CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.557/2010
1. Mrs. Gulshan Handa
W/o Late Sh. Dr. Kulbir Handa
R/o EC-352, Maya Enclave
Hari Nagar
New Delhi-110064
2. Sh. Amit Handa
S/o Late Dr. Kulbir Handa
R/o Block A-3, Flat No.1501
Elita Promenade
J. P. Nagar 7th Phase
Bangalore (Karnataka ) ……Complainants
Versus
M/s T. G. Buildwell Pvt. Ltd.
Tivoli Garden Hotel
Chattarpur Mandir Road,
New Delhi-110030 ……Opposite Party
Date of Institution : 26.08.10 Date of Order : 19.12.15
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Brief facts of the present complaint are that in March 2008, the OP through its officers approached the Complainants for the sale of a Studio Apartment proposed to be developed by the OP under the name and style of “Tivoli Holiday Village” at Daruhera, Haryana. OP represented that the said project will be handed over to them by June, 2010. It was further represented by the OP that the project was in the nature of service apartments wherein all services like laundry, valet parking, clubhouse etc. were to be provided. On believing the representations made by the OP, they agreed to buy a Studio Apartment admeasuring 60.85 sq. mtrs and the sale consideration was agreed at Rs.26 lacs. They paid Rs.2 lacs as advance/booking amount and the balance payment was to be paid as per construction linked installments. Apartment No. SA-008 was allotted to them in Tower No. TG-II vide allotment letter dated 10.08.08. They were also given two sets of an Apartment Buyer Agreement which were to be signed and returned to the OP. It was promised that one set of said agreement would be returned to them after the signing of the same by the authorized official of OP. In October 2008 they made further payment of Rs.2 lacs but the OP did not provide the copy of the agreement despite regular follow ups on one pretext or the other. They received a letter dated 25.12.2009 from OP stating that the construction of the society will commence shortly thereby admitting their failure to even commence construction after the efflux of almost two years. Hence, pleading unfair trade practice the present complaint has been filed with the following prayers:-
- Direct the OP to refund the amount of Rs.4,00,000/- paid to it, alongwith interest thereon @ 24% per annum from the date of payment till the date of refund.
- Direct the OP to pay a sum of Rs.10,00,000/- to the Complainants as compensation towards the damages suffered by the Complainants on account of the failure of the OP to fulfill its obligations.
- Direct the OP to pay to the Complainants the cost of the proceedings.
OP in the written statement has inter-alia stated that they are the developers of group housing project known as “Tivoli Holiday Village”, Daruhera, Haryana. On 14.02.2007, the Govt. of Haryana granted appropriate license No.118 of 2007 in favour of the land owner M/s Welworth Homes (P) Ltd. which is pre-requisite for commencement of development activities and marketing of the housing project. Thereafter the OP had purchased the said land with the aforesaid license from the land owner. They had invested crores of rupees in the project for obtaining various pre-construction approvals detailed in the W.S. Prior to applying for booking in the project the Complainant had been shown all the relevant documents and they were clearly told that still some clearances are required from the competent authority which may take reasonable time and they had never given any fixed time about the clearance of the pending approval which was not in its command. They were also informed that keeping the size and the magnitude of the project in question the completion of the construction will take around 3 years time after getting all the required approvals from the concerned authority. After being satisfied the Complainants had shown their interest to book a studio apartment and the OP always kept updating about the development of the project to the Complainants. According to the terms of the application, the Complainants have paid initial booking amount of Rs.4 lakhs in three installments in the span of more than four months for studio apartment measuring 6450 sq. ft. of total price of Rs.26 lakhs. The agreement between the parties was executed on 10.08.08. The Complainants signed the agreement but they had not paid the full booking amount. As per the agreement between the parties for executing the Apartment Buyer’s Agreement the OP on dated 10.08.2008 had given the two set copy with the allotment letter to the Complainants, for signing, which had been duly acknowledged by the Complainant. The relevant document is annexed herewith and marked as RW/8. Finally after getting all the clearances from the concerned authority and expending huge amounts (In Crores) the OP informed the Complainants on the phone as well subsequently through letter dated 25.12.2009. The Complainants were well aware about the development of the project and the required time taken for the same which were informed to them much earlier i.e. in the month of June, 2008. The Complainants had failed to pay further amount even after the demand notice which amounts to the breach of contract. The OP has always performed their part of the contract. It’s the Complainants who had willfully defaulted in making the payment. In the agreement it was clearly mentioned in terms and conditions that the project will be completed in 2½ years time from the date of start of the construction which they had never objected. The development of the project was informed to the Complainants on phone as well as through letters. OP has stated that they had not defaulted as regard to the obligations under the allotment application and there is no deficiency or defect in services and neither unfair trade practice on OP’s part. OP has prayed for dismissal of the complaint.
