DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.902/2007
Sh. Harish Kumar Monga
S/o Late Sh. Buta Ram Ji
R/o 703, Dr. Mukherji Nagar
Delhi-110009 ….Complainant
Versus
M/s VXL Realtors Pvt. Ltd.
Through its Principal Office/CMD
503-509, Ajit Singh House,
12, DDA Commercial Centre,
Yusuf Sarai, New Delhi ….Opposite Party
Date of Institution : 16.08.07 Date of Order : 29.08.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
As per amended complaint, the case of the complainant is that on 15.12.2005 the complainant booked a residential flat of 2 + 1 BHK bedrooms admeasuring 1250 sq. ft. in the project of OP known as Indira Puram-Ghaziabad “East Avenue” @ Rs.1600/- per sq. ft. and the complainant agreed to pay a sum of Rs.100/- towards preferential location charges for booking a first floor residential accommodation for his residence. At the time of booking the complainant paid a sum of Rs.2,12,500/- to the OP by means of a cheque bearing No.310248 dated 09.12.2005. According to the Complainant, at the time of booking the printed terms and condition on the application form were signed after cancelling the clause 3 relating to the refund of the booked amount in case of failure on the part of the OP to allot the flat. It is stated that the booking amount after the settlement of the terms was duly accepted by the OP vide receipt No.1044 and letter dated 13.01.2006. The OP further demanded a sum of Rs.2,12,500/- towards cost of flat which was also paid by the complainant vide cheque No. 380788 dated 20.01.2006 which was duly acknowledged by the OP vide receipt No.1752 dated 08.03.2006. Thereafter on 11.08.2006 the OP informed the complainant that the project had been put on hold for some technical reasons and suggested him to withdraw the booking amount. He met Sh. Udyan Giri, the Relationship Officer of the OP and informed him about the terms and conditions agreed at the time of booking of the flat and that the “complainant cannot withdraw the amount simply with interest” who sought sometime to discuss with the Director of the Complainant Co. but thereafter despite making several calls the OP failed to refund the amount with compensation. According to the Complainant, when he booked the flat, the market rate for booking of such like flat was ranging between Rs.1600 to 1700 per sq. ft. which now has arisen to Rs.2400-Rs.2500 per sq. ft. as there is a difference of Rs.700/- to Rs.800/- per sq. ft. which the complainant has to pay now for booking of such like flat in the area/locality where the project of the OP was coming up. It is submitted that the complainant has visited many builders and estate agents in the locality but none is ready to book any flat at the rate less than that of Rs.2500/- per sq. ft. It is submitted that the complainant was already ready and willing to pay further amount to the OP. Having no option, the complainant served a notice to the OP for refund of the principal amount alongwith difference in the booking rates as damages but the OP despite receipt of the same has failed to do so. According to the Complainant, the OP is liable to refund the principal booking amount of Rs.4,25,000/- alongwith Rs.9,37,500/- to the complainant towards the difference in the market rate as compensation at an average rate of difference at Rs.750/- per sq. ft. as compensation, the loss of which is being suffered by the complainant due to the unfair trade practice and deficiency in service on the part of the OP. Hence, this complaint for the following reliefs:-
i. “to direct the OP to allot a similar situated unit to the complainant, in their another project named Eastern Heights situated at Indirapuram, U.P. which the OP launched almost at the same time in 2005 and booked at the same price against the balance payment, which the complainant is ready and wiling to pay the opposite party at the rate booked by the OP or on such terms this Forum deems fit and proper in the circumstances of the case.”
ii. “to direct the OP to pay a sum of Rs.13,62,500/- towards principal booking amount and difference in the booking rate as loss suffered by the complainant due to unfair trade practice by the OP as damages alongwith the interest @ 18% p.a. from 18th January, 2007 till the disposal of the complaint.”
