Barnali Ghosh & Anr vs Oasis Landmarks Llp & 2 Ors

Heard Mr. Anupam Dwivedi, Advocate, for the complainants and Mr. Kunal Cheema, Advocate, for opposite parties-1 and 2.

Smt. Barnali Ghosh and Subrata Ghosh have filed above complaint for directing the opposite parties jointly and severely to (i) refund Rs.1104868/- with interest @18% per annum from 07.04.2016 till the date of refund; (ii) pay Rs.500000/-, as compensation for mental agony and harassment; (iii) pay Rs.one lac, as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the case.

The complainants stated that they were planning to purchase a flat in Delhi NCR, for their own residence, in the year 2015. One Prashant Mishra, representative of Square Yards Constructing Private Limited (OP-3) visited their residence and convinced them to purchase a flat in the project “Godrej Icon”, launched by Godrej Properties Limited (OP-2) at Sector 88-A & 89-A, Gurugram, Haryana. Prashant Mishra also informed about inaugural discount of Rs.500/- per sq.ft., for booking at that time and assured for full refund with interest, if the project is delayed for any reason, as OP-3 had good relation with OP-2. Believing upon the representations of Prashant Mishra, the complainants booked Flat No.B0804 area 2142 sq.ft., Tower-B, of “Godrej Icon” @Rs.5999/- per sq.ft. and deposited Rs.500000/- on 23.04.2015 and Rs.604868/- on 20.07.2015. Soon after booking, the complainants requested OP-3 for a visit to the site of the project. OP-3 assured to arrange for site visit through OP-2 but in spite of repeated request, he could not arrange for site visit. The OPs did not issue any letter of allotment/confirmation of the booking. The complainants visited the office of OP-3 in November, 2015 and told that due to unreasonable delay in start of the project, they wanted to refund of their money. OP-3 assured to discuss with OP-2, for refund of their amount. However, OP-2 started issuing demand letters from November, 2015. After receiving demand letter, the complainants again visited the office of OP-3 and asked for refund, who informed that he was talking with OP-2 for refund. The complainants sent emails dated 05.04.2016 and 11.04.2016 to OP-2, for refund of their amount with interest. OP-2, vide email dated 11.04.2016, informed that final decision would be taken by the developer. Prashant Mishra also vide email dated 16.04.2016, informed that he was trying for a meeting with the developer in this respect. OP-1, vide emails dated 07.04.2016 gave termination notice and dated 26.05.2016 final termination notice. The complainant sent legal notice dated 07.07.2016 for refund of their money with interest. OP-1 sent reply notice dated 02.09.2016, stating that as after initial deposit, the complainants had failed to deposit further amount, in spite of various demand letters; then OP-1 gave termination notice dated 07.04.2016 and final termination dated 31.05.2016, cancelled the booking on 09.06.2016 and forfeited deposited amount. The complainants filed CC/573/2017, for District Forum, New Delhi, impleading OP-2 and 3. OP-2 raised preliminary issue relating to pecuniary jurisdiction. District Forum, vide order dated 28.02.2018, held that it had no pecuniary jurisdiction and the complaint was bad for non-joinder of OP-1 and directed to return the complaint for presentation before proper forum. Then this complaint was filed on 09.04.2018.

Oasis Landmark LLP (OP-1) filed written reply on 07.09.2018 and stated that Oasis Landmark LLP (OP-1) was a limited liability partnership firm and Godrej Properties Limited (OP-2) was its Managing Partner. OP-1 launched the project of “Godrej Icon”, at Sector 88-A & 89-A, Gurugram, Haryana. The complainants booked Flat No.B0804 area 2142 sq.ft., Tower-B, of “Godrej Icon” @Rs.5999/- per sq.ft., total price of Rs.15470678/-, vide Booking Application Form on 16.06.2015 and deposited Rs.500000/-. Payment plan was attached as Schedule-III of Booking Form, according to which 10% price was payable within 60 days from booking and further 10% price was payable within 5 months from booking. OP-1 through Invoice dated 03.07.2015 raised a demand of Rs.1114909.80, payable till 21.07.2015. The complainants deposited Rs.604868/- on 20.07.2015. OP-1 through Invoice dated 23.09.2015 raised demand of Rs.2127347/-to be deposited till 11.10.2015 and issued reminders dated 06.11.2015, 24.11.2015, 12.01.2016, 12.02.2016 and 04.03.2016 but the complainant did not deposit any amount. OP-1 through Invoice dated 08.03.2016 raised demand of Rs.5366973/-to be deposited till 26.03.2016 but the complainants did not deposit any amount. OP-1 gave pre-cancellation notice dated 21.03.2016, cancellation notice and final cancellation notice vide emails dated 07.04.2016 and dated 26.05.2016. In spite of various demand letters, reminders, notices for cancellation, the complainants failed to deposit the amount, then OP-1 cancelled the booking on 09.06.2016 and forfeited deposited amount. The complainants admitted default in payment of instalments vide email dated 06.07.2016. At the time of booking all the documents relating to project “Godrej Icon” was provided to the complainants and allegations contrary to it, are false. After carefully reading the Terms and Conditions, the complainants booked the flat. The complainants, in legal notice dated 07.07.2016, stated that Prashant Mishra had assured them that the Directors of OP-3 would repurchase the unit. OP-1 had nothing to do with any commitment of Prashant Mishra or OP-3. OP-1 has never authorised OP-3 for any such commitment. The complainants filed CC/561/2017 on similar allegations against M/s. Antriksh Urban. The complainants booked the flat in speculation of profit but due to downfall of real estate market, they now want for refund of their money with 18% interest, which shows that they are not consumer. The complaint has no merit and liable to be dismissed.

