DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 142/2012
Sh. Vinod Negi
S/o Late Sh. Anand Singh Negi
R/o B 152, 2nd Floor
Ramprastha, Ghaziabad - 201011 ……Complainant
Versus
1. VXL Realotrs Pvt. Ltd.
Having its registered office at,
5th Floor, Ajit Singh House,
12, DDA Commercial Centre,
Yusuf Sarai, New Delhi – 49
2. Sh. Harpreet Singh
Director
VXL Realotrs Pvt. Ltd.
5th Floor, Ajit Singh House,
12, DDA Commercial Centre,
Yusuf Sarai, New Delhi – 49 ……Opposite Parties
Date of Institution : 10.04.12 Date of Order : 05.09.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
S.S. Fonia, Member
O R D E R
S.S. Fonia, Member
Briefly stated, the case of the complainant is that he was allotted Flat No. 816, a two bed room flat admeasuring 1005 sq. ft. in Block C on Eighth Floor in the VXL Eastern Heights Nyay Khand-III, Indirapuram, Ghaizabad, U.P. launched by the OPs and an allotment letter dated 2.2.2006 duly signed and executed was issued to the Complainant. For this purpose he deposited a sum of Rs. 1,59,192/- vide a cheque dated 26.2.2006. As per the terms and conditions depicted in the allotment letter the OPs had to handover the possession of the said flat by Oct. 2008. The complainant states that till filing of the complaint on 10.4.2012 he was not handed over the flat. The complainant further states that he deposited all the payments as per demand raised by the OPs as and when it was required. Despite several repeated requests and demands, the complainant failed to get the possession of the flat. In the year 2009, OP sent letter dated 9.11.2009 regarding status of the flat stating that “please note that the plans have been with the concerned department in UP Govt. We are hopeful that the approval should be with us in next couple of months which would be enable us to start the construction, so that we can handover the possession to you by December, 2010”. The complainant states that by issuing the above letter, the OPs were making fool and promising with empty hands with regard to the possession of the flat booked and allotted to the complainant. The complainant further states that the OPs informed him that the area of the booked and allotted flat has been increased from 1005 sq. ft. to 1037 sq. ft. without prior information and consent and asking for the difference area price @ Rs. 2,600 sq. ft.. With regard to the said illegal act of the OPs the Complainant met the officials of OPs various times but to no effect. The OPs, however, informed him vide letter dated 8.5.2010 that previous allotted flat has been changed to C-9-10/402 from C 10/403. The complainant further accuses OPs of being in the habit of revising the policies, prices at their own will whenever they wanted thereby practicing restrictive trade practice; that the OPs further started asking for EDC/IDC/FFC/EEC charges as per clause 5(a) of the allotment letter within seven days from the receipt of their letter dated 24.5.2010. The complainant objected to illegal demand of these charges stating that as per clause 5(a) only EDC charges can be demanded and rest of charges stand only when construction work was got completed but so far construction work had not commenced. The complainant found that the OPs were no more interested in completing the tower pertaining to the flat allotted to him and during his visit to the office as well as the site of the OPs, none came forward to answer his queries regarding starting of the work and completion.
Having lost faith in the project of the OPs he approached them for refund of the deposited money with interest. The complainant wrote a letter dated 4.8.2011 to refund the amount deposited against the allotted flat to the OPs. OPs accordingly sent a Form of Refund to the complainant for needful and they were refunding the principal amount without any interest. The complainant states that so far he had deposited Rs.5,57,172/- with the OPs from his hard earned money and the OPs were not only flouting the terms and conditions of the allotment letter but also no more interested in paying interest on the amount used by the OPs. The complainant further blames OPs for imposing irrational terms in clause 5 (e) of allotment letter. The complainant served a legal notice dated 27.12.2011 in this regard on the OPs to refund the amount deposited with interest but the OPs were not even bothered to reply the same. Being aggrieved with the non-cooperative attitude of the OPs and pleading deficiency in service and restrictive trade practices on the part of OPs, complainant has invoked the jurisdiction of this forum with following prayers:
“a) direct the OPs to pay an amount of Rs.,5,57,172/- alongwith interest @ 18% from the date of deposit till the payment made to the complainant;
- direct the OPs to pay a sum of Rs. 2,00,000/- to the complainant towards the breach of contract;
- direct the OPs to pay a sum of Rs. 1,00,000/- towards the harassment, mental agony caused to the complainant;
- direct the OPs to pay a sum of Rs. 10,000/- towards the litigation expenses.”
In the written statement the OPs have disputed the territorial jurisdiction of this forum as the flat is located at Ghaziabad (UP). The OPs have further blamed the complainant for not being interested to continue in the deal and preferred to refund due to his own reason. They have further cited clause (1) (iii) of the allotment letter stating that “in case the applicant at any time desires for cancellation of the allotment, in such cases 10% of the cost of the unit or amount already paid by allottee/s whichever is lower will stand forfeited and the balance amount, if any, will be refunded without any interest.” OPs have further stated in Para 5 of their reply that “Eastern Height Project is complete but as the complainant is himself not interested to continue in the deal and preferred refund due to his own reason and sought refund and the OPs consented for the same as per company norms for refund as per terms and conditions of the allotment letter signed by the parties. On the above grounds, the OPs have pleaded for dismissal of the complaint.
Complainant has filed rejoinder reiterating the averments made by him in the complaint. He has stated that due to delay even Block-C where the Complainant was allotted the flat the construction “is to be started.” As regards to territorial jurisdiction, Complainant has reiterated that registered office of the OPs is within the territorial jurisdiction of this Forum.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Harpreet Singh, Director has been filed in evidence on behalf of OPs.
