Vimal Kumar Chopra vs Oasis Landmarks Llp & Anr

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Arjun Minocha, Advocate, for the complainant and Mr. Kunal Cheema, Advocate, for opposite party-1.

Vimal Kumar Chopra has filed above complaint for directing the opposite parties to (a) refund Rs.1395854/- (b) pay interest @ 18% p.a. on the aforesaid amount from the respective dates of payments till realization; (c) pay compensation of Rs.10 lacs for harassment and mental agony caused to the complainant; and (d) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that the opposite party-1 is a developer engaged in the business of development and sale of residential projects. Opposite party-2 is the channel partner of opposite party-1. Opposite parties launched a project, namely, “Godrej Icon” comprising multi storied residential complexes in Sector-88A and 89A, Gurgaon. The complainant booked a flat in the said project through opposite party-2 by filing an application form. At the time of booking, he deposited an amount of Rs.5 lacs vide cheque dated 27.04.2015. Consideration of the flat was Rs.13368925/-. Opposite party-2 also promised that the complainant would be given incentive of Rs.2.25 lacs on booking of the flat. The complainant further deposited an amount of Rs.6 lacs on 31.07.2015 and Rs.295894/- on 04.09.2015. Opposite party-2 informed the complainant that it had some dispute with OP-1 and the promised discount would be given to the complainant by OP-1. The complainant sent letter dated 19.07.2015 to opposite party-1 requesting for discount of Rs.2.25 lacs as promised by OP-1. OP-1 vide email dated 02.09.2015 refused to give discount though admitted that OP-2 was its channel partner. OP-1 vide letters dated 18.12.2015, 13.01.2016 and 12.02.2016 asked the complainant to make payment of Rs.1398248/-, Rs1452880/- and Rs.170119/- respectively. The opposite parties did not issue allotment letter to the complainant. Thereafter, on 03.03.2016, OP-1 asked the complainant to make outstanding payment of Rs.1470119/-. On 13.04.2016, opposite party-1 issued termination letter of booking of the flat stating that the complainant has not paid balance amount of Rs.4199129/- and interest amount of Rs.135121/-. While cancelling the allotment of the apartment, OP-1 also forfeited the entire amount deposited by the complainant. The complainant sent a letter to OP-1 raising his grievance relating to cancellation of the flat and sought refund of the amount deposited by him. OP-1 sent letter dated 25.05.2016 to the complainant that they had never authorised OP-2 to enter into agreement on its behalf. Thereafter, the complainant has written letters dated 23.05.2016, 20.06.2016 and 29.06.2016 asking for refund of the amount but the opposite party-1 failed to refund the amount. Alleging deficiency in service on the part of the opposite parties, the complainant filed Consumer Complaint No.242 of 2016 with the District Forum, which was dismissed for want of pecuniary jurisdiction. Hence, the instant complaint was filed on 30.01.2018.

The opposite party-1 filed its written reply on 03.12.2018 admitting booking and allotment of the flat and the deposits made by the complainant. It is stated that OP-1 is not responsible for the unauthorised acts/promises by its channel partner (OP-2). The complainant has violated the terms & conditions of the allotment and failed to make timely payment despite letters and four reminders. OP-1 also issued pre-termination letter dated 28.03.2016. Non-payment by the complainant compelled OP-1 to terminate his allotment. However, on the request of the complainant, OP-1 also gave an opportunity vide email dated 25.05.2016 to make payment of the due instalments and OP-1 would restore his allotment, but he failed to do so.  OP-1 vide letter dated 01.08.2016 gave another opportunity to the complainant to make payment and get his allotment restored but he did not bother. Total cost of the apartment is Rs.13368925/- out of which only an amount of Rs.1395854/- was deposited by the complainant. The complainant has made false allegation that OP-1 has not issued the allotment letter. The allotment letter dated 21.10.2015 was issued in the name of the complainant although the agreement could not be executed as the complainant has not deposited 20% of the consideration amount. Opposite party-1 is not aware nor responsible for any promise relating to incentive of Rs.2.25 lacs made by opposite party-2 as OP-1 has never authorised OP-2 to make such promises relating to discount.  The complainant was required to pay 10% of the cost of the apartment within 60 days from the date of booking, which he failed to do. The complainant is not liable for refund of the forfeited amount in terms of clause 13 of the application form. Booking of the flat was done by the complainant for commercial purpose. The present complaint is also barred by limitation and also does not come within the pecuniary jurisdiction of this Commission. The complaint has no merit and deserves to be dismissed.

The complainant filed rejoinder and affidavit of evidence and additional affidavit of evidence of Vimal Kumar Gupta and the documents. Opposite party-1 filed the affidavit of evidence of Pratik Batta.

We have considered the arguments of the counsel for the parties and examined the record. OP-1 has relied on the judgment of this Commission in Ramesh Malhotra & Ors. Vs. EMAAR MGF Land Ltd. in CC 438 of 2019 decided on 29.06.2020 wherein forfeiture of the amount by the builder was held to be justified.

Regarding the issue of limitation, in para-18 of the complaint it is stated that on 05.04.2016 the complainant has filed consumer complaint with the District Forum, which was dismissed on the ground of pecuniary jurisdiction vide order dated 18.07.2017. The cause of action accrued on 13.04.2016, the date on which the flat was cancelled. The time taken in the District Forum has to be excluded in view of Section 14 of the Limitation Act. If the time take in the District Forum is excluded, the complaint filed with this Commission is within limitation. The OP raised preliminary issue that the complainants are not a consumer, but the OP has not filed any evidence to prove that the complainants were engaged in the business and purchasing and selling the properties. As far as question of pecuniary jurisdiction is concerned, value of the services is more than Rs.one crore.

Admittedly, there is no agreement between the parties. Therefore, the parties are bound by the terms & conditions of the application form dated 22.05.2015 as well as allotment letter dated 29.10.2015. OP-1 has filed copy of the demand letter dated 06.11.2015. As the complainant has ignored this demand letter, OP-1 issued reminders dated 24.11.2015, 12.01.2016 and 12.02.2016. When the complainant also ignored 3 reminders, then OP-1 issued pre-termination letter dated 28.03.2016. Copies of the demand letter, reminders and pre-termination letter are annexed as Annexure-4 (colly.) to the written statement filed by OP-1. As the complainant failed to make payment of the instalment, OP-1 was compelled to terminate his allotment vide letter dated 13.04.2016. Even after cencellation of allotment, OP-1 has showed its bonafide and gave three more opportunities to the complainant to make payment of the balance amount, vide emails dated 25.05.2016, 29.06.2016 and 01.07.2016. OP-1 has followed the due procedure before cancelling the allotment of the complainant. Thus, there is no deficiency in service on the part of OP-1 in cancelling the allotment of the apartment. Regarding forfeiture of Rs.1395854/- deposited by the complainant, Although under clause 13 of the application form 20% of sale consideration has been mentioned as earnest money, but Supreme Court, in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Sirdar K.B. Ram Chandra Raj Urs Vs. Sarah C. Urs, (2015) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section-74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat remains with the developer as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs. EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s. IREO Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as “earnest money”. Admittedly, total consideration of the flat is Rs.13368925/- and 10% of this amount will be Rs.1336892.50. The opposite parties have forfeited the entire amount of Rs.1395854/-. Thus, OP-1 has forfeited extra amount of Rs.59000/-, which complainant is entitled for refund with interest.

ORDER

In view of the aforesaid discussion, the complaint is partly allowed. OP-1 is directed to refund an amount of Rs.59000/- with interest @ 9% from the date of cancellation of the apartment (13.04.2016) till realization, within 2 months from this order. However, there will be no order as to costs.