Arvind Kumar vs Ramprashta Sare Reality Pvt. Ltd

V.K. Jain, J

The complainant applied to the opposite party for allotment of a residential flat in their group housing project, namely, "The Grand" at Crescent Parc, Sector 92, Pataudi Road, Gurgaon. An application for allotment of the aforesaid flat was submitted by the complainant to the opposite party. In the application he had given only flat no., building no., floor and saleable area of the flat. The saleable area of the flat was given as 1853 sq.ft. Vide letter dated 31.3.2013, the opposite party allotted flat No. G2-1703 to the complainant but in the allotment letter, the super area of the flat was given as 1906 sq.ft. Since the complainant felt aggrieved on account of the super area of the flat having been given as 1906 sq.ft. as against the area of 1853 sq.ft., disclosed to him at the time of booking, he wrote a letter to the opposite party seeking correction of the area. Vide reminder dated 9.6.2013, the complainant sought clarification as to who had corrected the super area mentioned by him in the application form. There was no response to the aforesaid reminder dated 9.6.2013 which was followed by a reminder dated 2.9.2013 available on page 23 of the paper book. The area of the flat, however, was not corrected by the opposite party despite repeated reminders sent to them. The dates of those reminders have been given in the email dated 4.6.2014, which is Annexure C-6 to this complaint and is available on page 25 of the paper-book. On 4th June itself, the opposite party sent a response to the email of the complainant denying even the existence of cutting in the super area on the application form.

The scanned copy of the application sent to the complainant by the opposite party which is Annexure C-7 to this complaint and is available on page 27 - 28 of the paper book, however, clearly shows that the saleable area was initially written as 1853 sq.ft. but was later changed to 1906 sq.ft. Thus, the opposite party wrongfully denied the cutting on the super area in the application form submitted by the complainant to it. Vide email dated 11.12.2013, the opposite party assured the complainant that they would make sure that a 3BHK unit of 1853 sq.ft. which gets vacated will be offered to him on first priority. Thereupon the complainant made payment of Rs.825508/- to the opposite party on 27.1.2014, followed by payment of Rs.218877/- on 8.5.2014. However, neither the super area in respect of unit No.G2-1703 which was allotted to the complainant was corrected nor another unit having super area of 1853 sq.ft. was allotted to him prior to 19.8.2016 when unit No.G2-2201 having super area of 1853 sq.ft. on the 22nd floor was allotted to the complainant in lieu of unit No. G2-1703 which was to be located on 17th floor of the building. He was also required to pay additional PLC of Rs.100/- per sq.ft. on the ground that the said unit was preferentially located. The complainant responded to the aforesaid email of the opposite party on 31.8.2016 stating therein that though he was interested in purchasing a flat having super area of 1853 sq.ft., he first wanted refund of the amount which he had already paid to the opposite party along with interest. He further stated that only after getting the aforesaid amount, he would sit with the opposite party to complete the formalities to purchase a flat having super area of 1853 sq.ft. The opposite party, however, terminated the allotment of unit No. G2-1703 vide its letter dated 21.9.2016 on the ground of failure to pay the balance sale consideration. Being aggrieved, the complainant is before this Commission seeking refund of the entire amount paid by him along with interest and compensation.

The complaint has been resisted by the opposite party which has interalia admitted the booking made by the complainant as well as the payment received from him. It is also admitted that flat No. G2-1703 on the 17th floor was allotted to the complainant. As regards the super area of the flat, it is stated in the written version filed by the opposite party that the correction in the application was made as per the statement of the complainant who had asked the opposite party to correct the size of the flat from 1853 sq.ft. to 1906 sq.ft., to which the opposite party never charged any sale consideration for change in the size of the flat.

There is no documentary evidence of the complainant having asked the opposite party to correct the size of the flat in the application form submitted by him, from 1853 sq.ft. to 1903 sq.ft. This was also not the stand taken by the opposite party in its correspondence with the complainant. In fact, the opposite party went to the extent of denying this aforesaid correction by replying as "No" to the questions of the complainant as to whether it could see correction in the super area on the application form. The aforesaid circumstances clearly indicate that the opposite party unilaterally changed the super area of the flat from 1853 sq.ft. to 1906 sq.ft. without any such request from the complainant. This act of the opposite party was wholly unauthorized and illegal. Therefore, the complainant was fully justified in refusing to make further payments to the opposite party till the opposite party corrected the area of the unit No. G2-1703 from 1906 sq.ft to 1853 sq.ft.

As noted earlier, the opposite party had given an assurance to the complainant way back in December 2013 that a unit having super area of 1853 sq.ft. would be allotted to him on first priority in the event of cancellation of such a unit. The complainant believing the aforesaid assurance of the opposite party made two payments to it - one on 27.1.2014 and the other on 8.5.2014. He had also got prepared two demand draft for a sum of Rs.1037754/- for payment of the 4th installment and had also sent a letter to the opposite party enclosing copy of the said demand draft. The opposite party, therefore, was not justified in waiting till 19.8.2016 for allotment of unit No.G2-2201 to the complainant in lieu of unit No. G2-1703. Moreover, the complainant was asked to pay the additional amount of Rs.100/- per sq.ft. on the ground that the newly allotted unit was preferentially located, though the complainant was not at fault in the matter and the opposite party, therefore, ought to have allotted the new unit on the same floor and in any case at the same price at which unit No. G2-1703 was allotted to him.

Though it has been stated in the written version that no additional sale consideration was charged from the complainant on account of change in the super area from 1853 sq.ft. to 1906 sq.ft., the said submission is patently incorrect since the total price of the flat was calculated, taking the super area to be 1906 sq.ft. whereas it would have been lower had the super area being taken 1853 sq.ft.

Considering the conduct of the opposite party, which firstly denied altogether the alternation made in the application form, in respect of the super area of the flat and then did not either rectify the super area from 1906 sq.ft. to 1853 sq.ft. nor allotted another unit to the complainant for more than two years, the complainant was justified in refusing to make any further payment to the opposite party pursuant to the allotment made to him on 19.8.2016. This is more so considering that the opposite party was also demanding an additional payment of Rs.100/- per sq.ft. for the substitute unit allotted to the complainant and the said substituted unit was located on a higher floor. As necessary corollary the cancellation of the allotment on the ground that the complainant had failed to pay the balance amount, was not justified. The complainant did not make further payment since he had lost faith in the opposite party on account of its past conduct as discussed hereinabove and in my opinion, he was fully justified in doing so.

For the reasons stated hereinabove, I hold that the complainant is entitled to refund of the entire amount paid by him to opposite party along with appropriate interest. The opposite party is therefore, directed to refund the entire amount of Rs.25,94385/- to the complainant along with compensation in the form of simple interest on that amount @ 10% p.a. from the date of each payment till the date of refund. The opposite party shall also pay a sum of Rs.25,000/- as cost of litigation to the complainant. The payment shall be made within three months from today.

The complaint stands disposed of.