CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.312/2013
- YUDHVIR SINGH KALKAL
S/O. SH. UMED SINGH KALKAL
R/O. 180-C/1, SAINIK FARMS,
KHANPUR AREA, NEW DELHI.
- MANOJ KUMAR
S/O. SH. UMED SINGH KALKAL
R/O. 180 -C/1, SAINIK FARMS,
KHANPUR AREA, NEW DELHI .…..COMPLAINANTS
Vs.
M/S. OMAXE LTD.
OMAXE HOUSE 7,L.S.C. KALKAJI,
NEW DELHI-110019.
THROUGH ITS MANAGER/ …..OPPOSITE PARTIE
Date of Institution-04/06/2013
Date of Order- 30/08/2022
O R D E R
MONIKA SRIVASTAVA – PRESIDENT
The complainants have prayed for refund of Rs. 7,68,000/- along with 12% interest from the date of booking, Rs. 5,00,000/-as compensation for mental harassment and litigation expenses of Rs. 10,000/-.
- It is the case of the complainants that they had booked a three bed room flat bearing no. 101, First floor in Omaxe SPA Village, Sector 78, Faridabad (hereinafter referred to as the said flat) vide application dated 24.03.2008 constructed by OP. The total sale consideration of the said flat was Rs.45,89,000, the complaints paid a sum of Rs. 7,68,000/- in two instalments of Rs. 3,84,000/- each.
- It is further stated that the complainant soon realised that they will not be able to pay the balance sale consideration as per schedule and the said flat is bigger than their requirement, hence the Complainant, vide letters dated 19.06.2009, 16.04.2011 requested the OP to allot them a smaller flat. A letter dated 18.10.2012 was issued demanding refund of Rs. 7,68,000/- for which no response was received. The complainants claim deficiency in service and unfair trade practice against the OP because they failed to respond to their letters and refund the amount paid by them.
- The OP, in their reply, has claimed that as per terms of clause 5 and 6 of letter of allotment, the money paid by the complainants was earnest money which was to be forfeited following cancellation of booking on account of default in payment. It is further stated that OP issued several demand letters and reminders but complainants failed to make the necessary payments.
- OP categorically denies having received any letter requesting for changing the allotment to a smaller flat. Along with its reply, the OP has filed copies of all letters and reminders issued to the complainants.
- Complainants filed a rejoinder wherein in regard to categorical statement made by the OP about issuance of demands and reminders, it is stated that they have not received copies of any such documents along with reply.
Parties filed their evidence by way of affidavit and their written arguments. We have carefully gone through the material on record.
- The main prayer of the complaint is that despite a request vide letter dated 11.08.2010 to change the unit size of flat, the OP has failed to do the needful. It also failed to transfer the booking amount to another booking. OP has denied receipt of these letters and complainant has failed to prove them. The letters relied upon by the Complainant were not sent by post. They do not bear any receipt from the office of OP. It seems they were not sent/served on the OP. Besides, complainants have failed to explain their inaction even after receipt of demand letters from OP.
This Commission is of the view that no deficiency can be attributed to the OP instead it is the complainants who have breached the contract. This Commission has gone through the clause 5 and 6 of the basic terms and conditions of allotment letter which states that amounts paid to an extent of 15% of sale consideration shall constitute earnest money. It is further stated that allotment will be cancelled in case of breach of terms and conditions of the allotment. In case of cancellation, the amount paid towards earnest money shall be forfeited and the balance amount shall be refunded to the applicant without interest.
On a sale consideration of Rs. 45,89,000/- earnest money @ 15% is Rs.6,88,350/- which is liable to be forfeited by the OP as per the terms and conditions. The Complainants, have however, paid a sum of Rs. 7,68,000/- thus, a sum of Rs. 79,650/- is liable to be refunded to the complainants. No interest is awarded on the same because clause 6 categorically mentions that no interest shall be payable on the refunded amount.
Complaint is partially allowed.
File be consigned to record room to the parties as per rules. The order be uploaded on the website.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
