…….Complainant……..
Versus
1. M/s. Puri Construction Pvt. Ltd. Through its Directors, 4-7B, GF, Tolstoy House, 15 & 17, Tolstoy Marg, New Delhi – 110 001. marketing@puriconstructions.com.
…Opposite party
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
PRESENT: Sh.P.K.Sachdeva, counsel for the complainant.
Sh. Gajender Singh Chauhan, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the complainant had booked a residential unit NO. T5-1B at a project namely Anand Vilas being developed by opposite party at Sec-81, Faridabad, under 20:80 payment plan of being offered by opposite party. As per the payment plan agreed upon between both parties 20% cost was to be paid on booking and rest 80% cost was to be made at the time of possession. The total cost of the unit as per offer letter dated 20.11.2015 was Rs,1,28,12,535/-. The complainant had made the total payment of Rs.25,61,942/- towards the 20% of the total cost of allotted unit, as demanded by the opposite party, according to payment plan. The possession of the unit was to be delivered in 48 months from the date of ABA i.e. 29.01.2020 with a grace period of 180 days for completion of necessary formalities and other contingencies. Thus the tentative date of possession was 29.07.2020. In the month of March 2019 the complainant received a letter from the opposite party offering a 5% discount for making the balance payment of Rs.96,80,561/- upto 25.03.2019 as the opposite party had applied to concerned authorities for issue of occupation certificate. During this entire period of 36 months, there had not been any communication form the opposite party about the progress of the project. Hence she had the reasonable apprehension that the project would be delayed as in case of other ongoing projects in the area. Under the circumstances the complainant was not in a position to make such a large payment at a short notice of 21 days, as asked for by the opposite party. Hence, she requested the opposite party for extension of discount period from 25.03.2019, for at least six months or even further to original date of possession. After the initial discussion with the officials Mr. Sandeep Goel & Mr. Rajesh Kumar the extension was granted till 15.08.2019, with a stipulation that if the payment was not made by 15.08.2019 the unit should stand cancelled automatically as per BBA/ABA. Due to financial constraints the complainant was not able to arrange for the payment till 15.08.2019 and accordingly she gave the opposite party certain alternative options to settle the issue in a mutually beneficial manner vide her mail dated 09.08.2019. However, no reply was received from the opposite party in this regard. On 03.09.2019 the complainant wrote a reminder mail to the opposite party on the above issue. However, the opposite party chose not to respond to this mail as well due to vested interests for a period of more than 12 months. On 13.11.2020 the complainant received a letter dated 03.11.2019 opposite party asking her to pay a sum of Rs.1,22,193/- to settle the accounts. This letter was intentionally ante dated with ill perceived designs to grab the money deposited by complainant. As per this letter the opposite party had made certain unlawful and arbitrary deductions from the amount deposited by the complainant with it such as brokerage paid to property dealer by the opposite party and some invoices raised by the opposite party in the name complainant for undisclosed purposes. These deductions could not be justified by any standard of natural justice or even as per the rulings of various courts. The complainant sent legal notice dated 03.02.2021 to the opposite party but all in vain. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite parties to:
a) refund the amount of money deposited by the complainant with it with up to date interest till the date of actual payment, without making any unlawful deduction from the deposited amount.
b) pass such other and further orders as then Hon’ble District Commissions may deem fit and proper in the facts and circumstances of the case.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that the present complaint was not maintainable, as the complainant was not covered under the definition of consumer under the provisions of consumer Protection Act,1986. The complainant had entered into a transaction for commercial purpose and not for own use of product. The complainant had been living in her own house in Faridabad, hence the present booking of apartment was never for self-use but for a commercial transaction. The complainant had not come before the Hon’ble Forum with clean hands and had concealed various facts including the issuance of cancellation letter and an email dated 12.06.2019, wherein the complainant specifically written that if she fails to make the payment within the extended period then the unit shall stand cancelled as per BBA. Hence, the complainant was not entitled to any relief. The complainant had not disclosed the facts mentioned in above paras before Hon’ble Commission, hence the complaint be reject on this ground also.
It was further submitted that a letter dated 4.3.2019 was sent to the complainant regarding discount for making timely payment within prescribed timelines otherwise no timely discount was applicable. Further the complainant on receiving the said letter, written another letter dated 20.03.2019, requesting the opposite party to give extension of 6 months and also showed her concern for completing the project before time. Further the complainant vide email dated 12.06.2019 written to the opposite party that an extension for making payment was granted and the complainant can make the payment by 15.08.2019 and failing which the opposite party shall cancel the allotment of the unit. Further after receiving the email dated 12.06.2019 the opposite party vide email dated 18.06.2019 accepted the request for making payment till 15.098.2019 and failure to make the payment, the booking of the unit shall be cancelled. Hence this way the extension was granted to the complainant and then also the complainant failed to make the balance payment and opposite party was compelled to cancel her unit. It was further submitted that inspite of giving extension for making payment as per her request only, the complainant failed to make the payment and started giving vague options and reasons to the opposite party. Further the opposite party had already invested the money towards the construction of the project hence the opposite party was not in that state of affair to adjust or refund the money already invested in developing the project. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party Puri Construciton Pvt Ltd. with the prayer to : a) refund the amount of money deposited by the complainant with it with up to date interest till the date of actual payment, without making any unlawful deduction from the deposited amount. b) pass such other and further orders as then Hon’ble District Commissions may deem fit and proper in the facts and circumstances of the case.
