J U D G E M E N T
This complaint is filed by the complainant u/S. 12 of the C.P. Act, 1986 alleging deficiency in service, as well as, unfair trade practice because the Ops did not provide him the questioned flat to him.
The brief fact of the case of the complainant is that being a senior citizen of India he decided to book a flat for residential accommodation at Renaissance, Burdwan situated within the Police Station and district Burdwan. With a view to purchase the same he visited the office of the OP at Burdwan and discussed with the representatives, collected information regarding the estimated price and the procedure to be followed to purchase a flat there. At the time of discussion the complainant intimate the Ops that he will be able to pay further amount towards
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installments after completion of the financial year of 2013-14. At that time the representative of the Op assured him stating that they would look into the matter and he ihim to complete necessary formalities. At that time it was also stated by them that the proposed flat had not yet been sanctioned by the appropriate authority and for this reason subsequent payment except the rest booking money of the flat will be demanded only after sanctioning of the plan as well as completion of foundation and the same will take at least further six months. Being convinced by such facts on good faith the complainant completed all necessary formalities as per their instruction; put his endorsement over the application form without going through its detailed contents. The cost of the flat including two wheeler parking (excluding the taxes) was settled at Rs. 18, 28,000=00. On 28.8.2013 the complainant paid Rs. 51,545=00 towards booking money of the flat and Rs. 16,845=000 towards advance against club membership and took valid receipt of the same. Prior to booking of the flat even till date the office of the OP did not provide any brochure or drawing of the site plan or apartment plan of proposed flat to the complainant inspite of his several requests to that effect. In the meantime all on a sudden the complainant received the allotment letter dated 18.9.2013 which was posted through speed post, but the same was received by the complainant on 28.9.2013. From the said letter he came to know that he has to pay Rs. 3, 08,600=00 by 27.10.2013. The complainant became astonished and hopeless upon receipt of such demand letter as the same was contrary to the verbal discussion and information provided by the representative. Upon receipt of the said letter the complainant visited the office of the OP at Burdwan and made a written representation stating the entire matter and requested to them to make proper arrangement so that he could pay installment, whatsoever, after March 2014. But the office of the OP kept themselves mum over such request. The complainant realized that the Ops have intentionally and deliberately did not incorporate the subsequent date of payment of allotment money in the application form just to defraud their bonafide customers, like the complainant. The representative of their office with some ulterior motive and malicious intention misled the complainant. For this reason the complainant took decision not to apply further for the flat until and unless the representative of the Ops disclose the matter fairly and provide complete information regarding the date of payment by incorporating in the application form. As there was no response towards the written representation of the complainant, so finding no
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other alternative the complainant being compelled to return back the unexecuted and without countersigned copy of the allotment letter along with general terms and conditions to the Ops for cancellation of the booking and requested them to return the booking amount after realization of their administrative cost and charges. On 24.10.2013 the complainant sent a legal notice through his Advocate intimating that at present he has no accommodation, so he decided to purchase flat from him. But he could not purchase the same due to the reasons stated above. To the said legal notice he also intimated them that he was ready to purchase flat from them and to pay the rest amount of the booking money of Rs. 3, 40,252=00 if they accommodate the complainant removing the aforesaid difficulty and complications arose due to the reason stated above. In the said notice it was also informed that otherwise it will be presumed that the acts and conduct of the Ops will be tantamount to unfair trade practice as their action proved that they were very much intending to squeeze money from the prospective purchaser/customers, like the complainant in the form of interest, delay payment charges or forfeiture of earnest /booking money, allotment money and installment whatsoever etc. The complainant has already suffered huge mental agony for such act and conduct of the Ops. The said legal notice was sent by him through speed post and the same was duly received by the Ops. As no step was taken on behalf of the Ops in response to the legal notice, the complainant again visited the site of the flat area (Naksatra Eco) on 11.11.2013 for watching the extent of completion of the proposed construction, but the complainant could not reach there due to resistance raised by the owners and farmers of the entire site who protested virtually and driven him away and asked him to come after resolve of the dispute by and between the OP and them. On enquiry the complainant came to know that owners and the farmers of the site forcefully stopped the construction work and they were demanding more money from the OP Company and ultimately the matter in dispute had reached up to the court. For this reason the complainant is totally dark about the present situation of his booked flat. On 13.11.2013 the complainant lodged a complaint against the Ops with the Assistant Director, CA& FBP, Burdwan Regional Office praying for relief but none was appeared on behalf of the Ops. Thereafter finding no other alternative the complainant has approached before this Forum by filing this complaint praying for direction upon the Ops to accommodate him the booked flat after removal of all difficulties and complications, in default, to return the
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entire booking money paid by him along with interest, compensation to the tune of Rs. 50,000=00 due to his physical suffering, mental agony, as well as, unfair trade practice and litigation cost of Rs. 20,000=00.
