Haryana

Karnal

CC/380/2022

Vinay Kumar Saini - Complainant(s)

Versus

Signature Global - Opp.Party(s)

V.K. Kapoor

07 Oct 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.380 of 2022

                                                        Date of instt.07.07.2022

                                                        Date of Decision: 07.10.2024

 

Vinay Kumar Saini son of Shri Kuldeep Kumar Saini, resident of house no.186, Gali no.8, Jawahar Nagar, Hisar, Haryana.

 

                                                                        …….Complainant.

                                              Versus

 

Signature Global, Rose Building Solutions Pvt. Ltd. Sector-35, District Karnal through its Authorized Signatory.

                                                                  …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.     

              Ms. Neeru Agarwal…….Member

      Ms. Sarvjeet Kaur…..Member

 

 Argued by: Shri V.K. Kapoor, counsel for the complainant.

                    Shri Dinesh Chauhan, counsel for the OP.

 

                     (Jaswant Singh, President)

ORDER:   

                

                  The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that OP launched a residential colony with a project name as “Sunrise-The Premium Floors Sector-35, Karnal” to sell residential units alongwith other basic necessities and amenities. In order to attract the prospective customers, the OP published fancy broucher and advertisement regarding the highest standard of the project. On the allurement of the OP, complainant visited the site in question, where the officials of the OP had shown the prospective location of the unit no.A27-GF. The complainant had deposited the booking amount to the tune of Rs.50,000/- by dint of cheque bearing no.819378 dated 14.11.2017 from the account of his mother Savitri Devi from her bank i.e. Punjab National Bank, Defence Colony, Hisar. Again on the demand of the OP, complainant had deposited an amount of Rs.2,97,000/- through RTGS on 12.12.2017. The official of the OP had disclosed the total sale consideration of the apartment/unit Rs.25,10,000/- for the unit of A27-GF consisting of two bedroom set. Then again on the demand of OP, complainant had deposited Rs.1,00,000/- on 20.07.2020 by dint of RTGS. Thus, total advance booking amount of Rs.4,47,000/- had been deposited by the complainant with the OP. On 04.01.2021 a demand cum allotment letter dated 04.01.2021 had been received from the office of OP and in which due date mentioned 18.02.2021 to confirm the acceptance of the allotment. Alongwith allotment letter a text invoice dated 04.01.2021 duly send by OP by mentioning the payment details on due date 18.02.2021 and in column of amount received in advance has shown Rs.1,00,000/- only instead of Rs.4,47,000/-. Complainant got shocked and stunned to see the advance amount in invoice and immediately contacted the officials of OP by showing the mode of payments through cheques and RTGS and the official of the OP duly assured to rectify the same within few days from their account department and further send the fresh invoice to the complainant. But complainant had not received any rectified fresh invoice as assured instead of this, he received a reminder dated 25.03.2021, in which alongwith principal amount including GST the OP also demanded the overdue outstanding by attracting accrual of interest and 15% per annum and no interest waiver request would be admitted. The complainant again visited the office of OP and made written complaint regarding the adjustment of Rs.4,47,000/- amount in invoice. The official of the OP assured the adjustment of the amount in the invoice prior to execution of Buyer Agreement but instead of receiving the any rectification in the invoice again received a reminder dated 03.04.2021 for the payment of principal amount including GST.  Thereafter, complainant approached the OP several times and requested for rectification of the invoice bill as earliest. The official of the OP had further assured for the said rectification. On 19.04.2021, the complainant had received a pre-conciliation letter from the office of OP, in which the complainant alongwith the cost of unit also demanding the interest amount Rs.60128/- and further directed to make the payment within 10 days from the date of letter. The complainant received an invitation letter dated 13.05.2021 from the office of OP for execution and registration of Builder/Apartment Buyer Agreement. The complainant had contacted the OP for execution of Builder Buyer Agreement but the official of the OP had shown their inability to rectification of the invoice bill Rs.4,47,000/- instead of Rs.1,00,000/- and further demanded 20% of the amount equal to the total cost of the apartment at the time of registration of the Builder Buyer Agreement to Sell. The complainant requested the OP first of all adjust his advance amount and after then the complainant is ready to deposit the 20% amount but OP was adamant and had not given any satisfactory reply to the complainant and rather sent a cancellation letter dated 25.05.2021 mentioning that cancellation of allotment of the unit by forfeiting and showing the booking amount of Rs.1,00,000/-. When there is no builder buyer agreement yet to be executed the question of forfeiting the amount and interest clause does not arise or apply as alleged in the cancellation letter dated 25.05.2021. Due to this act and conduct of the OP, complainant has suffered mental pain, agony and harassment as well as financial loss. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence, complainant filed the present complaint seeking direction to the OP to refund the entire advance booking amount of Rs.4,47,000/- alongwith interest @ 24%, to pay Rs.25,000/- towards damages and compensation for mental pain, agony and harassment etc. and to pay Rs.25,000/- towards the litigation expenses.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; limitation; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that complainant is purchaser as no sale deed has been executed and registered by OP in favour of the complainant. Complainant may be termed as an “Allottee” but not as a ‘purchaser’ as it failed to pay the agreed sale price of the allotted unit. The complainant does not fall under the category of consumer as defined in the Consumer Protection Act. The complainant has failed to disclose other immoveable property owned by him at different place other than the present one. The complainant has himself stated to have an immoveable property “186/8 Jawahar Nagar” as its residential as well as communication address. Furthermore, complainant has himself stated that his occupation is “Business” in its application form requesting for allotment. Hence, allotted unit was applied for allotment just for profit motive by reselling it at relevant point of time considering market demand. The complainant has also applied for allotment of another unit no.A26, Ground floor. It is further pleaded that project is being developed by OP as “Rose Building Solutions Pvt. Ltd.” and not by “Signature Global, Rose Building Solutions Pvt. Ltd.” as alleged. It is further pleaded that unit was booked by the complainant for profit motive by reselling it as the application was submitted only after verifying relevant details as complainant himself admitted visiting the site and the complainant admittedly is in business vide application form submitted requesting allotment. It is further pleaded that issuance of cheque cannot be considered as payment made unless the said cheque is encashed. The complainant did not come forward despite several letters and reminders sent from the OP to discharge the obligation of becoming the allottee. The complainant did not come forward to execute BBA despite several requests/reminders by the OP.  It is specific denied that the complainant had deposited a sum of Rs.4,47,000/- with the OP in the hope of getting the physical possession of the unit. It is also denied that the OP had not given the exact amount in the invoice letter due to this reason the dispute arises. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of newspaper cutting Ex.C1, copy of cheque dated 14.11.2017 of Rs.50,000/- Ex.C2, copy of receipt of Rs.50,000/- Ex.C3, copy of statement of account NEFT dated 12.12.2017 of Rs.2,97,000/- Ex.C4, copy of allotment letter dated 04.01.2021 Ex.C5, copy of invoice dated 04.01.2021 Ex.C6, copy of reminder dated 25.03.2021 Ex.C7, copy of written application dated 30.03.2021 Ex.C8, copy of reminder-II dated 03.04.2021 Ex.C9, copy of pre-cancellation of unit letter dated 19.04.2021 Ex.C10, copy of Agreement dated 13.05.2021 Ex.C11, copy of cancellation letter dated 25.05.2021 Ex.C12 and closed the evidence on 07.07.2023 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Mintu Kumar Ex.RW1/A, copy of broucher Ex.R1, cop of application for booking Ex.R2, copy of allotment letter Ex.R3, copy of Reminder Ex.R4, copy of reminder-2 dated 03.01.2021 Ex.R5, copy of Agreement execution letter Ex.R6, copy of pre-cancellation letter Ex.R7, copy of cancellation letter dated 25.05.2021 Ex.R8, copy of advertisement Mark-A, copy of cheque  Mark-B, copy of account statement Ex.R9, copy of Tax-invoice Ex.R10, copy of application form Ex.R11, copy of allotment letter dated 19.03.2018 Ex.R12, copy of third & final reminder dated 28.09.2018 Ex.R13 and Ex.R19(repeated), copy of pre-cancellation letter dated 30.10.2018 Ex.R14  and R20 (repeated), copy of agreement execution letter dated 14.11.2018 Ex.R15, copy of cancellation letter dated 11.12.2018 of unit no.A-2/6-GF Ex.R16 and Ex.R22(repeated), copy of broucher Ex.R17, copy of allotment of unit no.A 2/6-FF Ex.R18, copy of Agreement Execution letter Ex.R21, copy of first reminder dated 31.07.2018 Ex.R23, copy of first reminder dated 31.07.2018 Ex.R24, copy of second reminder dated 16.08.2018 Ex.R25, copy  of resolution Ex.R26 and closed the evidence on 09.04.2014 by suffering separate statement.

 6.            We have heard the learned for the parties and perused the case file carefully and also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant booked a unit no.A27-GF in the project of the OP for the total sale consideration of Rs.25,10,000/-. Complainant deposited Rs.4,47,000/- upto 20.07.2020 with the OP but OP has shown only Rs.1,00,000/- in its record instead of 4,47,000/-. Complainant moved an application for correction of the amount but OP did not pay any attention to the request of the complainant and refused to correct the amount. OP neither done any construction at the spot nor refunded the deposited amount to the complainant and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that the sale price of the unit in question was Rs.25,10,000/- but complainant has deposited only Rs.1,00,000/- with the OP. The unit in question has been cancelled due to non-payment of the remaining amount. The complainant is not entitled for any relief as claimed by him and lastly prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, the basic price of the flat in question was Rs.25,10,000/-. It is also admitted that the flat in question has been cancelled by the OP.

11.           The complainant has alleged that he has deposited Rs.4,47,000/- till 20.07.2020 but OP has shown only Rs.1,00,000/- in their records. Complainant moved an application Ex.C8 dated 30.03.2021 for correction of the amount deposited by him as Rs.4,47,000/- instead of Rs.1,00,000/-. The said application has not been entertained by the OP on the ground that complainant has deposited only Rs.1,00,000/-. The onus to prove his version was relied upon the complainant. To prove his version complainant has placed on file photocopy of cheque of Rs.50,000/- Ex.C2 dated 14.11.2017 issued in favour of the OP by the mother of complainant Smt. Savitri Devi.  The complainant has also transferred the amount of Rs.2,97,000/- through NEFT dated 12.12.2017, to prove the said amount, complainant has placed on file, copy of his saving bank account no.004101564038 Ex.C4, wherein an amount of Rs.2,97,000/- has been transferred in the account of OP. Further, complainant has also placed on file copy of account statement Ex.C3 wherein an amount of Rs.1,00,000/- has been transferred in favour of the OP on 20.07.2020. To rebut the said entries, OP has not placed on file any documentary evidence rather cancelled the flat in question, vide letter Ex.R8 dated 25.05.2021. Thus, it has been proved on the record that complainant has deposited Rs.4,47,000/- with the OP.

12.           It is not the case of the OP that OP has completed the construction work at the site and flat in question is ready to use. Now OP has already cancelled the flat in question. The complainant has not deposited the remaining amount only on the ground that OP has not shown the actual amount deposit by the complainant in their records. Complainant was ready to deposit the remaining amount if OP heard the genuine request of the complainant and rectified its record by showing the deposited amount of Rs.4,47,000/- instead of Rs.1,00,000/-.  

13.           Complainant has deposited Rs.4,47,000/- with the OP but OP has neither rectified its records with regard to deposition of the amount by complainant nor completed the construction work at the site and cancelled the unit in question without making the refund of the deposited amount. Thus, the act of the OP amounts to deficiency in service and unfair trade practice. Hence, the complainant is entitled for the amount of Rs.4,47,000/- alongwith interest, compensation for mental pain, agony and harassment and towards the litigation expenses.

14.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.4,47,000/- (Rs. four lakhs forty seven thousand only) to the complainant alongwith interest @ 9% per annum from the date of filing the complaint i.e.07.07.2022 till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Dated: 07.10.2024

                                                            President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Neeru Agarwal)           (Sarvjeet Kaur)

                   Member                          Member