Chandigarh

DF-II

CC/557/2018

Rakesh Bhalla - Complainant(s)

Versus

The Chairman/Incharge/Managing Director, Shree Vardhman Green Space Infraheights Pvt. Ltd., - Opp.Party(s)

Harpreet S. Rakhra Adv.

12 May 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	557 of 2018
Date  of  Institution	:	05.10.2018
Date   of   Decision	:	12.05.2021

 

 

 

 

Rakesh Bhalla, resident of H.No.3058, Sector 35-D, Chandigarh.   

             …..Complainant

Versus

1]  The Chairman/Incharge/Managing Director, Shree Vardhman Green Space Infra-heights Pvt. Ltd., Regd. Office 306, 3^rd Floor, Indraparkash Building, 21, Barakhamba Road, New Delhi 110001

2]  The General Manager, Shree Vardhman Green Space Infra-heights Pvt. Ltd., SCO 10, First Floor, Sector 26, Madhya Marg, Chandigarh. 

   ….. Opposite Parties

 

BEFORE:  SH.RAJAN DEWAN             PRESIDENT

         SMT.PRITI MALHOTRA             MEMBER 

                    SH.B.M.SHARMA                      MEMBER

 

 

Argued by :- None for complainant

  None for OP No.1.

  OP No.2 exparte.

 

PER PRITI MALHOTRA, MEMBER

 

         Briefly stated, the complainant was allotted a residential Flat No.1208, Tower D, 12^th Floor, with super build up area of 730 sq. ft. & carpet area of 478 sq. ft. in the project “Sh.Vardhman Green Space, Sector 14, Panchkula Extension-2 Panchkula (Haryana), by the OPs. The complainant was issued Allotment letter dated 26.8.2015 in which the total cost of the said flat was mentioned as Rs.5,07,265/-.  It is averred that the complainant paid the said entire amount to the Ops by 10.9.2015 as required vide allotment letter dated 26.8.2015.  However, the complainant on 3.3.2016 requested the OPs to cancel his said flat as the complainant was not able to continue the same due to some personal reasons.  Thereafter, the OPs handed over a voucher of Rs.4,37,750/- to the complainant as the refund of the flat cost, which the complainant refused to sign or accept, as the total payment made to OPs was Rs.5,07,265/-.  It is submitted that the construction was not yet complete and as per brochure, an amount of Rs.25,000/- only was to be deducted as cancellation charges which too is illegal.  It is pleaded that the OPs along with cancellation charges of Rs.25,000/- also added service tax on administrative charges of Rs.3750/- + due service tax of Rs.16,765/- and paid brokerage of Rs.24,000/-.  It is also pleaded that the OPs instead of giving interest to the complainant, made undue deduction from the amount so deposited by the complainant, which caused him harassment and financial loss.  Hence, this complaint has been filed alleging the said act & conduct of the OPs as gross deficiency in service and unfair trade practice. 

 

2]       The OP No.1 has filed reply and took objection with regard to territorial jurisdiction of this Forum to entertain & adjudicate the present case. On merits, the OP No.1 while admitting the factual matrix of the case about allotment of flat and payment of Rs.5,07,265/- stated the complainant despite reminders issued from 1.3.2016 to 15.9.2018 failed to make payment of Rs.12,75,300.29 inclusive of interest of Rs.3,15,624.48 @15% p.a. It is stated that the complainant had breached his obligation to make entire payment of the installments due to which heavy losses has been caused to the OP  Company as it had to kept reserved one of the apartment for the complainant for a considerable period of time without payment of the agreed installments.  It is admitted that a request for cancellation of the booking/allotment was made by the complainant and the OP vide letter dated 26.3.2016 accepted his request and informed him about the amounts to be deducted from the amount paid by him due to his cancellation.  It is pleaded that the said amounts were to be deducted in terms of the policy, agreed terms & conditions of the allotment and statutory rules and regulations.  The complainant was also called upon to obtain NOC of his broker failing which an amount of Rs.24,000/- was liable to be deducted as the OP has paid the said amount as brokerage to the said broker. Further, the liability towards service tax was sought to be deducted in addition to Rs.25,000/- in terms of the policy. It is also pleaded that the complainant neither obtained any NOC from the Broker not otherwise responded to the said letter of OP and continued with his booking. It is denied that the complainant was ever handed over any voucher.  Denying rest of the allegations and pleading no deficiency in service, the OP No.1 has prayed for dismissal of the complaint.

 

3]       Rejoinder has also been filed by the complainant thereby reiterating the assertions as made in complaint and controverting that of OP No.1 in its reply.

 

4]       Parties led evidence in support of their contentions.

 

5]       We gone through the entire documents on record and have also written arguments.

 

6]       The OPs by way of filing a separate application raised an objection about territorial jurisdiction of this Commission to adjudicate the present complaint.  A Letter dated 27.7.2015 issued by OPs about registration of a flat, Ann.B (Application Form) issued by OPs, Ann.C & D – (letters dated 13.8.2015 & 26.8.2015 respectively) & Ann.E (Colly), issued by the OPs, clearly mentions the Chandigarh Office of OPs at SCO 10, 1^st Floor, Sec.26, Madhya Marg, Chandigarh. Therefore, the part of caution of action has accrued to the complainant at Chandigarh and thus, this Forum has the jurisdiction to try & adjudicate the present complaint. Hence the objection raised by the OPs is not tenable and as such the said application stands dismissed.

 

7]       There is no dispute in regard to the complainant being applied for the flat in question in the project of the OPs.  The payment of Rs.5,07,265/- made by the complainant against the flat in question is also admitted by the OPs.  Further, it is not in dispute that the complainant opted to surrender the flat in question and requested the OPs for cancellation of his flat booking and asked for the refund of the amount paid. 

