated that the amount has been forfeited as per terms and conditions of the allotment. It is prayed that the complaint be dismissed.
We have heard Ld. Counsel for the parties and carefully perused the records.
In fact Ld. Counsel for OP has relied upon clause 6.1 of the terms and conditions of booking form dated 15.11.2012 which is reproduced as under:-
“6.1 - In case of cancellation either of booking or agreement, the cancellation charges shall be 15% of the agreed sale consideration or Rs.25,000/- whichever is higher”.
It is submitted by Ld. Counsel for complainants that in fact the allotment letter was never signed by complainants and they had booked the flat on the assurance that they can cancel allotment at any point of time. It is further stated that when complainants were called upon on 19.01.2013 by OP to their corporate office to execute and receive the allotment letter alongwith terms and conditions for sale-purchase of said flat, they were shocked after going through the contents of allotment letter and the terms and conditions as it contained clauses which were never revealed to them at the time of booking of the said flat. Complainants found that the allotment letter and the terms and conditions were totally one-sided and loaded in favour of OP. There was no fixed time period of making construction or giving possession, no surety about the flat which would be allotted to complainants, the cost was not fixed, amount for the flat could vary, no responsibility would be taken to provide external services of roads, sewer, electricity etc. and even liability of payment to farmers(previous owners) would have to be paid by complainants.
It is an admitted fact that an email was sent by complainants to OP on 28.01.13 and in that email it is specifically stated that on 19.01.13 OP handed over two sets of allotment letter and requested them to sign the documents and return to them and after going through the allotment letter they were shocked to find clauses relating to escalation charges, compensation to farmers, delay in handing over possession, fixed date of payment schedule, arbitration clause etc. which were not revealed to them or discussed with them by their employee Mr. Abhigyan Basu at the time of booking and taking 10% of total flat value. This was considered a breach of trust and complainants cancelled allotment and asked for refund of amount.
On receiving this letter, OP sent email on 06.02.13 asking complainants to complete certain formalities. This was replied by complainants vide email dated 08.02.13 wherein they have brought to the notice of OP that the papers sent by them for signature of complainants have not been properly drafted and do not state the true facts. Complainants sent documents vide letter dated 28.02.2013 as desired by OP but the amount was not refunded.
In fact there is nothing on the record to suggest that complainants were informed that they had to make 10% of the payment within 30 days of first payment. It is significant to note that initial payment was made on 15.11.2012 and even the receipt in respect of that was handed over on 08.12.12 and only on 19.1.13 complainants were called upon to execute documents which were unilateral and were not acceptable to complainants as they were contrary to what has been told. It is not that allotment has been cancelled by OP. The allotment has been cancelled by complainants for the detailed reasons enumerated above.
Ld. Counsel for OP has relied upon judgment of Hon’ble Supreme Court in case of Satish Batra Vs Sudhir Rawal - Civil Appeal No. 7588 of 2012 decided on 18.10.12 to show that they were within their right to forfeit the amount. The facts of that case were totally different. Ld. Counsel for OP has relied upon the judgment of Hon’ble State Commission dated 30.04.2007 in Appeal No.A-843/2002 in case of Naresh Chand Seth Vs M/s Shipra Estate Ltd. - wherein it was held that “On the face of it such a clause is void as no service provider can be allowed to forfeit any amount deposited by the consumer for booking of flat or plot when consumer asks for cancellation prior to commencement of construction and payment of further installment even otherwise if booking is 10% of the basic cost of the flat, the same cannot be forfeited in entirely. At the most 10% of the booking amount may be liable for forfeiture but not the entire amount.” Furthermore, the said order was upheld by the National Consumer Forum in Revision Petition NO.2151 of 2007 titled M/s Shipra Estates Ltd Vs Naresh Chand Seth vide Order dated 21.02.2013. Furthermore, in that case the Hon’ble National Commission also considered the case of Satish Batra(Supra) and held that the facts and circumstances of that case were entirely different.
As already stated that the allotment letter containing the payment plan was never got signed from complainants and in fact this was put up for signature only on 19.01.13 alongwith other documents and the terms and conditions of that allotment letter were contrary what was told to complainants. There was no reason for OP to forfeit the amount paid by complainants. It is a clear cut case of deficiency in service on the part of OP.
OP is directed to pay Rs.4,07,841/- to complainants alongwith interest @ 9% p.a. from the date of deposit of amount i.e. November 2012. OP is also directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
