Haryana

StateCommission

CC/155/2015

AMIT BHATIA - Complainant(s)

Versus

VATIKA LTD. - Opp.Party(s)

G.S.SULLAR

03 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

 

 

                                                Complaint No.              :155 of 2015

                                                Date of the Institution  :04.09.2015

                                                Date of Decision                   :03.10.2016       

Amit Bhatia son of Shri Naresh Bhatia, having his place of residence at A-20, Apoorva Apartments, Plot No.14, Sector 5, Dwarka, Delhi.

                             …..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, 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

 

On November 11^th, 2013 Amit Bhatia-complainant booked a flat in Tranquil Heights, Sector 82, Gurgaon of Vatika Limited (for short ‘the builder’)-Opposite Party. The complainant paid Rs.8.00 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.27,64,855/- 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-6) 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 was defaulter in making the payment in time and he himself sought cancellation of the allotment; 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 on various occasions; 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 but he did not return the same. It was prayed that the complaint be dismissed.

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

1.	Copy of Expression of Interest for a Residential Apartment	Exhibit C-1
2.	Photocopy of cheque dated November 11th, 2013 in favour of Vatika Limited	Exhibit C-2
3.	Copy of account statement	Exhibit C-4
4.	Copy of email trail dated July 21st, 2015	Exhibit C-5
5.	Copy of Legal Notice dated July 27th, 2015	Exhibit C-6
6.	Copy of account summary	Exhibit C-7

 

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

1.	Copy of Allotment Letter dated September 30th, 2014	Exhibit OP-1
2.	Copy of licence No.22 of 2011	Exhibit OP-2
3.	Copy of letter dated June 16th, 2015	Exhibit OP-3
4.	Copy of letter dated June 05th, 2015	Exhibit OP-4
5.	Copy of letter dated October 14th, 2014	Exhibit OP-5
6.	Copy of letter dated April 09th, 2015	Exhibit OP-6
7.	Copy of letter dated August 19th, 2015	Exhibit OP-7
8.	Copy of letter dated October 10th, 2015	Exhibit OP-8

 

5.      Indisputably, the complainant had booked the flat with the builder. The complainant paid Rs.27,64,855/- 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 possession of the flat was to be handed over by December, 2017 whereas the instant complaint was filed on September 04^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 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.1,33,30,000/- and 10% of it comes to Rs.13,33,000/- which can be forfeited by the builder. The complainant deposited Rs.27,64,855/-. Thus, the amount refundable to the complainant by the builder comes to Rs.14,31,855/- i.e. (27,64,855 minus 13,33,000). Accordingly, the builder-opposite party is directed to pay Rs.14,31,855/- 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