DISTRICT CONSUMER DISPUTES REDRESSAL FORUM II
Udyog Sadan C 22 & 23 Qutub Institutional Area
(Behind Qutub Hotel) New Delhi 110016.
Case No.292/2010
1. Mrs. Ritu Sobti
W/o Sh. Shilpinder Singh Sobti
2. Sh. Shilpinder Singh Sobti
S/o Late Dr. H. S. Sobti
Both R/o
58 Jai Laxmi Apartments
I. P. Extensions Delhi 110092. ……Complainants
Versus
M/s T. G. Buildwell Private Ltd.
Tivoli Garden Resort Hotel
Chattarpur Mandir Road
New Delhi 110030 ……Opposite Party
Date of Institution : 03.05.2010 Date of Order : 01.12.2015
Coram:
Sh. N.K. Goel President
Ms. Naina Bakshi Member
O R D E R
Briefly stated the case of the Complainants is that they had booked a Studio Apartment vide application No.051 on or about 26.05.2008. They deposited a sum of Rs.50 000/ on 30.05.2008 vide receipt No.278 and further a sum of Rs.3 50 000/ on 30.05.2008 itself vide receipt No.277 with the OP towards booking amount of the studio apartment. On 09.08.2008 they further deposited a sum of Rs.3 08 375/ vide receipt No.336 and thus deposited a total sum of Rs.7 08 375/ with the OP. The representatives of the OP assured the Complainants that the project would be constructed before the end of December 2009 as all the statutory approvals requisite licences environmental clearance etc. had been obtained by the OP Company. OP infect did not even begin the construction work till December 2009 whereas as per their commitments the project was to be duly constructed before the end of December 2009. Complainants were constrained to call upon the OP to cancel the said booking and refund the total amount of Rs.7 08 375/ alongwith interest 18% per annum vide their communication dated 22.12.2009 which was duly received by the OP. OP sent a E mail dated 25.12.2009 to the Complainant No.1 wherein it was mentioned that the OP had obtained statutory approvals including environmental clearance required for the commencement of the construction and that the building contractor would move in January 2010 so that full fledged construction could start. On 11.02.10 they received an email from Mr. Mahesh Chandna an officer of the OP Company insisting that they should consider their option of seeking cancellation of their booking and refund and that in case they still insisted for the refund then it will be their inability to process the same for the time being and they would revert back as soon as they were in a position to do so. Pleading deficiency in service on the part of the OP complainants have filed the present complaint. The Complainants have prayed as under:
- Direct the OP to refund the sum of Rs.7 08 375/ deposited by the Complainants in respect of the studio apartment booked in the project launched by the OP namely Trivoli Holiday Village alongwith interest 18 percent p.a. w.e.f. 30.05.2008 till realization to the Complainants.
- Direct the OP to pay a sum of Rs.5 00 000/ to the Complainants as compensation on account of monetary loss suffered by the Complainants due to false and malafide representations and omissions made by the OP.
- Direct the OP to pay to the Complainants cost of the present proceedings.
In the written statement OP has interlaid stated that the Complainants on 30.05.2008 had paid initial booking amount of Rs.7 08 375/ for one apartment measuring area 645.50 Sq. Ft. of amounting to Rs.26 lakhs. Complainants did not pay any further amount to OP and started avoiding payment by sending cancellation/withdrawal application on 22.12.2009. Further in total violation of the undertaking given in the application the Complainants had not executed even the Apartment Buyer Agreement which was prerequisite for allotment of an apartment in the said project. It is stated that the booked apartment shall be delivered to the customer subject to the fulfillment of all the terms and conditions of the Apartment Buyer Agreement inter alia payment of full sale consideration as per the payment plan and upon the completion of the construction of the apartment. After 16 months of the application by Complainants on 22.12.2009 they issued a cancellation notice to the OP to refund the entire amount with 18percent interest p.a. Which was uncalled for as they had committed the breach of contract made in the application and they have no right to seek any refund of money as they did not fulfill the terms and conditions mentioned in the application and they failed to make the payment. It is stated that the Government of Haryana through Director Town and Country Planning had already granted appropriate license bearing No. 118/2007 on 14.2.07 in favour of the landowner M/s Welworth Firm Pvt. Ltd. which is pre requisite for commencing of development activities and marketing of the housing project in Haryana and at the same times in September 2007 the OP had entered into various definitive agreement/arrangement viz collaboration agreement dated 22.9.2007 General Power of Attorney dated 7.11.2007 etc. with the said land owner whereby the OP became fully competent and authorized to develop/construct and market the said project and receive booking amount sale consideration etc. from the customers. It is stated that digging work has been in progress at the site which is almost complete now and building contractor will move in any time in Jan. 2010 and full fledged construction will start and also request the complainants to have patience and to cooperate to make Tivoli Holiday Village a dream project. OP has prayed for dismissal of the complaint with costs.
Complainants have filed rejoinder to the written statement of OP.
Affidavit of Complainant No.1 has been filed in evidence on behalf of the Complainants. On the other hand affidavit of Sh. Rohit Gupta Director has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the OP.
We have heard the arguments on behalf of the Complainant and have gone through the record.
We straightaway come to the question whether the refusal to refund the deposited amount to the Complainant by the OP was justified. If so whether the Complainants are not entitled to any relief.
Admittedly the Complainants had booked a studio apartment in the project of the OP namely Trivoli Holiday Village and paid Rs.7 08 375/ towards part money of the sale consideration. Physical possession of the flat was to be handed over to the complainants till December 2009. Admittedly the OP did not even start the construction till December 2009. As the OP failed to start the Project till December 2009 the Complainants vide letter dated 22.12.2009 (copy Ex. CW 1/6) requested the OP for withdrawal cancellation of the booking and refund of the amount deposited. The OP vide letter dated 25.12.2009 (copy Ex. CW 1/8) informed the Complainants that they had received all the statutory approvals from the concerned authorities and sample flat had already been constructed on site office and requested the Complainants for their patience and cooperation. The OP vide email dated 11.02.2010 requested the Complainants that if you will insist on the refund we express our inability to process the same for the time being and would revert back to you as soon as we are in a position to do so. (copy Ex. CW1/9). The Complainants vide email dated 26.02.2010 informed the OP that it was categorically communicated to them that the project will be constructed before end of December 2009 but as no construction work whatsoever had been initiated at that site they were constrained to cancel withdraw the booking and requested for refund of the deposited amount.
What do all these facts show They clearly demonstrate that on the date of booking of flats in the project the OP had no intention to start or finish the construction till December 2009. The OP had infect lured the innocent public to believe into that the OP had been coming with a dream project for them and the OP will hand over the physical possession of the flats to them. But alas The OP even could not start the construction till December 2009. When the complainants asked the OP to refund the deposited amount to them the OP instead of doing so or giving a satisfaction reply to them asked them to wait for an indefinite period and left them at the mercy of OP. The conduct of the OP was is highly depreciable and condemnable. The OP besides guilty of unfair trade practice is also guilty of deficiency in service.
In the facts and circumstances of the case it would be most appropriate that OP be directed to refund Rs.7 08 375 alongwith interest to the Complainants alongwith some amount of compensation.
Accordingly we allow the complaint and direct the OP to refund the amount of Rs. 7 08 375 alongwith interest 18 percent per annum from the date of deposit till realization Rs.1 00 000 (Rupees On Lakh Only) for pain and agony undergone by the Complainants including cost of litigation 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 percent p.a. on the amount of Rs. 7 08 375 from the date of deposit till 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 01.12.15.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 292/10
01.12.2015
Present – None
Vide our separate order of even date pronounced the complaint is allowed and the OP is directed to refund the amount of Rs. 7 08 375 alongwith interest 18 percent per annum from the date of deposit till realization Rs.1 00 000 (Rupees On Lakh Only) for pain and agony undergone by the Complainants including cost of litigation 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 percent p.a. on the amount of Rs. 7 08 375 from the date of deposit till realization. Let the file be consigned to record room.
(NAINA BAKSHI) (N. K. GOEL) MEMBER PRESIDENT
