DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.81/2010
1. Sh. Pramil Kumar @ Madhur Kumar
2. Smt. Mukta Kulshrestha
W/o Sh. Pramil Kumar @ Madhur Kumar
Both Residents of:
C-239, Panchvati Colony, G. T. Road,
Ghaziabad-201009 ….Complainant
Versus
M/s VXL Realtors (P). Ltd.
Through its C.E.O. /Directors
5th Floor, Ajit Singh House,
12, DDA Commercial Centre,
Yusuf Sarai, New Delhi ……Opposite Party
Date of Institution : 03.02.10 Date of Order : 05.10.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Briefly stated, the case of the Complainant is that the Complainants had booked a shop bearing No.U.G.-5 in Millennium Apartments Vasundhara, Ghaziabad, U.P. with OP on 23.03.2007 and paid the booking amount of Rs.35,000/-. They paid the total sale consideration of Rs.13,35,000/- in 8 installments in 12 months and the last installment was paid on 28.02.08 but despite that OP failed to hand over the possession of the shop to them. The officials of OP put pressure upon them to give the shop to the OP Company on rent. They received a letter on 26.02.08 from OP in which it is was written that they were ready to give their shop on rent of Rs.8,750/- to the OP. They did not sign the letter because they had purchased the shop for opening their business and they were not interested to give shop on rent to anybody but OP’s officials were putting pressure upon them. Ultimately, they wrote a letter dated 28.03.08 to the OP mentioning therein “that the opposite party officials have putting pressure upon them to rent out our shop to them and put our signatures on acceptance letter.” They received a letter dated 03.04.08 from the OP wherein it was mentioned that “ in respect of the title documents of the said shop, there are certain formalities remained and they are making efforts for getting the same” and also that “if the business has been affected from that and if the captioned matter is subject to the harassment of the Complainants, then as per law, the company is agreed to refund the entire amount of the Complainants along with interest.” They wrote a letter dated 10.04.08 to the OP requesting it for refund of Rs.13,35,000/- alongwith interest and their request was accepted vide OP’s letter dated 16.04.08. On 16.05.08 they received a cheque of Rs.1 lac dated 14.05.08 alongwith covering note mentioning therein that the cheques of the rest amount will be sent very soon. They received a total amount of Rs.10,00,000/-. It is further stated that the OP company has only refunded a total amount of Rs.10 lacs out of Rs.13,35,000/- and now an amount of Rs.3,35,000/- is remained due to be paid by the OP. OP failed to pay the principal amount and no payment towards the interest has also been made. OP was served with a notice dated 02.01.10 but to no effect. Hence pleading deficiency in service on the part of OP the complaint has been filed with the following prayers:-
- Direct the OP to pay to the Complainants a sum of Rs.3,35,000/- alongwith interest @ 18% per annum and damages of Rs.10 lacs towards mental pain, agony, financial loss, harassment etc.
- Direct the OP to pay to the Complainants a sum of Rs.25,000/- as litigation charges.
OP in the written statement has stated that this Forum has no territorial jurisdiction to entertain the complaint since the subject flat is situated in Ghaziabad (U.P.). It is further stated that there is no deficiency in service on the part of OP as the subject project plan was acquired by competent authority; that after acquisition of the project land, the OP requested the Complainant to shift in its ensuing project at Indirapuram, Ghaziabad but the Complainant was not interested to purchase the flat in the new project and sought refund without any bonafide reasons. In terms of the allotment agreement duly signed between the parties if the allottee wants refund of the money deposited by him, the same can be made subject to deduction of 20% of the deposited money; that the Complainant has already received the amount after statutory deduction and other terms and conditions of the refund as the Complainant himself sought the refund as he was not in the position to make the entire payment. OP has stated that after thorough scrutiny of refund application form and as per agreed terms of the flat buyer agreement no refund claim is viable after statutory deduction. OP has prayed for dismissal of the complaint.
Complainants have filed rejoinder to the written statement of OP and have reiterated the averments made in the complaint.
The Complainants have filed their separate affidavits in evidence while affidavit of Sh. Prabhjit Singh, Director has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments of the Counsel for parties and have also gone through the file very carefully.
Undeniably the registered office of the OP is in Yusuf Sarai, New Delhi which falls within the territorial jurisdiction of this Forum. Hence, this Forum has the territorial jurisdiction to entertain the complaint.
There is evidence on the record to prove that the Complainants had booked a shop bearing No.U.G.-5 in Millennium Apartments, Vasundhara, Ghaziabad (U.P.) with OP on 23.03.2007 and paid the booking amount of Rs.35,000/-. They paid total sale consideration of Rs.13,35,000/- in 8 installments in 12 months. The OP sent a letter dated 03.04.08 to Complainant wherein it was stated that “This is with reference to your letter dated 28.03.08, we wish to inform you that there are many statutory requirements for registration which, we are trying to obtain. If it is affecting your business and has become a concern of tension, we are ready to refund your money with interest as per rules.” The subject of the letter is “Sub: Your shop No.UG-5 in our project “Millennium Mall” at Vasundhara, Ghaziabad” (copy annexure-A for the purposes of identification). The OP had made the payment of Rs.10 lacs to the Complainants and deducted 20% of the amount as per clause (iii) of the builder buyer agreement which is reproduced herein below:
“iii) That in case the applicant at any time desires for cancellation of the allotment, in such case 20% of the cost of the unit or amount already paid by allottee (s) will stand forfeited and the balance amount, if any, will be refunded without any interest.”
In view of the above, it appears that as per letter dated 03.04.08 (supra) the OP had refunded the amount to the Complainants itself in which it was mentioned that OP was ready to refund their money with interest as per company rules. Clause (iv) of the builder buyer agreement reads as under:
“iv) If for any reason whether within or outside the control of the developer the whole or part of the scheme is abandoned, no claim will be preferred except that allottee(s) money will be refunded in full with simple interest @ 12% per annum.”
We mark the copy as Annexure-B.
It is evident from the letter dated 03.04.08 issued by the OP to the Complainant and above clause No. (iv) of the builder buyer agreement that the OP had refunded the amount themselves and hence the deduction as per clause (iii) of the builder buyer agreement was not justified. In the written statement the OP has built up a false case by pleading that the project land had been acquired by the competent authority. Letter dated 26.02.08 (Mark C) typed on the OP’s company’s pad shows that the OP had sent a draft note to the Complainants for appending their signatures for having accepted the offer of the OP to rent out the shop in question to the OP. Thus, OP’s case is built on a totally collapsible wall of sand only.
Hence, there is a deficiency in service and unfair trade practice on the part of OP. In our considered opinion, not paying the full amount alongwith interest is not justified by the OP. Accordingly, we allow the complaint and direct the OP to refund Rs.3,35,000/- alongwith interest @ 12% per annum from the date of filing of the complaint till realization, Rs.25,000/- for mental torture and harassment undergone by the Complainants including cost of the litigation within a period of 30 days from the date of receipt of copy of this order failing which OP shall become liable to pay interest @ Rs. 15% per annum on the amount of Rs.3,35,000/- from the date of filing of the complaint till its realization.
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.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Announced on 05.10.16.
