Haryana

Gurgaon

cc/867/2010

Pushpa Devi - Complainant(s)

Versus

M/s Vatika Limited - Opp.Party(s)

03 Jun 2016

ORDER

                   DISTRICT   CONSUMER   DISPUTES   REDRESSAL FORUM,  GURGAON-122001

                                                                                     Consumer Complaint No: 867 of 2010                                                                                                                              Date of Institution: 29.10.2010                                                                                                                                                        Date of Decision:  03.06.2016

Pushpa Devi w/o Madan Mohan Singh, R/o H.No.G-11, Sector-22, Noida-201301.   

                                                                                       ….Complainant.

                                                Versus

M/s Vatika Limited, Corporate Office: Vatika Triangle, 7th Floor, Sushant Lok-I, Block-A, Mehrauli-Gurgaon Road, Gurgaon-122002, Haryana (through its Managing Director).

 

M/s Vatika Limited, Regd. Office: Flat No.621-A, 6th Floor, Devika Towers, 6, Nehru Place, New Delhi-110019 through its Managing Director.

 

Unicon Real Estate Pvt. Ltd, 26, 2nd Floor, Block No.34, Pusa Road, Karol Bagh, New Delhi-110005 through its Managing Director.

 

 

..Opposite parties

                                                                                               

Complaint under Sections 12 & 14 of Consumer Protection Act,1986                                                                 

 

BEFORE:     SHRI SUBHASH GOYAL, PRESIDENT

SMT JYOTI SIWACH, MEMBER

                  

Present:        Shri  Sanjeev Dhingra, Adv for the complainant.

                    Shri Mannu Jain, Adv for OP-1 & OP-2

                    Shri Abhik Kumar, Adv for OP-3.

 

ORDER       SUBHASH GOYAL, PRESIDENT.

The case of the complainant, in brief, is that complainant booked three bed room flat/apartment measuring 1457 sq.ft. ground floor in the name of the OP-1 & OP-2 namely  “Gurgaon City Homes” situated in Sector 85, Gurgaon at the rate of Rs.2676.73 per sq. ft and the total price was fixed at Rs.39,72,850/- and the complainant had paid a sum of Rs.20 Lacs. However, the complainant has received a letter from the OPs vide which the location of the site of the complainant was changed and the price of the flat was also enhanced to Rs.2814. Thereafter, the complainant sent cancellation letter dated 20.07.2010 which was accepted by the OPs and the OPs refunded only Rs.9, 37,500/- vide Cheque No.027384 dated 25.08.2010 drawn on HDFC Bank Ltd, Gurgaon but the entire amount was not paid. The complainant requested the OPs several times to refund the entire amount but of no use. Thus, the opposite parties are deficient in providing services to the complainant. The complainant prayed that the opposite parties be directed to remaining amount of Rs.10,62,500/- along with interest. She also sought compensation of Rs.25,000/- on account of harassment and compensation.

2                 OP-1 & OP-2 in their joint written reply have alleged that the complainant in all paid a total sum of Rs.20 Lacs in installments as part consideration and an Apartment Buyers Agreement dated  15.05.2009 was signed and executed between the complainant and the OP-1 & OP-2. In terms of clause 4 of said agreement, 20 % of the cost of the apartment was liable to be forfeited and brokerage recovered in case of nonpayment of the consideration within the stipulated period and/or cancellation of the booking of the apartment in question. Subsequently, out of her own free will and violation and due to slump in the market the complainant was not interested in keeping the apartment in question and voluntarily sought cancellation of the aforesaid booking vide her application dated 16.08.2010 requesting for concession in the forfeiture amount  and deduction of only Rs.25,000/- instead of Rs.7.80 Lacs being 20 % of the cost of the apartment in question. The OP-1 & OP-2 considered the request of the complainant sympathetically and agreed to refund the amount paid by her in two equal installments within one month subject to deduction of aforesaid Rs.25,000/- and Rs.1 Lac which the OPs had paid as brokerage to OP-3. In pursuant thereto the OPs paid to the complainant the first installment of Rs.9,37,500/- being 50 % of the refund amount vide cheque No.027384 dated 25.08.2010 of HDFC Bank, Gurgaon which was duly accepted and acknowledged by the complainant vide receipt dated 30.08.2010 duly signed and executed by Sh. Madan Mohan Singh, her husband. The OP also released the second and final installment of the refund by issuing cheque No.027468 dated 06.10.2010 drawn upon HDFC Bank in favour of complainant. However, upon being contacted on telephone  with a request to collect the said cheque from the OP-1 & OP-2, the complainant declined to do so. Thus, there was no deficiency in service on the part of OP-1 & OP-2.

