DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH ======== Consumer Complaint No | : | 625 of 2010 | Date of Institution | : | 13.10.2010 | Date of Decision | : | 04.08.2011 |
Roshan Garg, #3112, Sector 28-D, Chandigarh. …..Complainant V E R S U S 1] OMAXE Limited, OMAXE House 7, Local Shopping Centre, Kalkaji, New Delhi 110019, through its Director. 2] Branch Manager, OMAXE Limited, 143 and 144, 1st Floor, Madhya Marg, Sector 8-C, Chandigarh – 160018. ……Opposite Parties CORAM: SH.P.D.GOEL PRESIDENT SH.RAJINDER SINGH GILL MEMBER DR.(MRS) MADANJIT KAUR SAHOTA MEMBER Argued by Sh.Deepak Aggarwal, counsel for Complainant. Sh. Munish Gupta, Counsel for OPs. PER Sh.P.D. GOEL, PRESIDENT It is case of the complainant that OPs had floated a Scheme for allotment of residential plots in the project named (OMAXE PARKWOODS, BADDI-II) to be developed and constructed by the OPs on the revenue estate of Village Chakka Baddi, Tehsil Naraingarh, District Solan (H.P). The Complainant got attracted by the promises and projections made by the OPs in the promotional material to the effect that the area where above said Project is being floated will be fully developed within the period of 15 months. The said clause regarding the development of the project within the period of 15 months is duly incorporated and reflected in the basic terms & conditions issued by the OPs (C-1). The OPs made an offer to the Complainant for allotment of plot bearing No. 167, measuring total area of 100 sq. mts. @ 6700/- per sq. mtr. and the Complainant agreed and made an investment of a total sum of Rs.2,09,000/- with the OPs, along with the application form dated 21.11.07 (C-2). It is alleged that the OPs have totally failed in their commitment and could not develop the land where the OPs have floated the project. Despite of numerous visits by the Complainant to the office and project site, it revealed that no development has taken place. Due to the unfair trade practices adopted by the OPs, the Complainant left with no other opportunity, but to visit the office of the OPs for refund of his entire amount on 15.01.2009. OPs acceded to his request and agreed to refund the entire amount deposited by him, along with interest @6% p.a. as per clause 16 of the basic terms & conditions of the agreement, although he demanded interest @18% p.a. on all the deposited amounts. The application forms in original, original receipts pertaining to down payment etc., were also submitted by the Complainant with the OP No.2, which were duly acknowledged by one of its employees Iqbal Singh vide Annexure C-3. Further, his signatures were obtained on some blank documents and also on the affidavits, when the above said application was submitted for the refund of investments in the project floated by the OPs. It is further alleged that consequent to the submission of the above application, several reminders were given by the Complainant for refund of the entire amount, but the OPs vide letter dated 17.5.2010, while admitting the booking amount of Rs.2,09,000/-, illegally and unilaterally forfeited a total sum of Rs.66,330/- on the ground that the Complainant was in default in making payments. All this has been done despite of OPs agreeing to refund entire amount along with interest @6% p.a. when the application dated 15.1.2009 was submitted by seven investors, including the Complainant. Subsequently, even a notice dated 9.6.2010 was issued to the OPs, but the same failed to evoke any positive results. Hence, this complaint. 2. OPs in their joint written statement pleaded that the Complainant himself approached them and submitted application form for allotment of unit in the project in question. The said project has progressed as projected and there was no delay, as alleged. It was asserted that the Complainant after the initial payment of Rs.2,09,000/- did not comply with the terms and conditions and also failed to pay the remaining installments. Having left with no option, the replying OPs cancelled the allotment vide letter dated 17.5.2010. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint. 3. Parties led evidence in support of their contentions. 4. We have heard the learned counsel for the parties and have also perused the record. 5. Admittedly, OPs floated a Scheme for allotment of residential plots in the project named (OMAXE PARKWOODS, BADDI-II) to be developed and constructed by the OPs within the period of 15 months per basic terms and conditions (Annexure C-1) issued by OPs. The OPs made an offer to the Complainant for allotment of plot bearing No. 167, measuring total area of 100 sq. mts. @ 6700/- per sq. mtr. to which he agreed and made an investment of a total sum of Rs.2,09,000/- with the OPs, along with the application form dated 21.11.07 (C-2). 