State Consumer Disputes Redressal Commission
Anil Kumar vs Rps Infrastructure Ltd. on 17 August, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 101 of 2017 Date of Institution: 27.01.2017 Date of Decision : 17.08..2017 Anil Kumar s/o Sh. Ishwar Singh, H.No.560, Sector 21-C, Faridabad-120002 (HR) Appellant-Complainant Versus 1. M/s RPS Infrastructure Limited, 1117-1120, 11th Floor, Tower-B, DLF Towers, Jasola District Center, New Delhi-110025 through its Managing Director. 2. Deputy General Manager, RPS Group (site office), Sector-88, Greater Faridabad, HR. Respondents-Opposite Parties CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri Vijay Kumar Sheoran, Advocate for appellant. Shri Tajeshwar Singh, Advocate for respondents No.1 and 2. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This appeal has been preferred against the order dated December 09th, 2016 passed by District Consumer Disputes Redressal Forum, Faridabad (for short 'the District Forum') in Complaint No.155 of 2014.
2. Anil Kumar-complainant (appellant herein) booked Flat No.P-0445, measuring 1395 square feet (2+1 BHK) in the project namely RHYTHM started by RPS Infrastructure Limited-Opposite Party No.1 (hereinafter referred to as 'the builder') at RPS City, Sector-88, Faridabad by paying Rs.2,50,000/- to the builder vide cheque No.846494 dated August 07th, 2008. The complainant was allotted a flat vide allotment letter dated September 09th, 2008 (Annexure C-3). The complainant further paid an amount of Rs.4,09,137.50 to the builder on September 22nd, 2008. Thereafter, fresh allotment letter was issued and flat No.803, measuring 1395 square feet (2+1 BHK) in Tower No.Melody-20, RHYTHM project initiated by the opposite parties was allotted. Again vide letter dated May 07th, 2010 the opposite party No.1 raised a demand of Rs.3,82,230/-. On May 15th, 2010 an Apartment Buyer's Agreement (Annexure-7) was executed in between the complainant and the opposite party No.1. Thereafter, for payment of the sale price amount, a loan was sanctioned by HDFC Bank amounting to Rs.13.00 lacs on August 16th, 2010 and a Tripartite Agreement (Annexure-8/C) was executed in between the complainant, bank and the opposite party No.1.
3. The complainant has paid an amount of Rs.6,59,132.50, as mentioned above and also paid an amount of Rs.1.00 lac to the builder as premium. No receipt was issued by the opposite parties. Vide letter dated September 15th, 2012, the complainant was informed that construction activities could not be possible due to Force Majeure reasons and complainant was given an option for the allotment of a flat in another project or for refund of the amount already paid by him. As per version of the complainant, the offer given by the opposite parties is against the mutual interest and against the terms and conditions contained in the agreement. As the project could not be completed and construction could not be started, the complainant is entitled to receive the above mentioned amount of Rs.7,59,132.50 including an amount of Rs.1.00 lac which was received by the opposite parties as premium without receipt, with interest at the rate of 18% per annum. It is prayed that the complaint filed by the complainant be allowed directing the opposite parties to pay an amount of Rs.7,59,132.50 to the complainant with interest at the rate of 18% per annum from the date of deposit and an amount of Rs.5.50 lacs as compensation due to financial losses caused to the complainant in this transaction.
4. The opposite parties in their written version have taken plea that the District Forum, Faridabad has no territorial jurisdiction to decide this complaint; that the complaint is barred by limitation and that the complaint is bad for non-joinder of necessary parties. As per version of the opposite parties, the opposite party No.1 entered into a Memorandum of Understanding and collaboration agreement with land owners for development of a residential group colony RHYTHM over the total land measuring 30.268 acres situated in Village Baselwa, Palwali and Kheri Kalan, Sector-88, Faridabad, the opposite parties were provided license No.124 of 2008 by Director Town and Country Planning (DTCP), Haryana in this regard. The opposite parties invited applications for allotment of residential units regarding the aforesaid RHYTHM project. In the beginning, considering request of the complainant, a 2+1 BHK flat measuring 1325 square feet was provisionally allotted in the name of the complainant mentioning basic sale price as Rs.1890/- per sq. ft. An amount of Rs.2,50,000/- was received from the complainant on August 07th, 2008 and an amount of Rs.4,09,137.50 was received by the opposite party No.1 from the complainant on September 22nd, 2008.
5. Ultimately, allotment letter was issued regarding 2+1 BHK unit No.0803, Tower 20 (Melody) having super built up area of 1395 sq. ft approximately, in Rhythm, Sector-88, Faridabad in lieu of earlier provisional allotment regarding unit No.P-0445. It is admitted that a Apartment Buyer's Agreement was executed on May 15th, 2010 and ultimately allotment letter was issued on May 18th, 2010 after obtaining approval of "Zoning Plans" " Building Plans-Lay-out Plans" of the aforesaid group housing colony from DTCP, Haryana. The opposite parties started excavation and commenced construction and development of the group housing project. Later on the opposite party No.1 also agreed to get apartment No.0803 (Melody) hypothecated with the bank for sanction of the loan in favour of the complainant.
