DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.185/2014
1. Mrs. Priya Talwar
W/o Sh. Gunjan Arora,
2. Sh. Jatinder Nath Talwar
S/o Sh. I. D. Talwar
Both R/o
31-B, MIG, Sheikh Sarai-I,
New Delhi-110017 …Complainants
Versus
National Building Construction Corporation Ltd. (NBCC)
(Govt. of India Enterprises)
NBCC Bhawan, Lodhi Road,
New Delhi-110003 ……Opposite Party
Date of Institution : 16.05.14 Date of Order : 14.01.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Briefly stated, the case of the Complainants, in brief, is that they applied for a flat in the “ NBCC Heights” Scheme of the OP at Sector 89, Gurgaon, vide application No.10145 dated 07.10.13. They deposited an amount of Rs.3 lakhs through bank drafts which was duly acknowledged by the OP, vide receipt No.10145 dated 07.10.13. The OP allotted them a PLC flat No.K1004 Type-I, vide allotment No. NBCC/NH-3/Allotment/2013 dated 01.11.13. They issued the letter in duplicate and requested them to sign and return the duplicate copy as token of its acceptance. Since they were not interested in accepting the flat with PLC, they did not sign and return the duplicate copy as token of its acceptance. The clause 12 of the General Terms and Conditions of the allotment reads as under:
“Failure to accept the allotment of apartment with PLC within 30 days of allotment letter will result in cancellation of allotment and in such case NBCC shall refund the application money without interest and after deduction of service charges of Rs.25,000/- (Rupees Twenty Five Thousand Only).”
They did not accept the allotment of the apartment with PLC within 30 days period which resulted in cancellation of allotment and in such a case NBCC was to refund the application money without interest and after deduction of service charges of Rs.25,000/-. Complainants have further stated that the OP was liable to refund to them Rs.2,75,000/- after deduction of Rs.25,000/- towards service charges from application money of Rs.3,00,000/-. But OP refunded only Rs.2,50,000/- by deducting Rs.50,000/- (instead of Rs.25,000/-) vide their letter No. NBCC/RE/GURGAON/REFUND/850 dated 18.12.2013. OP was requested a number of times to refund the balance of Rs.25,000/- but to no avail. They sent a legal notice on 31.01.14 by speed post to the OP which was replied without revealing any ground for not refunding the balance of Rs.25,000/- with interest but the OP did not refund the balance amount. Pleading deficiency in service on the part of OP, the Complainants have prayed as under:-
- Direct the OP to refund the amount of Rs.25,000/- on account of shortfall in the refund amount and payment of interest @ 1.5% per month, calculated w.e.f. 01.12.13 till the time the payment of Rs.25,000/- is made.
- Direct the OP to pay a sum of Rs.30,000/- as damages to the Complainants for causing mental torture, tension and harassment.
- Direct the OP to pay a sum of Rs.20,000/- towards litigation cost.
OP in the written statement has stated that the Complainants had submitted an application form for allotment of an apartment in a residential project developed by the OP and after the draw of lot as prescribed in General Terms and Conditions an apartment was allotted to the Complainants. The Complainants, however, chose to withdraw their allotment vide mail dated 25.11.2013 and accordingly the OP returned the deposit after deduction of the prescribed amount towards cancellation charges. As no sale took place between the Complainants and the OP hence the nature of dispute is purely civil and is not maintainable before this Forum. OP has further stated that as the request for cancellation of allotment had been made beyond the period of 30 days from the date of draw of lots an amount of Rs.50,000/- was deducted towards cancellation charges/service charges as prescribed under clause 24 (b) of the General Terms and Conditions. The OP returned the amount of Rs.2,50,000/- vide cheque No. 333362 dated 17.12.2013 which was received by the Complainant No.2. The Complainants were telephonically called to intimate about the cheque and the amount being refunded. However, while signing the receipt of the cheque, the Complainant No.2 suddenly stated that he protested the deduction of Rs.50,000/-, since the allotment letter was dated 01.11.13 and the request for cancellation was sent on 25.11.13 and as the request was made within 30 days, the amount of Rs.25,000/- should be refunded to him. Non-acceptance of allotment, which is evidently an afterthought, was brought out for the first time only in email dated 20.12.13 when the OP clarified in their email dated 20.01.14 that the Complainants did not qualify under clause 12, since their reason to request for cancellation of allotment was regarding non-acceptance of flat because of “….. major power line (220 KV) passing right over the park”. Complainants again changed their stand and in their letter dated 31.01.2014 they mentioned that they did not accept the allotment due to non-acceptance of PLC. This too was clearly an afterthought and in contradiction to their earlier requests. OP informed vide letter dated 24.03.14 that the Complainants request for refund of an additional amount of Rs.25,000/- was being declined. OP has prayed for dismissal of the complaint and that the Complainants may be directed to pay the litigation costs to OP.
