Delhi

East Delhi

CC/1037/2013

AJAY SANDUJA - Complainant(s)

Versus

VXL REALTORS - Opp.Party(s)

20 Apr 2017

ORDER

                DISTRICT CONSUMER DISPUTE REDRESSAL FORUM EAST Govt of NCT Delhi

               CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092                                       

                                                                                                      Consumer complaint no.    1037/2013

                                                                                                      Date of Institution              20/11/2013

                                                                                                      Order reserved on               18/04/2017 

                                                                                                      Date of Order                       20/04/2017                                                                                                                                                            

 

In matter of –

Mr Ajay Sanduja, adult

S/o  Late Sh O P Sanduja    

R/o-HN. 153, Old Tejab Mill,  

Shahdara Delhi 10032 …………………………………………..…………….Complainant                                                                   

                                                                             

                                                                                Vs

1-M/s V X L Realtors Pvt Ltd

503 – 509, Ajit Singh House  

12, DDA Commercial Center

Yusuf Sarai, New Delhi 110049………………………….………………….Opponent

 

 

Quorum                                                         Shri Sukhdev Singh       President

                                                                        Dr P N Tiwari                 Member

                                                                        Mrs Harpreet Kaur       Member                                                                                                  

                                                                                                      

Order by Dr P N Tiwari  Member   

Brief Facts of the case                                                                                                   

The original complainant, Md Alka Jain after seeing advt. in newspaper, visited project site office of OP at Indirapuram for launch of Eastern Heights and after understanding all the term and conditions for the booking and construction vide annexure no. Ex.CW1/1, complainant booked one flat at 4rth floor having 900 sq. feet super built up area in flat no. 403 in Block D in Eastern Height and paid the booking amount of Rs 1,39,500/-through cheque no. 502832 drawn on Bank of Maharastra, Vivek Vihar Branch, Delhi on 20/02/2016 vide receipt no. 1289 annexed here as Ex. CW1/2.

It was assured by the OP to deliver the possession of the said flat in 36 months, however no flat buyer agreement could be signed after the booking amount was paid by the complainant. Thereafter, through a letter of mutual agreement between original complainant, Md Alka Jain made her nominee, the present complainant, Mr Ajay Sanduja and gave rights for all future transaction in the property. OP accepted the transfer of nomination/ownership on 09/05/2006 vide annexure no Ex.CW1/3 and thereafter complainant paid three installments of  sum Rs 1,39,500/- vide receipts no. 2152 dated 09/05/2006 a first installment, receipt no. 2681 dated 18/08/2006 for second installment of Rs 1,39,500/- and third installment of Rs 69,750/- receipt no. 3229 on dated 28/12/2006 which were on record as marked Ex. CW1/4 to CW1/8 with OPs receipt as OPW1/1 and 2. The complainant thereafter paid a sum of Rs 1,39,750/ and Rs 24,000/-as demanded by OP up to the casting of first floor. Thus, in all complainant paid a sum of Rs 6,52,000/-(six lacs fifty two thousand) to OP till 07/01/2008.

The complainant visited site in April 2008 and was surprised to see that OP had not yet started excavation work on the proposed site, so enquired from OP for the reason of delay. OP assured for timely possession of his flat, but delay was due to non sanction of their building plan by the Govt of UP which would be completed shortly.

The complainant received a letter from OP dated 19/03/2010 where OP had changed the flat number and size to other number as B6/202 having 700 sq feet area on IInd floor in D Block of Eastern Heights. Complainant protested for not taking his consent for changing his booking flat and so stopped his paying further installments as payment was construction linked scheme.

OP sent one letter to complainant dated 05/11/2009 stating the reason of delay in getting construction started due to non sanction of building plan for D block by UP Govt. whereas possession of block A1,2,3,4, had been given possession and was giving possessions to B1 and 2 bookings. OP informed that as soon as permission would be granted, work will start as per annexure Ex OPW1/3.

Thereafter OP sent demand letter dated 30/09/2011 for paying dues amount of installments for a sum of Rs 5,42,365/- to complainant within 7 days marked Ex OPW1/4. OP further sent a demand letter dated 10/01/2012 for flat no. B6/202, 2BHK having 900 sq feet area showing basic sale price Rs 18.78,000/-whereas dues shown to Rs 6,96,288/-to be paid within 7 days by complainant as marked here as Ex OPW1/5. When no dues were cleared by complainant as per demand letters and also no reply was received, OP cancelled booking of his flat on dated 23/01/2012 stating reason of non receiving of any communication and payment dues. OP also informed the complainant to take his refund as paid marked OPW1/6.

In response to demand letters for dues, complainant paid a sum of Rs 2 lac through cheque vide no. 169766 drawn on Citizen Co. Bank, Noida dated 10/02/2012 as marked here CW1/8 and the same was en cashed too.

