Subhash Chander Ghai & Anr vs M/s Ireo Grace Realtech Pvt. Ltd. & Ors

Heard Mr. Vaibhav Gaggar, Advocate, for the complainants, Mr. Sameer Chaudhary, Advocate, for opposite parties-1 and 2 and Mr. Sunil Mund, Advocate, for opposite party-3.

Subhash Chander Ghai  and Ms. Veena Ghai (the complainants) have filed above complaint, for directing the opposite parties to (i) refund entire amount deposited by the complainants with interest @18% per annum from the date of respective deposit till the date of refund, (ii) pay suitable compensation for mental agony and harassment; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainants stated that opposite parties-1 to 4 were companies, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its unit to the prospective buyers. Opposite parties-2 to 4 were owners of large area of land at Sector-67-A, Gurgaon, Haryana and obtained Licence No.05 of 2013 dated 21.02.2013, from Director, Town & Country Planning, Haryana, for development of group housing project. Under Collaboration Agreement dated 05.03.2013, between the opposite parties, the work of development, construction and sale etc. of the group housing project was assigned to M/s. IREO Grace Realtech Private Limited (opposite party-1) (the developer). The developer launched group housing project in the name of “The Corridors” at Sector-67-A, Gurgaon, in the year 2013 and made wide publicity of the facilities and amenities of the oncoming project. Believing upon the representations and tall promises of the developer, the complainants booked a 2BHK flat in February, 2013 and deposited booking amount of Rs.12/- lacs through two un-dated cheques, which were en-cashed on 11.03.2013. The developer applied for sanction of layout plan of the group house project, which was sanctioned by the competent authority on 23.07.2013. The developer raised demand of Rs.1614119/-, vide letter dated 17.04.2013. The complainants, vide email dated 06.05.2013, protested the demand, as by that time, allotment letter was not issued to them. The developer, vide email dated 07.05.2003, informed that building plan was awaited and as soon as it was approved, allotment of the unit would be done; demanded amount was required to be deposited within 45 days of the booking. The developer issued reminder dated 14.05.2013, for Rs.1614119/- with interest @20% per annum for the delayed period. The complainants again protested, vide email dated 19.05.2013. The developer, vide email dated 20.05.2013, reiterated that demanded amount was required to be deposited within 45 days of the booking and that condition had been informed at the time of booking. The complainants, vide email dated 21.05.2013, requested for not sending any demand till the approval of layout plan. The developer issued reminder dated 28.05.2013, for Rs.1614119/- with interest @20% per annum for the delayed period. The complainants gave cheque No.585251 dated 27.05.2013 of Rs.400000/-, cheque No.495563 dated 04.06.2013 of Rs.110000/- and cheque No.86890 dated 04.06.2013 of Rs.1104119/-, which were en-cashed by the developer. The developer sent Application Form on 26.06.2013, which contained various blank and arbitrary clauses. The complainants vide email dated 06.07.2013, apprised with his disagreement in signing the blank Application Form. The developer informed that rate of Rs.9200/- per sq.ft., although rate of Rs.8750/- per sq.ft. was agreed at the time of booking. The complainants vide emails dated 10.07.2013 and 11.07.2013, protested against enhancing the rate. The developer, vide email dated 10.07.2013, informed that rate of Rs.9200/- per sq.ft. was inclusive of car parking space. After sanction of layout plan on 23.07.2013, the developer issued Allotment Offer Letter dated 12.08.2013, allotting Apartment No.CD-C10-01-102, super area 1483.57 sq.ft., basic sale price @ Rs.9200/- per sq.ft. The developer again sent Application Form, vide letter dated 18.10.2013. The developer obtained Environment Clearance on 12.12.2013 and sent Buyer’s Agreement through letter dated 15.03.2014, which contained various arbitrary and one sided clauses. The developer issued demand letter dated 18.03.2014 for Rs.2183036.80, for the instalment payable at the time of “excavation”. The complainants vide email dated 04.04.2014, prayed for cancellation of allotment and refund of their money. The developer, vide email dated 08.04.2014, declined to cancel the allotment and issued reminder dated 13.04.2014, for payment of the instalment. The complainants gave legal notice dated 15.04.2014, for cancelling the allotment and returning their money with interest @20% per annum. In spite of service of legal notice, the developer issued Reminder-II dated 04.05.2014 and vide reply notice dated 17.05.2014, informed that in case of cancellation of allotment, entire amount was liable to be forfeited. The developer sent reminder dated 28.05.2014, for signing Buyer’s Agreement. The developer, vide letter dated 09.07.2014, cancelled the allotment and forfeited entire amount of the complainants. Even after cancellation of the allotment, the developer sent Reminder-II dated 17.07.2014, for signing the Buyer’s Agreement. The developer vide letter dated 20.04.2015, offered for restoration of the allotment. The complainants vide email dated 24.04.2015, refused the offer. The complainants filed CC/279/2014 before State Commission, Delhi on 31.05.2014, which was returned for presentation before this Commission, vide order dated 31.10.2017.  This complaint was filed on 25.01.2018, alleging unfair trade practice.

The opposite parties filed its written reply on 17.04.2018 and contested the complaint. The material facts relating to the project, payment made by the complainants and allotment of the apartment to them, have not been disputed. The opposite parties raised preliminary objections relating to maintainability of the complaint, namely (i) The complainants were not consumer rather investors, (ii) Terms and Conditions of allotment letter dated 12.08.2013 are bindings and this Commission has no jurisdiction to modify/re-write it. (iii) Interpretations of contractual obligations under allotment letter are required. (iv) The agreement was not linked with service, as such, this Commission has no jurisdiction; and (v) Exorbitant claims have been made to confer pecuniary jurisdiction upon this Commission, which is an abuse of process of law. The opposite parties stated that after detail analysis of market, the complainants decided that they would get better return in investing in oncoming project of the developer, approached them through a broker M/s. Sanctury Buildcon Pvt.Ltd. of their choice and discussed rate, other amenities and facilities. At that time, the developer informed rate of Rs.9200/- per sq.ft. to the complainants. On being fully satisfied, they submitted application for provisional registration of a unit in future project and handed over cheques of Rs.12/-lakhs in March, 2013, which were en-cashed on 13.03.2013. The developer raised demand of Rs.1614119/-, vide letter dated 17.04.2013. Then the complainants, vide email dated 06.05.2013, protested the demand on the ground that no allotment letter was issued to them. The developer, vide email dated 07.05.2003, informed that building plan was awaited and as soon as it would be approved, allotment of the unit be done and explained that 20% of the amount was required to be deposited within 45 days of the booking. Being satisfied with the genuineness of the demand, the complainants deposited it. The complainants for the first time vide emails dated 10.07.2013, raised dispute regarding rate although by that time, they had deposited Rs.2814119/-. It is not liable to be believed that without knowing the rate, any person would deposit such a huge amount. It has been denied that “payment plan” was sent vide email dated 09.07.2013. In spite of repeated demands/reminder, the complainants did not deposit the amount of instalment as per payment plan as such their allotment was cancelled on 09.07.2014 and the amounts deposited by them was forfeited as per terms of the agreement. The developer vide letter dated 20.04.2015, offered for restoration of the allotment but the complainants vide email dated 24.04.2015, refused the offer. It has been further denied that the opposite party in email dated 08.04.2014, conceded that payment plan was sent to the complaint along with allotment letter dated 12.08.2013. The construction of the tower, in which, the complainants were allotted flat was completed and the opposite parties applied for issue of “occupation certificate” on 20.07.2017, which was revised on 21.07.2017. There was no unfair trade practice on behalf of the opposite parties and the complaint is liable to be dismissed.

The complainants filed Rejoinder Reply on 30.04.2019, in which, the facts stated in the complaint were reiterated. The complainants filed Affidavits of Evidence of Manav Ghai and Ms. Veena Ghai and Affidavit of Admission/Denial of documentary evidence of Manav Ghai, Ms. Veena Ghai and Mohit Ghai. The opposite parties Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Shubhasis Lahiri. Along with Affidavit of the Evidence, the opposite parties, filed copy of “occupancy certificate dated 31.05.2019. The complainant and opposite party-3 filed written synopsis.

We have considered the arguments of the parties and examined the record. The complainants vide email dated 04.04.2014, requested to cancel the allotment and refund of their money along with interest. The developer cancelled the allotment on 09.07.2014 and forfeited the amounts deposited by the complainants. The only issue arises for consideration as to whether entire amount or any amount deposited by the complainants was liable to be forfeited?

The complainants booked a 2BHK flat in a future project of the developer and deposited booking amount of Rs.12/- lacs, vide application (Annexure-C-3), in February, 2013. Various columns of this Application were blank. From this application, only fact can be derived that the complainants got themselves registered in earliest forthcoming project of the developer, in Gurgaon. The developer issued demand letter dated 17.04.2013 and reminders dated 14.05.2013 and 28.05.2013, for Rs.1614119/- with interest @20% per annum for the delayed period. The complainants gave cheque No.585251 dated 27.05.2013 of Rs.400000/-, cheque No.495563 dated 04.06.2013 of Rs.110000/- and cheque No.86890 dated 04.06.2013 of Rs.1104119/-, which were en-cashed by the developer. The developer sent Application Form through letter dated 26.06.2013, which was blank in respect of all the material facts. Clause-7 of Schedule-1 of this application form states as “the applicant has understood that Basic Sale Price along with Development Charges, Club membership charges and applicable PLC whatsoever shall constitute the “sale consideration” for the said apartment, shall be set out in the payment plan to be annexed. A sum quantified as equivalent to 20% of the Sale Consideration shall constitute the “Earnest money”. From this application form it is clear that by the time of deposits made by the complainants, sale consideration was not determined, as such, it is not liable to be believed that the developer has informed about the rate of Rs.9200/- per sq.ft. of the apartment in an incoming project at the time of filling of the application form in February, 2013. It was only when rate of Rs.9200/- per sq.ft. was disclosed for the first time through email dated 09.07.2013, the complainants protested it on 10.07.2013 as well as on subsequent dates. When the developer declined to reduce the rate then the complainants vide email dated 04.04.2014, requested to cancel the allotment and refund of their money along with interest. The developer cancelled the allotment on 09.07.2014. At that time, there was no concluded contract between the parties, authorising the developer to forfeit the earnest money. The developer has not claimed any damage due to cancellation of registration of the complainant. In fact, before filling up the allotment application, the complainants asked for cancellation of their registration in Future Project as such no question of any loss to the developer arose. In such circumstance, the complainants are entitled for refund their entire money with interest.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. Opposite party-1 is directed to refund entire amount deposited by the complainants, with interest @9% per annum from the date of respective deposit till the date of payment, within a period of two months from the date of this judgment.