Haryana

StateCommission

A/304/2015

LANDMARK APARMENTS PVT.LTD. - Complainant(s)

Versus

RACHNA CH AUDHARY - Opp.Party(s)

PANKAJ JAIN

05 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,          PANCHKULA.

 

                                                F.A.No.304 of 2015

                                                          Date of Institution: 31.03.2015                         Date of Decision: 05.05.2016

 

M/s Land Apartments Pvt. Ltd, (Kunjeans Heights Project, Faridabad) LANDMARK HOUSE 85-P, Sector 44, Sushant Lok-I, Gurgaon through its authorized signatory Rajesh Grewal.

 …..Appellant

                                      VERSUS

Rachna Chaudhary, R/o H.No.5, Sector 13, Urban Estate, Karnal, Haryana.

          …..Respondent

 

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

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Bhisham Kumar, Advocate counsel for the appellant.

Mr.J.S.Sandhu, Advocate counsel for the Respondent.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It was alleged by the complainant that she was allotted  3 BHK unit vide letter dated 22.12.2011.  For this allotment she paid Rs.9,30,420/- through cheques and receipt dated 15.10.2011 was issued to this effect.  Though no buyers agreement or detailed allotment letter was issued, but, it was decided in the general body meeting held on 17.06.2012 that payment of installment was changed from 15.05.2012 to 15.07.2012 and  Rs.4,24,000/- were demanded accordingly vide letter dated 12.07.2012. The payment was to be made by 11.08.2012, but, vide e-mail dated 17.08.2012 it was told that her booking was cancelled. Vide e-mail dated 30.08.2012 one time exemption was granted and she was asked to deposit the amount by 03.09.2012.  alongwith pre-payment of next installment. Despite facing difficulties due to murder of her husband she sent two cheques dated 30.08.2012 of Rs.2,12,100/- each through registered post on 31.08.2012, but, they were not accepted and were returned by the O.Ps.  Her allotment was cancelled with malafide intention to re-allot that flat to some third person.

2.      O.P./appellant filed reply controverting her averments and alleged that as per goodwill gesture it was decided in the meeting dated 17.06.2012 to afford an opportunity to her to deposit Rs.4,24,200/- by 17.08.2012. when she failed to comply with that decision an other opportunity was afforded to her to deposit the amount before 03.09.2012 alongwith pre-payment of next installment total amounting to Rs.18,53,200/-, but, she did not deposit that amount and that is why her allotment was cancelled. She was asked to collect the balance amount after deduction of 10% of the cost.  She was to pay Rs.20/- lacs, but, deposited only Rs.9,38,420/-, in this way there was fault on her part. She never sent cheques to this company, so there was no question of returning them. The allotment was rightly cancelled when the amount was not deposited.  Objections about misjoinder and nonjoinder of the parties i.e. Kunjean Welfare Housing Organization (In short “Kunjean),  locus standi, etc. were also raised and requested to dismiss the complaint

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Gurgaon allowed the complaint vide impugned order dated 22.12.2014 and directed as under:-

“Consequently, the complainant is entitled to  restoration of her allotment of 3 BHK Residential Unit admeasuring 2020 sq. ft bearing Unit No.B-301 on 3^rd Floor in the project of the OP “Kunjeans Height” at sector 88, Faridabad as per Provisional Allotment Letter dated 20.12.2011 (C-1) and to execute Flat Buyer’s Agreement. However, the complainant is liable to make the payment of the installments due within 45 days on payment of interest @ 15% as per decision taken in the General Body meeting held on 17.06.2012.  OP has also harassed the complainant by causing mental agony and compelled her to knock the door of this Forum. Thus she is entitled to compensation of Rs.20,000/- with interest @ 9% p.a. from the date of cancellation of her allotment till compliance.”

4.      Feeling aggrieved therefrom, O.P. has preferred this appeal on the ground that there was willfull default on the part of the complainant. She did not deposit Rs.18,53,220/- on or before 03.09.2012 as mentioned above.  Her allotment was cancelled on 17.08.2012, but, even then an opportunity was afforded to her to retain the flat, but, she failed to avail the same. She was liable to make payment according to the schedule decided in meeting dated 27.06.2011 when she did not deposited the amount, the allotment was rightly cancelled.

5.      This argument is of no avail.  From the perusal of e-mail Ex.C-3 it is clear that the complainant was asked to deposit Rs.4,24,200/- on or before 15.07.2012. Thereafter another opportunity was afforded to her to deposit the amount by 03.09.2012.  It means that she was to deposit the amount by said date, but, as per version of the O.P.-appellant the allotment was cancelled on 17.08.2012 as mentioned in Ex.OPA9.  It shows that just to raise plea an opportunity was afforded to deposit the amount by 03.09.2012, whereas O.P. was pre-determined to deprive her from the flat,  Otherwise why the allotment was cancelled before 03.09.2012. It is mentioned in letter dated 04.09.2012 Ex.C8 that she has failed to deposit amount by 03.09.2012, so it is decided that allotment be cancelled. It means that up to the said date 04.09.2012 allotment was not cancelled. Then how it can be presumed that allotment was cancelled w.e.f. 17.08.2012 as mentioned in letter dated 17.08.2012 Ex.OPA-9. These letters clearly shows that the allotment was already cancelled and they were only creating evidence to show that complainant did not make any payment.  It is alleged by the complainant that her husband was murdered and despite being widow she arranged Rs.4.24.200/- and sent vide cheque Nos.809155 and 005093 dated 30.08.2012. She sent both cheques through registered letter which is clear from the perusal of Ex.C-7.  Normally the post is received within three day and if there was little bit delay the O.Ps. should have asked complainant to explain the delay.  As a widow lady it might not have been possible for her to go in person to handover the cheques to the O.Ps. because her husband was murdered and there could not have been danger to her life also.  Heavens would not have fallen had OP waited for 3-7 more days instead of cancellation of flat. At the cost of repetition it may be mentioned here that as per letter dated 04.09.2012 she was informed that the decision has been taken to cancel allotment.  Thereafter no order about cancellation was passed and pre-dated decision mentioned in letter dated 17.08.2012 (Ex.C-3) was implemented.  It clearly shows malafide part on the part of the O.P.  There was no necessity to implead (Kunjean) as a party because it was a project being constructed by the O.Ps and it’s name is mentioned alongwith O.P.  The District Forum has taken into consideration each and every aspect from every angle and rightly ordered to allot flat as per conditions mentioned in the impugned order.  Resultantly appeal fails and the same is hereby dismissed.

6.      The statutory amount of Rs.14,825/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

May 05th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.