6. The allegations of the complainant is that OPs have failed to honour their commitment as they could not develop the land by raising construction over it. So he made a request for refund of the entire deposited amount on 15.01.2009. However, OPs accepted the request of the complainant and agreed to refund the entire amount deposited by him along with 6% interest p.a., per clause 16 of the basic terms and conditions of the agreement. It is the grouse of the complainant that despite several reminders, Ops failed to refund the entire amount. Vide letter dated 17.05.09 while admitting the booking amount of Rs.2,09,000/-, OPs forfeited a sum of Rs.66,630/-on the ground that the complainant made default in making the payments. 7. Now the only dispute between the parties to the lis is whether OPs have illegally forfeited a sum of Rs.66630/-. The answer to this is in negative. 8. The complainant has produced on record the basic terms and conditions of the agreement. The condition no.5 of the basic terms and conditions states that the applicant agrees that the amount paid with application and in installment as the case may be to the extent of 10% of the basic sale price consideration of the residential plot shall collectively constitute the earnest money. 9. The clause 6 of the basic terms and conditions further makes it clear that timely payment of installments of basic sale price and allied charges pertaining to the Residential Plot is the essence of the terms of the booking/allotment However in the event of breach of any of the terms and conditions of the allotment by the applicant, the allotment will be cancelled at the discretion of the Company and the earnest money together with any interest on installments due but unpaid and interest on delayed payments shall stand forfeited. The balance amount shall be refundable to the applicant without any interest, after the said Residential Plot is allotted to some other intending applicant and after compliance of certain formalities by (he applicant. The Company, however, in its absolute discretion may condone the delay by charging penal interest @ 18% p.a. for upto one month delay from the due date of payment and @ 24% p.a. thereafter on all outstanding dues from their respective due dates. 10. Annexure R-1 is an application form and under the heading “particulars” in the column payment plan above, the complainant has opted for “installments link plan”. The intimation due installment is Annexure R-2. It is the case of the complainant that the OPs could not develop the land and no development has taken place, so he made a request for refund of his entire amount on 15.01.2009. Admittedly, the complainant has only paid an amount of Rs.2,09,000/- and thereafter he did not make the payment as depicted in the intimation due installment (Annexure R-2), therefore, the OPs had every right to cancel the plot in view of clauses No.5 and 6 of the basic terms and conditions of the agreement and also to forfeit the 10% of the earnest money. 11. Admittedly, the complainant did not make the payment of the installments as per the intimation due installment (Annexure R-2) and had only made the payment of Rs.2,09,000/- and therefore, he had committed the breach of the basic terms and conditions (Annexure C-1). So OPs are only liable to refund the balance amount after deducting the 10% amount from the earnest money. 12. Admittedly, the basic price of the unit is Rs.6,63,300/- and its 10% comes to Rs.66,330/-. Annexure C-4 is the letter dated 17.05.2010 vide which the allotment of the plot in question was cancelled by the OPs due to persistent default in payments by the complainant and Rs.66,330/- had been forfeited and Ops agreed to refund the balance amount as per the terms of the allotment. 13. Learned counsel for the OPs raised the plea that this Forum has no jurisdiction to entertain and try the present complaint. But this argument has no force in view of the fact that the one of the Branch Office of the OPs is situated at Chandigarh and even some correspondence was also took place between the parties at Chandigarh. Annexure R-2 is the intimation of due installment written by Iqbal Singh, Branch Head Commercial from Chandigarh office to the complainant informing him to deposit the due installments along with interest etc. Hence, this Forum has eminent jurisdiction to entertain and try the present complaint. 14. It has already been held that as per terms and conditions Nos.5 and 6 of Annexure C-1, the OPs have a right to forfeit 10% of the earnest money, therefore, the complainant is entitled only for Rs.1,42,670/- . 15. As a result of the above discussion, this complaint is accepted and OPs are directed to refund Rs.1,42,670/- to the complainant along with interest @ 12% p.a. from the date of its deposit till realization along with Rs.10,000/- as costs of litigation within one month from the date of receipt of the certified copy. 16. Certified copies of this order be sent to the parties free of charge. The file be consigned. | Sd/- | | Sd/- | Sd/- | 04.08.2011 | [ Madanjit Kaur Sahota] | | [Rajinder Singh Gill] | (P.D.Goel) | cm | Member | | Member | President |
| | MR. RAJINDER SINGH GILL, MEMBER | HONABLE MR. P. D. Goel, PRESIDENT | DR. MRS MADANJIT KAUR SAHOTA, MEMBER | | 
