DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 58/2016
Col. Surya Bhanu Rai
House No. P 143, Anuj Vihar
(Shankar Vihar), Delhi Cantt.
Delhi 110010 ….Complainant
Versus
M/s Santasha Real Estate Private Limited
A Company incorporated under the Companies Act, 1956
Santasha Plaza, 2/57
W.H.S, Kirti Nagar
Delhi-110015
Also at:-
Santasha House
7, Jorbagh Market
New Delhi-110003 ….Opposite Party
Date of Institution : 29.01.2016 Date of Order : 06.05.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Ms. Naina Bakshi, Member
The main prayer of the Complainant is that the OP to pay the discount/ Commission amount of Rs. 65572/- be directed to the Complainant alongwith the interest of 18% per annum from the date of the letter dated 28.02.2014 till the date of its realization, award Rs. 1,00,000/- towards compensation for physical strain, harassment and mental agony caused due to inaction of the OP and award the litigation cost of Rs. 55,000/-. The case of the Complainant, in nutshell, is that he filed an application to OP 2 & 3( not summoned) through its broker OP No. 1 for allotment of an apartment measuring 1690 sq. ft. at Jaypee Greens Sports City, Gautam Budh Nagar for total sale consideration amount of Rs.5674610/- and deposited the booking amount of Rs.350,000/- through cheque No. 936199 dated 24.05.2013 drawn on ICICI Bank. OP No.2 & 3 issued a receipt dated 8.07.2013. The complainant received an acknowledgement letter sent by OP 1 vide letter dated 1.06.2013 wherein he was allotted the unit KS2-39-401. The OP-2 & 3 also issued a provisional allotment letter dated 18.07.2013 and confirmed the allotment of the above flat. It is submitted that he paid the requisite demands made by the OP-2 & 3 to the tune of 80% of the total price of the Apartment. He sent various reminders to the OP-1 to honour assurance of discount/commission of Rs.65572/- made the OP 1. The OP-1 issued a discount /commission letter dated 28.02.2014 to him wherein the OP-1 offered a discount/ commission @1.25% on the basic sale price subject to statutory deductions made by the OP-2, out of the brokerage received from the OP-2. It was also mentioned that in case of cancellation of the booking, the complainant will be entitled to refund the whole of the discount/ commission amount to the OP1, if it is already paid. It is submitted that vide Whats App message dated 20.11.2015 OP-1 promised to pay the discount amount to him and advised him to meet Ms. Reema Murjani on 22.11.2015 at 2.00 P.M for collection of cheque towards discount amount of Rs 65572/-. However, to the astonishment of the Complainant, the Opposite Party No. 1, vide another WhatsApp Message dated 21.112015, to evade from its obligation to pay the aforesaid discount amount to the Complainant, completely retracted itself from the commitment/promise and backed out from its commitment/promise to pay the discount amount. He sent a legal notice to the OPs on 03.12.2015 but despite receipts of legal notice the OPs fail to the pay the amount. Hence, there is a deficiency in service on the part of the OPs.
The OP-1 has inter-alia stated that the complainant does not fall under the definition of “consumer” as per section 2(d) of the Consumer Protection Act ,1986. The cause of action arose in the month of May, 2013 and the Complainant filed the complaint in August 2015 i.e. beyond the period of two years from the alleged cause of action. Thus, the complaint is hopelessly barred by limitation and is liable to be rejected. It is submitted that vide letter dated 28.02.2014 send by OP-1 to the Complainant it was clearly stated that the discount /commission of @1.25% on BSP(Basic Sale Price) subject to statutory deduction will be given to the Complainant subject to the conditions that the Complainant makes full payment to the OP-2 & 3 and after the sale agreement of the said flat but the Complainant has not made the full payment. Thus, the Complainant is not entitled to the said commission. Hence, the complaint is not maintainable and liable to be dismissed.
Complainant has filed a rejoinder and has denied the averments
made in reply of the OP No. 1.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Mohit Gupta, Director has been filed in evidence on behalf of the OP No.1.
Written arguments have been filed on behalf of the complainant and OP No.1.
We have heard the oral arguments on behalf the complainant and have also gone through the file very carefully.
It is not in dispute that the complainant booked a flat through OP No.1 at Japyee Sports International Limited. The OP No.1 issued a letter dated 28.02.14 to the complainant (copy Annexure-1 for the purposes of identification) wherein it is mentioned that the complainant was offered a discount/commission of 1.25% on the above flat subject BSP to statutory deductions made by Japyee Sports International Ltd. From the brokerage received to them after the execution of the sale agreement and the same will be forwarded to the complainant after deducting necessary taxes viz. TDS @ 10% etc. The main grievance of the complainant is that he has not received the discount/commission from the OPs. The present issue relates to discount/commission not paid to the complainant. This is not a consumer dispute. The complainant is not a consumer as per the definition of the Consumer Protection Act. Hence, the complainant has failed to prove any deficiency in service or unfair trade practice on the part of the OP.
In view of the above discussion we do not find any merits in the complaint and dismiss the same accordingly with no order as to cost.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 06.05.17.
