DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 349 of 21-07-2011

Decided on : 09-03-2012

1. Girdhari Lal Goyal aged about 47 years S/o Sh. Baldev Raj

2. Anuradha Goyal W/o Girdhari Lal Goyal, Both residents of Street No. 13-14, Circular Road, Abohar.

... Complainants

Versus

1. OMAXE Build Home Private Ltd., Regd Office 12, Local Shopping Centre, Kalkajee, New Delhi through its MD/CMD/Chairman/General Manager/President

2. Branch Manager/Authorized Signatory OMAXE Build Home Private Ltd., Goniana Road, Bathinda.

   ..... Opposite parties

Complaint under Section 12 of the Consumer Protection

Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

For the Complainant : Sh. Ashok Gupta, counsel for the complainant

For the Opposite parties : Sh. Ajay Singla, counsel for opposite parties.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainants under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated the case of the complainants is that opposite party No. 1 floated a housing scheme named OMAXE City Amargarh Goniana Road, Bathinda. The complainants contacted opposite party No. 2 and applied for a plot of 350 Sq. Yds for the price of Rs. 22,75,000/- out of which the complainants deposited Rs. 1,95,000/- on 01-06-2010 and Rs. 32,500/- on 22-6-2010 i.e. 10% of the total amount. The opposite parties booked a plot No. 174 vide its allotment letter dated 24-09-2010. The complainants again deposited second installment of Rs. 2,27,500/- on 09-09-2010 against the due installment of dated 24-10-2010 as per payment schedule. The opposite parties promised with the complainants that he would be given a life style plot and the possession would be given shortly. The opposite parties are demanding the payments at their own but not as per schedule shown at the time of booking. The complainants visited the office of the opposite parties in March, 2011 to deposit the 3^rd installment but one Manish Kumar did not accept the amount and told that three installments are due against the complainants and advised them to pay three installments before 15^th April, 2011. The said Munish Kumar further threatened if the payment of 50% is not made before 15-3-2011 and balance amount of 50% is not made upto 15-04-2011 then plot would be cancelled. The complainants visited the office of opposite party No. 2 with 50% amount but Manish Kumar and Raj Kumar employees of the company told them to come in the month of April. The complainant again visited the office of opposite party No. 2 but they did not accept the 50% of amount. The complainants fulfilled their part of agreement but the possession is not delivered to them till date despite repeated requests. The opposite parties demanded full amount before giving any possession whereas they are bound to charge the amount through installments as per payment schedule. The complainants alleged that there is no development in the OMAXE City as there are no roads, electricity, Sewerage and water etc., which are the basic amenities. The opposite parties are bound to develop the land as per agreement and commitment. The opposite parties are forcing the complainants and other to make the balance payment without providing/handing over the physical possession of the plot. The cost of construction has increased 2-3 times in one year and the complainants have to spend extra money for constructing the house. The opposite parties, to save their skin tried to get the signatures of the complainants on blank paper to show delivery of physical possession, but the complainants refused to sign the blank documents. The complainants fulfilled his part of agreement but the possession of the plot is not given till date. The opposite parties demanded full amount before giving any possession whereas the complainants were to make the payment through installments as per agreement/payment schedule. The complainants requested the opposite parties that they have already made 20% payment as per commitment and is still ready to make the balance payment in installments, but they turned down the requests and directed to deposit the total balance amount with interest. The complainants alleged that they repeatedly visited the opposite parties and requested them to handover the physical possession of developed plot No. 174 and get the installment as per schedule without interest, but to no effect. Hence, the complainants have filed the present complaint seeking directions to the opposite parties to handover the physical possession of the plot in question and pay them compensation and cost.

2. The opposite parties filed their joint written reply and admitted that the complainants had filed application form for purchase of plot; deposited a sum of Rs. 1,95,000/- on 1-6-2010 and Rs. 32,500/- with the opposite parties on 22-6-2010; receipts in this regard and allotment letter dated 14-09-2010 were issued to the complainants and the complainants deposited a sum of Rs. 2,27,500/- with the opposite parties on 9-9-2010 against valid receipt. It has been pleaded that the complainants had themselves applied for allotment of plot and plot No. 174 was duly allotted to the complainants. The complainants did not pay the balance installments as per payment schedule despite repeated oral as well as written requests of the opposite parties. As per payment schedule, 10% amount was required to be deposited at the time of booking of allotment, another 10% amount was required to be deposited within 30 days of the allotment and then 10% amount after three months, 10% amount after six months, 10% amount after nine months and so on, as mentioned in the payment schedule. The total cost of the plot was also mentioned in the payment schedule as well as in the allotment letter. The opposite parties requested the complainants to deposit due installments vide letters dated 10-7-2010, 25-7-2010 and 14-8-2010, but the complainants deposited only a sum of Rs. 2,27,500/- vide receipt dated 9-9-2010. Thereafter again complainants did not deposit any amount and the opposite parties requested the complainants vide its letters dated 15-09-2010, 30-09-2010 and 1-11-2010 to pay due installments. Then the opposite parties sent letter dated 15-1-2011 to the complainants vide which it was brought to the notice of the complainants that they are being given last and final chance to deposit due amount alongwith interest etc. otherwise action would be taken but despite receipt of said notice, the complainants did not deposit any amount. Thereafter the opposite parties cancelled the allotment and vide their registered letter dated 28-2-2011 intimated the complainants about cancellation. The opposite parties have pleaded that they have fully complied with provisions of the allotment letter but the complainants intentionally and willfully did not deposit installments as per agreement and as per payment schedule and have violated the terms and conditions of the agreement.

3. Parties have led their evidence in support of their respective pleadings

4. Arguments heard. Record alongwith written submissions submitted by the parties perused.

5. These are undisputed facts between the parties that the complainants applied for plot of 350 Sq. Yds for the price of 22,75,000/- out of which the complainants deposited Rs. 1,95,000/- on 01-06-2010 and Rs. 32,500/- on 22-06-2010 i.e. 10% of the total amount. The opposite parties allotted plot No. 174 vide allotment letter dated 24-09-2010 to the complainants. The complainants again deposited second installment of Rs. 2,27,500/- on 09-09-2010 against the due installment dated 24-10-2010 as per payment schedule. The complainants paid a total sum of Rs. 4,55,000/- to the opposite parties.

6. The learned counsel for the complainants submitted that the opposite parties are demanding the payments at their own but not as per schedule of payment shown at the time of booking of the plot. The complainants deposited the second installment of Rs. 2,27,500/- in advance. In the month of March, 2011, the complainants visited the office of the opposite parties to deposit 3^rd installment but one Manish Kumar did not accept the amount and told that three installments are due against the complainants and advised them to pay the same before 15^th April, 2011. The complainants visited the office of opposite party No. 2 repeatedly but they did not accept 50% of amount. The learned counsel for the complainants submitted that the complainants requested the opposite parties that they have already made 20% payment as per commitment and is still ready to make the balance in installments, but the opposite parties directed them to deposit the total balance amount with interest.

7. On the other hand, the learned counsel for the opposite parties submitted that the complainants in all paid a sum of Rs. 4,55,000/- to the opposite parties. As per payment schedule 10% amount was required to be deposited at the time of booking of allotment, another 10% within 30 days of allotment, then 10% after three months, 10% after six months, 10% after nine months and so on as mentioned in payment schedule as well as in the allotment letter. The opposite parties issued repeated reminders to the complainants to deposit due installments, but they did not deposit the due installments. Thereafter the opposite parties sent letter dated 15-1-2011 to the complainants vide which it was brought to their notice that they are being given final chance to deposit over due amounts alongwith interest, but they did not deposit any amount and accordingly, the opposite parties vide their letter dated 28-02-2011 cancelled the allotment of plot in question.

8. The opposite parties have pleaded that repeated reminders have been issued to the complainants to deposit the due amount which they failed to deposit and accordingly, the opposite parties cancelled the allotment of plot. A perusal of alleged letters/reminders Ex. R-6 to Ex. R-11 reveals that nothing has been mentioned to them to the effect that through which mode the said letters have been served on the complainants whereas it has been mentioned “By registered A.D./courier/ordinary post” on final notice as well as cancellation of plot Ex. R-12 & Ex. R-13 respectively. The opposite parties have not placed on file any application form of the complainants vide which they applied for the plot in question and in the absence of application form it could not be ascertained that for which schedule of payment the complainants applied/opted for. However, the opposite parties have placed on file allotment letter Ex. R-2. A perusal of Annexure 'B (Part III) “Payment Plan of the Plot' against which the tick has been marked attached with the allotment letter reads as under :

   “ PLAN 'A'

   1. At the time of booking 20% of BSP

   2. Within 45 days of allotment 05% of BSP

   3. Within 3 months of allotment 10% of BSP

   4. Within 6 months of allotment 15% of BSP + 50% of PLC (if any)

   5. Within 9 months of allotment 15% of BSP + 50% of PLC (if any)

   6. Within 12 months of allotment 15% of BSP

   7. Within 15 months of allotment 15% of BSP

   8. On offer of possession 05% of BSP + 100% of additional

   charges + Stamp duty + Registration

   charges + Other charges (if any).”

9. The plot in question was allotted to the complainants vide allotment letter 24-09-2010 which was received by the complainants on 19-10-2010 as per note given by the complainant No. ,1 on the allotment letter Ex. R-2. A perusal of receipt Ex. C-2 reveals that complainant paid Rs. 195,000/- on 01-06-2010, Rs. 32,500/- vide Ex. C-4 on 22-6-2010 and Rs. 2,27,500/- on 09-09-2010 vide Ex. C-3. The complainants received allotment letter on 19-10-2010 and till that time, an amount of Rs. 4,55,000/- has already been paid by them.

10. As discussed above, the opposite parties have not placed on file application form to show that actually which plan was opted by the complainants. The opposite parties in para No. 6 of their written reply have pleaded that :-

    “...The complainants themselves had accepted the payment schedule. As per payment schedule, 10% amount was required to be deposited at the time of booking of allotment, another 10% amount was required to be deposited within 30 days of the allotment and then 10% amount after three months, 10% after six months, 10% amount after nine months and so on, as mentioned in the payment schedule”

    But the aforesaid schedule reveals something different i.e. contradictory schedule. If the schedule mentioned in the reply is considered even then keeping in view that the allotment letter was received by the complainants on 19-10-2010, the complainants cannot be concluded as defaulters in paying the installments. Hence, this act of the opposite parties proves that they, without making any fixed schedule, demanding the amount from the consumers as per their wish. If for arguments sake, it is admitted that complainants opted aforesaid Plan 'A' even then the complainants were required to deposit 5% of basic sale price within 45 days of allotment and 10% of BSP within 3 months of allotment. The letter of allotment was received by the complainants on 19-10-2010. First reminder was issued by the opposite parties on 10^th July, 2010, 2^nd on 25^th July, 2010, 3^rd on 14^th August, 2010, 4^th on 15^th September, 2010, 5^th on 30^th September, 2010, 6^th on 01-11-2010. The opposite parties issued final notice to the complainant on 15^th January, 2010 i.e. immediately on completion of three months period from the date of allotment. The letter of allotment wherein schedule has been mentioned was received by the complainants on 16-10-2010, it is not understandable that from 10^th July, 2010 upto 30^th September, 2010, which installment was being demanded by the opposite parties.

11. If the payment schedule attached with the letter of allotment is considered the complainant was liable to pay 20% of BSP at the time of booking. 5% within 45 days of allotment and then 10% within three months of allotment whereas the opposite parties issued final notice on 15^th January, 2011 demanding Rs. 4,89,125/- alongwith interest of Rs. 37,800.08. Moreover, a perusal of letters/reminders sent by the opposite parties to the complainants reveals that the schedule of payment mentioned in the said letters is totally different than that of mentioned in the schedule attached with allotment letter. Moreover, the complainants have denied receipt of any such letter/reminder or notice or cancellation letter. Hence, the version of the complainants that they requested the opposite parties that they have already made 20% payment as per commitment and is still ready to make the balance payment in installments but the opposite parties did not listen to them and directed them to deposit total balance amount with interest, seems to be correct. Hence, the complainant had to knock the door of this Forum to get his grievances redressed. Thus, the complainants are not liable to pay the interest on the due amount for the period their complaint remained pending in his Forum.

12. The complainants have prayed for directions to the opposite parties for delivery of physical possession of plot in question. A perusal of agreement/allotment letter Ex. R-2 reveals that this document has been signed by the complainants. Clause 32 (a) of said agreement/allotment letter is reproduced hereunder :-

    “The Allottee(s) shall be entitled to possession of the said plot only after all the amounts payable under this Allotment Letters are paid and the Conveyance Deed in respect of the said Plot is executed and duly registered with the Sub-Registrar concerned.”

    Thus, keeping in view the aforesaid clause, the direction for delivering physical possession of plot in question to the complainants cannot be given till they pay the amount mentioned in the allotment letter. However, the opposite parties are directed to charge the installments from the complainants as per schedule attached with allotment letter.

13. In view of what has been discussed above, this complaint is accepted with Rs.10,000/- as compensation and cost and the letter dated 28^th February, 2011 vide which the allotment of plot in question is cancelled, is hereby quashed. The opposite parties are directed to charge from the complainant the amount mentioned in the allotment letter according to schedule mentioned in “Annexure -B (Part-III) Payment Plan of the Plot – Plan 'A'. It is the admitted fact of both the parties that the complainants have paid Rs. 4,55,000/- in total i.e. 20% of the basic price. The opposite parties are further directed to issue fresh letter showing payment schedule on the same pattern as mentioned in aforesaid Annexure -B (Part-III) starting from 01-04-2012. However, the complainants would be liable to pay interest if any future installment was delayed by them as per agreement/allotment letter. Further it is made clear that if the complainants are interested to pay the due amount in lump sum and get the possession of the plot in question, they may do so and the opposite parties are directed to act accordingly. The complainants would be entitled for physical possession of plot in question after payment of full amount as mentioned in allotment letter and agreed between them.

14. The compliance with regard to cost and compensation be made within 45 days from the date of receipt of copy of this order. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced

09-03-2012 (Vikramjit Kaur Soni)

President

(Amarjeet Paul)

Member