DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, GURGAON-122001.
Consumer Complaint No: 154 of 2012 Date of Institution: 01.05.2012 Date of Decision: 13.11.2015.
- Govind Sharma s/o late Shri S.R.Sharma, R/o H.No.741, Sector 29, Faridabad.
- Saroj Sharma w/o Shri Govind Sharma s/o late Shri S.R.Sharma, R/o H.No.741, Sector-29, Faridabad.
……Complainants.
Versus
M/s BPTP Ltd having its Registered Office at M-11, Middle Circle, Connaught Circus, New Delhi-110001 and Branch Office at Sector 37-D, Gurgaon through its authorized person/Manager/Director.
..Opposite party
Complaint under Sections 12 & 14 of Consumer Protection Act,1986
BEFORE: SH.SUBHASH GOYAL, PRESIDENT.
SMT JYOTI SIWACH, MEMBER
SH.SURENDER SINGH BALYAN, MEMBER.
Present: Sh. Paramtap Mudgil, Adv for the complainant.
Shri R.N.Yadav, Adv for the opposite party.
ORDER SUBHASH GOYAL, PRESIDENT.
The case of the complainant, in brief, is that they had booked a Flat No.H-G001 PARK SERENE with the OP on 22.02.2008 in Sector-37-D, Gurgaon by depositing a sum of Rs. 3 Lacs and opposite party allotted Flat No.H-G001 PARK SERENE, Sector 37-D, Gurgaon with the tentative super area measuring 1488 sq ft. The opposite party failed to start the construction of the project and also failed to execute the agreement. Finding no alternative the complainants requested the opposite party to refund the amount deposited by them but they did not pay any heed to their request. Thus, the opposite party is deficient in providing services to the complainants. The complainants prayed that the opposite party be directed to hand over the possession of Flat in question or to refund Rs 3 lacs with interest. They also sought compensation of Rs. 1 Lac for harassment and mental agony. The complaint is supported with an affidavit and the documents placed on file.
2 The OP in its written reply has admitted that the complainants had booked a flat in the project of the opposite party, Park Serene, Sector 37-D, Gurgaon and deposited Rs. 3 Lacs towards the booking vide receipt dated 07.03.2008. On humanitarian grounds the allotment of the complainant was changed from Flat No.H-1202 to H-G001 vide letter dated 16.10.2008. The OP again vide said letter requested the complainants to clear the outstanding of Rs.3,83,029/- to avoid cancellation/termination of booking. Thereafter several reminders were sent to the complainants but of no use. On 30.04.2009 the complainants requested the opposite party to cancel the booking and to refund the amount paid due to non availability of funds. The opposite party sent two copies of Flat Buyer’s Agreement vide letter dated 18.06.2009 but they failed to execute the same. The complainants did not bother to pay the amount outstanding until the termination/cancellation of the booking/allotment, which stood w.e.f.10.04.2010 in terms of the Final opportunity letter dated 25.03.2010. The complainants also sent various emails to continue with the booking which were duly replied informing them by showing their inability to assist for continuation of the original booking. Thus, the complainants are not entitled to any refund of earnest money. There was no deficiency in service on the part of the opposite party.
3 It is pertinent to mention here that the complainants have made a statement before this Forum on 19.10.2015 that they did not press the relief of possession of the flat.
4 We have heard the learned counsel for the parties and perused the record available on file.
5 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties besides filing written arguments by opposite party, it emerges that the complainant has filed the present complaint against the OP alleging deficiency of service on their part on the ground that they booked flat with the OP and paid the booking amount of Rs. 3 Lacs vide Cheque dated 23.02.2008. OP allotted Flat No.H-G001 Park Serene, Sector 37-D, Gurgaon. The opposite party promised to construct the project and deliver the possession of the flat within the stipulated period but the opposite party failed to deliver the possession which tantamounts to deficiency in service on the part of the opposite party.
6 However, as per the contention of the opposite party the opposite parties themselves are at fault in not depositing the amount and not adhering to the application for allotment dated 22.02.2008 and the complainants themselves have not executed the Flat Buyer’s Agreement and have paid only the initial payments and have not adhered to the payment schedule as mentioned in the Flat Buyer’s Agreement and as such the complaint itself was not maintainable as per law laid down in M/s Sahara India Commercial Corporation Vs C.Mohan by Hon’ble National Commission in Revision Petition No.624 of 2007, Secretary Bhubaneswar Development Authority Vs Susanta Kumar Mishra, 2009 4 SCC 684, Jagrut Nagrik and another Vs New India Assurance Co. Ltd I(2011) CPJ 278 (NC) and Bareilly Development Authority V Vrinda Gujarati and Ors AIR 2004 SC 1749. Learned counsel for the opposite party has further contended that complainants failed to deposit the balance amount despite several requests and reminders dated 12.11.2008, 18.12.2008 and 26.03.2009 and the complainants had sent email dated 09.04.2009 vide which they have requested to shift the booking to Park Elite Premium, Faridabad which was not launched by the OP and vide letter dated 30.04.2009 the complainants requested the opposite party to cancel the booking and to refund the booking amount as they have not having funds to pay the sale consideration. Learned counsel for the opposite party further contended that final opportunity letter dated 25.03.2010 was given to the complainant to make the payment of outstanding dues to the tune of Rs.22,84,690/- along with interest failing which the booking of the said flat was to terminate automatically and as such the allotment of flat was cancelled w.e.f.10.04.2010 and as such the booking amount of Rs. 3 Lacs stood forfeited and thereafter vide email dated 04.01.2011 the complainants requested the opposite party to retain the said flat which was replied vide email dated 04.01.2011 to the effect that at that time there was no flat available as the entire project in Park Serene has already been sold out and as such there was no deficiency in service on the part of the opposite party. In this regard learned counsel for the opposite party has placed reliance on S.P.Chengalvaraya Naidu (dead) by L.Rs V Jagannath (dead) by L.Rs. AIR 1994 SC 853, Roshan Deen v Preeti AIR 2002 SC 33 and Ram Chandra Singh v Savitri Devi and Ors (2003) 8 SCC 319.
7 Therefore, after going through the facts and circumstances of the case and the evidence placed on file it emerges that there is no dispute that the complainants got a flat booked and a sum of Rs. 3 Lacs has been paid by them but for want of money they could not adhere to the payment schedule in terms of the application for allotment. The request of the complainants to renew the allotment was also declined. The request to transfer the booking amount to some other project was also declined. Since the complainants have themselves have not deposited the due installments despite several requests and reminders except the booking amount and as such no deficiency in service can be said to have taken place on the part of the opposite party. However, at the same time the opposite party has not constructed the flat within the stipulated period and as such the opposite party is also negligent in not adhering to the terms and conditions of the application for allotment.
8 Therefore, keeping in view the both sides of the case and to meet the ends of justice and also keeping in view the equity and good conscious we direct the opposite party to refund Rs.3 Lacs to the complainants with interest @ 9 % p.a. from the date of filing of the present complaint i.e. 01.05.2012 till realization. The complainants are also entitled to litigation expenses of Rs.3100/-. The opposite party shall make the compliance of the order within 30 days from the date of receipt of the copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the records after due compliance.
Announced (Subhash Goyal)
13.11.2015 President,
District Consumer Disputes
Redressal Forum, Gurgaon
(Jyoti Siwach) (Surender Singh Balyan)
Member Member
