Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-111/05.12.2020
Garima Chauhan w/o Ashish Chauhan
R/o House No. 2564, Sector 45,
Gurgaon, Haryana-122001 ...Complainant
Versus
NEO Developers Private Limited
(Through its Directors)
No.32-B, Pusa Road,New Delhi,
Delhi-110005 ...Opposite Party
Order Reserved on: 28.02.2023
Date of Order: 25.05.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
ORDER
1. The instant complaint has been filed by the complainant on 05.12.2020; by alleging that the complainant booked a commercial unit which had been cancelled due to non-payment of the due amount without providing any prior notice or intimation. The complainant further alleged that OP had not followed the terms and conditions; regarding refund of the booking amount paid by the complainant.
2. The complainant booked a flat in Sector-109, Expressway, Gurugram, Haryana, in the name of NEO (Square) measuring 3850 sq.ft. and paid Rs. 10,00,000/- as token booking amount through cheque no. 624476 drawn on Axis Bank Ltd. dated 20.06.2019 (Annexure-C1) invoice and receipt of payment given by the OP is annexed (as Annexure-C5).
3.The complainant states that she availed services of opposite party for constructing/developing the said multiplex for the purpose earning livelihood. The complainant narrates that the said project was booked for her livelihood; in this regard; the complainant cites judgment dated 01.10.2019 in Sunil Kohli and Anr Vs. M/s Pureath infrastructure Ltd., civil appeal no. 9004-9005/2018, wherein it was held as, “As laid down by this Court in Laxmi Engineering Works, the explanation to Section 2(1) (d) of the Act clarifies that “in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is a ‘consumer’. This Court went on to observe that what is “Commercial Purpose” is a question of fact to be decided in the facts of each case”.
The complainant booked a unit for the purposes of earning livelihood by means of self-employment, therefore, the complainant is a consumer. On the other side, the OP is a company, it is involved in the business of Real Estate management and development. It is involved in the creation and development of various township. The complainant filed the copy of Memo of Party of Corporate Affairs as Annexure-C3.
4. The complainant further alleged that OP had assured the complainant regarding to progress that would be in an enviable location of and multiple facilities will be available, as promised by the opposite party. The opposite party issued a welcome letter dated 25.06.2019, Invoice of payment of INR 10,00,000/- as token booking amount vide cheque no. 624476 drawn on Axis Bank (Annexure-C5). The complainant further alleged that the OP has sent an email dated 26.06.2019 to the complainant acknowledging the payment of INR 10,00,000/- as booking amount as well as the opposite party further stated vide email dated 26.06.2019 (Annexure-C6). The same is conditional for 45 working days and amount shall be refunded without any deductions if conditions are not met”. The complainant states that the opposite party had spoken itself that the booking amount will be fully refunded without deductions if the conditions laid down by the opposite party is not met with.
5. The complainant further alleged that after few months; OP has sent a payment demand letter dated 19.11.2019 to the complainant for due amount of Rs. INR 26,45,364/-; a copy of the demand letter issued by the opposite party is annexed (Annexure-C7). It is further alleged that on 11.12.2019, OP had sent a letter to the complainant that booking of the unit was cancelled due to non-payment of the due amount in accordance with demand letter dated 19.11.2019; the complainant further alleged that the OP had sent cancellation letter without providing any prior notice or intimation of cancellation of the commercial unit (Annexure-C8 is the letter dated 11.12.2019). The terms and conditions of the opposite party which was mentioned vide email dated 26.06.2019, if the conditions laid down by the Opposite Party are not met, as in the present case where condition of payment of the due amount was not done on time, in such a case the total booking amount received from the complainant will be refunded in full without making any deductions.
6. The OP failed to refund the booking amount of Rs. 10,00,000/- paid by the complainant, however, opposite party has sent an email dated 20.08.2020 stating to provide various documents which needed to be filled and submitted by the complainant for the execution of refund, thus the complainant furnished the required document to the opposite party (Annexure-C9 is email), but no result.
7.The complainant also sent a request to the opposite party vide email dated 10.10.2020 for refund of booking amount despite the expiry of eleven months since the cancellation of booking of the unit of the complainant. The complainant states that as per the assurances by the opposite party, the refund process will be completed in 30-45 days same is annexed as (Annexure-10).
8. The complainant further alleges since no amount has been refunded by the opposite party till date despite expiry of eleventh months since the cancellation of booking of said unit of the complainant, the acts of the opposite party displays grass, deficiency and unsatisfactory service on the part of OP but is also wrongful deceitful intention to evade accountability and responsibility on all counts. Complainant is victim of the wrongful act of the opposite party, this conduct of the opposite party causing deficiency in service and unfair trade practice of the in not completing the refund process of the complainant as promised.
9.The complainant alleged that the deficiency in service and unfair trade practice by the opposite party are mentioned as detailed in below:
- After receiving the email requesting for refund of the amount paid by the complainant, did not comply nor any satisfactory response was provided by the OP. The multiple emails sent by the complainant which, account ‘deficiency in service’ ‘unfair trade practice’ by the OP.
- The complainant further alleged that the opposite party have used its position of strength in taking upon one sided terms and it is submitted that the terms and conditions were one sided as those opposite party has right to cancel the unit and refund the money if the complainant does not meet the condition laid down by it, the complainant has no right to demand refund in the case the opposite party has cancelled the unit, the complainant had no choice but to accept the unfair terms of the opposite party as mentioned above.
- The complainant further alleged that the opposite party has been guilty of misrepresentation to the complainant; the opposite party had been stated in the email dated 26.06.2019 acknowledgment the payment of INR 10,00,000/- as booking amount; moreover stated in the email that the same is conditional for 45 days amount shall be refunded without any deduction if the conditions are not met, but no refund has been made till date despite reminder from the complainant.
- The complainant states that the cause of action arose when the opposite party issued an arbitrary cancellation letter dated 11.01.2019 to the complainant; in which booking of the unit was cancelled due to non-payment of the due amount in accordance with payment demand letter dated 19.11.2019, the cause of action was still continuing as on date of filing this complaint. In this regard, the complainant sided decision of the Hon’ble NCDRC in Kaushik Guha vs. Bengal Villaech Universal Infrastructure Limited, CC No.804 of 2017 wherein it was held as “the Buyer has a recurrent cause of action till the time either the Builder delivers the possession or refuse to deliver possession or expressed his inability to construct the flat sold by him. The cause of action may also arise earlier if the Buyer asks for refund of the entire amount paid to the Builder”. Hence, the present complaint is within time. The complainant suffered financial loss on account of delay in the process of refund.
10. It is further stated by the complainant that acts of OP are clearly demonstrating of callous and negligence, making of false promise and cheating its customer to make illegal, unjustified and wrongful benefits.
The complainant seeks directions to direct OP to refund the sum of Rs. 10,00,000/- along with interest @ 18% p.a. w.e.f date of cancellation unit realization of the amount; Rs. 5,00,000/- as compensation and Rs. 5,00,000/- as mental agony, harassment, etc.
11. Notice on complaint was sent to OP, OP was served, however, no reply was filed despite period of 30 days was over, which was recorded in the proceedings dated 04.02.2021. The complainant led the evidence. The case came for arguments.
At this stage, on 15.02.2023, Sh. Vijender Singh, Advocate for OP appeared, when partly arguments were heard, Ld. Counsel for OP requested that he has to seek certain clarifications from office of OP and then further arguments will be advanced on next date.
12. The complainant had filed written arguments, however, the complainant’s Counsel Sh. Shubham Kaushik Advocate for the complainant and Sh. Vijender Singh, Advocate for OP made oral submissions their case, which has been referred in para no. 11.
13.We have considered the contention of the complainant and, the record filed, and proved on behalf of complainant. Since there is no reply by the OP and on the other side, the complainant has led evidence, thus the facts and documents proved by the complainant remained unchallenged.
The complainant had booked the commercial unit, she had also deposited the amount as booking amount, but due to some financial problem and Covid-19 pandemic, the complainant could not pay the amount due. Simultaneously, “On the other hand, OP had assured to the complainant that amount shall be refunded without any deductions vide email dated 26.06.2019 (as annexure-C6) by the OP to the complainant.
14. On the face of it, since the OP failed to return the booking amount to the complainant, it amounts to deficiency in services and there was no buyers agreement executed between the parties and complainant is entitled for refund of amount of Rs. 10,00,000/-.
15. The claimant claims interest at the rate of 18% p.a. on the booking amount, which OP failed to return, the complainant was deprived of use her money of Rs. 10,00,000/-, under the circumstances, she is held entitled for interest @ 9% p.a. from the date of complaint till realization of the amount. The complainant faced the trauma of depriving of her money despite asking the OP to refund the amount, that too in the period of financial problem with her during Covid-19 pandemic, she is held entitled for damages/ compensation of Rs. 25,000/- of trauma and harassment faced by her in her favour and against the OP besides cost is also quantified as Rs. 10,000/-.
16. Accordingly, the complaint is allowed in favour of complainant and against the OP while directing the OP to pay sum of Rs. 10,00,000/- along with interest @ 9% p.a. from the date of filing complaint till realization of the amount besides damages of Rs. 25,000/- and cost of 10,000/-.
The amounts will be payable within 30 days. In case, the amount is not paid within 30 days; the rate of interest will be 10% p.a. in place of interest @ 9% p.a. on amount of Rs. 10,00,000/-.
17. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
18: Announced on this 25th May, 2023.
[Vyas Muni Rai] [Shahina] [Inder Jeet Singh]
Member Member (Female) President
