Haryana

StateCommission

CC/71/2015

NAKHIL AGGARWAL - 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.              :71 of 2015

                                                Date of the Institution  :18.05.2015

                                                Date of Decision                   :03.10.2016       

1.      Nekhil Agrawal son of Sh. Tara Chand Agrawal,

2.      Mrs. Saroj Agrawal wife of Shri Tara Chand Agrawal

Both having their permanent place of residence at Kundanlal Radheysham, Mahamaya Chowk, Ambikapur, Chattisgarh.

 

                             …..Complainants

 

Versus

 

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

Alternate Address:

Vatika Limited, having its registered office at Flat No.621 A, 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

 

In the month of November, 2013 Nekhil Agrawal and his mother Mrs. Saroj Agrawal-complainants booked a flat in Tranquil Heights, Sector 82A, Gurgaon of Vatika Limited (for short ‘the builder’)-Opposite Party. The complainants paid Rs.8.00 lacs at the time of booking. The builder assured the complainants 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 complainants had paid a total sum of Rs.42,39,595/- to the builder from time to time.  The complainants demanded refund of the amount paid by them. Legal Notice dated March 23^rd, 2015 (Exhibit C-4) 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 complainants are not ‘consumers’; the complainants were defaulters in making the payment in time and they themselves sought cancellation of the allotment vide letter dated March 18^th, 2015; the cancellation could not be processed because complainants 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 complainants on various occasions; it is premature for the complainants to allege any delay in the start of the construction work; Builder Buyer Agreement was sent to the complainants but they did not return the same. It was prayed that the complaint be dismissed.

3.      In evidence, the complainants examined Dadeech Pal Singh Jodha as CW-1 and produced following documents:-

1.	Expression of Interest for a Residential Apartment	Exhibit C-1
2.	Copy of Account Statement	Exhibit C-2
3.	Copy of email trail dated March 18th, 2015	Exhibit C-3
4.	Copy of Legal Notice	Exhibit C-4

 

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

1.	Allotment Letter dated September 26th, 2014	Exhibit OP-1
2.	Expression of Interest for a Residential Apartment	Exhibit OP-2
3.	Copy of email dated September 26th, 2014	Exhibit OP-3
4.	Copy of Letter dated August 17th, 2015	Exhibit OP-4
5.	Copy of Letter dated October 06th, 2015	Exhibit OP-5
6.	Copy of Letter dated December 10th, 2015	Exhibit OP-6
7.	Copy of Letter dated January 15th, 2016	Exhibit OP-7
8.	Copy of Letter dated February 15th, 2016	Exhibit OP-8

 

5.      Indisputably, the complainants had booked the flat with the builder. The complainants paid Rs.42,39,595/- to the builder.  The complainants 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 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 complainants failed to make further payment agreed by them, the builder was not under the obligation to deliver possession to them.   The complainants themselves 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 complainants 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 complainants.

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 can show 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.1,36,26,700/- and 10% of it comes to Rs.13,62,670/- which can be forfeited by the builder. The complainants deposited Rs.42,39,595/-. Thus, the amount refundable to the complainants by the builder comes to Rs.28,76,925/- i.e. (42,39,595 minus 13,62,670).  Accordingly, the builder-opposite party is directed to pay Rs.28,76,925/- alongwith interest at the rate of 12% per annum from the date of deposit till the date of realization of this amount, to the complainants.

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

 

Announced 03.10.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

UK