Haryana

StateCommission

CC/506/2017

TARSEM KUMAR - Complainant(s)

Versus

SUPERTECH LTD. - Opp.Party(s)

PRIKSHIT DHULL

11 Mar 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.506 of  2017

Date of the Institution:21.08.2017

Date of Decision: 11.03.2019

Tarsem Kumar s/o Sh. Sh.Ram Chander, 6125, D-6, Vasant Kunj New Delhi-110070.

                                                                   .….Complainant

Versus

Supertech Limited, Registered office at 1114, 11^th Floor, Hemkunt Chambers, 89 Nehru Place, New Delhi 110019, through its Managing Director.

                                                .….Opposite Party

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

                    Mrs.Manjula, Member.

 

Present:-    Mr.Tribhuvan Dahiya,  Advocate for complainant.

Mr.Nitin Sood, Advocate counsel for opposite party.

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

          The brief facts given rise for the disposal of the present complaint are that  on 26.12.2013, he booked a flat bearing No.0302, tower/Block-E/E, 3^rd Floor, 1180 sq. ft. for total consideration of Rs.90,18,360/- with the opposite party.  He opted construction linked plan for payment.  Buyer development agreement was executed on 05.11.2014.   In total, the complainant made payment of Rs.43,36,497/-  to the OP without any default. On 13.01.2017, the complainant submitted an application for cancellation of unit.  As per the agreement, after deducting cancellation charges i.e. 15% of the total cost of the unit, the OP was bound to refund the entire amount deposited by the complainant.  The amount was not refunded to the complainant by the O.P. despite several requests made by the him.  He issued last reminder dated 22.07.2017 to the OP requesting it to refund the amount with interest, but, instead of giving the amount, they demanded Rs.19,09,029/- from him, which was patently illegal and unfair.  Thus there was deficiency in service on the part of the O.ps.

2.                The complaint was resisted by the O.P.- M/s Supertech Limited, by filing a written version, in which O.P. stated that complainant failed to pay the due installments on time.  OP was ready to offer the possession of the flat to the complainant very soon, but, complainant at his own wisdom has asked for the refund. the cancellation of the unit has not attained finality at least upto 18.03.2017 as by that date the complainant was asking/thinking of the alternative investment proposals from the OP.  The complaint was premature and as per terms and conditions of agreement, the present complaint has been filed by the complainant on 16.08.2017, whereas the period of six months were lapsing on 17.09.2017. Thus there was no deficiency in service on the part of the O.ps.  Preliminary objections about the locus standi, complaint was pre-mature,  maintainability of complaint etc. were also raised and requested to dismiss the complaint.

3.                When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit of Mr. Tarsem Kumar Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-15 and closed his evidence.

4.                On the other hand in order to rebut the evidence led on behalf of the complainant the O.P. had also tendered the affidavit Ex.RA that of Mr. Pushpender Sheokand and also tendered documents Ex.R-1  to R-2 and closed his evidence.

5.                The arguments have been advanced by Sh.Tribhuvan Dahiya, the learned counsel for the complainant as well as Mr.Nitin Sood, the learned counsel for the opposite party.  With their kind assistance the entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                Admittedly, the complainant had deposited the amount of Rs.43,36,497/- with the O.ps. The relevant documents were executed including the buyers agreement was executed on 05.11.2014.  As per the terms and conditions incorporated in the buyers agreement, there was a provision as and when the investor intends to cancel his booking, he can do so.  The complainant had sought the cancellation of his booking, in this regard a letter was also written on  13.01.2017 to the builder-O.P.  In consequence thereto, a separate communication was taken place between the builder and the investor vide which he was offered some alternative site, but, lateron, still  the complainant was not ready for any alternate site to be allotted in his favour on account of the amount, which he has already deposited.  However, as per the relevant clause, the option of cancellation of the unit could be exercised within the period of three to six months.  It is also specifically mentioned in the relevant clause in the buyers agreement that in case of seeking the cancellation of the unit and refund is sought, in that eventuality, there would be deduction to the extent of 15% of the total amount invested by the investor and rest of the amount would be refunded alongwith the interest @ 6%. 

7.                In this case, the final letter of seeking cancellation of the unit was written on 13.01.2017 and thereafter a period of three to six months is to be given to the O.P. for the purpose of refunding the total amount invested by the complainant alongwith interest  @ 6%.  Though, the learned counsel for the O.P. has taken a plea of limitation or that the complaint was filed pre-maturely are of no consequence, as it was a prerogative of the complainant to seek the refund of the amount or to exercise his option to get the allotment cancelled, which he has exercised with due diligence. 

8.                As a consequence thereto, while rejecting the contention raised on behalf of the O.P.,  this Commission is of the considered opinion that the total amount invested by the complainant and after deducted to the extent of 15% as per the terms and conditions incorporated in the buyer agreement, which are arising upon the complainant as well as other party, the remaining amount would be refunded to the complainant alongwith interest @ 6% w.e.f. 15.07.2017 onwards.  However, in the interest of justice and equity,  a period of three months given to the O.P. to pay the remaining amount to the complainant  which is found admissible alongwith interest and in case of non-compliance, the complainant would be entitled to get the interest @ 12% for the defaulting period.  In addition, the complainant is also entitled of Rs.21,000/-  as litigation charges.   With the above observation, the complaint stands allowed.  It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

March 11th, 2019        Manjula                Ram Singh Chaudhary,                                              Member               Judicial Member                                                          Addl.Bench                    Addl.Bench                 

S.K.