National Consumer Disputes Redressal
Piyush Bansal vs Dr. Sk Tewari & Anr. on 7 February, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1407 OF 2018 (Against the Order dated 04/07/2018 in Complaint No. 386/2017 of the State Commission Uttar Pradesh) 1. PIYUSH BANSAL MANAGING DIRECTOR, M/S. VIHAAN HEIGTHS, THROUGH M/S. PROPERTY CONSULTING PVT LTD. BLOCK A-401, 4 FLOOR, ROHIT BHAWAN, 4 SPARU MAARG LUCKNOW ...........Appellant(s) Versus 1. DR. SK TEWARI & ANR. S/O. LATE SHIV NARYAN TEWARI, R/O. 503, PT. HARIVANSH VILLA, 13 JAPLING ROAD LUCKNOW 2. SMT. SHOBHANA SINGH D/O. DR. SK TEWARI, R/O. 503, PT HARIVANSH VILLA, 13 JAPLING ROAD LUCKNOW ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Joseph Pookkatt, Advocate
Mr. Navodaya Singh Rajpurohit, Adv.
Mr. Dhawesh Pahuja, Advocate For the Respondent : Mr. Sanjeev Bahadur Srivastava, Adv.
Dated : 07 Feb 2019 ORDER
JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainant/respondent booked a residential flat with the OP in a project namely 'Vihaan Heights' which the respondent was to develop in Rai Bareily, Lucknow. He made a payment of Rs.33,25,000/- to the appellant dated 01.08.2013 in respect of the flat which the appellant had allotted to the complainant/respondent. Clause 11 of the said agreement, to the extent it is relevant, reads as under:
11. The following options will be offered to second party on expiry of the period of 36 months from the date of this Agreement.
i. He may surrender his right for allotment and seek refund for approx.1250 Sq. ft. @ Rs.5,135/- per sq. ft as mentioned below.
ii. He may opt for the allotment of flat having total area of approx. 1,250/- sq. ft.
The right to exercise any of these options will be that of second party.
2. Admittedly, the complainant/respondent wrote a letter dated 22.11.2016 to the appellant which to the extent, it is relevant, reads as under:
According to agreement I made down payment under buyback scheme for Rs.3325000/- through cheque no.018623 of UBI dated 11/07/2013 for Rs.3025000/- and RTGS No. HDFC H 13194208336 of HDFC Bank dated 13/07/2013 for Rs.3,00,000/-. In this context I want to inform you that I have decided to opt option I of clause 11 of the said agreement and since it is more than 36 months that we signed the said document, I request you to please do the payment of Rs.6097812/- (Rupees Sixty Lacs Ninety Thousand Eight Hundred and Twelve Only) at the earliest.
3. The appellant claims to have responded to the said letter of the respondent vide its letter dated 06.09.2017 which to the extent, it is relevant, reads as under:
Please refer to your agreement dt-01/08/2013 & also your assured buy back request letter dt-22/11/2016. In this regard it has been confirmed earlier that you have opted the second option of Clause 13 (ii) & 15 by us on 20/05/2017 & Rs.5,00,000/- (Five Lakhs only) on 23/05/2017 respectively.
The above Flat No.405, Area-1250 sq. ft. project "Vihaan Heights" at Raibareli Road, Lucknow stand cancel & you will also agree handover all the original agreement & other related documents to us after receiving the full payment & further there shall be no claim and rights exist on the said flat as per Clause No.13(ii) & 15.
Further we request you to kindly collect your part payment amount of Rs.20,00,000/- (Twenty Lakhs only), we assured you the balance amount shall be paid to you at the earliest.
4. The appellant thereafter, approached the concerned State Commission by way of a Consumer Complaint seeking payment of Rs.60,97,812/- under clause 11 of the agreement with the appellant.
5. The written version filed by the appellant was not accepted by the State Commission, having not been filed even within 45 days of receipt of notice by the appellant.
6. Vide impugned order dated 04.07.2018, the State Commission directed the appellant to refund the amount of Rs.60,97,812/- to the complainant within two months and also awarded a sum of Rs.10,000/- as cost of litigation. Being aggrieved from the said order, the appellant is before this Commission.
7. Though the letters dated 22.11.2016 and 06.09.2017 were not filed by the complainant, I have considered the same, since the correctness of the letter dated 22.11.2016 is admitted by the learned counsel for the complainant who also admits receipt of Rs.15 lacs from the appellant vide two separate receipts filed by the appellant; one available on page no. 57 of the paper-book and the other available on page no. 58 of the paper-book.
8. It is evident from the letter dated 22.11.2016 sent by the complainant to the appellant that he had exercised option no.1 and not option no.2 of clause 11 of the agreement. Even otherwise, he having expressly demanded Rs.60,97,812/- and the appellant also having made part payment asking the complainant to collect another part payment of Rs.20 lacs and assuring to pay the balance amount at the earliest, it is evident that he had also correctly understood that the option exercised by the complainant was option no.1 and not option no.2 of clause 11 since option no.2 envisaged allotment of the flat and not refund of the amount paid by the allottee.
9. The contention of the learned counsel for the appellant is that in fact, the understanding between the parties was that the appellant would pay a total sum of Rs.35 lacs to the complainant out of Rs.15 lacs have already been paid to him vide two separate receipts and therefore, the balance amount payable to the complainant is only Rs.20 lacs. I however, cannot accept the said contention for two reasons; firstly, as noted earlier, the complainant had expressly asked for payment of Rs.60,97,812/- in his letter dated 22.11.2016. While responding to the said letter vide his letter dated 06.09.2017, the appellant did not even allege that the parties had agreed for a total payment of Rs.35 lacs. An amount of Rs.15 lacs had already been paid to the complainant by the time the letter dated 06.09.2017 was written. He was asked to collect the part payment of Rs.20 lacs and was also assured that the balance amount shall be paid to him at the earliest. There could no question of the appellant referring to the amount of Rs.20 lacs as part payment and assuring the balance payment to the complainant within the entire amount payable by him to the complainant was only Rs.35 lacs. I am therefore, satisfied that there was understanding between the parties for payment of Rs.35 lacs to the complainant in settlement of his claim and the appellant had actually agreed to pay a sum of Rs.60,97,812/- to him in terms of clause 11 of the agreement.
10. Since admittedly, Rs.15 lacs have already been received by the complainant, the balance amount which remains payable to the complainant, comes to Rs.45,97,812/-. The appellant is directed to pay the aforesaid amount to the complainant alongwith compensation awarded by the State Commission within one month from today failing which the said amount shall carry interest @ 10% per annum from the date of this order.
......................J V.K. JAIN PRESIDING MEMBER