Delhi

StateCommission

CC/11/339

SUSHIL KR. GOYAL - Complainant(s)

Versus

TDI INFRASTRUCTURE LTD. - Opp.Party(s)

09 Oct 2015

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                 Date of Decision: 09.10.2015

Complaint Case No. 339/2011

In the matter of:

Sushil Kumar Goyal

S/o Sh. Ram Bhagat Goyal

R/o Vinobha Kunj Apartment

Sector-9, Rohini,

New Delhi                              Complainant

 

Versus

 

TDI Infrastructure Ltd

9, Kasturba Gandhi Marg

New Delhi-110001                 Opposite Party

                                                               

CORAM

 

N P KAUSHIK                                -                       Member (Judicial)

S C JAIN                                         -                       Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment? Yes

2.     To be referred to the reporter or not? Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGEMENT

1.      Facts in brief of the case are that the complainant booked a flat with TDI Infrastructure Ltd. (in short the OP). Vide agreement dt. 10.11.2010 flat measuring 1625 sq.ft. area was to be allotted to the complainant in one of its projects at Kundali, Sonepat. The total sale consideration of the flat was Rs. 26,81,250/-. Physical possession of the flat was to be handed over within a period of two years from the date of agreement. Admittedly the complainant paid in all an amount of Rs. 21,03,750/- by June 2011.
2.      Grievance of the complainant is that the OP vide its letter dt. 08.02.2011 cancelled the allotment.
3.      Defence raised by the OP is that due to continuous default on the part of the complainant, the allotment in the name of the complainant was cancelled. OP further submitted that one Sh. Bharat Bhushan Bhatia was allotted the said flat after the said cancellation. OP relies upon the portion of Clause 9(X) of the ‘flat buyer’s agreement’ which is reproduced below:

“The apartment allottee agrees that if the default is not rectified this agreement shall automatically cancelled without any further notice and the Company shall have the right to retain, as and for liquidated damages, the entire earnest money as specified alongwith interest on the delayed payments, any interest paid, due or payable or any other amount of non-refundable nature. Further the company reserves the right to sell the said flat to any other party.”

 

4.      Contention of the OP is that it demanded an amount of Rs. 17,34,511/- vide its letter dated ‘nil’ from the complainant. It was due to the non payment of the said amount that allotment was cancelled, vide letter dt. 08.02.2011. Before proceedings further it may be mentioned here that the letter of demand relied upon by the OP shows that the complainant was allegedly called upon to pay the amount of Rs. 17,34,511/- on or before 07.08.2011. The letter of cancellation of the flat was issued by the OP on 08.02.2011. Ld. Counsel for the OP Sh. Rajat Bhardwaj, Advocate on a query by this Commission has failed to reconcile the position that the letter of cancellation of the flat was issued much prior to the letter of demand asking the complainant to deposit money by 07.08.2011.
5.      OP came up with another defends that there was an oral agreement between him and the complainant that some other flat would be allotted to the complainant and at the rate of Rs. 1450 per sq. ft. The flat in question was agreed to be allotted @ Rs. 1450 per sq. ft.  Be that as it may, no agreement in writing after the agreement dt. 10.11.2010 has been placed on record by the OP.
6.      Cancellation of flat on 08.02.2011 and demanding an amount of Rs. 17,34,511/- six months thereafter is a clear case of ‘unfair trade practice’. Perusal of the ‘flat buyer’s agreement’ dt. 10.11.2010 shows that the OP was not entitled to claim any escalation in price.
7.      OP claims that he is entitled to forfeit the entire earnest money in the event of the default committed by the complainant in making payment of instalments. The agreement and another document does not indicate the amount received by the OP towards earnest money. Be that as it may, the ‘flat buyer’s agreement’ is highly tilted in favour of the OP.
8.      This Commission vide order dt. 09.12.2011 granted status quo in respect of the flat in question. Despite said orders OP went ahead in making the allotment to a third party.
9.  In view of the discussion above, we are of the considered opinion that the OP has indulged in unfair trade practice. We, therefore, direct the OP as under:

1. to refund the amount of Rs. 21,03,750/- alongwith interest @ 12% p.a. from the date of deposit till the date of its realisation.
2. to pay compensation to the tune of Rs. 5,00,000/- to the complainant towards inconvenience, harassment and mental agony caused to the complainant.
3. to pay litigation charges of Rs. 1,00,000/-.

The abovesaid payment shall be made by the OP to the complainant within a period of sixty days from today failing which the OP shall be liable to pay interest @ 24% p.a. on the amount accruing after the expiry of the period of sixty days from today.

10. Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

 

(N P KAUSHIK)

MEMBER (JUDICIAL)

 

 

(S C JAIN)

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