CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.375/2008
SH. SULTAN SINGH
S/O SH. RAM KALA
R/O VILLAGE REWLA KHANPUR,
P.O. NAJAFGARH,
NEW DELHI-110043
…………. COMPLAINANT
Vs.
- M/S OMAXE LTD.,
REGD. OFFICE:
7, LOCAL SHOPPING CENTRE,
KALKAJI,
NEW DELHI-110019
- M/S OMAXE LTD.,
REGD. OFFICE:
7, LOCAL SHOPPING CENTRE,
KALKAJI,
NEW DELHI-110019
AUTHORISED SIGNATORY
…………..RESPONDENTS
Date of Order:02.11.2015
O R D E R
A.S. Yadav – President
As per averments in the complaint, the complainant visited the office of OP in April 2006 and having gone through the brochure, lying there, he booked for allotment of a LIG flat bearing No.405 in Liberty Tower, North Avenue, Bahadurgarh project of OP against a total cost of Rs.22,81,850/- by way of instalments and made deposit of Rs.4,53,715/- vide cheque dated 6 April 2006. He was assured that the company will supply detailed brochure containing approved building license, estimated cost of the flat and instalments payable and other particulars but despite several requests/reminder by him he did not receive any communication intimating about the mode of terms of payments and as such he could not pay further instalments till 14.3.2008 and was also not communicated about completion of construction with provision of electricity and other amenities. It was in March 2008 he received a notice from the OP about cancellation of allotment, he sent a reply through an advocate detailing true facts. Asserting that the cancellation of allotment is not based on reasonable grounds and is illegal, the complaint also pleaded that no opportunity of being heard was given to him and principles of natural justice have been violated. Levelling allegations of deficiency in service, vide this complaint, the complaint sought a direction to the OP to refund the paid amount of Rs.4,53,750/- with interest and to pay a compensation of Rs.2,60,000/- for depriving him of a residential accommodation and for inconvenience besides legal expenses.
OP in the written statement took the preliminary objection that this Forum has no territorial jurisdiction to entertain the present claim as said property is situated at Bahadurgarh within Haryana. It is not disputed that vide application dated 06.4.2006 complainant applied with OP for residential flat in its project named as “Omaxe Heights”. It is further stated that it was specifically agreed by the complainant to accept the allotment as and when it is made and further undertaken to sign and execute as and when desired by OP, the allotment letter and the buyer’s agreement on company standard format contents which were already explained to the complainant. The aforesaid amount was deposited by complainant towards booking amount with an undertaking to pay the instalment and additional charges as per payment plan failing which OP was entitled to cancel the allotment and forfeit the earnest money.
It is further stated that vide letter dated 07.9.07 complainant was asked to pay a sum of Rs.1,81,500/- as per the payment plan. However, the amount was not paid by complainant. It is further stated that area of the flat was increased from 1100 sq. ft. to 1165 sq. ft as such the cost of flat was also increased. Accordingly the complainant was asked to pay the increased cost and he was asked to deposit the total sum of Rs.2,19,038/- including the amount which was deposited earlier as was asked vide letter dated 07.9.07.
It is further stated that the construction at the site was started and as per the payment plan on casting of second floor roof, the complainant was required to make further payment. Accordingly the complainant was asked to make total payment of Rs.4,11,263/- vide letter dated 12.10.2007. It is further stated that as per the payment plan at the time of casting of third floor roof, complainant was required to make further payment of Rs.2,79,600/- vide letter dated 16.11.2007 with previous dues of Rs.4,11,263/- totalling to Rs.6,90,863/-.
It is further stated that as per the payment plan at the time of casting of fourth floor roof, complainant was required to make further payment and accordingly he was asked to make a total payment of Rs.922406/- vide letter dated 02.1.2008 by registered post.
It is further stated that despite repeated requests, complainant failed to make any payment towards construction of flat. OP was having no alternative and was compelled to cancel the allotment and forfeit the earnest money of Rs.453750/- and an intimation to that effect was duly given to complainant vide registered post on 14.3.2008. Although the allotment was cancelled and the amount was forfeited, however OP as goodwill gesture and on account of prosperous occasion of Diwali come with an option to give discount to the defaulters and accordingly complainant was also requested to avail the scheme and was asked to make payment of Rs.18,24,320/- vide letter dated 10.10.2008. If is further stated that Complainant is a defaulter as he has not complied with the payment schedule and terms of the application form. The complaint is liable to be dismissed.
Complainant in the rejoinder has denied about the receipt of any letter except the one by which the allotment was cancelled and earnest money was forfeited. It is specifically stated in the rejoinder of complainant that OP has not filed proof of service of any of the letter. It is further stated that complainant personally approached OP in the month of March 2007 and October 2007 but OP has not sent any notice or letter calling upon the complainant to deposit instalment.
We have heard Ld. Counsel for the parties and carefully gone through the record.
It is not in disputed that the application form was duly signed by the complainant wherein complainant has agreed to accept the allotment made by the company in his favour and undertaken to sign and execute as and when desired by OP, the allotment letter and the buyer’s agreement on company standard format contents which were already explained to the complainant. Complainant further agreed to pay the instalment and additional charge as per the payment plan as shown in the price list as and/or demanded by OP failing which the allotment will be cancelled and the earnest money shall be forfeited. OP has failed to prove that any buyers agreement was signed between the parties. OP has failed to prove that complaint singed the payment scheduled. What the application form states is that the complaint has gone through the brochure and payment scheduled and agreed to abide by it. OP was duty bound to get buyers agreement as well as payment schedule duly signed from the complainant.
The contention of OP is that they have first demanded for Rs.1,81,500/- from the complainant as per payment plan vide letter dated 07.9.2007. The copy of the letter is annexed with WS. It is nowhere stated why which means this letter was sent. There is no postal receipt on the record nor any AD placed on the record showing that this letter was received by complainant. In fact this letter was not sent by registered post. Same is the in respect of letter dated 12.9.2007, 12.10.2007 and 16.11.2007. The letter dated 02.1.2008 was alleged to have been sent by registered post. Photocopy of the postal receipt is placed on the record. No AD placed on record to show that this letter was received. Then another letter sent by registered post dated 14.3.20087 by which allotment was cancelled and earnest money was forfeited. Complainant categorically admitted about the receiving of this letter. Why OP has not sent earlier letters by registered post and what prevented OP from placing on record the registered AD receipt to show the delivery of these letters. Size of flat was increased and more money was demanded from complainant vide letter dated 12.9.2007. Even this letter was not sent by register post. The area of the plot cannot be increased unilaterally.
Moreover once the allotment of the flat has been cancelled and money forfeited, where was the occasion for OP to write a letter to complainant asking him to make payment of Rs.18,24,320/-. It means that OP was using the pressure tactics on the complainant.
Complaint has proved beyond doubt that it is a clear cut case of deficiency in service.
OP-1 is directed to refund Rs.4,53,715/- alongwith interest @ 10% p.a. and also to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
