Haryana

StateCommission

CC/350/2016

KAILASH KUMARI - Complainant(s)

Versus

OMAXE LTD. - Opp.Party(s)

RAMAN GAUR

25 Oct 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.350 of 2016

                                                       Date of Institution: 18.11.2016         Date of Decision: 25.10.2017

 

Smt. Kailash Kumari W/o Shri Rajesh R/o H.No.835, Sector-14, Sonepat.

…..Complainant

 

Versus

 

1.      M/s Omaxe Ltd., Regd. Office, 7 Local Shopping Centre, Kalkaji, New Delhi-19 through its Chairman/President.

2.      Branch Manager, M/s Omaxe Ltd., Omaxe City, G.T. Road, Sonepat.

          …..Opposite Parties

 

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

 

For the parties:  Mr.Raman Gaur, Advocate for the complainant.

                             Mr. Bhupender Singh proxy counsel for Mr.Munish Gupta, Advocate for the opposite parties.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          It is alleged by the complainant that she booked a flat with opposite parties (O.Ps.) having value of Rs.66,73,497/- and deposited Rs.Five lacs on 28.03.2013.  Thereafter flat No.OWF/Ground/2700 was allotted vide letter dated 04.04.2013. She deposited Rs.27,90,414/- as mentioned below:-

“Sr.No.	Cheque No.	Date	Amount
1	042513	28.03.2013	5,00,000/-
2	042520	07.06.2013	4,00,000/-
3	042539	09.09.2013	4,00,000/-
4	042538	24.09.2013	4,00,000/-
5	042596	15.04.2014	7,90,418/-
	Total adjustment		3,00,000/-
		Total	27,90,418/-“

 

          During this period O.Ps. sent Builder Buyers Agreement, but, some conditions were not acceptable to her, so the same was not signed and sent back.   The O.Ps. were asked to amend some terms and conditions of agreement but they refused to do so as mentioned in letter dated 05.06.2014. Lateron she went to the spot and found that construction was of sub-standard and progress was also not satisfactory and that is why she asked O.Ps. to refund the amount already deposited by her besides compensation, as mentioned in the complaint.

2.      O.Ps. filed reply controverting her averments and alleged that this commission was neither having territorial jurisdiction nor pecuniary jurisdiction to try this complaint and she was also not covered by the definition of consumer because flat in question  was purchased for investment purposes. She did not make payment in time and that is why demand letters were issued to her time and again, as mentioned in reply. Final chance was also given vide letter dated 15.07.2014.  It was clearly told that if she would not pay remaining installment allotment would be cancelled and earnest money would be forfeited as per terms and conditions of booking. When there was no response from her, ultimately allotment was cancelled vide letter dated 26.08.2013 and earnest money of Rs.5,75,000/- was forfeited. In the month of October 2013 cancellation was revoked and unit was re-allotted to complainant without any interest. Alongwith letter dated 24.01.2014, agreement was sent to complainant for signatures, but, she did not bother to sign and returned the same.  So, allotment was again cancelled on 01.09.2014 and Rs.5,75,000/- were forfeited as of earnest money. An information was sent to her vide letter dated 24.09.2014. Out of total price of Rs.66,73,497/- she paid Rs.27,72,444/- only. There was lapse on her part, so she was not entitled for any compensation.

3.      Arguments heard. File perused.

4.      Learned counsel for complainant vehemently argued that Builder Buyer’s Agreement sent to complainant was one sided. The terms and conditions of that agreement were favourable to builder only and that is why the same was returned without signing. When she visited site it was found that material used in the construction was of sub-standard and pace of construction was also very slow. That is why she asked for refund of the amount deposited by her.  The O.Ps. are not going to suffer loss in any manner because they have allotted this unit to some Rajesh Khatri, which is clear from the perusal of Buyer’s Agreement attached with allotment letter dated 05.01.2017, copy of which is Ex.P-10.  So, they be directed to refund the amount deposited by her alongwith interest @ 24% p.a. besides compensation qua mental harassment etc.

5.      This argument is of no avail. Complainant has miserably failed to show that construction material used by O.Ps. was of sub standard.  There is no iota of evidence on the file to prove this fact. She has also failed to show  that before filing previous complaint O.Ps. were ever informed that construction material was of sub-standard or that terms and conditions of agreement were one sided. This fact is pleaded in this complaint only. If terms and conditions were not acceptable to her then she should have written letter to the O.Ps. there and then. She booked apartment as per application Ex.
R-1.  It was specifically mentioned therein that the Buyer’s agreement will be executed and sent back within 30 days from it’s dispatch by the company, but, complainant has miserably failed to show that she sent back agreement with objections. No such letter was produced on the file.  For ready reference relevant condition is reproduced as under

“if, however, I/we cancel this application or I/we fail to sign/execute and return allotment letter/Buyer’s Agreement within thirty (30) days from its dispatch by the company then the company may at  its discretion threat my/our application as cancelled and the earnest money paid by me/us shall stand forfeited.”

6.      From the bare perusal of this condition it is clear that in case of failure of execution of agreement O.ps. were competent to cancel allotment and forfeit earnest money.  The terms and conditions were also attached with the application. After admitting  them to be correct complainant signed the application. Letter dated 05.06.2014 Ex.P-9 was sent to her for signing and returning the agreement, but, without any result. When complainant did not sign agreement O.Ps. were competent to cancel allotment and forfeit earnest money. Ultimately her allotment was cancelled vide letter dated 01.09.2014 Ex.R-8.  Information about forfeiture of earnest money was sent vide letter dated 24.09.2014 Ex.R-9. Complainant cannot run away from the terms and conditions of agreement. It was construction linked plan as attached with the application, but, she failed  to adhere to financial disciplines. So there was lapse on her part also.  If Ops have allotted this unit to someone else it does not mean she is entitled for  full refund.  She can only ask about refund of the amount deposited by her minus earnest  money mentioned in letter Ex.R-9.

7.      As a sequel to above discussion complainant is entitled for the refund of the amount deposited by her minus earnest money of Rs.5,75,000/- but, she is not entitled for interest because there was  lapse on her part qua signing of agreement as well as deposit of amount.  These views are fortified by the opinion of Hon’ble National Commission expressed in First appeal No.06 of 2014 in  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014.

 

October 25th, 2017

Mr.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.