Delhi

StateCommission

A/911/2014

M/S RAHEJA DESIGN & CONTRACT LTD. - Complainant(s)

Versus

SMT. MEERA SAXENA - Opp.Party(s)

02 Mar 2016

ORDER

IN THE STATE COMMISSION

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 02.03.2016

 

First Appeal No. 911/2014

 

        In the Matter of:

 

                M/s Raheja Design & Contract Ltd.

        A-201, Okhla Industrial Area, Phase-I,

        New Delhi-110030

        Through its Authorized Representative,

        Neeraj Kumar,

……Appellant                                                   Versus         Smt. Meera Saxena,             W/o Sh. Neeraj Kumar Saxena,       R/o 23-C, Jhang Apartments,       Plot No. 40, Sector-13, Rohini, Delhi-85                                                                                      …….Respondent

CORAM

Justice Veena Birbal, President

Salma Noor, Member

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

Justice Veena Birbal, President

1.             This is an appeal u/s 15 of the Consumer Protection Act, 1986 (in short ‘the Act’) challenging order dated 07.08.2014 passed by the District Consumer Disputes Redressal Forum-X, Qutub Institutional Area, New Delhi (in short, ‘the District Forum’) in consumer complaint case no. 704/09.

2.             Brief facts relevant for the disposal of the present appeal are as under:

                The respondent herein was the complainant before the Ld. District Forum. A complaint u/s 12 of the Act was filed by respondent/complainant stating therein that in pursuance to the advertisement of appellant/OP-1, respondent/complainant had booked a 2 bedroom flat in their project at Jaipur through broker i.e. OP-2 before the Ld. District Forum and paid Rs. 3 lac vide cheque dated 29.05.2016 which was acknowledged by the appellant/OP-1 vide receipt dated 26.09.2006. The appellant/OP-1 had also issued an application form which was counter signed by its agent i.e. OP-2 before the Ld. District Forum. It was alleged that appellant/OP-1 had also addressed a letter dated 07.02.2007 to the respondent/complainant informing about requisite sanctions having being taken from Jaipur Development Authority and also about commencement of construction. It was alleged that appellant/OP-1 had also assured to allot the flat to respondent/complainant within 9 months from the date of booking. It was alleged that construction took a long time as a result of which the respondent/complainant lost interest in the project. It was further alleged that the mother of the respondent/complainant had also fallen seriously ill and respondent/complainant required money for her treatment. Accordingly respondent/complainant requested appellant/OP-1 for refund of the booking amount with interest after cancellation of booking vide letter dated 10.09.2007. It was alleged that appellant/OP-1 assured that the money would be refunded by October 2007. Later on the appellant/OP-1 did not refund the money to her. The respondent/complainant had also sent reminders and also gave several telephonic calls and made personal visits to the office of the appellant/OP-1. Ultimately, she had sent a legal notice dated 28.01.2009 to the appellant/OP-1. In reply to the said notice appellant/OP-1 agreed to refund the booking amount after deducting administrative charges @ 20% and cancellation charges @ 10% besides brokerage amount paid to OP-2. It was staged that the same was not acceptable to the respondent/complainant. Accordingly, respondent/complainant filed a complaint before the Ld. District Forum alleging deficiency in service and unfair trade practice on the part of the appellant/OP-1 and sought directions for refund of Rs. 2,94,000/- (after deduction of commission of Rs. 6,000) along with interest 9% per annum i.e. 79,380/- till 31.08.2009 and to pay a compensation of Rs. 50,000/- to respondent/complainant and she also claimed litigation expenses.

3.             The claim was opposed by the appellant/OP-1 by filing written statement wherein it was alleged that it had offered allotment of flat to the respondent/complainant vide letter dated 07.02.2007 within the stipulated period of 9 months from the date of booking as per agreed terms and further offered for allotment and demanded due payment vide letter dated 02.05.2007 and issued reminders also but respondent/complainant did not come forward. It was alleged that there was no deficiency in service on their part as the respondent/complainant did not make the subsequent payments and did not sign buyer seller agreement.

4.             The written statement is also filed by OP-2 before the Ld. District Forum wherein he has stated that he has not been given any commission and that he has no connection with regard to booking as well as of handing over the physical possession of the flat to the respondent/complainant.