Complainant has filed rejoinder to the written statement of OP. It is stated as under:
“8 Admittedly complainants had requested the OP for withdrawal (the word cancellation was not used) of application on account of “……….. major power line (220 KV) passing right over the park……..” with a request for full refund of the application money. However this request of the complainants was not accepted by the OP, and hence is no longer an issue between the parties.”
Affidavit of Complainant No.2 has been filed in evidence while affidavit of Ms. Sumedha Behl, Deputy General Manager (Marketing) has been filed in evidence on behalf of OP.
Written arguments have been filed on behalf of the parties. Oral arguments are also heard.
We straightway come to the question, whether the refusal to refund the amount of Rs.25,000/- to the Complainants by the OP was justified? If so, whether the Complainants are not entitled to any relief?
Admittedly, the Complainants had booked a flat in the “NBCC Heights” Scheme of the OP at Sector 89, Gurgaon vide application No.10145 dated 07.10.13 (Copy Annexure-I). They had deposited an amount of Rs.3 lakhs through bank drafts which was duly acknowledged by the OP vide receipt No.10145 dated 07.10.13 (copy Annexure-III). The OP allotted to them a PLC flat No.K1004 Type-I, vide allotment No.NBCC/NH-3/Allotment/2013 dated 01.11.13 (copy Annexure-IV). Instead of cancelling the allotted flat under clause 12 of the General Terms and Condition of the Allotment, the Complainants requested the OP for refund of money on account of major power line (220 KV) passing right over the park. The Complainants neither used the word ‘withdrawn’ nor ‘cancelled’ in the said email dated 25.11.13. However refund of the amount was claimed by the Complainants on 25.11.13 i.e. within one month from the date of cancellation of the said flat. However, we have very carefully perused clause 12 and clause 24 (b) of the General Terms and Conditions of the Allotment. Cancellation of a PLC flat was to be made under clause 12 while clause 24 (b) inter-alia provides that when the application is withdrawn and cancellation of the flat is made within 30 days from the date of draw of lots, in that event OP is liable to refund an amount after deducting Rs.25,000/- from it. It is evident that the Complainants has opted for withdrawal of their application and cancellation of flat within 30 days. Clause 24 (b) of the General Terms and Conditions of the Allotment does not deal with the PLC flat or flat of other category. In other words, it does not make any difference between PLC flats and flats of other categories and is in general in nature. We should give harmonious construction to the two clauses. If there is a conflict between clause 12 and clause 24 (b), then clause 24 (b) should prevail. Therefore, we hold that OP should have interpreted the terms with an unbiased mind but the same was not done. Therefore, we hold that while holding an amount of Rs.25,000/- as discussed hereinabove amounts to deficiency in service on the part of OP which certainly must have caused mental agony and harassment to the Complainants for which they have engaged an Advocate to file a complaint. Suffice it to say that the decision rendered by the Hon’ble National Commission in F.A. No.100/13 Shri Parvel Garg Vs. The New India Assurance Company Ltd., decided on 28.02.14 relied on behalf of the OP does not apply to the facts of the present case.
Therefore, we allow the complaint and direct the OP to refund Rs.25,000/- alongwith interest @ 9 % per annum from the date of filing of the complaint till realization, Rs.10,000/- for mental torture and harassment undergone by the Complainants including cost of the litigation within a period of 30 days from the date of receipt of copy of this order.
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 14.01.16.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
By D K Yadav