Written arguments have been filed on behalf of the parties.
We have heard the arguments of the complainant and also gone through the file very carefully.
Now, we straightway come to formulate the issue, whether the complaint is maintainable under the Consumer Protection Act and, if so, whether the relief sought by the complainant is admissible or not?
OPs have their registered office within the territorial jurisdiction of this Forum. Therefore, this Forum has the territorial jurisdiction to entertain the complaint.
As per the terms of the allotment letter which we mark as Annex. A for the purposes of identification, we find that this document is akin to that of a contract executed by both the parties i.e. the complainant and the OPs. As per Para 2 of the allotment letter, Project completion time is 24 months from start of the construction i.e. Oct. 2006. It further stipulates in unequivocal terms that “the developer will provide possession of flat/unit to the allotee/s during the month of Oct 2008”. Thus, providing possession of the flat by Oct. 2008 is essence of the contract. As regards the reciprocal obligation of the complainant, he had been paying the instalments regularly and there is no credible evidence contrary to this adduced by the OPs.
OP has relied upon clause 1(iii) of the allotment letter wherein it is stipulated that “in case the applicant at any time desires for cancellation of the allotment, in such case 10% of the cost of the unit or amount already paid by allotee(s) whichever is lower will stand forfeited and the balance amount, if any, will be refunded without any interest”. Complainant has stated that till date he has deposited 5,57,172/- with the OPs. This fact has not been denied by the OPs. Complainant has asked for refund of the aforesaid amount and he has sent an e-mail on 8.11.2010 which we mark as Annex. B for the purposes of identification in which he has stated that OPs can demand the payment only on starting of the construction of the block along with objection of area difference charges of Rs. 2600/- being totally illegal. The OPs vide letter dated 30.8.2011 responded to the complainant drawing attention to his letter dated 4.8.2011 informing him that since the complainant is no more interested to keep his booking in the said project and requested for refund of the amount paid to the OPs. For the purposes of identification we mark this letter as Annex. C wherein OPs have asked the complainant to fill up the Refund Form and submit the same to them for processing the case as per the company’s policy and letter of allotment. This action of OPs triggered the complainant to serve legal notice dated 27.12.2011 upon the OPs to refund the amount of Rs. 5,57,172/- along with 18% interest p.a. alongwith other reliefs.
The main issue for our consideration is, whether the OPs can invoke the provisions of clause 1(iii) of the allotment letter so as to refund the money deposited by the complainant. We find that the OPs are in violation of the terms of contract as stipulated in Para 2(1) of the allotment letter whereby the OPs were obliged to provide the possession of the flat to the allottee/s during the month of Oct. 2008. On the other hand, the complainant waited for getting the possession of the flat till 4.8.2011 and then he expressed his intension of not continuing with the booking of the flat in the said project and sought refund of the amount paid by him. There is no iota of evidence on the record adduced by the OPs to even show that the construction of “C” block at the site had started before the stipulated period of October 2008 or till the date of letter dated 04.08.11 sent by the Complainant to the OPs for refund of the principal amount alongwith interest @ 18% p.a. Term 1 (iii) would be applicable if the Complainant had asked for refund of the money before October 2008. With the expiry of deadline of completion of construction and handing over the possession of the flat to the Complainant by the OPs, the OPs themselves became responsible for all the consequences. They are malafidely shifting the blame on the Complainant. We deprecate the conduct of the OPs and especially OP No.2 who as per the averments made in para 2 of the complaint and not denied in the written statement is the Director of OP No.1 and is responsible for all the affairs of OP No.1. Therefore, the OPs were in breach of contract in their failure to perform their obligation of handing over the possession till Nov. 2010 against the stipulated date of Oct. 2008 without any tenable evidence. Breach of contract by OPs renders clause 1(iii) of the contract null and void for want of performance of reciprocal promises. Therefore, the stand taken by the OPs to refund the amount in terms of clause 1(iii) has no more force of law. On the other hand, the OPs had stipulated provision in Para 1 (ii) of the allotment letter to charge 18% interest p.a. on the delayed payment by the allottee/s.
Applying this condition in reciprocity, we allow the complaint and hold the OPs guilty of committing deficiency in service and unfair trade practice. Accordingly, we direct the OPs jointly and severally to refund Rs.5,57,172/- along with interest @ 18% p.a. from the date of filing of complaint till the date of realization within one month from the date of receipt of copy of this order failing which the OPs jointly and severally shall become liable to pay Rs.5,57,172/- along with interest @ 21% p.a. from the date of filing of the complaint till realization.
We further direct the OPs jointly and severally to pay Rs.75,000/- towards mental pain, agony and harassment and Rs.10,000/- towards cost of the litigation to the complainant within the above stated period.
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.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
Announced on 05.09.2016
Case No. 142/12
05.09.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is allowed with the direction that the OPs jointly and severally to refund Rs.5,57,172/- along with interest @ 18% p.a. from the date of filing of complaint till the date of realization within one month from the date of receipt of copy of this order failing which the OPs jointly and severally shall become liable to pay Rs.5,57,172/- along with interest @ 21% p.a. from the date of filing of the complaint till realization.
We further direct the OPs jointly and severally to pay Rs.75,000/- towards mental pain, agony and harassment and Rs.10,000/- towards cost of the litigation. Let the file be consigned to record room.
(S. S. Fonia) (Naina Bakshi) (N. K. Goel)
Member Member President