6. What happened when construction of a project had commenced, land owners being in collaboration in the project created un-warranted and uncalled disputes and interruption in the working of the project. Thereafter, Civil Writ Petition No.20382 of 2009 was also filed before the Hon'ble Punjab and Haryana High Court, Chandigarh. The proceedings were also initiated in the court of Sub Divisional Magistrate, Faridabad under Section 146(1) Cr.P.C. and number of other civil cases were also filed by the land owners/collaborators as well as allottees. As the situation became beyond the control of the answering respondents-opposite parties, offer was given to the complainant for allotment of flat in another project vide letter dated June 15th, 2012 or for refund of the total amount received without interest as per terms and conditions of the buyers agreement. Regarding sanction of loan a Tripartite Agreement was also executed in between the complainant, opposite party No.1 and HDFC Bank. It is denied that an amount of Rs.1.00 lac was received from the complainant as premium. It is prayed that the complaint filed by the complainant be dismissed.
7. Parties led evidence in support of their respective claims before the District Forum.
8. After hearing arguments, vide impugned order dated December 09th, 2010 the complaint filed by the complainant was allowed by the learned District Forum directing the opposite parties to refund an amount of Rs.6,59,137.50 already deposited by the complainant. Prayer of the complainant for refund of an amount of Rs.1.00 lac received as premium as well as payment of interest was declined.
9. Aggrieved with the impugned order dated December 09th, 2010, the complainant-appellant has filed the present appeal with a prayer to direct the opposite parties to refund the total amount of Rs.7,54,137.50 including an amount of Rs.1.00 lac which was received in cash as premium with interest at the rate of 18% per annum from the date of deposit and to pay an amount of Rs.5,50,000/- as compensation on account of financial losses suffered by the complainant.
10. We have heard learned counsel for the parties and perused the case file.
11. During the course of arguments, there was no controversy of any type that Flat No.0803, 8th Floor Tower No.20, Melody, measuring 1325 sq. ft was allotted to the complainant and an amount of Rs.2,50,000/- was received by the opposite party No1-builder from the complainant on August 07th, 2011 through cheque and an amount of Rs.4,09,137.50 was received by the builder from the complainant on September 22nd, 2008 through cheque. Regarding allotment of flat and payment of the above mentioned amount, there is no controversy of any type. The instant appeal has been filed by the complainant alone, so it appears that the opposite parties are satisfied with the relief granted to the complainant by the learned District Forum vide impugned order dated December 09th, 2010. The only controversy in between the parties is that the complainant says that he is entitled to receive an amount of Rs.1.00 lac which was paid by him as premium and he is also entitled to receive interest at the rate of 18% per annum from the date of deposit. Apart from it, the complainant is also entitled to receive compensation due to financial loss suffered by him due to this transaction.
12. We feel much discussion is not needed regarding claim amount of Rs.1.00 lacs because the complainant could not produce any receipt or any other documentary proof regarding payment of Rs.1.00 lac as premium. Merely, on the basis of the statement of the complainant in the shape of affidavit, it will not be proper to direct the opposite parties to make payment of premium amount of Rs.1.00 lac, mentioned above. Regarding rate of interest, learned District Forum has given findings in clear words that the complainant is not entitled to receive interest as per terms and conditions mentioned in the buyers agreement and other letters of correspondence regarding this transaction. As per Clause 9 of the provisional application form (Exhibit R-2) and Clause 15 of the terms and conditions of application form (Annexure R-5), the opposite parties are liable for refund of the total amount deposited without any interest within a period of six months. Apart from it, in the Buyer's Agreement (Exhibit R-7), under Clause 7, it is specifically mentioned that in case refund of the total amount deposited, the allottees shall not be entitled to receive any interest. Keeping in mind these terms and conditions, the learned District Forum rightly declined prayer of the complainant to award interest regarding the total amount awarded to the complainant.
13. Facing with this situation, learned counsel for the complainant has argued that in case it is not possible to award interest at least the complainant is entitled to receive compensation and litigation expenses as the complainant had to face un-necessary harassment and monetary losses as he is involved in this litigation for such a long time due to faults of the opposite parties. Keeping in mind all these circumstances and as admittedly the total amount of Rs.6,59,137.50 deposited by the complainant was used for such a long time by the opposite parties, it can be presumed that the complainant might have suffered monetary losses by involvement in this litigation. In these circumstances, it will be justified to award an amount of Rs.25,000/- as compensation to be paid by the opposite parties to the complainant. Apart from it, it also will be justified to award an amount of Rs.11,000/- as litigation expenses. With this slight modification in the impugned order passed by the learned District Forum, the findings of the learned District Forum stand modified. The appeal stands partly allowed holding that the complainant is entitled to receive only an amount of Rs.6,59,137.50 as well as an amount of Rs.25,000/- as compensation and an amount of Rs.11,000/- as litigation expenses.
Announced:
17.08.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL