State Consumer Disputes Redressal Commission
M/S Omaxe Chandigarh Extension ... vs Sukhpreet Singh Kang on 20 January, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 502 of 2013 Date of Institution : 25.11.2013 Date of Decision : 20/01/2014 M/s Omaxe Chandigarh Extension Developers Limited, SCO No.143-144, Sector 8-C, Chandigarh, through its Managing Director, now through its authorized representative namely Sh. Harsh Bhargave. Appellant/Opposite Party V e r s u s Sukhpreet Singh Kang, House No.2103, Sector 66, Mohali, through his father and General Power of Attorney Holder S.Manjit Singh Kang. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh.Munish Gupta, Advocate for the appellant.
Sh. Gaurav Bhardwaj, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 15.10.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Party (now appellant), as under:-
In view of the foregoings, we are of the opinion that the complainant has proved his case against the OP. Therefore, the complaint stands allowed. The OP is directed to refund to the complainant the amount of Rs.14.00 lacs along with interest @9% p.a. from the date of deposit i.e. w.e.f. 12.9.2011 (Ann.C-2) till its actual payment, apart from paying litigation cost of Rs.15,000/-.
This order be complied with by the OP within a period of 30 days from the date of receipt of copy of this order, failing which it shall be liable to refund the said amount of Rs.14.00 lacs along with interest @12% p.a. from the date of deposit i.e. w.e.f. 12.9.2011 (Ann.C-2) till its actual payment, besides paying litigation cost as aforesaid.
2. The facts, in brief, are that the complainant booked a plot, in the residential township project of the Opposite Party, under the name and style of Omaxe New Chandigarh, and paid a sum of Rs.14.00 lacs, at the time of booking of the same, against receipt dated 12.09.2011 Annexure C-2. It was stated that the family members of the complainant, received a letter dated 24.01.2013 from the Opposite Party, vide which it was informed that booking of the said plot, had been cancelled, on the ground of non-payment of the timely installments, in respect of the same. It was further stated that, at the time of booking the complainant gave a partially filled application form, to the Opposite Party, and he was supplied a copy of the same (application form), as also the terms and conditions appended thereto only. It was further stated that the Opposite Party, never supplied any payment schedule, to the complainant. It was further stated that the complainant never received any demand notice for payment, from the Opposite Party, after booking of the said plot. It was further stated that there was no development, at the site, where the plot, in question, was to be carved out. It was further stated that, as per the terms and conditions mentioned in the booking/application form, the allotment of plot was to be made and Buyers Agreement was to be signed, but till date neither the allotment had been made, in favour of the complainant, nor the Buyers Agreement had been got signed. Moreover, there was no clear cut time mentioned for handing over possession of the plot, in favour of the complainant. It was further stated that when the matter was taken up with the Opposite Party, its Officials stated that the amount deposited by him, towards the said plot, would be refunded, after deducting 20% of the earnest money. Ultimately, a legal notice dated 03.05.2013 was served upon the Opposite Party, to refund the entire amount, deposited by the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of Rs.14 lacs, alongwith interest @9% P.A., from the date of deposit; pay compensation, to the tune of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.55,000/-.
3. The Opposite Party, in its written version admitted that the complainant booked a residential plot, in its project. It was also admitted, that at the time of booking the plot, a sum of Rs.14.00 lacs, was paid as booking amount, by the complainant. It was stated that the complainant was well aware of the payment schedule. It was further stated that it was clear from the application form that the complainant opted for the installment plan. It was further stated that reminders for making the payment of installments were sent to the complainant, but to no avail. It was further stated that the complainant failed to pay even a single installment, in time, despite sending reminders to him. It was further stated that left with no option, the Opposite Party was forced to cancel the unit, in question. It was further stated that, even despite sending the final letter dated 24.01.2013, not even a single payment was made by the complainant. Ultimately, the allotment of plot, in question, in favour of the complainant, had to be cancelled, and the amount detailed therein was forfeited. It was further stated that, since the cancellation of plot was made, on account of the fault of the complainant, he was not entitled to the refund of entire booking amount, but was only entitled to the same, after deduction of 20%, without any interest, as also cost of litigation. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
7. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellant/Opposite Party, submitted that, no doubt, the complainant booked the residential plot, vide application form, copy whereof is Annexure C-4. He further submitted that the complainant opted for the installment payment plan, and, as such, he very well knew, as to when installments towards the price of plot, in question, were to fall due. He further submitted that after depositing a sum of Rs.14 lacs, as booking amount, the complainant failed to pay even a single penny, though a number of letters and reminders were sent to him. He further submitted that, as such on account of the fault of the complainant, the Opposite Party was right, in cancelling the unit, in question, booked by him, and forfeiting 20% of the booking amount, which constituted the earnest money. He further submitted that, vide letter Annexure C-3, while cancelling the booking, the complainant was asked to complete the formalities and take refund of the remaining amount, after deduction of 20% of the earnest money. He further submitted that for his own wrongs, the complainant could not be benefited. He further submitted that the District Forum was wrong, in ordering refund of the entire amount, alongwith interest @9% P.A., as also cost of litigation, to the tune of Rs.15,000/-. He further submitted that the order of the District Forum being illegal and invalid, is liable to be set aside.