3                 OP-3 in its written reply has alleged that the OP-3 was the broker of the OP-1 & OP-2 and he only introduced the complainant to avail the services of OP-1 & OP-2. Thus, there was no deficiency in service on the part of the OP-3.

4                 We have heard the parties and have perused the record available on file.

5                 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the parties, it emerges that the complainant has filed the present complaint against the OPs alleging deficiency in service on their part on the ground that she booked a flat in the project of the OP namely “Gurgaon City Homes” Sector 85, Gurgaon and the total price of the flat was Rs.39,72,850/-. However, the complainant has paid a sum of Rs.20 Lacs. However, the complainant received a letter from the OP vide which the location of the site of the complainant was changed and the price of the flat was also increased from Rs.2676.73 per sq. ft to Rs.2814 per sq.ft. Thereafter the complainant wrote cancellation letter dated 20.07.2010 which was accepted and the OP has refunded a sum of Rs.9,37,500/- vide cheque dated 25.08.2010 but the entire amount was not paid. The complainant requested the OPs several times but in vain.

6                 However, as per the contention of the OP, the complainant booked flat measuring 1457 sq.ft, basic sale price of which was Rs.39 Lacs and the complainant paid a total sum of Rs. 20 Lacs and Apartment Buyers Agreement dated 15.05.2009  was signed and executed and in terms of clause 4 of the said agreement, 20 % of the cost of the apartment was liable to be forfeited and brokerage recovered in case of non-payment of the consideration within the stipulated period  and cancellation of the booking of the apartment in question. The complainant herself gave application dated 16.08.2010 to cancel the said flat and also to refund the brokerage charges. The OP-1 & OP-2 have paid brokerage charges to OP-3 to the extent of Rs. 1 Lac. However, the complainant herself has not collected the second installment. The OPs have denied any deficiency in service on the part of the OPs.

7                 Therefore, after going through the facts and circumstances of the case and the evidence placed on file it emerges that there is no dispute regarding booking of the flat by the complainant having super area measuring 1457 sq. ft. There is no dispute that on account of change of lay out plan OP-1 wrote a letter to the complainant informing her regarding change in the area as well as location of the flat. There is no dispute that a sum of Rs.20 Lacs was deposited by the complainant out of which a sum of Rs.9,37,500/- has been refunded to the complainant but still remaining amount is to be refunded. It has come in evidence that the complainant was asked to come present on 20.07.2010 at 9.30 am and when the complainant approached their office on account of change of lay out plan and area of the flat the complainant made request to cancel the said allotment and to refund the deposited amount. The said letter is dated 20.07.2010. Therefore, the complainant was entitled to get the entire amount refunded as the OPs themselves have changed the lay out plan and increased the area also and thus, the complainant opted to cancel the allotment . Thus, on  account of not refunded the entire amount deposited by the complainant with the OPs-1 & OP-2 tantamounts to deficiency in service on the part of the OP-1 & OP-2. It has also come in evidence that the complainant has requested the OP to deduct Rs.25,000/- on account of brokerage and not more than that. The argument on behalf of OP-1 & OP-2 that they have already paid the brokerage charges to OP-3 is not sustainable in the eye of law because there was deficiency in service on the part of OP-1 & OP-2.

8                 Therefore, we direct the OP-1 & OP-2 to refund the entire amount deposited by the complainant with OP-1 & OP-2 (after deducting Rs.9,37,500/- ) along with interest @ Rs.9 % p.a. from the date of filing of the present complaint i.e. 29.10.2010 till realization. The complainant is also entitled to compensation for harassment and mental agony as well as litigation expenses to the tune of Rs.20,000/-. The OP-1 & OP-2 shall make the compliance of the order within 30 days from the date of receipt of the copy of this order. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance.

 

 

Announced                                                   (Subhash Goyal)

03.06.2016                                                       President,

                                                                   District Consumer Disputes

                                                                   Redressal Forum, Gurgaon

 

(Jyoti Siwach)       

Member