 

8]       The OPs in their reply duly admitted in Para No.4 (Reply on Merit) that they received the request for cancelation of the booking/allotment and in response to which a letter dated 26.3.2016 was sent whereby the complainant was informed about the amount to be refunded on account of cancellation of flat, inter alia informing about the deductions to be made from the amount paid.  The complainant in the present complaint has agitated the deductions so proposed by the OPs and seeks refund of the entire booking amount paid to the OPs against the flat in question.

 

9]       In the above scenario, it is to see whether the deductions as proposed by the OPs, claimed to be in accordance with the terms & conditions of the allotment, are genuine or not ? 

 

10]      The meticulous reading of the record reveals that vide Ann.A i.e. Haryana Govt. Notification dated 19.8.2013, the OPs launched a scheme and thereafter it has been amended vide Haryana Government Notification dated 5.7.2019 in which Clause 4(a.) stipulates as under:-

“On surrender of flat by any successful allottee, the amount that can be forfeited by the colonizer in addition to Rs.25,000/- shall not exceeed the following:-

 

Sr. No.	Particulars	Amount to be forfeited
(aa)	In case of surrender of flat before commencement of project	NIL
(bb)	Upto 1 year from the date of commencement of the project	1% of the cost of flat
(cc)	Upto 2 years from the date of commencement of the project	3% of the cost of flat
(dd)	After 2 years from the date of commencement of the project	5% of the cost of flat.

 

11]       The relevant term & condition of the allotment policy states as under:-

Clause 11.(v) A waiting list for a maximum of 25% of the total available number of flats available for allotment may also be prepared during the draw of lots who can be offered the allotment in case some of the successful allottees are not able to remove the deficiencies in their application within the  prescribed period of 15 days.  In case of surrender of flats by any successful applicant, an amount of Rs.25,000/- (Rupees Twenty five thousand only) may be deducted by the company. Such flats may be considered by the committee for offer to those applicant(s) falling to the waiting list. However, Non-removal of deficiencies by any successful application shall not be considered as surrender of flat and no such deduction of Rs.25000/- shall be applicable on such case.  If any wait listed candidate does not want to continue the waiting list, he/she may seek withdrawal and the company shall refund the booking amount within 30 days without imposing any penalty.  The waiting list shall be maintained for a period of 2 years, after which the booking amount shall be refunded back to the wait listed applicant(s) without any interest.  All non-successful applicant(s) shall be refunded back the booking amount within 15 days of holding the draw of lots.

 

(vi) If any successful applicant(s) fails to deposit the installments within the time period as prescribed in the allotment letter issued by the company, a reminder may be issued to him/her depositing the due installments within a period of 15 days from the date of issue of such notice.  If the allottee shall defaults in making the payment, the list of such defaulters may be published in one regional Hindi newspaper having circulation of more than ten thousand in the state for payment of due amount within 15 days from the date of publication of such notice failing which allotment may be cancelled.  In such case also an amount of Rs.25000/- (Rupees Twenty five thousand only) may be deducted by the company and the balance amount shall be refunded to the applicant.  Such flats may be considered by the committee for offer to those applicants failing in the waiting list.    

         

12]      The aforesaid conditions very clearly reveals that in case the successful allottee fails to deposit the subsequent installments or surrenders the flat, an amount of Rs.25,000/- (Rupees Twenty five thousand only) may be deducted by the company. Such flats may be considered by the committee for offer to those applicant(s) falling to the waiting list maintained by the company.  Further the above conditions also provides for the procedure to be followed when the situation as discussed arise.

 

13]      Having considered the facts of the case in hand, we observed that the OPs not only failed to follow the procedure as prescribed in the conditions citied above, but also illegally and unreasonably proposed certain deductions to be made from the amount paid by the complainants, which the conditions of the agreement entered into between the parties nowhere permits.  Thus, it is clear that the OPs have not followed the very criteria as mentioned in their own terms & conditions and illegally proposed to impose illegal charges/deductions under the garb of administrative charges, commission/brokerage etc., which are not justified.  Reiterated that the OPs had not followed the procedure as given in the terms & conditions of the scheme/allotment.  Further, to the dismay of the complainant, the OPs instead of making refund prolonged the issue till 15.9.2018 and again issued reminder to the complainants to pay the balance amount and thereby also offered waiver of 100% over due interest, whereas the complainant already approached the OPs for refund in the year 2016.  Hence, the deficiency in service coupled with unfair trade practice on the part of OPs has been proved. There is no evidence ever putforth to establish that the project in question was commenced when the complainant approached the Ops for the refund of the amount paid.  So, the complainant is duly entitled for the refund of the amount after deducting the amount of Rs.25,000/- only. 

 

14]      From the above discussion and findings, the deficiency in service & unfair trade practice on the part of Opposite Parties have been been established, which certainly has caused harassment to the complainant.  Therefore, the complaint stands allowed against OPs with direction to refund an amount of Rs.4,82,265/- (i.e. Rs.507265-Rs.25,000/-) along with interest @9% p.a. from the last date of deposit i.e. 10.9.2015 till its actual payment. The OPs are also directed to pay an amount of Rs.10,000/- as compensation to the complainant for causing harassment on account of deficiency in service and for resorting to unfair trade practice.  The litigation expenses of Rs.7,000/- is also imposed upon the OPs to be paid to the complainant.  

         This order shall be complied with by the Opposite Parties jointly & severally within a period of 30 days from the date of receipt of its certified copy, failing which they shall be liable to pay additional compensation cost of Rs.10,000/- apart from above relief.

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

12^th May, 2021                                                                                                                                                                         sd/-

(RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

 (PRITI MALHOTRA)

MEMBER

 

 

Sd/-

(B.M.SHARMA)

MEMBER