9. On the other hand, the Counsel for the respondent/complainant, submitted that, no doubt, the installment plan was opted by the complainant, as is evident, from copy of the application form, yet, he was not supplied the details of installments. He further submitted that the complainant never received any letter, from the Opposite Party, regarding the deposit of remaining amount, towards the price of plot, in question, and, as such, it was not entitled to cancel the booking of the same (plot, in question), and forfeit 20% of the earnest money. He further submitted that the order of the District Forum, being legal and valid is liable to be upheld.
10. There is, no dispute, with regard to the factum that the complainant booked a residential plot, in the residential township project of the Opposite Party, under the name and style of Omaxe New Chandigarh, vide application form, copy whereof is Annexure C-4/R-1. It is evident, from the said application form, that the basic sale price of the said plot was Rs.70,50,000/- @Rs.23,500/- per square yard. The amount to be paid as interest free maintenance security was to the tune of Rs.30,000/-. Additional cost to be paid was Rs.1 lac, and External Development Charges were Rs.4,47,000/- @Rs.1490/- per square yard. Thus, the total price of the plot, in question, was Rs.76,27,000/-. Admittedly, a sum of Rs.14 lacs, alongwith the application form, towards booking of the said plot, was paid by the complainant, which constituted the earnest money. In the application form itself, the complainant opted for the installment payment plan. It is evident from Annexure R-3, copy of the letter dated May 9, 2012, which was sent by the Opposite Party, to the complainant, by way of reminder that it (Opposite Party) was starting the process of allotment of plots. The complainant was asked to make payment of 40% of the Gross Basic Sale Price (BSP), less the booking amount, amounting to Rs.14,20,000/-, against the payment of due installment at the earliest, for allotment of the residential plot. It was also made clear, in this reminder, that the balance payment was to be payable, as per the payment plan opted by him (complainant). It was further made clear, in this reminder that after receipt of the aforesaid payment, the Opposite Party shall make the provisional allotment, through draw of lots. This letter was addressed to the complainant, at the address given by him. Annexure R-4 is the courier receipt, vide which this letter was sent to the complainant, by the Opposite Party. No doubt, on the courier receipt, the complete address of the complainant was not written, yet, that did not mean that that this reminder was not sent to him. Even, it is evident from Annexure R-2 letter dated 06.03.2012, that the same was addressed to the complainant, vide which it was informed that draw for the allotment of plots, shall be held on 17.03.2012 at Hotel Hometel Chandigarh, Plot No.147-148, Industrial Area, Phase-I, Chandigarh, at 11.30 A.M. onwards. The complainant was asked to participate in the allotment process, or could authorize somebody, on his behalf, to do so. It was also intimated, vide this letter that he had been already informed about this, vide letter dated 03.02.2012. On Annexure R-2, photo-impression of the postal receipt is embossed. In this receipt also, the complete address of the complainant was not given. It appears that the Postal Authorities and the Courier Agencies, do not record the complete address of the addressee, on the receipts issued by them. They apparently only write the name of the addressee, as also the place, where the addressee is residing, instead of his full address thereon. This fact is further evident from the postal receipt Annexure C-7, vide which the legal notice Annexure C-6 was sent by the complainant, to the Opposite Party. It is evident, from the said receipt that the complete address of the Opposite Party, was not written therein. In photocopy of this postal receipt Annexure C-7, it was only written To M/s Omaxe Chd. Ext. DE, Chandigarh whereas, the complete address of the Opposite Party was Omaxe Chandigarh Extension Developers Pvt. Limited, SCO No.143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh-160008. Since the letter Annexure R-2 and reminder Annexure R-3 were sent to the complainant, at his correct address, through legal modes of communication, asking him to pay the amount of Rs.14,20,000/-, against the payment of due installment, but he failed to do so, no option was left with the Opposite Party, than to cancel the booking of unit, in question. The District Forum was wrong, in coming to the conclusion that the letter Annexure R-2 and the reminder Annexure R-3, were fabricated by the Opposite Party, as on the Postal and Courier receipts, complete address of the complainant was not written. There was, therefore, no deficiency, in rendering service, on the part of the Opposite Party, in cancelling the booking, as the complainant defaulted in making payment of the installment due, against him, despite letter and reminder having been sent to him. The District Forum was wrong, in holding to the contrary.