Complainant has filed rejoinder to the written statement of OP. It is stated that the Opposite party had ostensibly sought bookings in the alleged project undertaken by them as far back as in 2008, when admittedly even the Sale Deed had not been executed in its favour. This conduct of the Opposite Party by itself amounts to taking the hapless consumer for a ride and further amounts to deficiency of service and unfair trade practice. Furthermore, the Opposite Party has conveniently omitted to mention anywhere in its written statement as to what is the actual progress regards the development of the project in question. It is in fact the complainants who were following up the matter with the Opposite Party from time to time, however, the Opposite Party paid no heed to the bona fide concerns of the complainants. This is also aptly enumerated from the fact that vide letter dated 25.03.2010 allegedly sent to the complainants by the Opposite Party, the Opposite Party impliedly admitted that even as on 25.03.2010, the construction of the project was yet to start. It is stated that as per the averments made in the written statement, the requisite clearances were received in 2009 and therefore possession should have been handed over in 2002. However, even as of 2012, the construction of the project is yet to start as is further vindicated from the conduct of the opposite party in intentionally concealing the actual stage of construction.
Complainant No.1 has filed his own affidavit in evidence while affidavit of Sh. Rohit Gupta has been filed in evidence on behalf of OP.
Written arguments have been filed on behalf of the parties. We have heard the counsel for Complainant and have also gone through the record.
Admittedly, the Complainants had booked a studio apartment in the project of the OP Tivoli Holiday Village and paid Rs.4 lakhs towards part money of the sale consideration. Physical possession of the flat was to be handed over to the Complainants by June, 2010. Admittedly the OP did not even start the construction. The OP vide letter dated 25.12.2008 (copy Ex. CW 1/F) informed the Complainants that they had received all the statutory approvals from the concerned authorities and sample flat was ready on site office.
Vide allotment letter dated 10.8.08 (Ex CW1/D and also Annex. RW/8) Apartment No. SA-008 in the said residential project had been allotted to the complainants. Admittedly, on that date, the project was on papers and thus only a paper allotment of the said flat had been done by the OP in favour of the complainants. As stated hereinabove, vide letter, copy of which is Ex. CW1/F, the complainants had been informed that the sample flat had already been built and was ready. Thus, the sample flat had been constructed within a period of less than 30 days from the date of allotment letter. Annx. RW/9 is the copy of letter dated 25.12.09 sent by the OP to the complainants whereby the complainants had been informed that all statutory approvals had been received and the building contractor will move in any time in Jan. 2010 so that full fledged construction starts. Therefore, till 25.12.09 no construction was in progress at the site and the building contractor had still to move to the site to commence the construction. Annexure RW/10 is the copy of the demand letter dated 25.3.10 sent by the OP to the complainants whereby the complainants had been asked to make the instalments as detailed in the demand letter. Rs. 1,85,000/- and Rs. 16,38,000/- were stated to be the dues towards payment as on 31.5.08 and 15.7.08. Item No. 3 of the demand letter is as follows:
Due Date Description Amount Due Balance Payable
3. 07.04.2010 On start of Construction next - -
It means that as on 25.3.10 the construction had not started at the site. Therefore, the submission made on behalf of the OP that the OP did not commit any deficiency and the default was on the part of the complainants by not paying the instalments is totally against the record. We are not inclined to believe the version of the OP. The conduct of the OP is highly depreciable and condemnable. Instead of paying back the amount to the complainants the OP has chosen to take false pleas. Therefore, we hold the OP guilty of unfair trade practice and deficiency in service.
Accordingly, we allow the complaint and direct the OP to refund the amount of Rs.4 lakhs alongwith interest @ 18% per annum from the date of its deposit till its realization, Rs.1 lakh for pain and agony undergone by the Complainants, including cost of litigations to the Complainants within a period of 30 days from the date of receipt of copy of this order failing which the OP shall become liable to pay interest @ 24% per annum on the amount of Rs.4 lakh from the date of its deposit till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 19.12.15.
(Naina Bakshi) (N.K. Goel)
Member President
19.12.2015
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed. OP is directed to refund the amount of Rs.4 lakhs alongwith interest @ 18% per annum from the date of its deposit till its realization, Rs.1 lakh for pain and agony undergone by the Complainants, including cost of litigations to the Complainants within a period of 30 days from the date of receipt of copy of this order failing which the OP shall become liable to pay interest @ 24% per annum on account of Rs.4 lakh from the date of its deposit till its realization.
Let the file be consigned to record room.
(Naina Bakshi) (Surendra Singh Fonia) (N.K. Goel)
Member Member President
