Haryana

StateCommission

CC/70/2015

DEDEECH PAL SINGH JODHA - Complainant(s)

Versus

VATIKA LTD. AND ORS. - Opp.Party(s)

G.S.SULLAR

03 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

 

Complaint No     :     70 of 2015

Date of Institution:   18.05.2015

Date of Decision :    03.10.2016

 

 

 

Dadeech Pal Singh Jodha son of Col. Jagjit Singh Jodha, resident of House No.221, Sector 36A, Chandigarh.

                                      Complainant

 

Versus

 

 

Vatika Limited having its Corporate Office at 7^th Floor, Vatika Triangle, Sushant Lok-1, Block A, Mehrauli, Gurgaon Road, Gurgaon-122002, Haryana.

 

Vatika Limited having its Registered Office at Flat No.621, 6^th Floor, Devika Towers, 6, Nehru Place, New Delhi-110019.

                                      Opposite Party

 

 

 

 

 

 

 

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

         

                                                                                                         

Argued by:                    Shri G.S. Sullar, Advocate for Complainant.

Shri Adarsh Jain, Advocate for Opposite Party.  

 

                                                   O R D E R

 

NAWAB SINGH, J

 

On February 14^th, 2014 Dadeech Pal Singh Jodha-complainant booked a flat in Tranquil Heights, Sector 82, Gurgaon of Vatika Limited (for short ‘the builder’)-Opposite Party. The complainant paid Rs.10.00 lacs at the time of booking.  The builder assured the complainant that possession of the flat will be given by December, 2017. The builder failed to start the construction of the flat inspite of the fact that the complainant had paid a total sum of Rs.52,51,839.35/- to the builder from time to time.  The complainant demanded refund of the amount paid by him. Legal Notice dated March 23^rd, 2015 (Exhibit C-19) seeking refund of deposited amount alongwith interest @ 24% per annum, was also issued but to no avail.  Hence, complaint under Section 17 of the Consumer Protection Act, 1986 has been filed.

2.      The builder, in its written version, took preliminary objections viz. the complainant is not consumer; the complainant himself sought cancellation of the allotment vide letters dated March 12^th, 2015, March 13^th, 2015 and March 17^th, 2015; the cancellation could not be processed because complainant failed to execute necessary documentation; per clause (d); cancellation is not permitted in the initial six months and on cancellation, the builder is entitled to forfeit the earnest money alongwith non refundable amount; the allegations regarding lack of approvals from the competent authorities are denied; the license and other approvals were shared with the complainant at the time of booking; it is premature for the complainant to allege any delay in the start of the construction work; Builder Buyer Agreement was sent to the complainant in the month of August, 2015 but he did not return the same. It was prayed that the complaint be dismissed.

3.      In evidence, the complainant appeared as CW-1 and produced following documents:-

1.	Expression of Interest for a Residential Apartment	Exhibit C-1
2.	Cheque	Exhibit C-2
3.	Receipts	Exhibit C-3 to C-17
4.	Copy of email dated March 05th, 2015	Exhibit C-18
5.	Copy of Legal Notice	Exhibit C-19

 

4.      The builder, examined OPW1-Sumit Arora, Senior Manager and produced the following documents

1.	Allotment Letter dated September 23rd, 2014	Exhibit OP-1
2.	Form LC-V, Haryana Government Town and Country Planning Department	Exhibit OP-2
3.	Letter dated August 17th, 2015	Exhibit OP-3
4.	Letter dated October 06th, 2015	Exhibit OP-4
5.	Letter dated December 10th, 2015	Exhibit OP-5
6.	Letter dated February 15th, 2016	Exhibit OP-6

 

5.      Indisputably, the complainant had booked the flat with the builder. The complainant paid Rs.52,51,839.35/- to the builder.  The complainant had signed Expression of Interest for a Residential Apartment (Exhibit C-1) with the builder. Both the parties were bound by the terms and conditions of the Expression of Interest (Exhibit C-1). The complainant made payment of Rs.52,51,839.35 to the builder. The possession of the flat was to be handed over by December, 2017 whereas the instant complaint was filed on May 18^th, 2015.  Since the complainant failed to make further payment agreed by him, the builder was not under the obligation to deliver possession to him.   The complainant himself opted to cancel the allotment of flat.

6.      Though, the complaint is pre-mature, as the period expires in the month of December, 2017, but the complainant sought cancellation of booking of the flat and the construction has yet not been started.  The matter is required to be decided and taken to a logical end.  Moreover, cancellation of allotment gives cause of action to the complainant.

7.      In the obtaining circumstances, where both the parties committed default what should be the criteria for decision. In Shri Harjinder S. Kang versus M/s Emaar MGF Land Limited, Consumer Case No.482 of 2014 decided on July 4^th, 2016 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the total value of the plot was Rs.1,21,62,250/-.  The complainant had deposited Rs.84,74,750/- with the opposite party. The National Commission held that the amount exceeding 10% of the total price of the property cannot be forfeited unless the opposite party shows that it has suffered loss to the extent of the amount actually forfeited by it.  Considering the aforesaid principle, the National Commission directed the opposite party to pay Rs.71,97,275/-, that is, Rs.84,74,750/- (deposited amount) minus Rs.12,77,475/- (10% of the total value of the plot). 

8.      In view of Harjinder S. Kang’s case (Supra), the builder can forfeit 10% of the total sale consideration of the flat.  In the present case, the basic sale price of the flat was Rs.1,65,62,000/- and 10% of it comes to Rs.16,56,200/- which can be forfeited by the builder. The complainant deposited Rs.52,51,839.35/-. Thus, the amount refundable to the complainant by the builder comes to Rs.35,95,639.35 i.e. (52,51,839.35 minus 16,56,200). Accordingly, the builder-opposite party is directed to pay Rs.35,95,639.35 alongwith interest at the rate of 12% per annum from the date of deposit till the date of realization of this amount, to the complainant.

9.      The complaint stands allowed in the terms indicated above. 

 

Announced 03.10.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

UK