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.220/2010
SH. SURESH KUMAR GUPTA
S/O SH. P.D. GUPTA
R/O E-49, SHIVAJI ROAD,
ADARSH NAGAR, DELHI-110033
…………. COMPLAINANT
VS.
OMAXE LTD.
REGD. OFFICE AT:-
7, LOCAL SHOPPING CENTRE,
KALKAJI, NEW DELHI-110019
…………..RESPONDENT
Date of Order: 09.11.2015
O R D E R
A.S. Yadav – President
Complainant was allotted flat No.201 in Signature Tower on 2nd floor in Omaxe Heights, Sonepat, Haryana on 19.2.2006 by OP and formal flat buyer agreement was executed on 20.11.2008.
The complainant was regularly making the payment of the instalment as per the demand raised by OP.
It is further stated that in the month of June 2009 complainant came to know that OP is adopting unfair trade practice and making discrimination amongst its customers. Complainant wrote a letter dated 05.6.2009 to OP stating therein that he has come across various other letters sent by OP to other defaulted flat owners who have not yet paid even the demanded amount and the company has not only waived of the full interest amount but also offered 10% discount on the unpaid amount to those flat owners making the payment on or before 20.6.2009. However similar benefit was not extended to complaint. Complainant did not receive any satisfactory reply to this letter. Thereafter complainant sent a letter dated 17.7.2009 to OP requesting to refund the amount deposited by complaint alongwith 24% interest. That letter was replied by OP vide email dated 11.8.2009. However the reply was not proper therefore complainant sent another letter dated 20..8.2009 on the same fact and again requested OP either to refund the amount or allow complainant 10% discount.
It is further stated that OP sent the intimation of due instalment dated 12.10.2009 and 01.12.2009 showing outstanding balance of Rs.75,660/- and Rs.1,51,320/- respectively,. The complainant sent a letter dated 08.12.2009 requesting OP to send revised demand letter as agreed by OP in email dated 11.8.2009. OP in their email dated 10.12.2009 refused to extend the scheme consideration to complainant and sent an intimation of dues instalment dated 11.1.2010 without deducting 10% discount demanding Rs.4,24,360/-. Complainant thereafter sent a letter dated 22.1.10 again requesting OP to send revised demand letter as he was eligible for 10% discount.
It is further stated that vide letter dated 05.2.2010 OP agreed for giving 10% discount to complainant and agreed that revised statement will soon be dispatched to complainant. Since complainant did not receive revised demand letter therefore he sent a letter dated 10.2.2010 again demanding revised payment schedule after giving 10% discount
It is further stated that OP vide their reply dated 11.2.2010 stated that they will issue the credit note after the payment is made. Since reply of the OP was not just and proper therefore complainant sent letter dated 1.2.2010 stating that he failed to understand that what is problem in issuing the credit note by OP. The OP in his letter dated 16.2.10 stated that if the complainant wants to pay the amount which is less 10% discount then mention the same on the back side of the cheque and after clearance of the cheque, they will issue credit note.
Complainant sent cheque dated 16.2.2010 amounting to Rs.2,73,040/- towards net amount payable as per demand letter dated 11.1.2010 after adjusting 10% discount and requested OP to issue credit note and the receipt for the discount amount of Rs.1,51,320/-. The receipt was issued but the credit note was not issued. Complainant again sent letter dated 03.3.2010 requesting OP to issue credit note immediately but inspite of letters and assurance, OP failed to issue credit note. Instead of issuing credit note OP sent a letter dated 16.3.2010 asking complainant to clear pending dues and again demanded Rs.1,51,320/- from complainant. The said amount was in respect of discount which was allowed to complainant. It is stated that OP is maintaining unfair trade practice and tantamounted to deficiency in service.
It is prayed that OP be directed to take back notice dated 16.3.2010 and intimation to the instalment and also issue credit note of Rs.151320/- alongwith compensation of Rs.50,000/- and Rs.11,000/- for litigation expenses.
