DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.30/15
Anshul Batra
S/o Shri Sanjay Batra
R/o B-114, Derawal Nagar
Near G.D. Goenka School
New Delhi-110009. .…Complainant
VERSUS
Raheja Developers Limited
Through its Managing Director/Directors
215-216, Rectangle One
D-4, District Centre Saket
New Delhi-110017. ….Opposite Party
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution: 23.01.2015
Date of Order : 01.05.2023
President: Ms. Monika A Srivastava,
The complainant has filed the present complaint seeking refund of amount of Rs.14,13,090/- along with interest @12% per annum with effect from 01.08.2012 and also an amount of Rs.4 Lakh for harassment, mental pain and agony.
- The complainant had booked a plot of land in township of OP by the Name Arenya City Square 11 & 14 Sohna Gurgaon Road, Haryana and for that had paid Rs.13,13,157/-by way of cheques dated 24.04.2012 and 30.01.2012 which were duly received by the OP under application No. FAPPRAC/00147/12-13. Copy of the receipts issued by the OP are annexed as Annnexure-A. It is stated by the complainant that alongwith this a sum of Rs.56,400/- was also issued to the agent as commission against which no formal receipt issued by the OP. Thereafter, in the month of May 2012 the OP demanded Rs.26,533/- which was duly paid by the complainant.
- It was shared to the complainant that the delivery of possession of land shall be finalized from April 2012 and that basic infrastructure has been completed in the township.
- The complainant states that he wanted to construct his own house and remained in touch with the OP whose official informed him that the matter was delayed on the ground as certain approvals from the Government had not been received so far. The complainant visited the site on different dates and found that the OP was not in a position to execute the basic and necessary infrastructure delayed the allotment of plot of land.
- It is stated by the complainant that being dissatisfied with the performance of the OP in the said project the complainant in the first week of March 2014 requested the OP to cancel his plot of land in the aforesaid township and said to return the entire amount booking with interest @ 12% per annum including commission charges.
- It the case of the complainant that the OP has wrongful, unreasonable and unjustified manner kept the hard earned money of the complainant with the malafide intention to enjoy the money of the complainant. The complainant issued a legal notice dated 09.08.2014 demanding to cancel is application No. FAPPRAC/ 00147/12-13 and to refund the entire booking amount but did not receive any reply from the OP.
- In their reply they have stated in the sequence of events narrated by the complainant there is no deficiency on the part of the OP as defined u/s 2(1)(G) of the CPA and therefore the present complaint is not maintainable.
- The other objection OP pertains to the complainant being not a consumer and no cause of action being arisen against the OP as there is no negligence, unfair trade practice by the OP. It is stated by the OP that the complainant wishes to wriggle out of the contractual obligation cost upon him through the booking application form which has been signed and executed by the complainant. It is stated by the OP that the complainant is liable to be dismissed on the ground to suppression and concealment of facts.
- On merits, it is not denied that the complainant had booked plot and in fact, the OP states that the complainant was allotted plot No. F-123 having area of 222.37 Sq. Yards. It is stated that apart from the basic sale price the complainant was also required to pay external development charges (EDC), Internal Development Charges (IDC), Infrastructure or Augmentation Charges (AC), club membership fee, interest free maintenance, security and therefore the total cost of plot was Rs.70,81,889/-. The copy of the booking application is annexed as annexure-1.
- It is stated that complainant had opted for instalment payment plan and as per the instalment plan complainant had made towards the first two instalments and therefore complainant not made any payment despite several demands. It is stated that the OP had sent the last demand notice at the stage of “within 10 months of deemed allotment” on demarcation of plots copy of demand notices annexed as annexure-2.
- It is stated by the OP as per the terms of allotment of possession of the plot was required to be handed over within 42 months of the execution of the agreement to sell and there was also penalty for delay in delivery. It is also stated by the OP that the complainant has not executed the agreement to sell and as neither paid instalment therefore he is not entitle to any relief or refund of money. “That the Company shall sincerely endeavour to give possession of the Plot to the intending Applicant within thirty – six (36) months from the date of execution of the Agreement to Sell and after providing the necessary infrastructure specifically road, sewer and water …. However the Company shall be entitled for compensation free grace period of six (6) months in case the development is not completed within the time period mentioned above……”
- It is also stated that the OP pay Rs.50/-per sq. yard of the plot per month fro the entire period of delay in the event the company is not able to hand over the plot within the period of 42 months.
