State Consumer Disputes Redressal Commission
V.C Dogra vs Vxl Realtors Pvt. Ltd. on 16 November, 2015
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 16.11.2015 Complaint Case No. 71/2011 In the matter of: C-11/62, Yamuna Vihar New Delhi-110053 .......Complainant Versus VXL Realtors Pvt. Ltd. 12 DDA, Community Centres Yusuf Sarai, New Delhi-110043 ......Opposite Party CORAM N P KAUSHIK - Member (Judicial) S C JAIN - Member
1. Whether reporters of local newspaper be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes N P KAUSHIK - MEMBER (JUDICIAL) Judgement Admitted facts of the complaint are that the complainant booked a flat with VXL Realtor Ltd. (in short the OP) in one of its projects known as VXL Eastern Heights Nyay Khand-III, Indirapuram, Ghaziabad, U.P., 10% of the total cost was paid on 23.02.2006. Total sale consideration of the flat was Rs. 21,28,000/- (@ Rs.1600 pr sq. ft. for an area of 1330 sq. ft.). It is also the admitted case of the parties that the complainant made payment of three instalments on 07.04.2006, 22.06.2006 and 28.09.2006 for the amounts of Rs. 2,12,800/-, 2,12,800/- and Rs. 1,06,400/- respectively. Letter of allotment dt. 15.12.2006 was issued in favour of the complainant allotting him a flat bearing No. A-402 on the fourth floor of the project. Preferential location charges amounting to Rs. 99,750/- and car parking charges of Rs. 50,000/- were also demanded. Complainant paid fourth and fifth instalments on 20.04.2007. Preferential location charges were also paid. Contention of the complainant is that the OP mischievously re-allotted to him another flat bearing No. A2/202 in place of the flat bearing No. A-402 for which he had paid preferential location charges. In nutshell, the complainant had paid an amount of Rs. 21,71,350/- to the OP uptil April 2009.
Next grievance of the complainant is that the OP issued another letter dt. 17.03.2009 calling upon the complainant to make further payment of Rs. 8,13,584/- towards various heads. At this juncture, OP agreed to buyback the said flat from the complainant @ Rs. 2000 per sq. ft. The agreement dt. 27.06.2009 (printed format) was signed by both the parties. OP assured that the entire amount of Rs. 27,71,350/- would be paid within a period of ninety days from the date of agreement i.e. w.e.f. 27.06.2009. Contention of the complainant is that the OP in pursuance to the said agreement paid an amount of Rs. 11 lacs only. On various visits to the office of the OP, no further payment was made. OP stopped making payment after 22.05.2010. Complainant thus prays for payment of the balance amount of Rs. 16,03,350/- alongwith interest.
Defence raised by the OP is that the complainant being a defaulter was not entitled to the outstanding dues. Complainant did not pay TDC, IDC, EEC, Car parking and escalation charges. Contention of the OP is that it refunded the amount of Rs. 11 lacs to the complainant after making deduction of 10% of the penalty charges in terms of the agreement/letter of allotment dt. 15.12.2006. The relevant clause of the agreement is clause 1(2). The same is reproduced below:
"If any instalment as per the schedule is not paid by 7th of the month in which it becomes due, the developers will charge 18% interest per annum on the delayed payment for the period of delay. However, if the same remains in arrear for more than two consecutive months, the allotment will automatically stand cancelled without any prior information to the allottee/s and the allottee/s will has/have no lien on the Unit. In such a case, 10% of the basic value of flat deposited will stand forfeited and the balance amount, if any, will be refunded without any interest."
On the basis of the aforesaid averments, OP contends that nothing is outstanding against the OP after refund of the amount of Rs. 11 lacs to the complainant.