OP in the WS took the preliminary objection that the present complaint has been filed without any cause of action, complainant is not a consumer and is only an investor, this Forum has no territorial jurisdiction to entertain the instant complaint. It is further stated that subject matter in the dispute is a flat bearing No.201 in district Sonepat, Haryana having a total value of Rs.21,09,488/- hence this Forum also lack pecuniary jurisdiction. The complainant has entered into an agreement dated 20.11.2008 and is bound by the terms and conditions of the said agreement. The said agreement specifically provides that in the event of any dispute, the same shall be referred for arbitration. That it is nowhere provided under the said agreement that OP will provide/grant/issue any credit discount to the complainant for making timely payment hence not granting of any discount to the complainant shall not amount to deficiency in service. Complainant cannot claim discount as a matter of right.
On merit, it is not disputed that the complainant was allotted the flat. Regarding discount it is stated that OP with good intention to offer relief and benefit to the complainant and to get the timely payment from complaint offered a discount of 10% on undue amount vide their letter dated 01.6.2009. The said discount was offered only in case complaint would have made this payment within specified period i.e. on/before 20.6.2009. The complaint instead of availing benefit under the above mentioned letter/scheme sent false and frivolous letters dated 05.6.09 and 17.7.09 to OP. The same were duly acknowledged and replied by OP vide email dated 05.6.2009, 06.6.2009 and 11.8.2009.
It is further stated that Complainant in order to harass OP and not to pay balance instalment gave false and frivolous letter dated 20.8.09 to OP threatening them either to refund the amount deposited by complaint or allow him the discount. OP in order to recover balance amount from the complaint demanded the outstanding amount of Rs.75,660/- and Rs.1,51,320/- vide letters dated 12.10.2009 and 01.12.2010 respectively.
It is further stated that complainant instead of making payment to the said demand letters gave a frivolous letter dated 08.12.09 to OP claiming cancellation of aforesaid demand letters. OP vide email dated 10.12.09 intimated the complainant that the said scheme was only for investors who have made payment within the stipulated time period as mentioned in the said demand letter dated 01.6.09. The complainant is not entitled to claim the same. Vide letter dated 11.1.10 OP demanded due amount of Rs.4,42,360/-. Complainant instead of making the payment of the due amount again sent frivolous letter dated 22.1.10 asking for 10% discount.
It is further stated that OP vide its email dated 05.06.2010 assured the complainant that discount will be provided only in case OP has received the payment on time i.e. the time specified on the said letter dated 01.6.09. Complainant vide its email dated 10.2.10 again threatened the OP to offer him 10% discount. OP vide its email dated 11.2.10 intimated to complainant to make payment of due amount and OP will issue credit note in case complainant would be entitled to such payment as per its letter dated 01.6.09. The complainant vide its email dated 11.2.10 arbitrarily informed that it will make payment of any amount only after deducting 10% on sale consideration. The same was denied by OP vide its email dated 11.9.10. Complainant vide its letter dated 03.3.10 informed OP to grant him 10% discount on total sale consideration and specified that only Rs.2,73,040/- is payable to him as last instalment instead of remaining outstanding amount. The same is unjustified and arbitrary.
OP again vide their letter dated 16.3.10 requesting complainant to make balance amount of Rs.1,51,320/- out of total instalment due of Rs.2,73,040/- which was allegedly deducted by the complainant towards 10% discount. It is submitted that the discount was offered to complainant on undue amount only for making timely payment. It is prayed that the complaint be dismissed.
We have heard Ld. Counsel for parties and carefully perused the record.
It is true that sued property is situated in Sonepat. The complainant is not seeking the possession of the flat and rather asking OP to issue credit note for the discount given by OP. All the correspondence have been made by OP from their office at Kalkaji, New Delhi The payments have been received in this office only and the receipt has been issued by this office. Hence this Forum has got the territorial jurisdiction. Complainant has only asked OP to issue credit note of Rs.1,51,320/- and also to pay Rs.50,000/- towards mental harassment and Rs.11,000/- towards litigation expenses, the relief claimed securely comes within the pecuniary jurisdiction of this Forum.
So far as Arbitration Clause is concerned, it is settled law that irrespective of arbitration clause the consumer can file the complaint before the consumer Forum who has got the appropriate jurisdiction to entertain the claim.
