National Consumer Disputes Redressal
Shailesh Srivastav & Anr. vs Vatika Ltd. on 19 January, 2026
Date of pronouncement:-19.01.2026
IN THE NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 2683 OF 2018
1. MR. SHAILESH SRIVASTAVA
2. MRS. RUCHI SRIVASTAVA
BOTH RESIDING AT:
A-903, APEX APARTMENT,
SECTOR-45, GURGAON
HARYANA-122002 ..... COMPLAINANT
Versus
VATIKA LIMITED
HAVING ITS REGISTERED OFFICE AT
VATIKA TRIANGLE, 4TH FLOOR,
SUSHANT LOK PHASE I, BLOCK A,
MEHRAULI - GURGAON ROAD
HARYANA-122002. ....... OPP. PARTY
BEFORE:
HON'BLE AVM J. RAJENDRA, AVSM VSM (RETD.), PRESIDING
MEMBER
HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA, MEMBER
Appearance at the time of arguments:-
For the Complainant : Mr. Amit Bhagat & Ms. Arzoo Raj,
Advocates.
For the Opposite Parties : Ms. Prerna Sharma, Advocate (VC)
JUSTICE ANOOP KUMAR MENDIRATTA, MEMBER
ORDER
1. In brief, Complainant No. 1 and 2, being husband and wife, jointly applied for allotment of a 3BHK flat at pre-launch stage in residential CC/2683/2018 Page 1 of 12 project, Vatika Turning Point in Sector 88B, Gurgaon, Haryana floated on behalf of opposite party (Vatika Ltd.), in the month of July, 2016. Since it was assured that the project is getting launched within a month and possession would be handed over within three years by August, 2019, an amount of Rs.4,00,000/- was paid by the complainant, for booking vide receipt dated 11.07.2016. Complainants further opted for construction-linked plan against sale consideration of the unit for Rs.93,23,485/-. However, construction did not commence in August, 2016 as assured. In the meanwhile, further on persuasion by representatives of opposite party, in December, 2016 the booking of the complainants was converted from construction-linked-plan to subvention plan. Complainants further paid a sum of Rs.50,000/- to the opposite party as evidenced by statement of account issued by opposite party on 23.12.2016. Also an allotment letter dated 19.12.2016 was issued by OP allotting unit no. 402, Tower West End-6 with an area of 1570 sq. ft.
2. It is further the case of complainants that despite assurances, construction of the project was not initiated even by end of December, 2016. Further since the construction did not commence even till 2017, complainants approached the opposite party and were informed that construction would commence once the project is registered with RERA under Real Estate (Regulation & Development) Act, 2016. An e-mail dated 20.08.2017 was sent by the complainants requesting the opposite CC/2683/2018 Page 2 of 12 party to cancel the booking/allotment and refund the amount of Rs.4,50,000/- paid by the complainants, since the opposite party failed to commence construction till August, 2017
3. The grievance of the complainant is that despite issuing several reminders from 24.08.2017 till 31.10.2017 and visits to the office of opposite party, the amount has not been refunded. Consequently, after issuing legal notice dated 05.02.2018, present complaint has been preferred seeking following reliefs:-
"(i) Direct the Opposite Party to refund the amount paid for booking the said flat i.e. Rs. 4,00,000/- along with the interest of 18% per annum and also the amount of Rs. 50,000/- spent on conversion of the buying plan from construction linked to subvention along with the interest of 18% per annum since the date of respective payments to the Complainants;
(ii) Direct the Opposite Party to pay a sum of Rs. 3,50,000/- to the Complainant on account of mental torture and agony suffered by the Complainants due to the unfulfilled promises and unlawful and illegal acts/inactions of the Opposite Party;
(iii) Direct the Opposite Party to pay a sum of Rs. 2,00,000/- to the Complainant as cost of litigation;
(iv). Pass any other or such further orders as this Hon'ble Commission may deem fit and proper to pass having regard to the facts and circumstances of the present complaint."CC/2683/2018 Page 3 of 12
4. Vide written statement filed on behalf of the opposite party, the complaint has been opposed on grounds of misrepresentation and concealment of facts. Complaint is stated to be not maintainable before this Commission, since the complainant seeks refund of Rs.4,50,000/- which is far below the pecuniary jurisdiction vested with the National Commission at relevant time in terms of Section 21 of the Consumer Protection Act, 1986. Opposite party further submits that complainants do not fall within ambit of 'consumer', as the unit was purchased as an investment. On merits, any deficiency in service is denied. It is pointed out that opposite party had obtained the necessary licences and approvals from appropriate authorities. The complainants are stated to have been also informed that in terms of Application Form/Expression of Interest dated 25.10.2016, the terms & conditions of allotment would be as per standard Builder Buyer Agreement which would be executed at later stage.
5. It is further the case of opposite party that vide allotment letter dated 19.12.2016, it was reiterated that time is essence in respect of the payment schedule, and default in payment shall entail penal interest and/or cancellation of booking along with forfeiture of earnest money. However, complainants failed to make the payment despite demand letters/reminders dated 17.12.2016, 26.07.2017, 01.12.2017 and also failed to execute the Builder Buyer Agreement which was shared on CC/2683/2018 Page 4 of 12 06.11.2017. It is urged since the agreement was never executed by the complainants, there is no fixed date for giving possession to the complainants. Further a termination letter dated 10.08.2017 was issued to the complainants in view of continuous defaults in making the payment. The amount is stated to have been forfeited as per terms of booking, vide letter dated 02.02.2018.
6. In support of the case, complainants led evidence of complainant Shailesh Srivastava by way of affidavit and relevant documents were exhibited as CW-1/1 to CW-1/10. E-mail dated 15.08.2016 sent by the opposite party to the complainants in respect of receipt dated 11.07.2016 for booking amount of Rs.4,00,000/- is Ex. CW-1/1; statement of account issued by the opposite party as on 23.12.2016 is Ex. CW-1/2; allotment letter dated 19.12.2016 is Ex. CW-1/3; e-mail dated 20.08.2017 sent by the complainants to the opposite party is Ex.CW-1/4; e-mails dated 24.08.2017, 09.09.2017, 12.09.2017, 14.09.2017, 15.09.2017, 19.09.2017, 24.10.2017 and 31.10.2017 sent by the complainants to the opposite party for refund of money are collectively Ex. CW-1/5; legal notice dated 05.02.2018 forwarded by the complainants is Ex. CW-1/6; the postal receipt of the legal notice dated 05.02.2018 and proof of delivery are collectively Ex. CW-1/7; the notice dated 02.02.2018 received by the complainant is Ex. CW-1/8; the copy of the reply dated CC/2683/2018 Page 5 of 12 22.08.2018 is Ex. CW-1/9 and postal receipts along with proof of delivery are collectively Ex. CW-1/10.
7. Opposite party led evidence of Minoti Kumari, Senior Manager (Legal) by way of affidavit and the relevant documents were exhibited as Ex.OPW-1/1 to OPW-1/9. Copy of Board Resolution dated 14.01.2021 is Ex.OPW1/1; copy of the Application Form/Expression of Interest dated 25.10.2016 is Ex.OPW1/2; Allotment cum Welcome Letter dated 19.11.2016 is Ex.OPW-1/3; copy of Allotment Letter dated 19.12.2016 is Ex.OPW-1/4; copy of Demand Letters and Payment Reminders dated 17.12.2016, 26.07.2017 and 01.12.2017 are collectively Ex.OPW-1/5; copy of letter dated 06.11.2017 asking the opposite party for execution of Builder Buyer Agreement is Ex.OPW-1/6; copy of notice for termination dated 10.08.2017 is Ex.OPW-1/7; copy of statement of account dated 11.03.2019 is Ex.OPW-1/8 and copy of termination notice dated 02.02.2018 is Ex.OPW-1/9.
8. Learned counsel for the complainant contends that payment of Rs.4,50,000/- stands admitted by the opposite party and further payments were not deposited since the opposite party failed to undertake the construction of project as assured and has been eventually shelved by the opposite party. He emphasizes that the request for refund of payment deposited by complainant had been made much prior to the alleged termination notice by the opposite party which CC/2683/2018 Page 6 of 12 was never served. He points out that nothing has been placed on record by the opposite party to infer if the purchase had been made by complainant for investment purpose and profit, to conclude that complainants do not fall within ambit of consumer as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.
9. On the other hand, learned counsel for the opposite party reiterates the stand taken in the written statement and submits that timely payment as per schedule is the essence of contract, and since the complainants failed to pay the amount due, the action for cancellation of booking and forfeiture of earnest money was taken in accordance with contract. He points out that only a sum of Rs.4,50,000/- had been paid by the complainants out of the total sale consideration of Rs.96,29,635/-. The maintainability of the complaint is also challenged on the ground of pecuniary jurisdiction, claiming that only an amount of Rs.4,50,000/- was paid against consideration of Rs.96,29,635/-, which is even below the prescribed pecuniary limits of this Commission at the relevant time. In support of contentions, reliance is further placed upon Godrej Projects Development Ltd. v. Anil Karlekar & Ors., (2025) 4 SCC 259.
10. We have given considered thought to the contentions raised.
At the outset, it may be noticed that preliminary objection taken by opposite party that complaint is below the pecuniary jurisdiction of this Commission was dealt vide Order dated 19.11.2019. Reasons recorded CC/2683/2018 Page 7 of 12 vide afore-said Order dismissing the objection raised by OP may be reproduced for reference:-
"Heard arguments on I.A. No. 6778 of 2019. Counsel for the OP explains that vide this IA, OP had taken objection on the ground that the pecuniary jurisdiction of this Commission was not met by the present complaint and the present complaint, therefore, could not be entertained by the National Commission. On query, he replied that the value of the property was around Rs. 93.00 lakhs when it was booked in 2016. The date of delivery of this property was within three years. His argument is that the value of the property at Rs. 93.00 was less than Rs. 1.00 crore. However, the compensation sought vide this complaint was also less than Rs. 1.00 crore.
It is now accepted that the value of the consumer complaint is to be calculated as value of the property in question and compensation sought. Adding the two, this complaint comes within the jurisdiction of the National Commission. IA. No. 6778 of 2019 is accordingly declined.
The dismissal of objection vide afore-said Order dated 19.11.2019 has attained finality and has not been further challenged on behalf of the opposite party. We do not find any reasons to review the afore-said Order whereby the maintainability of the complaint has been rightly upheld keeping in view the legal position as settled by three Member Bench of this Commission in Ambrish Kumar Shukla & Others v.
Ferrous Infrastructure Pvt. Ltd., 2016 SCC OnLine NCDRC 1117.CC/2683/2018 Page 8 of 12
11. Learned counsel for the opposite party has next contended that complaint is not maintainable, since the flat was booked by the complainant for investment purpose for earning profit. We are of the considered view that the burden lies on the opposite party to prove that the dominant purpose behind purchasing the flat was commercial, to reasonably infer that complainant does not fall within ambit of 'consumer' under Section 2(d) of the Consumer Protection Act, 1986. There is absolutely no evidence to infer that the flat was purchased by the complainant for commercial purposes. The bald objection raised by opposite party in absence of any evidence on record is devoid of merits. Reliance may be placed upon Omkar Realtors & Developers Pvt. Ltd. v. Kushalraj Land Developers Pvt. Ltd. & Anr., (2025) 1 SCC 527, wherein similar objection was dismissed in absence of any evidence to prove that flat had been purchased for commercial purpose.
12. On merits of the case, it may be noticed that vide Order dated 27.08.2015, Ld. counsel for the opposite party admitted that the project stands abandoned along with the cancellation of RERA Registration. Consequently there could not be any occasion for obtaining Occupation Certificate (OC) in respect of the proposed flats. Since it is apparent from record that the project did not take off as assured to the complainants, the stand taken by the complainants that further payments were not deposited after initial deposit of Rs.4,50,000/- is fully justified. CC/2683/2018 Page 9 of 12 There could not have been any occasion for the opposite party to claim further amounts from allottees in case the necessary clearances for undertaking the construction of project were not forthcoming. The complainant, in afore-said circumstances had no other option but to claim refund of amount. Service/delivery of the alleged cancellation notice by opposite party in August, 2017 has not been proved.
13. In the facts and circumstances the refusal to refund the amount by OP cannot be countenanced. There is no dispute as to the principles, noticed by the Hon'ble Apex Court in Godrej Projects Development Ltd. v. Anil Karlekar & Ors. (supra) for forfeiture of earnest money, as relied by learned counsel for the opposite party. The award of interest in the afore-said case after deduction of 10% of earnest money was denied since the cancellation of allotment was sought by purchaser after the possession was offered.
However, the position in the present case is factually different as the project in the present case did not take off except for mere assurances on paper. Admittedly, the project stands abandoned and, as such, there is deficiency of service by OP; constraining the complainant to seek refund. The contention of the opposite party for deducting the earnest money would have had some merit in case the project was taken up as assured.
CC/2683/2018 Page 10 of 12
14. With regards to compensation payable in such refund matters, Hon'ble Apex Court in Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019 decided on 07.04.2022 held as under:-
"We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.
At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest."
Further, the Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. v. D.S. Dhanda, II (2019) CPJ 117 (SC) held that multiple compensation for singular deficiency is not justifiable.
15. Considering the facts and circumstances of the case, opposite party is directed to refund the amount of Rs.4,50,000/- to the complainant from the date of respective deposits with interest @ 9% p.a. CC/2683/2018 Page 11 of 12 In case the opposite party fails to reimburse the amount within a period of six weeks from the passing of this Order, the amount shall be refunded with interest @ 12% p.a. for the period of delay beyond six weeks. The complaint is accordingly disposed of. Pending applications, if any, stand disposed of. Registry is directed to supply a copy of this order to both the parties.
................................................ (AVM J. RAJENDRA, AVSM VSM (RETD.) PRESIDING MEMBER ...........................................
(ANOOP KUMAR MENDIRATTA, J) MEMBER ar/sd/B-4/reserved matter CC/2683/2018 Page 12 of 12