OP in the written statement has inter-alia stated that it is specifically mentioned in the application as well as the Flat Buyer Agreement that if due to any reason the OP is not in a position to allot the unit/flat applied, the OP shall refund the amount deposited without any interest and shall not be liable to pay any amount as compensation in respect thereof. It is denied that clause no.3 of the application was agreed to be deleted; that merely by putting small cross at clause 3 as is contemplated by the complainant at the time of filing of present complaint would not make the clause deleted as said by the complainant; that had it been agreed to be deleted, the lines would have been properly cut. It is admitted that a sum of Rs.2,12,000/- was paid by the complainant. It is submitted that the complainant has not come forward with the complete facts while intimating about the cancellation of the project, vide letter dated 11.08.2006, the OP also offered to the complainant a unit in the upcoming group housing project namely “East Ville Apartments” in place of unit already booked by the complainant but the complainant neither accepted nor refused the said allotment for the best reason known to him. It is denied that Mr. Udyan Giri at any time proposed the complainant with regard to payment of interest and compensation. It is denied that the OP is liable to return the principal amount alongwith Rs.9,37,500/- as alleged. It is submitted that in case the complainant is not interested to accept the alternative offer submitted by the OP, the OP is liable to pay a sum of Rs.4,25,000/- deposited by the complainant with the OP. It is denied that the OP is liable to pay Rs.13,62,000/- as alleged towards the booking amount and difference in the booking rate as loss suffered by the complainant. Other averments made in the complaint have been denied by the OP.
Complainant has filed a rejoinder. It is stated as follows:-
“… Offer by the Opp. Party to the complainant in their coming up project at Ghaziabad, instead of the project in question was not acceptable to the complainant being unsuitable nor such type of term or condition for exit or switch over to another project was agreed between the parties…”
Complainant has filed his own affidavit in evidence. on the other hand, affidavit of Sh. Prabjit Singh, Chief Executive Officer has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the Complainant and have also gone through the file very carefully.
The first question which arises for consideration is, whether the Flat Buyer Agreement between the parties had been executed after jointly agreeing that clause 3 of the agreement shall not be a part of the same. Copy of the same has been filed on the record on behalf of the complainant as C 2 which we mark as Mark A for the purposes of identification. It stipulates that if for any reason the OP is not in a position to allot the flat/unit applied for the OP shall refund the amount deposited without any interest on or before 6 months from the date of registration and the OP shall not be liable for payment of any compensation on this account whatsoever.
According to the OP, the said clause was agreed to be read as part of the agreement and it is the complainant who has himself marked the cross against the said clause. The copy of the said agreement/letter dated 05.12.05 signed by the OP must have been in possession of the OP. In order to prove that the said clause was not agreed to be deleted or not to be read as part of the agreement the OP should have filed the copy of the copy of the agreement/letter which must be in possession of the OP. However, the OP has not produced the same and has thus withheld an important piece of evidence from the Forum. Therefore, we hold that the said clause containing the above stipulation was mutually agreed to be not read as part of the agreement.
The next and the most important question which now arises for consideration is, whether the complainant is infact entitled to compensation of Rs.750 per sq. ft. on account of enhancement of the price of such flats in the locality. As stated in the reply to the complaint and not denied by the complainant in his replication the OP had offered to the complainant a unit in the upcoming group housing project known as “East Ville Apartments” in place of the unit in question booked by the complainant. Now the version of the complainant in this regard is that the offer made by the OP in its up coming project is not acceptable to him being unsuitable and no such type of term or condition for exit or switch over to another project was agreed between the parties. The case of the complainant is his affidavit is also to the same effect.
Now the contention of complainant in this regard is that the market rate for booking of such like flat was ranging between Rs.1600/- to 1700/- per sq. ft. which now has arisen to Rs.2400-Rs.2500 per sq. ft. and thus there is a difference of Rs.700/- to Rs.800/- per sq. ft. which the complainant has to pay now for booking of such like flat in the area/locality where the project of the OP was coming up. In order to prove his contention he has filed a list of the projects being floated in the locality in question as Ex. CW1/10. These projects are in the area of Ghaziabad/Indirapuram, Noida & NH-24. The project in which the complainant had booked the flat was also in Indirapuram, Ghaziabad. The project in which the OP had offered an alternative flat to the complainant was also in the same area. Therefore, the contention of the complainant that the alternative offer of the flat in another project was not acceptable to him and the same is liable to be discarded is totally malafide. The submission of the complainant that there was no such stipulation for switch over to another project in the agreement in question executed between the parties is also not acceptable for the simple reason that the complainant did not become ready to receive the amount deposited by him alongwith interest from the OP and asked us to grant compensation to him for enhancement of the cost of the flat in such type of project in the same locality. Had he accepted the offer of the OP to allot him a flat in another project of the OP in the same area, the rates of the same would have also increased in the same proportionate. Moreover, there is also no stipulation in the agreement that if the OP fails to deliver the flat to the complainant the latter will become entitled to seek compensation as per the prevalent market price at the time of filing of complaint.
Therefore, in our considered opinion, the complainant has not been able to make out a case of deficiency in service or unfair trade practice on the part of the OP.
In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 29.08.17.
