Haryana

StateCommission

CC/40/2015

K.N. PANDEY - Complainant(s)

Versus

VATIKA LTD. - Opp.Party(s)

IN PERSON

23 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No     :     40 of 2015

Date of Institution:   13.04.2015

Date of Decision :    27.07.2016

 

K.N. Pandey s/o late Sh. J.D. Pandey, Resident of House No.7504, First Floor, DLF Phase-IV, Gurgaon.

                                      Complainant

Versus

 

M/s Vatika Limited Corporate Office at 7^th Floor, Vatika Triangle, Mehrauli-Gurgaon Road, Sushant Lok, Phase-I, Gurgaon through its authorised signatory.

                             Opposite Party

 

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

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

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

                             Shri Adarsh Jain, Advocate for Opposite Party.     

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

                    The present complaint under Section 17 of the Consumer Protection Act, 1986 (for short, ‘Consumer Act’) has been filed by K.N. Pandey-complainant averring that on September 11^th, 2012, he booked an Apartment with M/s Vatika Limited, Gurgaon-Opposite Party (hereinafter referred to as ‘the Builder’) in its project ‘The Seven Lamp’. Apartment Buyers Agreement Exhibit C-1 (for short ‘the agreement), was executed between the complainant and the opposite party. The sale consideration of the apartment was Rs.1,37,57,725/-. The complainant paid Rs.6,33,817/- at the time of booking, vide receipt Exhibit C-2.  The remaining amount was to be paid in terms of Schedule of Payments annexed with the agreement. The complainant paid Rs.19,01,450/- and Rs.14,71,833/- vide receipts Exhibits C-3 and C-4, respectively. Thus, in all the complainant paid Rs.40,07,101/- to the builder but failed to pay the remaining amount.

2.                As per Clause 14 of the agreement, the builder was supposed to complete the construction of the apartment within a period of three years from the date of execution of the agreement but the construction was not completed within the stipulated period. On September 16^th, 2014, the complainant sent email Exhibit OP-8 whereby he requested the builder to cancel the allotment. The builder cancelled the allotment vide letter dated September 19^th, 2014 (Exhibit C-7). The cancellation letter was also sent to the complainant vide email dated September 23^rd, 2014 (Exhibit OP-8/A). A cheque bearing No.000056 dated 17^th September, 2014, of Rs.17,05,567/- (Exhibit C-8), was also sent to the complainant alongwith letter Exhibit C-7, qua the refund of the deposited amount.

3.                The grievance of the complainant is that he never received the cheque from the builder with respect to the refund of the deposited amount. Thus, he sought refund of the deposited amount alongwith interest @ 18% per annum from the date of payment till its realization; Rs.2.00 lacs compensation for harassment and cost of litigation etc.

4.                The Opposite Party-Builder, contested the complaint by filing reply. It was stated that the complainant was allotted Apartment No.702 in Tower Power, but he failed to pay the balance instalments as per Schedule of Payments because he was not in a position to pay the balance amount. So, on the request of the complainant (Exhibit OP-8), the allotment was cancelled (Exhibit OP-8/A) and cheque bearing No.000056 dated 17^th September, 2014, of Rs.17,05,567/-, (Exhibit C-8) after deducting Rs.23,01,534/- as per agreement, was sent to the complainant.

5.                The complainant himself has appeared as CW-1 and produced documents Exhibits C-1 to C-10.  The builder in its evidence examined Bobby Kuramdas, Relationship Manager, and tendered documents Exhibits OP-1 to OP-8/A.