It is not in dispute that the complaint has been asking OP to give him the benefit of 10% discount as offered to other persons. It is specifically stated by complaint that benefit of said discount has been extended even to those persons who have not made payment at all. After lot of correspondence as detailed above, OP vide their email dated 05.2.10 informed complainant that for availing additional 10% discount they will provide the same after receiving the timely payment. Complainant vide its email addressed to Ms Richa Aggarwal of Customer Care Division of OP stated that this is further to telephonic conversation complainant had with her regarding the discount of 10% as given by OP to defaulter customers and asked OP to confirm that a sum of Rs.2,75,765/- is payable by him to clear his dues by the complainant on floorings and 50% additional charges. After paying the said amount, sum of RS.2,73,040/- is only payable at the time of possession. This was duly replied by Ms Richa Aggarwal stating that as per the request of the complainant for availing 10% discount they will provide him the same if they receive the payment timely.
Ms Richa Aggarwal vide email dated 11.02.2010 informed the complainant that they will issue a credit note to him after he make the payment for the discount being offered. Complaint vide his email dated 11.2.10 informed OP that he failed to understand what is problem in issuing credit not before making the payment In the email dated 05.2.10 OP had confirmed that the revised statement will soon be dispatched to him. He has offered to make the payment only for the net amount after deducting discount of 10%.
In fact the email dated 16.02.2010 clinches the entire issue wherein Ms Richa Aggarwal informed the complaint is as under:-
“From Customer Relations
To Suresh Kumar Gupta
Date 16.2.2010
Sub: Re: Apartment No.201 on 2nd floor in Signature Tower, admeasuring Super Area approx. 1164 sq. fts. in “Omaxe Heights”, Sonepat, Haryana.
Dear Sir,
With reference to your below mentioned mail, please note that you need to pay the amount which is less 10% discount. Please mention the same on the back side of the cheque. After the clearance of the cheque, we will issue the credit note.
Note:- Please provide your customer code further on to resolve the issue.
Richa Aggarwal
(Customer Care Division)”
So vide this email OP agreed to accept the payment which is less 10% discount. And after the clearance of the cheque OP agreed to issue credit note. Complaint accordingly sent a cheque No.966585 dated 16.2.10 for a sum of Rs.2,73,000/- towards net amount payable by him as per the details given below:-
“OMAXE Limited
7, Local Shopping Centre,
Kalkaji,
New Delhi-110019
Sub:- Sub: Re: Apartment No.201 on 2nd floor in Signature Tower, admeasuring Super Area approx. 1164 sq. fts. in “Omaxe Heights”, Sonepat, Haryana.
Kind Attn: Ms Richa Aggarwal, Customer Care Division
This is further to your email dated 16.2.2010 in reply to my letter dated 22.1.10. In the said email you had kindly agreed to allow me a discount of 10% as extended by you to defaulter customers. After having confirmation from you, I had sent my cheque NO.966585 dated 16.2.2010 drawn on HDFC Bank Ltd. for Rs.273040/- towards ne amount payable by me as on date as per details given below:-
- Amount demanded by you as per your letter dated 111.01.10 Rs.424360/-
- Less 10% discount on Rs.15,13,200/- Rs.151320/-
- Net amount payable Rs.273040
You have issued receipt No.417834/1/2 and receipt No.417834/2/2 both dated 18.2.10 against the above payment. As requested by you, I had mentioned the discount details on the back side of the cheque as well as in my covering letter sent alongwith cheque. The copy of the said letter was also mailed to you on the same date itself with a copy to Mr. Sachin Bhargava and Miss Nandita. It is surprising that the credit note as committed by you has not been issued to me till date The said payment was made by me only after your extending the discount as offered by you to other defaulter customers. You are requested to send me necessary credit note immediately for my record.
\Needless to mention that a sum of Rs.273040/- only is now payable by me being the last instalment on offer of possession plus 50% additional charges.
Yours truly,
Sd/-
Suresh Kumar Gupta”
Complainant vide letter dated 03.3.2010 informed OP that the receipt for the aforesaid amount has been received on 18.02.2010 however it is surprising that credit note as committed by OP has not been issued to him till date It is further stated that the said payment was made by him only after OP agreed to give the discount.
So OP has asked the complainant to make the payment after deducting 10% amount. The complainant did the same and the receipt was issued however the credit note was not issued. OP was bound to issue credit note. On the face of it, by not issuing credit note OP has committed deficiency in service.
OP is directed to issue credit note of Rs.1,51,320/- alongwith interest @ 10% p.a. from the date of payment. OP is further directed to pay Rs.5,000/- as compensation and Rs.2,000/- 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
