DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.738/2009
1. Sh. Gaurav Kr. Garg
S/o Indresh Kr. Garg
2. Shri Indresh Kumar Garg,
S/o Shri Sant Lal Garg
Both R/o
F-402, Plot No.331, Sector-4,
Vaishali, Ghaziabad, U.P. ……Complainants
Versus
1. Shri Harpreet Singh
Director VXL Realtors Pvt. Ltd.
5th Floor, Ajit Singh House,
12 DDA Commercial Centre
Yusuf Sarai, New Delhi-110049 ……Opposite Party
Date of Institution : 29.09.09 Date of Order : 11.01.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
The Complainants had purchased a flat from the OP in their project “VXL Eastern Heights” at plot/khasra Nos.1553, 1554, 1556, 1557/1, 1557/2 & 1558 situated at Nyayakhand-III, Indirapuram, Ghaziabad U.P. on 02.03.2006 for a total consideration of Rs.12,10,000/- including the amount for preferential location and paid the same to the OP. OP was carrying on construction work at a very slow pace. They met Shri Manoj Goel, an executive of the builders to enquire into the matter. Shri Manoj expressed his helplessness and rather suggested them that if they had any problem they could sell their allotted unit and the OP shall help them in this regard. They settled to sell their allotted unit @ Rs.2100/- per sq. ft. and Sh. Manoj Goel bound them by making a cash payment of Rs.50,000/- to them and also promised that their unit shall be sold and money will be given to them within one week’s time. They visited the site several times and met Sh. Manoj Goel of OP; he raised the question of payment of Rs.2,86,000/- to be paid to the LIC. They made the cash payment of an amount of Rs.2,86,000/- to Sh. Manoj Goel of OP reluctantly as they wanted to make the payment to the LIC HFL themselves but Sh. Manoj Goel told them that the OP had already prepared the cheque for that amount and he told them to come after 7 days. Again when they visited the OP site they did not get the money back but the fact was that the OP had already sold the unit to another buyer and used the money for carrying on their own construction work. They visited the OP site several times but in vain. They sent a letter to the marketing department of OP asking for their money but they did not get their money. They sent a legal notice dated 14.07.2009. The OP vide letter dated 27.07.2009 replied that the complainants had already surrendered the unit (but) which was never done by them. As they could not get the money back they requested the OP to return the unit to them but in vain. According to the complainants, they are also entitled to be paid Rs. 2,86,000/- paid by them to the OP through Manoj Goel. According to them, the OP has committed a grave criminal act of misappropriation. Complainants have prayed as under:-
- Direct the OP either to make the payment of Rs.14,10,000/- alognwith interest or return their unit to them without any delay.
In the written statement, OP has inter-alia stated that the Complainants have been allotted a flat in Eastern Heights in the month of August, 2008 on transfer basis and after receiving part consideration executed a Flat Buyer Agreement. They were not interested in purchasing the flat. On the contrary they surrendered the flat. The OP has already deposited a sum of Rs.2,94,476/- with LIC Housing Finance on account of loan taken by them as per instructions. At the time of surrender of the flat Rs.50,000/- was given to them and it was decided that balance payment will be paid subject to deposit of original documents which have been kept by LIC Housing Finance. The Complainants have not submitted original documents to the OP and, hence, causing delay in refund. The Complainants requested the OP to sell the flat @ Rs.2100/- per sq. ft. and demanded a sum of Rs.50,000/- on account of advance money. Considering their request OP paid a sum of Rs.50,000/- to the Complainants and on their request OP deposited a sum of Rs.,2,94,476/- with LIC Housing Finance. OP has prayed for dismissal of the complaint.
No rejoinder to the written statement has been filed by the Complainants.
Complainants have filed their joint affidavit in evidence while affidavit of Sh. Harpreet Singh, Director has been filed in evidence on behalf of OP.
Written arguments have been filed on behalf of the Complainants.
We have heard the arguments on behalf of the parties and have also gone through the file very carefully.
Admittedly, the complainants had purchased a flat from the OP in their project “VXL Eastern Heights” at plot/khasra Nos.1553, 1554, 1556, 1557/1, 1557/2 & 1558 situated at Nyayakhand-III, Indirapuram, Ghaziabad U.P. on 02.03.2006 for a total consideration of Rs.12,10,000/- including the amount for preferential location. OP was carrying on construction work at a very slow pace. The Complainants requested the OP to surrender the flat @2100 per sq. ft. The OP at the time of surrender of the flat, paid Rs.50,000/- in cash to the Complainants. As the loan was taken from the LIC the OP deposited a sum of Rs.2,94,476/- to the LIC Housing Finance on account of loan taken by the Complainants.
Complainants have not filed rejoinder to the written statement. Moreover, in their joint affidavit, complainants have repeated stereotype pleadings. Thus, the averments made by the OP in written statement that Rs. 2,94,476/- had been deposited by the OP with the LIC on behalf of the complainants and that the complainants settled the matter with the OP have remained unchallenged and uncontroverted.
It is an admitted fact that in the said settlement the complainants were paid Rs. 50,000/- in cash by the OP. There is no iota of documentary evidence on the record to show that the complainants had given Rs. 2,94,476/- to Manoj Goel in cash. The consistent stand taken by the OP is that as per the said settlement, complainants were to handover original documents to the OP and only then OP would return the amount.
According to the complainants themselves, Annexure 7 is the copy of the reply given by the OP through their advocate. Annexure 7 is dated 27.7.2009. In the said reply, it is inter-alia stated that the complainants had given a GPA in favour of OP’s official for depositing the amount with the LIC HFL and to collect the original documents from there but when the OP’s representative went to LIC HFL on 15.6.09 to collect the original documents, he was told by the officials of LIC HFL that the original allottee had already collected the original documents in respect of the flat. The complainants have not met with the said contention raised on behalf of the OP either in the complaint or in their joint affidavit. Therefore, in our considered opinion, the fault was on the part of the complainants themselves. Hence, the complainants have failed to prove any deficiency in service which otherwise has not been pleaded in the complaint.
In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs. However, the complainants shall be at liberty to handover the original documents in respect of the said flat to the OP and the OP shall then refund the due amount to them.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 11.1.16.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 738/09
11.1.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is dismissed. However, the complainants shall be at liberty to handover the original documents in respect of the said flat to the OP and the OP shall then refund the due amount to them. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
By D K Yadav