Square Yards Constructing Private Limited (OP-3) filed its written reply on 10.06.2019 and stated that OP-3 was a channel partner of OP-1 and 2 and provided limited service of listing and displaying the project and facilitating the interested persons to introduce with OP-1 and 2. OP-3 was not involved in the deals and commercial understanding of the complainants with OP-1 and 2 in respect of booking of the flat. After understanding every terms and condition, the complainants booked the flat through Booking Application and deposited money with OP-1 and 2 and OP-3 did not play any role. OP-3 did not give any assurance for timely completion of the project or to buy back the flat and return money with interest. The complaint against OP-3 is liable to be dismissed.

The complainants filed Rejoinder Replies, Affidavits of Evidence of Smt. Barnali Ghosh and Subrata Ghosh. Oasis Landmark LLP (OP-1) Affidavit of Evidence of Yogendra. Square Yards Constructing Private Limited (OP-3) filed Affidavit of Evidence of Piyush Bothra. The complainants and OP-1 & 2 have filed written synopsis.

We have considered the arguments of the counsel for the parties and examined the record. The complainants have filed Terms and Conditions attached with Booking Form. Clause-2 disclosed that booking application was made in the proposed project “Godrej Icon”. As such, allegation of the complainants that soon after booking, the complainants requested OP-3 for a visit to the site of the project; OP-3 assured to arrange for site visit through OP-2 but in spite of repeated request, he could not arrange for site visit, are not liable to be accepted.

Payment plan was attached as Schedule-III of Booking Form, according to which 10% price was payable within 60 days from booking and further 10% price was payable within 5 months from booking. OP-1 through Invoice dated 03.07.2015 raised a demand of Rs.1114909.80, payable till 21.07.2015. The complainants deposited Rs.604868/- on 20.07.2015. OP-1 through Invoice dated 23.09.2015 raised demand of Rs.2127347/-to be deposited till 11.10.2015 and issued reminders dated 06.11.2015, 24.11.2015, 12.01.2016, 12.02.2016 and 04.03.2016 but the complainant did not deposit any amount. OP-1 through Invoice dated 08.03.2016 raised demand of Rs.5366973/-to be deposited till 26.03.2016 but the complainants did not deposit any amount. OP-1 gave pre-cancellation notice dated 21.03.2016, cancellation notice and final cancellation notice vide emails dated 07.04.2016 and dated 26.05.2016. In spite of various demand letters, reminders, notices for cancellation, the complainants failed to deposit the amount, then OP-1 cancelled the booking on 09.06.2016 and forfeited deposited amount. The arguments of the complainants that as the OPs did not issue any letter of allotment/confirmation of the booking, as such, he did not deposit further amount, is not liable to be accepted. The complainants, knowingly booked the flat in proposed project as such demand of confirmation of allotment was not expected.

The complainants have stated that they visited the office of OP-3 in November, 2015 and told that due to unreasonable delay in start of the project, they wanted to refund of their money. The complainants deposited money with OP-1 as such, they would have given notice for refund to OP-1 and 2. The complainants did not give any notice of refund till cancellation of allotment and forfeiture of deposit on 09.06.2016. Under the Terms of Booking Form and Schedule-III, the complainants were required to deposit booking amount and 20% of price within five months of booking. The complainants have committed default as such, there is no illegality in cancellation of booking and forfeiture of deposit.

ORDER

In view of the aforesaid discussions, the complaint has no merit and is dismissed.