DR.INDER JIT SINGH, MEMBER

1.   The present Consumer Complaint (CC) has been filed by the Complainant against the opposite party as detailed above, inter aila praying for:-

(i)      refund of Rs.29,23,336/- paid by the complainant to the opposite

party alongwith interest @18% p.a. and holding that the alleged forfeiture of Rs.25,44,989/- by OP is illegal.

(ii)      Rs.2,00,000/- as compensation on account of mental agony and harassment.

(iii)     to pay Rs.1,00,000/-  towards cost of litigation. 

2.       Notice was issued to the opposite party on 24.05.2019 giving them 30 days’ time to file their written statement.

3.       It is averred/stated in the complaint that:-

i)        That the complainant booked a flat on 04.03.2013 in the residential Project launched by the OP in the name of “Aanand Vilas” falling under the revenue estates of Sector 81, District Faridabad.  The complainant paid Rs.7,50,000/- as advance payment and was allotted flat No. T11-2A. Allotment letter dated 23.05.2013 was issued.  No agreement was executed between the parties. The total consideration for the flat was Rs.1,12,75,250/-, out of which, the complainant paid Rs.29,23,336/-  till 25.06.2013. The OP was liable to handover the possession of the unit within 36 months from the date of  allotment.

ii)       The opposite party failed to inform the status of the construction to complainant despite receipt of a huge amount and also failed to execute the builder buyer agreement.  No Buyer’s agreement was entered between the parties, however, the officials of OP kept on assuring that the same is going and complainant will get the details soon and soon buyers agreement will be executed.  Towards the end of 2015 till in earlier 2018, the complainant could not contact the OP as she lost her husband and daughter in law during this period and was not in a position to contact the OP.  After that, the complainant made several attempts to communicate with the OP but was of no avail as the OP is not coming forward to give any satisfactory reply to complainant, which shows unfair trade practice and malafide intention just to cause wrongful loss and harassment  towards the OP.

iii)      In March 2019, the complainant received a letter dated 05.03.2019 from the OP informing that the booking has been cancelled and they are refunding an amount of Rs.3,78,347/- and forfeiting Rs.25,44,989/- from the total amount paid i.e. Rs.29,23,336/-. In the letter dated 05.03.2019, the OP has stated that it has been acting on the clauses of BBA, however no agreement was signed between the parties, thus their alleged cancellation is wrong and illegal. The complainant sent a legal notice dated 21.12.2018 to the OP for refund of the entire amount paid to the OP. Despite receipt of notice, OP failed to do the needful. Hence, this complaint has been filed.

4.       OP in their written statement/reply dated 15.07.2019 stated that :-

1. The complaint is liable to be rejected as the complainant intentionally  and with a malafide agenda made false pleadings that non-receipt of cancellation sent to her by the OP in 2015, non-supply of the complete application  form dated 04.03.2013, non-supply/execution  of Buyers Agreement and cancellation of the booked unit and of forfeiture of the booking money.

2. The complainant paid 25% of the sale consideration amount in 3-4 months of booking and remaining 75% was to be paid over a period of time as mentioned in the application dated 04.03.2013.The complainant failed to make any further payment towards  the consideration.

3. The allegations regarding non-completion of the project is false and baseless as the OP has obtained the requisite Occupation Certificate on 24.01.2019 from the competent authorities.

4. The complaint is barred by time as the unit was booked in 2013 and last payment was made in June 2013 and OP sent numerous reminders and ultimately the allotment was cancelled in 2015.

5. This Commission has no jurisdiction to try and entertain the present complaint as the complainant has claimed refund of Rs.29 lakh approx.

5.       Evidence by way of affidavit was filed by the complainant on 09.09.2019 and affidavit of evidence was filed by the OP on 15.07.2019 broadly on the lines of averments made in the complaint.

6.       The details of the flat allotted to the Complainant/other relevant details of the case are given in the Table below:-

7.       Heard counsel of both the sides.

8.       The contention of OP that this Commission lacks pecuniary jurisdiction is not valid. Under Section 21 of the Act, Commission has the jurisdiction where value of goods and services and compensation, if any, claimed exceeds Rupees one crore. The objection that the Complaint is barred by limitation is also not accepted. The OP have failed to deliver the possession of the unit to the complainant till date and therefore, the cause of action is continuing. The contention that complainant is not a consumer as he has purchased the unit for investment purpose is also rejected as no such evidence has been adduced by the OP in this regard.  The plea of OP that the RERA is the Competent Authority to decide the matter is also not valid. as remedies under the Consumer Protection Act were in addition to the remedies available under special statue”.  Hence, this Commission has the jurisdiction to entertain this complaint.

9.        In the instant case, no Apartment Buyer Agreement (ABA) has been signed between the parties.  OP has stated that copy of ABA was sent to the complainant but complainant did not sign the same.  OP has produced copies of their communications vide which copy of ABA was sent to complainant for signatures.  OP has also submitted a copy of Booking/Application form signed by the Complainant, which contains the basic details, payment schedule and terms & conditions etc.  The said unit has been booked under the construction linked plan.  As per terms and conditions contained in the Application form, 15% of total sale consideration constitutes Earnest Money and in case of applicant committing default in payments as per schedule, the developer is entitled to forfeit the earnest money and non-refundable amounts, including interest on delayed payments, brokerage etc.  No doubt the developer has delayed the construction/completion of the project in question, but complainant has not fulfilled the commitments of making timely payments as per schedule indicated in the application form and demand letters issued by the OP.  Citing of clauses of agreement in the cancellation letter and for forfeiture of Earnest Money etc. by OP is not correct as no ABA was signed in the present case.  No doubt the complainant may have genuine personal reasons, but such delay on her part in not making timely payments are not acceptable.  Hence, considering all the facts and circumstances of the case, we find that it would meet the ends of justice for both the parties, if OP is allowed to deduct/forfeit only 10% of the total sale consideration of Rs.11,27,525/- as earnest money and refund the balance amount, i.e. Rs.17,95,811/- with interest @6% p.a. from the date of deposit till the date of refund.

10. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

(i)      The OP shall forfeit a maximum of 10% of the total sale consideration viz Rs.11,27,525/- and refund the balance  amount of Rs.17,95,811/- (Rupees eleven lakh twenty seven thousand five hundred twenty five only) to the complainant, alongwith simple interest @ 6% per annum from the date of payment till the date of refund.  The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainant based on receipts etc.

(ii)      Parties to bear their respective costs.

(iii) The payment in terms of this order shall be paid within three months from today.

(iv) In case the complainant has taken loan from Bank(s)/other financial institution(s) and the same/any portion of the same is still outstanding, the refund amount will be first utilized for repaying the outstanding amount of such loans and balance will be retained by the complainant.The complainant would submit the requisite documents from the concerned bank(s)/financial institution(s) to the OP four weeks from receipt of this order to enable them to issue refund cheques/drafts accordingly.

11.     The pending IAs, if any, also stand disposed off.