11. The next question, that falls for consideration, is, as to whether, the Opposite Party could deduct 20% of the booking amount, which constituted earnest money or not. A sum of Rs.14 lacs was deposited by the complainant, at the time of booking the said unit, which constituted the earnest money. According to Clause 6 of the application form, copy whereof is Annexure C-4, which was signed by the complainant, in the event of cancellation of the unit, on account of breach of the terms and conditions, earnest money could be forfeited at the discretion of the Company. However, while sending the letter Annexure C-3 dated 24.01.2013, regarding the cancellation of unit booked, the Opposite Party only deducted 20% of the earnest money, on account of administrative charges, and asked the complainant, to comply with necessary formalities, like submission of no objection certificate, furnishing of affidavit-cum-undertaking, surrender of the original receipts, etc. etc., and, thereafter, collect refund of the remaining amount, from their office.
In our considered opinion, the Opposite Party was legally right, in forfeiting 20% of the earnest money. By forfeiting 20% of the earnest money, the Opposite Party was neither deficient, in rendering service, nor adopted any unfair trade practice.
12. The Counsel for the respondent/complainant, however, submitted that since the allotment of plot was never made to the complainant, 20% of the earnest money could not be forfeited, as per Clauses 5 and 6 of the application form. The submission of the Counsel for the respondent/complainant, in this regard, does not appear to be correct. According to Clause 5, the applicant/allottee agreed that the amount paid, with the application form, and, in installments, as the case may be, to the extent of 20% of sale consideration of the residential plot, shall, collectively constitute the earnest money. The word used in Clause 5 of the basic terms and conditions of the application form was applicant/allottee. Similarly, in Clauses 3 and 8, the word applicant/allottee was used. In some of the Clauses contained in the basic terms and conditions of the application form, word applicant was only used. Had the word allottee only been used, in the aforesaid Clauses of the basic terms and conditions of the application form, the matter would have been different. Since, the complainant by booking the residential unit, was an applicant, when the same (booking) was cancelled, the Opposite Party, was well within its legal right, to forfeit 20% of the earnest money. The submission of the Counsel for the respondent/complainant, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
13. Since, there was no deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice, the question of ordering it to pay interest @9% P.A., on the amount of Rs.14 lacs, from the date of deposit, as also directing to pay cost of litigation, did not at all arise. Had the Opposite Party not offered refund of the amount, after deducting 20% of the earnest money, vide letter Annexure C-3, dated 24.01.2013, it would have been said that the complainant was forced to resort to the litigation, by way of filing the Consumer Complaint on 21.05.2013, and, as such, he was entitled to interest and cost of litigation. The order of the District Forum, granting interest and litigation cost, thus, needs to be set aside.
14. No other point, was urged, by the Counsel for the parties.
15. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
i. The appellant/opposite party shall pay Rs.11,20,000/- i.e. (Rs.14 lacs minus (-) Rs.2,80,000/- being 20% of the earnest money), to the respondent/complainant, within a period of 45 days, from the date of receipt of a certified copy of this order, on completing the formalities by him (respondent/complainant), as mentioned in Annexure C-3.
16. Certified copies of this order, be sent to the parties, free of charge.
17. The file be consigned to Record Room, after completion Pronounced.
January 20, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg