CONSUMER DISPUTES REDRESSAL COMMISSION – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110016
Case No.109/2016
SH. VISHAL AGGARWAL
S/O. SH. SHYAM SUNDER AGGARWAL
R/O. T-16, GREEN PARK EXTENSION,
NEW DELHI-110016. …..COMPLAINANT
Vs.
THE IMPERIA, WISH FIELD PVT. LTD.
THROUGH ITS MANAGING DIRECTOR/OFFICIALS,
A-25, MOHAN CO-OPERATIVE
INDUSTRIAL ESTATE,
NEW DELHI-110044. .…..OPPOSITE PARTIE
Date of Institution-22/03/2016
Date of Order- 26/09/2022
O R D E R
MONIKA SRIVASTAVA-PRESIDENT
The complainant has filed the present complaint seeking refund of Rs. 7,03,335/- with interest as per market rate received by the op. the complainant also praise for Rs.1,00,000/- on account of mental pain and agony and loss of business.
- It is the case of the complainant that he had booked a commercial space measuring 659 sq. ft super area as studio apartment in Imperial ELVEDOR, Sector 37 C Gurgaon Haryana. Towards the said booking, the complainant had paid Rs.7,03,335/- in the year 2012 and 2013 and was allotted unit number 8_A 07, Tower Evita.
- The complainant further states that he was assured by the OP that the possession of the said space would be handed over within 3 years but as per the complainant the construction is still going on and there is no scope to take possession. It is also stated by the complainant that the OP has not paid interest to the complainant on the amount that he has deposited with them.
- It is further stated that due to these circumstances, the complainant cancelled this booking and he had furnished the cancellation request regarding the same, an affidavit, receipt address proof and broker’s NOC as per OP’s instructions. It is stated by the complainant that initially the OP agreed for cancellation and assured the complainant that the money would be refunded but later on he has refused to pay any amount to the complainant.
- It is stated by the complainant that he has suffered mental pain and agony due to the refusal of the OP to pay back his money.
- On the other hand, the OP has stated that the complaint pertains to commercial transaction and therefore the complaint is not maintainable as the complainant himself has admitted that the space booked with the OP was a commercial space. It is stated by the OP that the complainant had booked a commercial studio apartment which is only for earning profit through leasing and reselling and is not an end user hence is not a consumer.
- It is also stated by the OP that since the matter pertains to flat which is in Gurgaon, it is outside the territorial jurisdiction of this Commission. It is also stated that there is no deficiency in service nor is there any neglect on the part of the OP in performing services therefore the complaint is not maintainable.
- It is further stated by the OP that after perusing the scheme brochures and other documents, complainant had executed the builder buyer agreement dated 24.01.2014 and the same is annexed as Annexure A and B. It is stated by them that as per the terms and conditions of the MOU dated 23.12.2013, the overall liability of the company is limited to refunding the amount paid by him after adjusting the charges due from the complainant.
Clause 04 reads as under
“the allottee agrees and confirms that out of the total amount paid/ payable by the allottee for the said unit, 20% of the basic sale price of the said unit amounting to Rs.5,19,435/- shall be treated as earnest money to ensure fulfillment of the terms and conditions as contained in the application and this agreement……. the allottee agrees consents and authorises the company to cancel the allotment and on such, the allottee authorises the company to forfeit the earnest money, brokerage, interest on delayed payments along with non-refundable amounts. Thereafter the allottee shall be left with no right interest and lien on the said unit/ said complex. This is in addition to any other remedy /right which the company may have.”
- It is stated by the OP that as per the terms and conditions, the OP is authorised to deduct an amount of 20% of the basic sale price. It is stated by the OP that the complainant is estopped by his own act, conduct, acquiescence and latches to file the present complaint. It is also stated that the complaint had regularly defaulted in the timely payments of the demands raised by the OP.
- It is denied by the OP that no development activity was on the site and further that as per clause 11 a of the builder buyer agreement, the OP would endeavour to complete the construction of the said building unit within a period of 60 months.
- The OP places reliance on the judgement passed by the Hon’ble Supreme Court in Satish Batra vs Sudhir Rawal Civil Appeal no. 7588 of 2012 wherein it was held
the seller is justified in forfeiting the amount of Rs.7,00,000/- as per the relevant laws since the earnest money was primarily a security for the due performance of the agreement and consequently the seller is entitled to forfeit the entire deposit
The OP has also placed reliance on the judgement of the Hon’ble Supreme Court in AIR 1996 SC 2508 wherein it was held that when a party to the contract has signed the terms and conditions of the contract then whether or not he is read those terms and conditions the same are binding on him……
- It is stated by the OP that the complainant has last paid an amount of Rs 4,27,223/- towards the invoice raised by the Company against the instalment due on ‘start of excavation work’ and since then the complainant has failed to pay the amount due towards the invoices raised by the company as the construction has reached upto 14th floor and the total
outstanding as on date payable by the complainant is Rs. 25,13,602/- excluding service tax, other taxes and the interest accrued upon the delayed payment. The complainant is trying to wriggle out of his responsibility to get the earnest money deducted by filing this frivolous complaint.
This Commission has gone through all the material on record and it is observed that the form filed by the OP along with their reply reflects under the head ‘Details of Space’ as Studio Apartment and not Commercial retail. Since the OP itself has distinguished between the two categories there is no reason for this Commission to consider otherwise. Also, the receipts issued to the complainant refers the said apartment as Studio apartment and not commercial space. Therefore, we hold that the space booked by the Complainant is not a commercial space and so the present complaint is maintainable.
It is also seen from the agreement signed between both the parties and filed/relied on by the OP categorically states that the said agreement has been executed at New Delhi and that the office of the OP is situated at Mohan Cooperative Industrial Estate, Mathura Road, New Delhi therefore, the contention of the OP that this Commission does not have territorial jurisdiction also falls flat.
Next is the contention of the OP that the complainant has only paid a sum of Rs. 4,27,223/- seems unsustainable as the agreement contains a page depicting the amounts paid by the complainant as Rs. 7,88,302/-.
The agreement states at Clause 4 that out of the total amount
paid by the complainant, 20% of the basic sale price of the unit amounts to Rs. 6,72,180/- . The OP has also annexed various reminder letters to the complainant however there is no proof of such letters being dispatched annexed with the complaint barring one reminder letter dated 14.10.2015.
It is also observed from the documents that though the complainant states that he had cancelled the apartment however, no document has been filed by the complainant to support the contention. It simply finds a mentioning in the legal notice dated 01.03.2016 sent by the complainant. At the same time it is also observed that the OP has not provided any reason for the delay in offering possession which was not even offered during the time of proceedings of the complaint.
Therefore, this Commission is of the view that ends of justice be served if the OP would refund Rs. 1,16,122/- (7,88,302 - 6,72,180) to the complainant along with interest @ 9% p.a. from the date of deposit i.e December 2013 till realisation. The OP is also liable to pay a sum of Rs. 50,000/- for deficiency in service in not offering possession in promised time. This entire amount is payable to the complainant within a period of three months from the date of the order failing which the entire amount will further carry an interest @6% per annum till it is paid to the complainant.
File be consigned to the record room after giving copy of the order to the parties as per rules. Order be uploaded on the website
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA)
MEMBER MEMBER PRESIDENT
