State Consumer Disputes Redressal Commission
Meenu Aggarwal W/O Shiv Kumar Aggarwal, ... vs M/S Jmd Promoters Ltd.M/S Jmd Limited 6 ... on 6 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.19 of 2012 Date of Institution: 12.03.2012 Date of Decision: 06.12.2012 Meenu Aggarwal w/o Shiv Kumar Aggarwal, resident of 651, Model Town, Jallandhar, Punjab. ..Complainant Versus 1. M/s JMD Promoters Ltd, JMD Regent Square 3rd Floor Main Mehraulli Gurgaon Road, Gurgaon 122001 Haryana. 2. M/s JMD Limited 6 Devika Towers Uppar Ground Floor Nehru Place, New Delhi 110 019. ..Opposite Parties BEFORE: Honble Mr.Justice R.S.Madan, President. Mr. B.M.Bedi, Judicial Member. For the Parties: Mr. Aman Bansal, Advocate for the Complainant. Mr. Siri Kant, Advocate for the opposite parties. O R D E R
Justice R.S.Madan President:-
The brief facts of the present case are the complainant was allotted Flat No.D-1201 on 12th Floor in JMD Garden Gurgaon for Rs.28,59,375/- vide buyers agreement dated 01.04.2006. She paid Rs.10,67,723/- against receipts, out of which Rs.3,00,000/-
were paid as back as on 07.10.2004, Rs.7,67,723/- were paid on 24.03.2006 and Rs.2 lacs on 22.05.2006 towards installment. The complainant had also paid Rs.5,70,000/- in cash to Mr. Anil Sharma and Mr. Rajesh Soni on 24.03.2006 as premium for adjustment. Thus, the total amount of Rs.16,37,723/- was paid by the complainant to the opposite parties. The copies of the agreement and receipts are Annexure C2.
Unfortunately, mother of the complainant fell ill and she was admitted in Sri Balaji Action Medical Institute Paschim Vihar on 17.03.2007. Complainant incurred expenses on various tests during the treatment of her mother. Ultimately on 11.05.2007, mother of the complainant expired due to which complainant could not make the payment of installment in time. Due to death of her mother, the complainant remained in distress, depression and strain during all that time because the complainant had already paid more than half of the amount to the opposite parties.
Copy of the death certificate alongwith some medical certificates is Annexure C3. The complainant did not receive any reminders sent by the opposite parties for making the payment. But she was shocked after on receiving the letter dated 9.10.2007 whereby the allotment of her flat was cancelled and buyers agreement was revoked.
As per complainant, no proper opportunity was given to her to clear the dues, if any, whereas it was the duty of the opposite parties to ask the complainant in this regard as per agreement, but from the very beginning the opposite parties were acting in a malafide and arbitrary manner. The circumstances prevailed were beyond the control of the complainant to care for other things including payment of remaining installments to the opposite parties. Copy of the termination order dated 9.10.2007 is Annexure C4. No agreement was ever signed with the opposite party No.2 who sent the termination letter. Hence, the opposite party No.2 was not competent to terminate the agreement. But still the complainant showed her willingness to pay all the dues with interest @ 18% p.a. in view of condition No.8 of the agreement.
The opposite parties did not pay any heed to the complainant and refused to accept her request. The complainant also served a legal notice to the opposite parties but despite that no positive steps were taken. The complainant earlier also had filed a complaint before the District Consumer Forum, Gurgaon which was dismissed vide order dated 15.2.2011, copy of order is Annexure C-5. As per the complainant, the opposite parties have not completed the construction work in time and failed to deliver the possession of the flat as per agreement. District Consumer Forum, Gurgaon dismissed the complaint and the appeal filed before this Commission was also dismissed vide order dated 31.03.2011 (Annexure C-6). The complainant filed revision petition before the Honble National Consumer Disputes Redresssal Commission, New Delhi wherein the complainant was granted four weeks time to file the present complaint vide order dated 14.02.2012 (Annexure C-1).
The complainant also served a legal notice to the opposite parties. In reply to said notice, it was pleaded that the complainant could not ask about the progress of project, which shows that the land has yet not been purchased by the opposite party or that any site plan has not been got sanctioned. Thus, the opposite parties despite expiry of six years have failed to hand over possession to prospective allottees of their respective flats as per terms and conditions of the Buyers Agreement. Copy of legal notice, reply and notice dated 24.05.2010 are Annexure C7 to C9. Thus, alleging it a case of deficiency of service and unfair trade practice, the complainant invoked the jurisdiction of this Commission.
Upon notice the opposite party No.2 appeared and contested the complaint. In the written statement the opposite party No.2 has taken the preliminary objection that the complaint is misconceived, wrong and illegal and has been filed with ulterior motives to derive illegal gain. The complainant deliberately omitted to pay installments as per the payment plan and defaulted in payment of installments for one year, thereby compelling the opposite party to take step for cancellation of allotment. The complainant has admitted her omissions. The Flat No.D-1201 has already been sold to another purchaser much before even filing of the complaint and possession thereof has already been handed over to him. In view of the fact the relief of restoration of Flat No.D-1201 sought for in the complaint is not maintainable. The complaint is barred by limitation. The complaint is bad for misjoinder of opposite party No.1. Opposite Party No.1 does not exist and opposite party no.2 was earlier as M/s JMD Promoters Ltd. Subsequently, the name of opposite party No.1 had been changed to M/s JMD Limited. The complainant was allotted a Flat No.D-1201, having super area of approximately 1875 sq. ft. on the 12th floor under the Flat Buyers Agreement dated 01.04.2006. The opposite party raised the demand as per opted payment plan by the complainant i.e. construction linked plan. The complainant failed to make payment as agreed inspite of service of several notices for demand and has initiated these proceedings to shield her faults and take undue advantage of her own wrong. The complainant has failed to make payment of 3rd, 4th, 5th, 6th, 7th, and 8th installments, demand letters in respect whereof sent over a period of about one year. The complainant was also sent a reminder on 18.04.2007 drawing her attention to the said default. However, the complainant chose to sleep over the matter for almost one year. In these circumstances, the opposite party invoked clause 7 of the Flat Buyers Agreement and cancelled the allotment. The complainant has herself invited this cancellation. It was recited in the contract that opposite party No.2 was under no obligation to dispatch any correspondence and to call upon complainant to pay the outstanding amount. As a gesture of goodwill letter dated 18.08.2006 was dispatched to complainant by opposite party No.2 whereby complainant was called upon to make the payment of Rs.3,63,773/- being the amount then outstanding.
Pursuant thereto letter dated 6.1.2007 was also dispatched to complainant whereby complainant was once again called upon to make payment of outstanding amount which by then had accumulated to Rs.6,50,052.51. Again letters dated 19.3.2007 and 17.7.2007 were dispatched by the opposite party to the complainant to clear the outstanding dues pertaining to the aforesaid flat. It was specifically recited the above said letters that the aforesaid outstanding amount was liable to be paid by complainant within a period of 10 days from the date of aforesaid letters. But despite that the complainant failed to make the payment of the outstanding amount. Since, the aforesaid payments which were due towards the complainant, were accumulating, another letter dated 15.9.2007 was dispatched to complainant informing that she was not making payment of installments in time. As per clause 7 of the Contract dated 1.4.2006, in the event of failure of complainant to make payment of the outstanding amount, opposite party No.2 would be constrained to cancel booking of the complainant. Although in terms of Clause 7 of the Contract dated 1.4.2006, opposite party No.2 was under obligation to forthwith refund to complainant the amount deposited by complainant after forfeiture/deduction of earnest money, yet opposite party No.2 chose to do the same to obviate unnecessary controversy.
Pay orders bearing No.244820 and 244821 both dated 8.10.2007 for Rs.9,67,723/- and Rs.3,00,000/- respectively both drawn on Oriental Bank of Commerce, G.K. Part II, New Delhi were dispatched to complainant alongwith covering letter dated 9.10.2007 sent by registered post. The aforesaid letter was duly received by the complainant.
The amount liable to be refunded to complainant, was correctly calculated by opposite party No.2 in accordance with contract dated 1.4.2006. It is denied that complainant showed her willingness to pay all the dues with interest @ 18% p.a. in view of the agreement but the opposite parties were acting in a malafide manner and thus failed to consider the same. Denying any kind of deficiency of service and unfair trade practice, it is prayed that complaint merits dismissal.
The parties have led their evidence in support of their respective claims. Affidavit of complainant Meenu Aggarwal is Ex.C-10 and documents Ex.C-1 to Ex.C-9. On the other hand, the opposite parties in their evidence tendered affidavit of Shri P.K. Saxena, Ex.OP-1/A alongwith already tendered document Ex.OP-1.
We have heard learned counsel for the parties and perused the case file.
It is admitted case of the parties that the complainant had booked a flat with the opposite parties and she was allotted Flat No.D-1201 on 12th Floor in JMD Garden Gurgaon against price of Rs.28,59,375/-. It has come on the record that the parties had entered into a buyers agreement dated 01.04.2006. The complainant had paid Rs.10,67,723/- against receipts on different dates, out of which Rs.3,00,000/- were paid as back as on 07.10.2004, Rs.7,67,723/- were paid on 24.03.2006 and Rs.2 lacs on 22.05.2006 towards installment. The amount of Rs.5,70,000/- was paid in cash to Mr. Anil Sharma and Mr. Rajesh Soni on 24.03.2006 as premium for adjustment towards the price of the flat. Thus, in all the complainant has paid a sum of Rs.16,37,723/- to the opposite parties. It is the case of the complainant that due to illness of her mother, she could not pay the instalments of her flat due to which the opposite parties cancelled the allotment of her flat. Thereafter, the complainant requested the opposite parties several times to restore the allotment of her flat but the opposite parties did not accept her request. Even the complainant was ready and willing to make the payment of the balance price of her flat alongwith interest @ 18% per annum. The complainant had also handed over the demand drafts of Rs.12,67,723/- to the opposite parties and also served a legal notice but to no effect. The facts and circumstances of the case as well as the evidence produced on the record establishes that the complainant has always been ready and willing to take possession of her flat on payment of the balance price for the same which she could not pay due to illness of her mother, who subsequently died. The complainant has produced the Death Certificate of her mother Annexure C-3 and treatment record is at pages 47 to 51. Under the facts and circumstances of the case we feel that the complainant should be allotted a flat.
Hence, the complaint is allowed with the direction to the opposite parties to allot a flat on receiving the price of the flat alongwith interest @ 18% per annum from the due dates of instalments. The litigation expenses is quantified at Rs.11,000/-. The opposite parties are directed to comply this order within a period of 60 days from today.
Announced: Justice R.S. Madan 06.12.2012 President B.M. Bedi Judicial Member