With the aforesaid factual matrix, the controversy arises as to whether the buyback agreement dt. 27.06.2009 is the agreement binding the parties or not. Buyback agreement dt. 27.06.2009 stipulates that the complainant was entitled to an amount of Rs. 27,03,350/-. This amount was calculated after taking into account the enhanced cost of Rs. 5,32,000/-. In other words, Rs. 5,32,000/- were added to the amount of Rs. 21,71,350/- admittedly paid by the complainant to the OP by that time. Adding the amount of Rs. 5,32,000/- to the amount of Rs. 21,71,350/-, a figure of Rs. 27,03,350/- was arrived at. Plea of the buyback agreement dt. 27.06.2009 was raised by the complainant in Para 13 of its complaint. The same is reproduced below:
"That in view of the aforesaid builders' trick of extracting money from the allottees, besides the actual costs, the complainant being frustrated, decided to sell the same flat and approached the opposite party. Getting the chance, the opposite party immediately agreed to buyback the said flat as per their own policy, @ Rs. 2000/- per Sq. Ft. and accordingly issued a printed format for buyback of the flat of the complainant. A copy of the said printed format for buyback of the flat of the complainant dated 27.06.2009 duly signed by both the parties is enclosed herewith as ANNEXURE-C-11.
It is pertinent to mention here that, the opposite party was absolutely ready to buyback the flat and agreed to purchase the same flat @ Rs. 2000/- per sq.ft. and the opposite party was assured in writing that he will be paid back the amount given by the complainant within 90 days starting from 27.06.2009."
On the contrary, the corresponding reply given by the OP in Para 13 reads as under:
"That the contents of para no. 13 of the complaint are wrong as alleged and hence denied. It is submitted that the complainant is defaulter in making the payment of the instalments and finally when he did not make the payment of demand letter as per agreed terms and condition of the allotment letter he himself decided and requested to the opposite party to buyback the said flat. It is wrong and denied that the OP agreed to buyback the flat @ Rs. 2000/- per sq. ft. as alleged. It is submitted that the refund was done as per agreed terms and conditions of the agreement and allotment letter and the same was made after statutory deduction as agreed by the party."
A careful perusal of the plea and the counter plea shows that the OP has not specifically denied having entered into the agreement dt. 27.06.2009. During the course of arguments, Ld. Counsel for the OP has submitted that the buyback agreement was a onesided affair and the OP never agreed to that. Buyback agreement dt. 27.06.2009 is in the form of two parts and both are printed on one page. The second half of the page bears the signature of the OP. It reads as under:
Mr. Munish Dagra Date: 27/06/2009 Dear Sir,
Your application for buyback has been received by VXL Realtors Pvt. Ltd. for the project VXL Easter Heights, at Indra Puram, Ghaziabad, (UP). It is within my/our knowledge that the process will take atleast 90 working days from the date of application.
It was only after 27.06.2009 that the OP started paying money to the complainant. By 22.05.2010, an amount of Rs. 11 lacs stood paid by the OP to the complainant. It clearly goes to show that the OP acted upon the agreement dt. 27.06.2009. There is no communication on record showing that the OP ever rejected the proposal of 'buyback'. There is no communication to show that the amount of Rs. 11 lacs was paid by the OP to the complainant in pursuance to the initial agreement dt. 15.12.2006. It leads to the safe interference that the parties entered into the agreement dt. 27.06.2009. Having entered into the said buyback agreement, it does not lie in the mouth of the OP that he was entitled to deduct the amount of 10% from the amount paid by the complainant to the OP.
In view of the discussion above, complaint is allowed and the OP is directed to pay to the complainant the balance amount of Rs. 16,03,350/- alongwith interest @ 9% p.a. w.e.f. 27.09.2009 (after expiry of the ninety days from 27.06.2009 till the date of its realisation). The OP shall also pay compensation to the tune of Rs. 1,00,000/- to the complainant alongwith litigation charges of Rs. 20,000/-. In the event the aforesaid amounts are not paid by the OP within a period of ninety days from today, the complainant shall be entitled to interest @ 18% p.a. on the amount accruing after the expiry of ninety days. Complaint is accordingly disposed of.
Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
(N P KAUSHIK) MEMBER (JUDICIAL) (S C JAIN)