CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.64/2016
MR. KULWANT SINGH
ATTORNEY OF MR. INDERPREET SINGH GUJRAL
C/O JAGDEEP SINGH CHAWLA
R/O C-303, KRISHNA APARA RESIDENCEY,
E-8, SEC. 61, NOIDA, U.P.-201301
…………. COMPLAINANT
Vs.
M/S SUPERTECH LTD.
THROUGH ITS GENERAL MANAGER/PRINCIPAL
OFFICER/AUTHORISED SIGNATORY
HAVING ITS OFFICE AT:-
1114, HEMKUNT CHAMBERS,
89, NEHRU PLACE, NEW DELHI-110019
ALSO AT:-
SUPERTECH HOUSE, B-28-29,
SECTOR-58, NOIDA-201301, U.P.
…………..RESPONDENT
Date of Order:28.08.2018
O R D E R
A.S. Yadav - President
The complainant booked a flat through application dated 04.05.2012 in the upcoming project of OP by the name ‘Renesa’ situated at Sector-118, Noida, U.P. but due to the delay in the said project, the name of the project was changed to ‘The Romano’. Subsequently a flat bearing No. A1/1404 measuring super area 1020 sq. ft. at 14th Floor, 001, Sector-118/GHP, Noida, District Gautam Budh Nagar, U.P. was allotted to the complainant vide allotment letter dated 15.02.2014. Initially the complainant booked the flat in August, 2012 and made an initial payment of Rs.4,32,231/-.
The complainant approached OP about the progress of the project but there appeared to be no progress in the said project. The complainant opted for construction linked payment plan. The complainant has already paid a sum of Rs.16,57,729/- till date. The complainant all of sudden received a letter dated 02.07.2015 whereby he was asked to pay a sum of Rs.10,71,255/- in one go and thereafter the complainant received a letter dated 26.08.2015 from OP whereby his booking was cancelled and the entire amount deposited by him was forfeited. The said letter was duly replied by the complainant vide letter dated 02.09.2015 which was sent through speed post and was duly delivered to OP on 03.09.2015. The reminder dated 05.10.2015 was sent through speed post whereby the complainant requested OP that “he is not interested to take delivery of the flat and wants refund of the amount as the construction was going in a very slow manner whereas as per the agreement/allotment OP had to complete the said unit till December 2016. This fact is clear from the email dated 24.10.2015 that expected date of the possession of the flat is mentioned as July 2017”. Terming the action of OP as deficiency in service, the present complaint has been filed whereby the complainant has prayed for refund of Rs.16,57,729/- with interest and also sought compensation and litigation expenses.
OP in reply took the plea that there is no cause of action for filing the present complaint. Even otherwise as per clause 49 of the allotment letter, there is an arbitration clause hence the present complaint is not maintainable. It is further stated that by 11.02.2014, the complainant has made payment of Rs.16,57,730/- only as against total dues of Rs.23,71,410/-. The complainant did not make the payment despite having knowledge of payment plan and telephonic conversation and even after receiving number of demand letters dated 13.02.2014, 02.05.2014, 03.11.2014, 03.12.2014, 03.01.2015, 03.02.2015, 02.03.2015, 02.04.2015, 02.06.2015, 02.07.2015. The OP sent ‘Final Demand Cum Cancellation Notice’ dated 21.07.2015 but the complainant did not pay any heed to said notices. Thereafter finally OP cancelled the allotment of the complainant vide cancellation letter dated 26.08.2015.
It is further submitted that as per agreed terms and conditions of the allotment letter dated 15.02.2014 executed between the parties, OP is entitled to forfeit 15% of the total cost of the flat from the deposited amount. It is stated that the complainant not a consumer and is merely an investor and since price of the property within this period hence the complainant sought refund of the amount. It is prayed that the complaint be dismissed.
We have gone through the case file carefully.
It is an admitted fact that the flat was booked on 04.05.2012 and thereafter an allotment letter was issued on 15.02.2014 whereby the complainant was allotted a flat on 14th floor of the aforesaid project. The complainant paid for Construction Linked Payment Plan. The complainant has already paid a sum of Rs.16,57,729/-. OP in para 7 of preliminary objections has detailed the letters which were sent to the complainant for making the payment but the complainant has not paid the due amount. The complainant has stated that he has not received these letters. These letters are alleged to have been sent by speed post but OP has not placed any document on record to show that these letters were ever delivered to the complainant. The complainant has sent a protest letter against the cancellation of the allotment and sought refund of the amount vide letter dated 02.09.2015 and reminder was sent on 05.10.2015. Both these letters were sent by speed post and the complainant has placed detailed track record to show that these were delivered. In fact OP in email dated 24.10.2015 has admitted receipt of these letters. OP has not placed any document to show that the letters which were sent to the complainant were received by the complainant. Moreover the complainant has specifically stated that that hardly there was any progress regarding the construction of the flat.
The complainant has opted for Construction Linked Payment Plan hence it was mandatory on the part of OP to mention the stage of the construction when the demand is raised but in none of the so called demand letters OP has mentioned the stage of the construction. OP should not have demanded any amount without mentioning the stage of construction. OP has not placed anything on record to show what was the stage of the construction when the demand letter dated 02.07.2015 was sent to the complainant whereby a sum of Rs.10,71,256/- was demanded.
OP vide letter dated 26.08.2015 cancelled the allotment and forfeited the entire amount deposited by the complainant. It is stated that as per the allotment letter, 15% of the total price shall constitute earnest money which was liable to be forfeited in case of default committed by the complainant. The complainant has forfeited entire amount of Rs.16,57,730/-. It is significant to note that when the complainant protested, OP sent email dated 24.10.2015 whereby OP is referring to the letter dated 05.10.2015 of the complainant and telling the complainant that refund of the amount is not the solution of any concern rather it requested the complainant to continue with the booking and expected date of possession was stated to be 02.07.2017. As per the allotment letter, the construction was to be completed by December 2016 and only vide letter dated 24.10.2015 the expected date was stated to e 02.07.17. On the face of it, it is clear that OP was not able to complete the project in time hence OP has no right to forfeit the amount. OP has never apprised the complainant about the stage of construction. Moreover the Hon’ble High Court of Delhi in case of Sh. Ranbir Singh & Anr. Vs Sh. Bhup Singh & Ors. - CS(OS) No.2049/2011 dated 18.08.2015, after considering various judgments of the Hon’ble Supreme Court, held that it is only in case where damages have been proved to have been suffered by the OP, the amount can be forfeited. Here in this case OP has not placed any document on record to show as to what damage he has suffered. Rather it is the complainant who has suffered loss due to the deficiency in service on the part of OP. It is a clear cut case of deficiency in service on the part of OP. There was no justification in cancelling the allotment and forfeiting the amount.
OP is directed to refund a sum of Rs.16,57,730/- to the complainant alongwith interest @ 10% p.a. from the respective deposit. OP is further directed to pay Rs.10,000/- towards compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C. SURI) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