The POC have contested by the OP-1&2 by fling conjoint written version wherein it is stated that the complainant made an application for allotment of a flat at Naksatra Eco/Ronini 9 at Renaissance Burdwan Township in terms of the general terms and condition and the complainant agreed with the same while booking of the subject flat. The complainant and the Ops have agreed with the payment schedule and the copy of the same had duly been received by the complainant with signature on 28.8.2013. The complainant agreed in his application and paid the booking money for a sum of Rs. 51, 545=00 to the OP according to the terms and condition of the application form and another sum of Rs.16, 845=00 towards membership fees paid to Club Sinclair @Renaissance. The complainant while booking of the apartment was agreed with the installment plan i.e. application money for Rs. 50,000=00, on allotment (within two months from the date of booing) 20%, on completion of foundation 15%, on completion of first floor casting 15%, on completion of 3rd floor casting 15%, on completion of brick work 15%, on completion of internal and external plaster 10% and on possession or on completion rest amount i.e. 10% along with registration charge and other charges. Accordingly the Ops have demanded a sum of Rs. 6, 17,513=00 by issuing invoice dated 18.9.2013 from the complainant. It is submitted by the Ops that at the time of booking of the flat the complainant being fully agreed with terms and condition, as well as, payment of installment had entered into the agreement. According to the Ops the claim as mentioned by the complainant in para 5,6,7,8 are beyond the law, as well as, the terms & condition of the application. The Ops have submitted that the complainant has failed to countersign and returned the allotment letter within prescribed period and prayed for refund of the booking amount, so according to the terms & condition of the said application the Ops have cancelled the application of the complainant in view of the said clause wherein right was given to the Ops to forfeit the earnest money along with interest dues paid by the complainant. The Ops have acted according to their terms & condition and never went beyond the same. The complainant being fully aware of all the terms & condition for allotment of the properties at the said township made an application of allotment of a flat and accepted
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the general terms & condition of the application. As the complainant did not pay the allotment money and returned the allotment letter without making any endorsement, the Ops have cancelled the agreement as per the general terms and condition. There was no intention of the Ops to defraud their bonafide customers as alleged by the complainant. The complainant admittedly issued legal notice but the same was done with some ulterior motive and for getting undue advantage which does not fall within the general terms and condition. As the cancellation of application cannot be termed as deficiency in service, as well as, unfair trade practice on behalf of the Ops, the complainant is not entitled to get any amount towards compensation and cost from the Ops and moreover while the complainant has himself returned the allotment letter to the Ops, now the complainant is not entitled to get the said flat as booked by him at the same rate. According to the Ops if the complainant is inclined to purchase a flat from these Ops, now he is to enter into a fresh agreement with the Ops and the terms & condition will also be fresh. According to the Ops as this complaint has no merit, which is baseless and misconceived one the same is liable to be dismissed with exemplary cost.
The Ops were cross-examined by the complainant through questionnaire and replies have been filed on behalf of the Ops on affidavit. The OP-1&2 have filed written notes of argument. Both parties have filed several documents in support of their respective contentions. It is seen by us that admittedly the complainant booked a flat for his residential purpose with the Ops and at that point of time the complainant was told by the Ops that the proposed flat i.e. Naksarta Eco had not yet been sanctioned by the appropriate authority and upon getting the same, schedule of subsequent payment will be intimated by the Ops to their customers. Being convinced with the verbal discussion of the Ops the complainant paid Rs. 51,545=00 towards booking money of the flat and Rs. 16,845=00 towards advance of club membership to the Ops. The total cost of the said flat including two-wheeler parking space (excluding taxes) was scheduled at Rs. 18, 28,000=00. Admittedly prior to receipt of the said amount the Ops did not provide any brochure/drawing of the site plan or apartment plan of the proposed flat to the complainant. Therefore it is clear to us that the complainant being satisfied with the verbal assurance of the Ops paid aforementioned amount without getting the brochure/drawing of the site plan or apartment plan of the proposed flat.
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Thereafter the Ops have demanded from the complainant to the tune of Rs. 3, 08,600=00 by issuing letter and the complainant was directed to make the said payment by 27.10.2013. Be it mentioned that the date of the said letter was as 18.9.2013 and the same was received by the complainant on 28.9.2013. It is the case of the complainant that at the time of discussion with the Ops the complainant intimated them that he will be able to pay further amount of money towards installments after expiry of financial year 2013-14 and the Ops also assured him stating that they will look into the matter in future. So the complainant has alleged that inspite of knowing that it will not be possible for him to make any payment within the financial year of 2013-14, the Ops have demanded a hefty amount of Rs. 3, 08,600=00 from him which was payable by 27.10.2013 with ulterior motive, just to harass him. According to the complainant such action of the Ops can easily be termed as deficiency in service, as well as, unfair trade practice. In this respect we are to say there is no iota of evidence on behalf of the complainant that intimation was given by the complainant to the Ops to the effect that it will not be possible for the complainant to make payment of any amount towards the installments within the financial year of 2013-14. Therefore, the allegation of the complainant cannot stand. Admittedly, one allotment letter was issued at the time of claiming the said amount from the complainant by the Ops and in that letter direction was made by the Ops to send down the same to the Ops with the endorsement of the purchaser/purchasers and simultaneously for making payment of Rs. 3, 08,600=00 towards installment. But admittedly the complainant did not pay any amount towards the said claim and returned the allotment letter to the Ops without putting any endorsement stating that they are not willing to purchase flat from the Ops. It is the allegation of the complainant that after getting the said letter the complainant went at the site of the project and found that there was no such construction and for this reason he took such decision not to proceed with the Ops. The contention of the Ops is that as the complainant did not make any payment towards installment, in view of Clause no. X of the agreement, in which both parties have entered by putting their signatures, the Ops have cancelled the agreement for sale. We have carefully perused the said clause wherein it is written as follows:
(x) the allotment may be treated as cancelled if I/we fail to execute and return the Allotment Letter along with the Allotment money within the period prescribed in
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the Allotment Letter, and at your sole discretion, and in the event of such cancellation, you may forfeit the entire Part Earnest Money and/or the Earnest Money along with interest dues as applicable, paid by me/us.
Based on the strength of the said clause the Ops have cancelled the agreement for sale as the complainant returned the allotment letter without making any endorsement and installment as claimed by the Ops. According to the Ops it is their discretion to forfeit the entire earnest money paid by the complainant as the complainant have breached the terms & condition of the agreement. In this respect we are to say that admittedly the Ops are at liberty to cancel the agreement for sale and empowered to forfeit the entire earnest money subject to intimating the same to the complainant by issuing written correspondence but the Ops though forfeited the earnest money and cancelled the agreement for sale, did not bother to intimate the said incident to the complainant in writing till filing of this complaint. Therefore, in our view the said agreement is in force till today and without intimating the purchasers Ops cannot do the same arbitrarily. Not only that by issuing a letter dated 04.9.2014 the Ops have intimated the complainant about resolution of all local issues and resumption of work at the project site, wherein it is written that since resolved all local issues and ‘dharna mancha’ has been removed from our site and the event was well covered and published in the Anandabazar Partika dated 1st September, Bartaman dated 31st August and Sambad Pratidin dated 31st August, the construction work at Renaissance Township has resumed at site from 16 June, 2014. In the said letter the complainant was informed that the operation/facility management team successfully provided uninterrupted facility services to the residents of Renaissance during the period of closure of site. Upon getting the said letter the complainant approached before the Ops for getting their booked flat at the same rate but the Ops did not co-operate with him. During hearing the ld. Counsel for the Ops has submitted that as the earlier agreement has been cancelled, now if the complainants are intending to purchase flat from them, the complainants are under obligation to enter fresh agreement for sale with the Ops and as in the meantime escalation of price has been made, the complainants have to give enhanced price and they did not provide him the earlier flat at earlier price. Upon hearing the argument from both parties, we are of the considered view that as the earlier agreement is in force, hence the Ops may proceed
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based on the said agreement to provide a flat to the complainants. But regarding the cost of the flat/escalation, if any, that cannot be adjudicated at this juncture by this Forum and the same will be determined by the Ops because as the complainants have failed to make payment of installment in respect of their earlier booking, now though the Ops are under obligation to provide flat to the complainant but the cost of the flat shall be determined by the Ops and it is the sole discretion of the Ops. Be it mentioned, admittedly the complainant paid Rs. 51,545=00 and Rs. 16,845=00 to the Ops and if the complainant will book a flat, the said amount will be adjusted with the cost of the flat. The complainant has prayed for compensation due to harassment and mental agony but in our view as the complainant has failed to abide by the terms & condition of the agreement, they are not entitled to get any amount as compensation from the Ops.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed in part on contest without any cost. The Ops are directed to provide a flat to the complainant in the Naksatra Eco/Rohini 9 at Renaissance Burdwan Township within 45 days from the date of passing of this judgment at the cost which will be determined by the Ops as per market rate, in default, the complainant will be at liberty to put the order into execution as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
