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Judgment
Dr.Inder Jit Singh, Member
The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-
i. refund Rs.25,00,000/- with interest @18% per annum from the date of deposit till realization.
ii. pay a sum of Rs.10,00,000/- towards damages/compensation for complications, increase of property price, hardships, humiliations, mental and physical shock, agonies, torture, pains and sufferings suffered by complainant due to intentional and wilful negligence, apparent deficiency, committing breach of contract and to pay Rs.21,000/- as notice charges and Rs.1,25,000/- as litigation expenses.
Notice was issued to the OP(s). Parties filed Written Statement/Reply, Rejoinder, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table at Annexure –A.
It is averred/stated in the Complaint that:
i. On 17.09.2014, the complainant booked an apartment in the project launched by the OP, namely Tranquit Height, Gurgaon, measuring 2650 sq.ft. The complainant was allotted Apartment No. 17/HSC-020-D-1703 vide allotment letter generated on 17.09.2014 and communicated on 23.09.2014. The OP promised and assured to handover the actual physical possession of the said fully finished apartment within three years from the date of booking but till the filing of the complaint, the construction had not been commenced in the project. The complainant has paid a sum of Rs.25,00,000/-. Builder Buyer Agreement was sent to the complainant on 04.06.2015. However, the same did not reach the appellant. The complainant had sent a detailed written letter dated 25.02.2016 and requested to cancel allotment of apartment and to make refund of deposit with interest @`18% per annum. But the complainant did not receive any response from the OP.
ii. The complainant sent a notice dated 02.04.2017 to the OP. But the OP failed to comply with the notice and sent a vague and evasive reply on 22.06.2017 to the notice. The complainant filed an Appeal before this Commission, which was dismissed as withdrawn on 20.11.2017. Under the circumstances the complainant is before this Commission.
The OP in their written statement/reply stated that:
i. The complaint is not maintainable as the complainant has not approached this Commission with clean hands. The complainant has deliberately hidden all the facts relating to repeated demand letters/reminders etc. issued by the OP and finally termination letter issued by OP on 06.03.2017. The complainant has also hidden all the facts relating to her default in making payment and non-signing he Apartment Buyer Agreement and falsely claimed that the ABA was not delivered to her. It is also contended that the ABA was sent by Indra Puri Courier by airway bill no. V4614 on 04.06.2015 and same was delivered on 05.06.2015 to the complainant address. Reminders were also sent on 06.07.2015, 19.08.2015, 13.10.2015 and 10.12.2015 but there was no response from the side of complainant. Even the final notice dated 16.02.2016 was not responded by the complainant. The complainant had no money to purchase the property worth Rs.1,78,31,108/- and intended to re-sell the allotment for a premium. Hence, after paying Rs.25,00,000/- complainant was not inclined to invest further money and persistently defaulted in making payments. Therefore, the complainant is not a consumer but had made multiple bookings with a view to sell the same at a profit and for the purpose of speculative gain.
ii. The present case involves disputed questions of fact as evident from the complaint, therefore, the complaint is not maintainable and proper course is to relegate the parties to the other remedies.
iii. The Section 79 of RERA Act, 2016, bars this Commission from entertaining any complaints in respect to real estate claims.
iv. The complaint is not maintainable as the complainant failed to perform her part of the obligations as she failed to make timely payments as per the payment plan opted, which led to cancellation of her allotment. Moreover, since the complainant did not come forward to execute the ABA, so the complainant lost all rights in the apartment booked. As per clause C of the Expression of Interest executed by the complainant it was agreed by the complainant that in case of failure on the part of the complainant to execute the ABA, the OP shall be liable to forfeit the amounts paid upto that date.
v. The period of three years was to commence from the date of execution of the ABA which complainant never executed and since complainant also failed to make timely payments with reference to the apartment in question despite several reminders, therefore her booking/allotment was cancelled. No criminal offence is made out against the OP. Even on 25.02.2016, the complainant was not entitled for a refund as she had been defaulting in payments of the demands since 30.09.2014. No letter dated 25.02.2016 was received by the OP.
vi. There was no question of complying with the illegal/illegitimate demands of the complainant, hence the said legal notice was suitably replied on 22.06.2017. There is no deficiency in service as alleged by the complainant, rather the complainant is the defaulter and hence suffered forfeiture of the amounts.
Heard both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Rejoinder, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
We have considered the rival contentions of the parties and have also perused various correspondence/documents produced by the OP, in particular, communications relating to sending of the ABA to the Complainant and demand notices/reminders with respect to pending dues etc. and find no reason to dis-believe the same. The complainant has not been able to produce any satisfactory evidence to rebut the same. Although the OP may have delayed the project in question, the complainant has also not given satisfactory explanation for non-payment of certain instalments. The covered case on which reliance is placed by the Complainant, i.e. CC 1119 of 2018 decided on 28.01.2022 is distinguishable on facts, as in that case complainant has specifically declined to sign the ABA on finding it to contain one-sided/unreasonable clauses while in the present case the complainant contends that he never received the draft ABA from the OP. Hence, the OP’s action to cancel the booking vide letter dated 06.03.2017, appears to be justified. However, the total deductions, which have been worked to be Rs.41,47,940/-, and after adjusting amount of Rs.25,00,000/- received from complainant, showing balance to be recovered as Rs.16,47,940/-, appears to be unreasonable. After considering the entire facts and circumstances of the case, we are of the view that ends of the justice would be met for both sides, if the forfeiture of amount on cancellation by OP is restricted to the amount paid alongwith initial booking i.e. Rs.10,00,000/- and the balance is paid to the complainant with reasonable interest from the date of payment till the date of refund.
For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -
i. OP is directed to refund the amount of Rs.15,00,000/- i.e. after forfeiting booking amount of Rs.10,00,000/- from total of Rs.25,00,000/- with interest @9% p.a. from the date of payment till the date of refund.
ii. Parties to bear their costs.
iii. Payments in this order be made within three months.
The pending IAs, in the Consumer Complaint, if any, also stand disposed off.
Annexure-A
Details of the Unit and other related details
Sr No
Particulars
1
Project Name/Location etc.
Vatika Tranquil Heights
Sector 82A, Gurugram
2
Apartment no.
HSG-020-D-1703
3
Size (Built up/Covered/Super Area)
2650 sq.ft.
4
Date of application
03.03.2014
5
Date of allotment
17.09.2014
6
D/o cancellation by OP
06.07.2017
7
Amount Paid
Rs.25,00,000/-
8
D/o Filing CC in NCDRC
22.01.2018
9
D/o Issue of Notice to OP(s)
31.05.2018
10
D/o Filing Reply/Written Statement by OP
08.07.2019
11
D/o filing Rejoinder by the Complainant(s)
16.07.2019
12
D/o Filing Evidence by way of Affidavit by the Complainant
22.11.2019
13
D/o Filing Evidence by way of Affidavit by the OP
07.01.2020
14
D/o filing Written Synopsis by the Complainant(s)
04.05.2022
15
D/o filing Written Synopsis by the OP
26.08.2022