BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH ======== Complt. Case No:1056 of 2009 Date of Institution: 28.07.2009 Date of Decision : 28.10.2010 Naveen Kumar son of Rajinder Lal, R/O H.No.206, Sector 20, Panchkula. ……Complainant V E R S U S S.M.V. Agencies Pvt. Ltd., SCO No.64-65, Ground Floor, Sector 34-A, Chandigarh 160022 through Authorised Signatory .…..Opposite Parties CORAM: SH.LAKSHMAN SHARMA PRESIDENT SH.ASHOK RAJ BHANDARI MEMBER MRS.MADHU MUTNEJA MEMBER PRESENT: Sh.Mohan Sharma, Advocate for the complainant. Sh.B.S.Mangat, Adv. for the OP PER MADHU MUTNEJA, MEMBER The instant complaint has been filed by Sh.Naveen Kumar again S.M.V. Agencies Pvt. Ltd., who are developers of flats. The complainant had applied for Unit No.U-108, Type-2BR, Floor-1F super Area 1288 Sq. Ft. at basic price of Rs.24,60,080/- in Sunrise Greens, Zirakpur, Chandigarh. Rs.2,81,228/- was paid as booking amount through Kotak Mahindra Bank, Panchkula vide Receipt No.CH-068 to the OP. The allotment was executed between OP and complainant on 4.11.2006 and a letter of allotment was issued to the complainant. The date of handing over of the possession of the finished flat to the purchaser was fixed as 31.10.2008. Unfortunately, the OP failed to construct the units in time. According to the complainant, the construction was still at zero level at the time of filing this complaint. The complainant requested the OP for refund of the amount paid along with interest but the OP refused to return the same and instead issued a notice to the complainant to make full & final payment. The complainant has thus filed this complaint with a prayer that the OP be directed to refund the amount of Rs.2,81,228/- along with interest @18% per annum and also pay compensation for mental harassment and deficiency in service. 2] After admission of the complaint, notices was sent to the OP. In the reply filed by OP, they have stated in the preliminary objection that the complainant had booked a Two Bed Room Flat with them on 24.9.2006 in the time linked plan. The complainant deposited a cheque of Rs.2,81,228/- only with them. A receipt was duly issued to the complainant. Thereafter despite allotment letter and the terms & conditions contained therein the complainant never made any further payment towards the flat to the OPs. The OPs sent various reminders to the complainant to pay the installments but no amount was ever received from the complainant. This accordingly to the OP clearly shows that the intention of the complainant was only to book the flat and sell it at a later date to earn profit. The OP has also alleged that due to recession in the real estate market or reasons best known to the complainant, he was unable to resold the flat and has therefore, asked the OP to cancel the booking and return the booking amount. The OP has also submitted that they informed the complainant that as per Clause-3 of the Terms & Conditions of the Agreement, the OP was entitled to forfeit 10% of the Basic Price of the Unit in case the complainant wanted a refund of the booking amount. The complainant has failed to pay the installment despite various reminders and it is clear that he himself violated the terms & conditions of the allotment. On merits, the OP has submitted that the whole project got delayed due to unavoidable circumstances due to which the date of possession has been delayed. As per Clause-3 of the Terms & Conditions of the allotment letter (signed by the complainant also). The possession period agreed upon was only indicative and possession could be given before or after the said date. It was agreed that in case of delay due to unavoidable circumstances or force majure, the OP would pay Rs.5/- per sq. ft. of the super area per month for the period of delay. Further, the OP has contended that it is the complainant who has failed to pay the installment and has thereby violated the terms & conditions of the agreement. Therefore, the OP is entitled to forfeit 10% of the basic price of the unit in case the complainant wishes to take refund. They have therefore prayed for dismissal of the complaint. 3] We have heard the ld.Counsel for the parties and have also perused the evidence led by the parties in support of their contentions. 4] The complainant also filed additional evidence by way of affidavit along with a Banker’s Cheque of Rs.20.00 lacs, dated 25.6.2008, bearing No.129581, in favour of OP. This banker’s cheque was apparently an offer to the OP to give possession and take the money. 5] In reply to this application, the OP has contended that they have never ever received this cheque and the complainant has only made out this cheque at the time of arguments of the case before this Forum. The complainant himself was a defaulter as per the agreement as he never paid further installment beyond the initial amount despite various reminders. 6] A perusal of the facts of the case shows that both parties are deficient qua each other. The complainant has paid only the initial booking amount and not money thereafter. The payment was to be made in a time linked plan. The complainant has alleged deficiency against the OP since it has not constructed the flat on time, which is why he has not made any further payment towards the flat. At the time of arguments, the ld. Counsel for the complainant states that the complainant was ready and willing to make payment of the complete amount as soon as the OP handed over the possession of the flat to him. He was not willing to pay any amount prior to the date of possession. 7] The OP has alleged that the complainant is deficient as he has not made any payment to them beyond the first initial booking amount. The payment plan being time linked plan, there was no clause by which the complainant could postpone the payment as per schedule, hence as alleged by the OPs, it is the complainant himself, who has violated the terms & conditions as agreed upon between the parties, so he is a defaulter in payment and has no right to allege anything against them towards deficiency in service. 8] It is evident that both parties have not stood up to their commitment to each other. The complainant has not made payment beyond the initial amount and the OP has not constructed the flat due to paucity of funds. The ld.Counsel for the OP had submitted at the time of arguments that construction is carried out with the amount received from the allottees and it was not possible for the OP to complete the infrastructure if the allottees had not make timely payments. The complainant is a defaulter in this regard. However, we deem it proper that the complainant be refunded the amount paid by him to the OP along with reasonable interest for the period for which it remained with the OP. The OP’s stand to forfeit the basic price of the complainant would not hold good because they have not constructed the flats on time. If they had done so and the complainant had not made the payments, then they would have been entitled to forfeit this amount. 9] In view of the above findings, we allow this complaint. The OP is directed to refund/return the amount of the complainant i.e. Rs.2,81,228/- along with interest @9% per annum from the date of its deposit i.e. 26.9.2006 till the date of its actual payment to the complainant. However, we did not deem it appropriate to grant any compensation or cost of litigation to the complainant as he has also failed to pay the timely installments to the OP. The order shall be complied with by the OP within a period of 30 days from the date of receipt of certified copy of this order, failing which the OP shall pay aforesaid decretal amount of Rs.2,81,228/- along with interest @12% per annum from the date of its deposit i.e. 26.9.2006 till the date of its actual payment to the complainant. Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 28th Oct., 2010 (LAKSHMAN SHARMA) PRESIDENT (ASHOK RAJ BHANDARI) MEMBER (MADHU MUTNEJA) MEMBER
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