- It is stated by the OP that demarcation of plots have been completed, infrastructure has been laid down, sewer, water, road etc. services have been completed and the OP is going to offer of possession to the allottee in Phase-I and in regard to Phase-II, demarcation of plots have started.
As per Clause 11 of the Application Form it was categorically mentioned that 10% of the Sale Price shall be treated as earnest money, timely payment is the essence of the terms and conditions, Clause 11 reads as under:
The company shall treat 10% of the total sale consideration as Earnest Money to ensure fulfillment by the Intending Applicant of the terms and conditions as contained herein. Timely payment is the essence of the terms and conditions of this Application Form and the Intending Applicant is under obligation to pay the sale price as provided in the payment plan along with the other payments…..”
Further, in the event of non payment of timely instalments as per Clause 12 of the Application Form the Company was entitled to cancel the allotment and allot the plot to any third party. Further, if the intending application at any stage wanted to withdraw his application for booking it was deemed to be cancellation by the intending applicant and in that eventuality Company shall be entitled to forfeit the earnest money paid by the Applicant. The Earnest money for the purpose was to be calculated at 10% of the total sale consideration of the said plot.
- It is stated by the OP that the complainant had booked the plots for investment purposes and from the inception had no intention to pay the instalment. But due to down turn in real estate market the complainant could not fulfil his motive.
- It is denied by the OP that they had ever assured the complainant that the allotment of the plot shall be finalized within 4 months from April 2012. It is stated that the complainant booked the plot measuring 205 Sq. yards which at that time was tentative and he was finally allotted a plot measuring 222.37 sq. yards.
- It is denied by the OP that the complainant booked the plot with the sole objective of constructing his house and it is reiterated by the OP that he had booked the plot only for investment purposes. It is denied by the OP that the complainant made an oral request in the first week of March 2014 to cancel the plot of land and sought refund with interest @12% per annum including the commission. It is denied by the OP tha the OP has failed to file to perform his part or that the OP has utilized hard earned money of the complainant in wrongful manner. The OP has also denied that they were negligent in performing their contractual obligation.
Both the complainant as well as the OP have filed their respective evidence affidavits as well as written arguments. Oral Arguments were heard.
It is seen from the record of the case that the averments of the complainant do not hold good as the terms and conditions of the booking form clearly states that the possession of the plot would be handed over as per the terms and conditions of the application form signed and executed by the complainant and not 4 months as projected by the complainant. As per clause 12 and 18 of the application form if there is any delay or default in making payment of the installment by the intending applicant then the intending applicant shall pay to the company interest which shall be charged at 18% per annum from the due date of payment of installment on monthly compounded basis. As per clause 20 of the application form it is stated that “the company shall sincerely endeavour to give possession of the plot to the intending applicant within 36 months from the date of the execution of the agreement to sell and after providing of necessary infrastructure especially road, sewer and water in the sector by the government but subject to force majeure conditions….. However the company shall be entitled for compensation free grace period of 6 months in case the development is not completed within the time period mentioned above.”
The OP has placed on record the reminder letter for payment sent to the complainant though no postal receipt of it being sent has been placed on record. It is also seen that the complainant has paid the initial amount and first instalment and thereafter has not made any payment so as to show his bonafide in getting the possession of the plot or attempted to make any payments.
The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.”
It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP. This Commission has gone through the pleadings and documents filed by the complainant and find that complainant has not been able to discharge this onus of proving deficiency on the part of the OP. However, the OP, in their reply have stated that the complainant is required to follow the terms and conditions of the application form and entitled to get refund of balance money after deduction of earnest money as per the agreed terms of booking application form.
As per clause 11 of the booking form it is stated that “the intending applicant agrees that out of the amount paid by him towards the sale price the company shall treat 10% of the sale price as earnest money to ensure fulfilment by the intending applicant of the terms and conditions as contained herein.” The total agreed cost of the plot was Rs.70,81,889/- as has been provided in the application form Annexure 1. Therefore, this Commission directs the OP to pay the amount of Rs. 7,04,901 (after deduction of earnest money) with interest @ 4% p.a. from the date of deposit till realization within three months from the date of receipt of the order failing which the OP would be liable to pay the interest @ 6% p.a.
Copy of the order be given to the parties as per rules. Order be uploaded on the website. File be consigned to the record room.