5.             Both the parties led their evidence in the form of affidavits and also filed relevant documents.

6.             After considering the material on record the Ld. District Forum held that the provisional allotment was made to the respondent/complainant on 22.09.2007 i.e. beyond nine months of date of booking and payment of advance money by her. It was observed that the respondent/complainant had asked for the refund of amount after expiry of 9 months from the date of booking of flat.  The Ld. District Forum held that respondent/complainant became entitled to refund of money in view of clause (d) of the Advance Registration Application Forum and the stand of appellant/OP-1 that it was entitled for administrative and cancellation charges was without any substance. Ld. District Forum held that there was deficiency in service on the part of appellant/OP-1 and directed it to refund Rs. 2,94,000/- as claimed by the respondent/complainant with interest @ 9% per annum from the date of deposit till actual refund and Rs. 5000/- towards litigation charges.

7.             Aggrieved with the aforesaid order present appeal is filed.

8.             Ld. counsel for the appellant/OP-1 has contended that is no deficiency in service on their part as the allotment was made within 9 months from the date of booking as per registration form. In support of his stand appellant/OP-1 has relied on letter dated 07.02.2007. Appellant/OP-1 has further relied on letter dated 02.05.2007, 17.05.2007 & 28.05.2007. It is contended that it is the respondent/complainant who did not come forward and did not make the payment and the findings given by the District Forum are contrary to the material on record.

9.             On the other hand, Ld. counsel for the respondent-1/complainant has submitted that the impugned order has been passed after considering the material on record and the findings are correct and there is no error in the impugned order.

10.            We have considered the submissions made and perused the material on record. It is admitted position that on 26.09.2006 the respondent/complainant had booked one residential Condominium of two bedroom with appellant/OP-1 vide registration form and the respondent/complainant had paid Rs. 3,00,000/- to the appellant/OP-1 vide receipt dated 26.09.2006.

11.            The relevant para of the registration form is as under:

                        “In case the company fails to allot a Condominium within a period of nine months from the date of making this payment, the only I/We would have the option to withdraw the money after nine months by giving one month notice and 9% interest will be applicable”.

12.            The stand of the appellant/OP-1 is that the aforesaid terms of booking was complied with and the allotment was made within 9 months from the date of booking and for that Ld. counsel has relied upon letter dated 07.02.2007 alleged to have sent by appellant/OP-1 to respondent/complainant and further reminder sent in that regard.

13.            We have gone through the aforesaid letter which reads as under:

                “Thanks for booking a flat in Raheja Towers.

                        We wish to inform you that the construction of Raheja Towers at Jaipur has commenced. For the process of signing the flat buyers’ agreement, you are requested to remit Rs. 3,00,000/- Lacs. Please release the payment within 30 days by cheque/demand draft in favour of Raheja Design & Contract Ltd.

                  Your priority no. will be decided on the basis of payment received from the customer.

                For any queries feel free of contact us”.

14.            Reading the aforesaid letter it cannot be said in any manner that by the said letter provisional allotment was made to the respondent/complainant. By the aforesaid letter demand of Rs. 3,00,000/- has been raised. There is another letter dated 22.09.2007 on record which shows that respondent/complainant was given provisional allotment of 2 bedroom apartment in appellant’s/OP-1 project i.e. Raheja Design Residential Complex after expiry of 11 months and 22 days of booking which is beyond the period 9 months from the date of booking. The material on record shows that respondent/complainant had already withdrawn her allotment after expiry of 9 months i.e. on 10.09.2007.

15.            The other letters pointed out by the appellant/OP-1 on record are dated 02.05.2007 and 17.05.2007 which are all the demand letters sent by appellant/OP-1 whereby the respondent/complainant has been asked to pay more amount without any allotment.

16.            Ld. District Forum has considered the material on record and thereafter has given finding that the allotment to respondent/complainant was made after the period of 9 months from the date of booking vide Registration form dated 26.09.2006. In terms of the registration form as is reproduced above the respondent/complainant had already withdrawn her booking.

17.            In these circumstances, no illegality is seen in the impugned order which calls for interference of this Commission. There is no merits in the appeal. The same stands dismissed. There is no order as to costs.

                A copy of this order be sent to the parties free of costs as per rules.

                File be consigned to record room.

(Justice Veena Birbal)

President

 

(Salma Noor)

Member