. To establish his case the complainant has led in his evidence Ex.CW1/A – affidavit of Kavita Jain Goyal, Ex.C-1 to 4- Receipts,, Ex.C-5 (colly) – letter dated 20.11.2015,, Ex,C-6 – Apartment Buyer’s Agreement,, Ex.C-7 & 8 – letters regarding discount for making timely payment, Ex.C-9(colly) – offer of possession, Ex.C-10 & 11 – emails, Ex.C-12 0 letter regarding cancellation of unit and payment of due amount, Ex.C-13 0 letter regarding refund of applicable balance amount, Ex.C-14 – track consignment, Ex.C-15 – legal notice, Ex.C-16 track consignment.
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party, Ex. RW1/A – affidavit of Shri Dheeraj Kumar having his office at 4-7b, Ground floor, Tolstoy House, 15 & 17, Tolstoy Marg, New Delhi,, Ex.R-1 – Resolution, Ex.R-2(colly) – demand note, Ex.R-3 – letter dated 24.01.2019, Ex.R-4 – letter dated 20.05.2019, Ex.R-5 – photographs, Ex.R-6 – letter dated 04.03.2019 regarding discount for making timely payment, Ex.R-7- letter dated 20.03.2019,, Ex.R-8 & 9 – emails.
6. In this case, the complainant had booked a residential unit NO. T5-1B at a project namely Anand Vilas being developed by opposite party at Sec-81, Faridabad, under 20:80 payment plan of being offered by opposite party. As per the payment plan agreed upon between both parties 20% cost was to be paid on booking and rest 80% cost was to be made at the time of possession. The total cost of the unit as per offer letter dated 20.11.2015 was Rs,1,28,12,535/- vide Ex.C-5 (colly).
7. As per receipts vide Ex.C1 to C4 , the complainant had made the total payment of Rs.25,61,942/- towards the 20% of the total cost of allotted unit, as demanded by the opposite party, according to payment plan. The possession of the unit was to be delivered in 48 months from the date of ABA i.e. 29.01.2020 with a grace period of 180 days for completion of necessary formalities and other contingencies. Vide Apartment Buyer Agreement Ex.C-6. The tentative date of possession was 29.07.2020. It is evident from letter dated 04.03.2019 vide Ex.C-7, the complainant received a letter from the opposite party offering a 5% discount for making the balance payment of Rs.96,80,561/- upto 25.03.2019 as the opposite party had applied to concerned authorities for issue of occupation certificate. During this entire period of 36 months, there had not been any communication form the opposite party about the progress of the project. Hence she had the reasonable apprehension that the project would be delayed as in case of other ongoing projects in the area. The complainant requested the opposite party for extension of discount period from 25.03.2019, for at least six months or even further to original date of possession vide Ex.C-8. After the initial discussion with the officials Mr. Sandeep Goel & Mr. Rajesh Kumar the extension was granted till 15.08.2019, with a stipulation that if the payment was not made by 15.08.2019 the unit should stand cancelled automatically as per BBA/ABA vide Ex.C-9 (colly). Due to financial constraints the complainant was not able to arrange for the payment till 15.08.2019 and accordingly she gave the opposite party certain alternative options to settle the issue in a mutually beneficial manner vide her mail dated 09.08.2019. However, no reply was received from the opposite party in this regard vide Ex.C-10. On 03.09.2019 the complainant wrote a reminder mail to the opposite party on the above issue. However, the opposite party chose not to respond to this mail as well due to vested interests for a period of more than 12 months vide Ex.C-11. On 13.11.2020 the complainant received a letter dated 03.11.2019 opposite party asking her to pay a sum of Rs.1,22,193/- to settle the accounts vide Ex. C-13 & 14.
On the other hand, counsel for the opposite party argued that it is evident from letter dated 4.3.2019 vide Annexure R-2 was sent to the complainant regarding discount for making timely payment within prescribed timelines otherwise no timely discount was applicable. The complainant on receiving the said letter, written another letter dated 20.03.2019, requesting the opposite party to give extension of 6 months and also showed her concern for completing the project before time. The complainant vide email dated 12.06.2019 written to the opposite party that an extension for making payment was granted and the complainant can make the payment by 15.08.2019 and failing which the opposite party shall cancel the allotment of the unit. Further after receiving the email dated 12.06.2019 the opposite party vide email dated 18.06.2019 accepted the request for making payment till 15.098.2019 and failure to make the payment, the booking of the unit shall be cancelled. Hence this way the extension was granted to the complainant and then also the complainant failed to make the balance payment and opposite party was compelled to cancel her unit. inspite of giving extension for making payment as per her request only, the complainant failed to make the payment and started giving vague options and reasons to the opposite party. The opposite party had already invested the money towards the construction of the project hence the opposite party was not in that state of affair to adjust or refund the money already invested in developing the project.
8. After going through the evidence led by the parties, the Commission is of the opinion that the delay is on the part of the opposite parties because the unit was to be delivered in 48 months from the date of apartment Buyer Agreement and she has waited for more than one year to see the project to be completed.
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9. Keeping in view of the above discussions, the Commission is of the opinion that as the requested by the complainant orally during arguments,
he wanted to take refund. Hence the complaint is allowed with the direction to opposite party to refund the amount alongwith interest @ 9% p.a from the respective dates of deposits as per Builder Buyer Agreement. Opposite party is also directed to pay Rs.5500/- as compensation on account of mental tension, agony and harassment alongwith Rs.5500/- as litigation expenses to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 29.09.2022 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