Thereafter, complainant sent various emails for getting the status of his flat as marked CW1/9 to 12. When no reply was received, so sent legal notice for getting possession of his flat and was ready to pay the balance amount also. OP did not respond to legal notice, so filed this complainant for taking possession of flat B6/202, at IInd floor in block D, Eastern Heights with compensation of Rs 5 lacs and litigation charges Rs 50,000/-.

After perusal of complaint and evidences, notice was served. OP filed written statement denying all the contentions of complaint as wrong and denied. OP stated that complainant failed to fulfill the terms and conditions of the Flat allotment letter / Builder Buyers Agreement. The entire dues were not paid by the complainant despite of number of demand letters /reminders were sent. When no response was received by the OP, a letter of cancellation was sent on dated 23/01/2012 and also refunded the amount through demand draft vide no. 000694 dated 26/05/2012 drawn on IndusInd Bank for a sum of Rs 3,72,750/-through speed post as marked Ex. OPW1/7 with a letter of refund giving details of amount and deducted 20% amount of basic sale price and the same was received by the complainant as marked Ex OPW1/7A and OPW1/8. OP also stated that the demand draft was not en cashed by the complainant as per their account as marked Ex OPW1/9. Hence there was no deficiency on the part of OP and the frivolous complaint may be dismissed.

The complainant filed his rejoinder and evidence on affidavit where he affirmed that he did not get any demand draft and the cancellation of his flat was wrong as he had paid a sum of Rs 2 lacs on dated 10/02/2012. He also stated on oath that OP never replied to his queries raised at various dates and despite of no construction was ever stared, he paid the amount though dues were pending.

OP also submitted their evidence on affidavit through their director Sh Prabjit Singh.

 

 

OP stated on oath that their facts and evidences submitted with written statement were correct and the cancellation of flat was done as per their terms and conditions in agreement and also affirmed that proper intimation was given to complainant for cancellation of his flat.           

 

Arguments heard from the complainant as OP did not put his appearance on the date of arguments. After perusal of evidences on record, order was reserved.

We have perused all the facts and evidences on record. It was noted that as per OP’s reminder letter dated 10/01/2012, Ex OPW1/5, the basic sale price was 13,95,000/- and complainant had paid a sum of RS 6,51,750/ with dues a sum of Rs 6,96,288/-. It was also seen that the cancellation letter was sent on dated on 23/01/2012 and demand draft after deducting the paid amount was sent by OP on 26/05/2012. OP had stated that complainant had not en-cashed the draft and not sated that complainant had paid a sum of amount Rs 2 lacs on 10/02/12 before sending demand draft.  

The cancellation of flat was done on 23/01/2012 and OP accepted a part of due amount from complainant after the cancellation of flat, but there was no further evidence on record which could prove any further process was done by OP and also no evidence of their balance sheet which could prove debited amount of Rs 3,72,750/ or any print media evidence, as stated in written statement about cancellation notice was printed in newspaper. Also there was no terms and conditions of agreement of flat buyer and builder agreement on record.

We also noted that there was a minor mistake in calculating the sum of amount paid by the complainant as it was 6,52,000/- and not 6,51,750/- as mentioned on record by complainant and OP also. It was also noted that complainant could not pay the required dues on time though paid more than 50% amount to OP. OP had also changed the booked flat of 900 sq feet area to their own to 700 sq feet without complainant’s request/consent or OP’s intimation, but reminders were issued for paying dues and even cancellation notice was printed in newspaper though no such evidence was on record.

It was also noted from the complaint that complainant had prayed for 700 sq feet flat instead of 900 sq feet flat as initially booked. By these facts on record, the OP was not only deficient in their services but had adopted unfair trade practice also.

We have also taken reference of Rita Srivastava vs Unitech Ltd & other in CC-1224/2015 II(2017)CPJ271(NC)I decided on 19/01/2017 had similar circumstances of this case. In this citation, deficiency of OP was seen. Hence, we allow this complaint and pass the following order as-

1. OP shall obtain all the approvals and clearance including occupancy certificate in respect of the flat of 700 sq feet area as prayed at its own cost and responsibility on or before 30/06/2017 and offer possession to complainant by 31/07/2017 after taking balance amount from the complainant as per basic sale price at the time of booking the flat.   
2. We further award compensation of Rs 30,000/- for harassment, mental pain and agony caused to complainant for deficient services with litigation charges Rs 10,000/-.

The copy of this order be sent to parties as per act and file be consigned to Record Room.

 

 

Dr P N Tiwari Member                                                                                Mrs Harpreet Kaur  Member                                                                                            

 

                                                         Shri Sukh Dev Singh    President