6.                Indisputably, the complainant had applied for the apartment with the builder.  The agreement (Exhibit C-1) was executed between the parties on October 26^th, 2012. Apartment No.702 in Tower Power, was allotted to the complainant. It is also not in dispute that vide email (Exhibit OP-8), the complainant had shown his inability to pay the balance amount to the builder and sought cancellation of the booking and refund of the deposited amount. While appearing as CW-1, the complainant in his cross-examination admits that as per Clause 5 of the application for allotment of the apartment, he was supposed to pay 20% of the Basic Sale Price (BSP) plus 50% of External Development Charges (EDC) and Infrastructure Development Charges (IDC) plux 50% of Car Parking, within twelve months of the booking but he did not pay the said amount inspite of demands made by the builder vide letters Exhibits OP-2 to OP-5.  The complainant further admits that he had sent an email Exhibit OP-8 to the builder to cancel the allotment and refund the amount paid by him. The builder vide email Exhibit OP-8/A cancelled the allotment and sent cheque bearing No.000056 dated 17^th September, 2014, of Rs.17,05,567/- to the complainant. The complainant admits to have received the Exhibit OP-8/A but denies having received the cheque mentioned therein. Though the complainant denies having received the cheque sent by the builders vide letter Exhibit C-7 stating that he has only received a photo copy. However, on being confronted as to whether he ever pointed out that he did not receive the cheque (Exhibit C-8) alongwith the letter (Exhibit C-7), the complainant denied having sent any letter to the builder in that regard. It was not expected that the complainant would remain silent about non-receipt of original cheque. It depicts that the complainant has not come to this Commission with truth of having received the cheque. It appears that the builder did send the refund cheque vide letter Exhibit OP8-A/C-7, however the complainant did not get it encashed. The deduction from the amount deposited by the complainant, was done as per the details given in Exhibit C-7.

7.                Mode of payment, given in the agreement Exhibit C-1 is reproduced as under:-

                   “3.     Mode of payment.      

That the Allottee shall make all payments in time in terms of Schedule of Payments as given in Annexure-III annexed to this Agreement and as may be demanded by the Developer from time to time and without any reminders from the Developer through A/c Payee Cheque(s)/Demand Draft(s) drawn in favour of M/s Vatika Ltd. payable at Gurgaon. However, the Developer will send intimation to the Allottee regarding reaching of a particular construction landmark referred to in the Schedule of Payments. The Intimation/demand notice sent through reputed Courier and/or email shall be considered as sufficient intimation to the Allottee.”

8.                Schedule for possession of the apartment has been given in Clause 14 of the agreement, reproduced as under:-

                   “14.   Schedule for possession of the said apartment.

The Developer based on its present plans and estimates and subject to all just exceptions, contemplates to complete construction of the said Building/said apartment within a period of 3 (Three) years from the date of execution of this Agreement unless there shall be delay or there shall be failure due to reasons mentioned in Clauses, 17, 18 & 42 or due to failure of allottee(s) to pay in time the price of the said Apartment along with all other charges and dues in accordance with the Schedule of Payments given in Annexure-III or as per the demands raised by the Developer from time to time or any failure on the part of the Allottee(s) to abide by any of the terms or conditions of this Agreement.”

9.                As per Clause 14 of the agreement, it was agreed that the builder shall allot the apartment within three years. Both the parties were bound by the terms and conditions of the agreement (Exhibit C-1).  The complainant could claim compensation from the builder for the delay in offering possession of the apartment as per Buyers Agreement only if payments were made regularly. The complainant himself having defaulted in performing the terms of the said agreement cannot be held entitled to any compensation from the builder. 

10.              The complainant failed to deposit the balance price of the apartment and sought refund of the deposited amount even before the expiry of three years, that is, the period prescribed for completing the construction, so the builder is liable to refund the amount to the complainant after deducting 10% of basic sale price. Support to this view can be had from the judgment rendered by Hon’ble National Commission in Shri Harjinder S. Kang versus M/s Emaar MGF Land Limited, Consumer Case No.482 of 2014 decided on July 4^th, 2016.

11.              In Harjinder S. Kang’s case (Supra), 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) - Rs.12,77,475/- (10% of the total value of the plot). 

12.              In view of the above, the builder can forfeit 10% of the total sale consideration of the flat.  In the present case, the basic sale price of the apartment was Rs.1,37,57,725/- and 10% of it comes to Rs.13,75,772/- which can be forfeited by the builder. The complainant deposited Rs.40,07,101/-. Thus, the amount refundable to the complainant by the builder comes to Rs.26,31,329/- i.e. (Rs.40,07,101 – 13,75,772). The builder-opposite party is liable to pay interest to the complainant @ 12% per annum from the date of deposit till the date of realization of this amount. It is ordered accordingly.

13.    The complaint stands allowed in the terms indicated above.  Since the cheque already issued by the builder has gone out-dated, so fresh cheque be issued.

 

 

Announced 27.07.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL