State Consumer Disputes Redressal Commission
Sanjay Kumar Yagyseni Son Of Late Sh. Ram ... vs M/S Jmd Promoters (P) Ltd. Jmd Regent ... on 31 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.27 of 2006 Date of Institution: 29.09.2006 Date of Decision: 31.07.2012 Sanjay Kumar Yagyseni son of late Sh. Ram Saran Lal, Resident of N-113, South City-I, Gurgaon. Complainant Versus M/s JMD Promoters (P) Ltd. JMD Regent Square, Main Mehrauli Gurgaon Road, Gurgaon through its Managing Director. Opposite Party BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Ms.Swati Batra, Advocate for complainant. Shri Varun Chawla, Advocate for Opposite Party. O R D E R
Justice R.S. Madan, President:
The case of the complainant is as under:
Complainant had booked a flat No.L-902 with the opposite party under JMD Promoters (P) Ltd, under the scheme launched by the opposite party known as JMD Gardens at Sohna Road, Gurgaon. The price for three bed room flat measuring 1875 sq. ft of super area was told Rs.30 lacs and the applicants were asked to deposit 10% of the initial booking amount.
Complainant booked Flat No.L-902 on 10.10.2004 by depositing the initial amount of Rs.3 lacs with the opposite party vide cheque No.570822 dated 10.10.2004 of ICICI Bank, Branch Sector-14, Gurgaon, vide receipt Annexure P/1. After booking of the above said flat, when the complainant enquired about making further payments and issuance of documents of contract so that he is able to manage home loan from the Bank, the complainant was told by the concerned marketing officials of the opposite party that the project was not sanctioned and the complainant would be provided all the required documents after getting the necessary sanction of the project from the competent authorities. The complainant was told time and again that the license and building plan for the proposed stories/floors was lying pending for sanction and the project would only start after obtaining the sanction.
After about a year some time in August/September, 2005, the complainant received a letter of appreciation for showing his trust in the project and he was also intimated that the licence of residential project JMD Gardens had been received. In November, 2005 the complainant received a letter dated 7.11.2005 (Annexure P/3) to the effect that as per the agreed terms and conditions of the application, an amount of Rs.4,10,888/- was due against the complainant which included Rs.54,638/- as interest on the delayed payment from the date of booking. Complainant immediately sent a cheque of Rs.2 lacs dated 25.11.2005 alongwith letter requesting the opposite party for issuing allotment letter, buyer-seller agreement, NOC etc so that the complainant could avail the loan. But the opposite party even after encashing the aforesaid cheque of Rs.2 lacs, neither issued any document as required by the complainant nor any other intimation regarding depositing of any further amount was given. The super area of the flat L-902 booked by the complainant was 1875 sq. ft and he had paid Rs.3 lacs i.e. 10% amount, which comes to Rs.1600/- per sq. ft. However, from the letter Annexure P/3 the total amount was stated to be Rs.32,81,500/- which comes to Rs.1750/- per sq. ft. The opposite party increased the rates of JMD Gardens Scheme and by April 2006 the same were offered at Rs.3050/- per sq. ft. In view of the increase in property prices, the opposite party became greedy and dishonest and without issuing any document, getting any agreement signed from the complainant, on 8.4.2005 deposited a sum of Rs.5 lacs in the account of the complainant without any intimation. Thus, alleging deficiency in service on the part of the opposite party, the complainant filed complaint with the following prayer:-
It is therefore, respectfully prayed that the respondent company may kindly be directed to allot flat No.L-902 measuring 1875 sq. feet at JMD Gardens, Sohna Road, Gurgaon or in the alternative the respondent-company may kindly be directed to pay to the complainant-petitioner an amount of Rs.50,00 lacs (present cost of the flat i.e. Rs.65.00 lacs minus initial cost of the flat i.e. Rs.35.00 lacs plus interest upon the amount of Rs.5.00 lacs got deposited by the respondent-company and exemplary compensation) and amount of further appreciation of cost of flat as well as interest minimum @ 18% p.a. so that justice is done to the complainant-petitioner.
Upon notice, the opposite party appeared and contested the complaint by filing written statement stating therein that the complainant had approached the opposite party for provisional allotment vide application dated 10.10.2004 for a flat for total consideration of Rs.32,81,250/- in the proposed Multi-Storeyed Grop Housing Residential Complex, coming up at Sohna Road, in Village Islampur, District Gurgaon, Haryana and opted for the plan B i.e. Construction Linked Payment Plan wherein complainant was required to make payment of 10% of the total consideration at the time of booking of the flat and further required to make payment of 10% of the total consideration within 45 days of the booking and further required to make payments as per the construction at site progress. It was admitted that the complainant had paid Rs.3 lacs at the time of registration, whereas Rs.28,125/-
more was required to be paid by the complainant. However, still the application of the complainant for provisional allotment was not treated as cancelled and demand notice dated 7.11.2005 was sent but when the complainant failed to make the demanded payment in pursuance to notice dated 7.11.2005, the opposite party rejected the application dated 10.10.2004 and returned the deposited amount vide letter dated 31.03.2006. The complainant failed to make the payment as stipulated in the terms and conditions of the application dated 10.10.2004 and for that reason the opposite party after waiting for reasonable period, left with no other alternative except to reject the application for provision allotment and treated the application dated 10.10.2004 as cancelled and the deposited amount of the complainant was refunded. Thus, denying any kind of deficiency in service on its part, the opposite party prayed for dismissal of the complaint.
In his evidence, the complainant tendered his own affidavit Ex.C-1, receipt Ex.C-1, undated letter Ex.C-2, notice dated 7.11.2005 Ex.C-3, cheques Ex.C-4 and Ex.C-5, Courier receipts Ex.C-6, Ex.C-7, Ex.C-8 and Ex.C-9.
Opposite party failed to lead any evidence despite availing three opportunities and evidence of the opposite party was closed by order of this Commission on 17.12.2008.
We have heard learned counsel for the parties and perused the case file.
From the record it is established that the complainant had applied for provisional purchasing a flat vide application dated 10.10.2004 for a price of Rs.32,81,250/-. The complainant had deposited Rs.3,00,000/- at the time of registration against the required amount of Rs.3,28,125/- and thus the complainant had deposited less amount of Rs.3,28,125/-. It has also come on the record that the opposite party vide letter dated 07.11.2005 had demanded Rs.28,125/- but the complainant failed to deposit the same. The amount was to be paid as per the construction raised by the opposite party. However, the complainant did not adhere to the discipline of payment of instalments which led to the cancellation of original allotment and the opposite party deposited a cheque of Rs.5 lacs in the account of the complainant on 8.4.2005which remained in the account of the complainant for a period of more than one years. The complainant never thought of reviving the agreement during this one year. It is not disputed that at the time of filing of the complaint, no amount was lying deposited with the opposite party and therefore, the complainant does not fall within the definition of consumer on the date of filing of this complaint in view of the observation made in case cited as SUMIT CHAUDHARY versus HARYANA URBAN DEVELOPMENT AUTHORITY & ORS., IV (2011) CPJ 570 (NC).
In view of our aforesaid discussion, under the facts and circumstances of the case, the opposite party cannot be held deficient in service in canceling the booking of the flat as the complainant himself failed to adhere to the terms and conditions of the Flat Buyers Agreement dated 22.7.2006.Thus, the complainant is not entitled for any relief.
Hence, finding no merit in this complaint, it is dismissed.
Announced: Justice R.S. Madan 31.07.2012 President B.M. Bedi Judicial Member