Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 222.
Instituted on : 11.05.2015.
Decided on : 17.02.2017.
Dr. Rajesh Jale s/o Shri Chand Ram, resident of Kath Mandi, Gohana, District Sonepat presently residing at Bharat Colony, Rohtak.
………..Complainant.
Vs.
- Omaxe Construction Ltd. through its Managing Director office at Omaxe House, 7 Local Shopping Centre, Kalka Ji, New Delhi.
- The Project Manager, Omaxe Construction Ltd. Omaxe City, Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH.VED PAL, MEMBER.
Present: Sh. Mukesh Parmar, Advocate for the complainant.
Sh. Ajay Dua, Advocate for the opposite parties.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that complainant had booked a plot measuring 300 sq. yards in pre-launching booking conducted by the opposite parties for Rohtak city in the month of November 2005. It is averred that at the time of pre-launching booking a sum of Rs.550000/- had been deposited by the complainant with the opposite parties by the complainant with the opposite parties by way of cheque no.508915 dated 26.11.2005 which was duly acknowledged by the opposite parties and the receipt has also been issued by the opposite parties. It is averred that first instalment was paid by the complainant amounting to Rs.314000/- dated 27.07.2006 with the opposite parties. Thereafter neither any payment was demanded by the opposite parties and even no agreement was got signed by the opposite parties from the complainant. The complainant kept on approaching the opposite parties and requesting them to disclose the real picture and also the fate of the amount deposited by the complainant. All the times it was told to the complainant that due to registration in the real estate failed the company is not in a position to develop the project at Rohtak and the due intimation shall be given as and when further progress in the project shall be done by the company. It is averred that thereafter the complainant kept on waiting for the information and no information was received by him and ultimately it was told to the complainant that his plot has been cancelled. It is averred that the act of opposite parties of cancellation of the plot is against the law because the same had been done at the back of the complainant without giving him the due opportunity of hearing. It is averred that complainant requested the opposite parties to deposit the balance amount of the said plot but the opposite parties claimed the interest and the resumption charges from the complainant to which he refused to pay as he was nowhere at fault. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that opposite parties may kindly be directed to restore allotment of the plot without claiming any interest or re-allotment charges by taking only the balance payment of installments i.e. 55% of the balance total amount or to refund the amount of Rs.864000/- alongwith interest, compensation and litigation expenses to the complainant.
2. On notice, opposite parties appeared and filed their written reply submitting therein that complainant booked a plot of 300 sq. yards at the rate of Rs.6400/- sq. yd. with booking amount of Rs.550000/- and opted TIME LINKED PAYMENT plan and the booking was through dealer and at the time of booking complainant deposited Rs.550000/- after that opposite party was issued a demand letter of rupees 314000/- on dated 12.07.2006 and the same was deposited in cash by the complainant with the opposite party. It is averred that as per payment plan opposite party sent a demand letter dated 07.11.2006 and reminder dated 01.03.2007 with due amount of Rs.342000/- but the complainant did not pay above said due amount, respondent again sent a demand letter dated 06.01.2009, 31.12.2009 with due amount of Rs.609000/- alongwith interest of Rs.293365/- to make above said payment within 10 days of this letter but the complainant did not make the payment and as such opposite party sent a cancellation letter dated 08.03.2010 to complainant with due amount of Rs.828000/- and interest of Rs.322463/- . It is averred that as per the opted plan, time bound payment was the essence of the contract but complainant did not follow the rule and basic term and conditions of the agreement of application filled by the complainant. It is averred that complainant intentionally did not deposit the due amount with opposite party and opposite party rightly cancelled the above said plot and forfeited his booking amount. It is averred that there is no deficiency in service on the part of opposite parties as the complainant has failed to deposit the due amount and as such allotment has been cancelled. It is prayed that complaint may kindly be dismissed with costs.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C20 and closed his evidence. On the other hand, ld. counsel for the opposite parties has tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R7 and has closed his evidence.
5. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that complainant had applied for a plot and had deposited an amount of Rs.550000/- with the opposite party as is proved from the receipt Ex.C1 dated 26.11.2005. The complainant had also deposited an amount of Rs.314000/- vide receipt Ex.C2 dated 27.07.2006. The contention of ld. counsel for the complainant is that thereafter neither any payment was demanded by the opposite parties and even no agreement was got signed by the opposite parties from the complainant. The complainant kept on approaching the opposite parties but the opposite parties told the complainant that opposite party was not in a position to develop the project and the due intimation shall be given as and when further progress in the project shall be done by the opposite party but no information was received by the complainant and ultimately it was told to the complainant that his plot has been cancelled without any information to the complainant. As such the complainant has sought the refund of amount deposited by him with the opposite parties. On the other hand contention of opposite parties is that complainant intentionally did not deposit the due amount with opposite parties despite repeated demand letters and reminders and opposite parties rightly cancelled the above said plot and forfeited his booking amount as per payment plan.
7. After going through the file and hearing the parties it is observed that the complainant had deposited an amount of Rs.864000/- vide receipts Ex.C1 and Ex.C2 with the opposite parties but the opposite parties had cancelled the plot of the complainant on the ground that the complainant had not deposited the remaining amount in due time despite repeated letters and reminders. It is also contended that the complaint is time barred. To prove their case opposite parties have placed on record copy of letters Ex.R3 to Ex.R7 but only the receipts/R.C of letters Ex.R6 and Ex.R7 have been placed on record. Hence it is not proved on file that timely intimation was given to the complainant. Regarding the period of limitation ld. counsel for the complainant has placed reliance upon the law cited in 2015(2)CLT 308 titled as M/s J.D.Financers & others Vs. Mohd. Tahir & others whereby Hon’ble National Commission, New Delhi has held that: “In a case, where a deposit payable on demand is made, the said deposit carries interest and the firm, even on receipt of the notice of demand from the depositor does not dispute or deny its liability-The depositors have a recurrent cause of action, till the money deposited by him with the said firm is paid back to him-Of course, in a case where such a firm denied or disputes its liability the period of limitation would commence from the date on which the liability is disputed/or denied”. The contention of ld. counsel for the complainant is that complainant also served a legal notice Ex.C18 either to restore the allotment or to refund the amount deposited by the complainant but the same was not replied and till date no refund has been given to the complainant. It is further contended that opposite parties are liable to refund the amount deposited by the complainant alongwith interest and compensation. In this regard we have also placed reliance upon the law cited in 2016(2)CLT 456 titled as Navin Kumar (Dr.) & Ors. Vs. Unitech Reliable Projects Pvt. Ltd. whereby Hon’ble National Commission, New Delhi has held that: “Unless and until the complainants get the possession of the flats, they have got continuous cause of action-The complainants are entitled to get the refund of the amount, with interest @ 18% p.a. from the date of deposits till realization”.
7. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it is observed that complainant is entitled for the refund of amount deposited by him with the opposite parties. As such it is directed that opposite parties shall refund the amount of Rs.864000/-(Rupees eight lac sixty four thousand only) alongwith interest @ 9% p.a. from the date of last deposit i.e. 27.07.2006 till its actual realization and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision failing which opposite parties shall be liable to pay interest @12% p.a on the awarded amount from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
17.02.2017.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
……………………………..
Ved Pal, Member.
