State Consumer Disputes Redressal Commission
Rajindra K Gang & Anr. vs Puri Construction Private Ltd. on 15 October, 2018
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 15.10.2018 Complaint Case No. 169/2011 In the matter of: Rajendra K. Gang r/o. 414, Katju Nagar, Ratlam, Madhya Pradesh-457001 : Mrs. Anshu Gang w/o. Sh. Rajendra Gang r/o. 414, Katju Nagar, Ratlam, Madhya Pradesh-457001 Complainants Versus M/s. Puri Construction Pvt. Ltd. "Natureville", W-82-A, Greater Kailash-II, New Delhi : Opposite Party CORAM : N P KAUSHIK Member (Judicial) 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
Complainants Mr. Rajendra K Gang and his wife Ms. Anshu Gang have filed the present complaint against M/s. Puri Constructions Pvt. Ltd., "Natureville", W-82-A, Greater Kailash-II, (in short OP). Background of the matter is that this Commission vide orders dated 29.07.2015 had disposed of the complaint directing the OP to refund to the complainants an amount of Rs.42,12,023/- alongwith interest @18% per annum from the date of its deposit. Besides this, compensation to the tune of Rs.1 lakh and litigation charges of Rs.25,000/- were also awarded. On appeal preferred by the OP, Hon'ble National Commission vide its orders dated 09.12.2016 remanded the matter to this Commission observing as under:
"As impugned order does not contain discussion on objections taken by OP in written statement and has not considered evidence filed by OP, impugned order is not speaking order and impugned orders is liable to set aside and matter has to be remanded back to learned State Commission to which, learned Counsel for the respondent also agreed."
Complainants in their complaint dated 03.06.2011 submitted that they entered into a flat buyer's agreement with OP on 11.06.2009 for allotment of the flat in one of the projects of the OP known as 'Prayanam' in Faridabad. OP had pre-launched the scheme in which the complainants applied for acquiring a flat. Total consideration of the flat was Rs.61,21,253/-. Payment was made in instalments as per agreement. Possession was to be handed over within a period of 3 years. Complainants made payment from time to time and deposited in all an amount of Rs.42,12,023/-.
Next submission of the complainants is that the OP vide its letter dated 20.07.2010 asked for payment of an amount of Rs.4,67,140/- to be paid in two equal instalments on 15.08.2010 and 15.09.2010. The aforesaid payment was demanded in lieu of the increase in super area. OP had increased the super area allegedly from 2090 sq. feet to 2257 sq. feet. Upon this, the complainants sent a reply dated 02.08.2010 stating that the demand made by OP was illegal and untenable in the eyes of law. On 05.08.2010 a rejoinder communication was received from the OP. Complainants alleged that they had been receiving threatening calls from the OP with regard to the demand of Rs.4,67,140/-, in lieu of the increased super area.
Complainants sent a legal notice dated 27.01.2011 calling upon the OP to withdraw the illegal demand of Rs.4,67,140/-. Complainants also asked the OP to refund Rs.42,12,023/- alongwith interest @18% per annum. Reply dated 07.02.2011 was received stating that the OP was entitled to forfeitures of an amount of Rs.12,47,534/- Vide their present complaint, complainants prayed for refund of the amount of Rs.42,12,023/- alongwith interest @18% per annum. Compensation to the tune of Rs.10 lakhs and litigation charges of Rs.50,000/- were also prayed for.
While admitting the flat buyer's agreement dated 11.06.2009, OP stated that it sent reminders dated 01.06.2010, 07.06.2010 and 14.06.2010 in terms of agreed payment plan. Complainants committed breach of the agreed terms. It was pursuant to the said breach that it (OP) issued notice dated 21.06.2010 reading as under:
"As you are aware, we have issued various reminders dated 01.06.2010, 07.06.2010 and 14.06.2010, to remind you about non-compliance of the agreed payment plan on your part and payment outstanding on the above mentioned unit booked by you at our 'PRANAYAM' project.
Please refer to various terms including clause 23 read with clauses 14 & 15 of the Application form of the Allotment of Unit in the Project. Please further refer to the terms of agreement of letter of allotment of the Unit.
As agreed your allotment can continue subject to payment of instalment as per the payment plan. As per the agreed payment plan, your non-payment of the instalments is contrary to the terms contained in the said agreements. As agreed, non-payment or delayed payment will be fundamental breach on your part and accordingly (your further agreement) the letter of allotment is subject to timely payment of the instalment.
Since you have failed to comply with the fundamental terms of the agreement and breached the condition precedent of the letter of allotment of a unit, the Letter of Allotment dated 12.05.2009 stands automatically withdrawn (as per the agreed terms) and the consequences of the same has to follow as per the agreed terms.
You are further informed that as per the agreement signed by you on 26.12.2008, 15% of the sale price (being Earnest Money) i.e. Rs.8,01,698/- (Rupees Eight Lakh One Thousand Six Hundred & Ninety Eight only) plus the interest amount due till date (calculated @18% p.a. compounded) Rs.4,45,836/- (Total Rs.12,47,534/-) is to be forfeited by the Company. The balance amount of Rs.25,45,917/- will be refunded to you, after sale of your unit in three EMI's."
Next submission of the OP is that complainant did not respond to the abovesaid notice dated 21.06.2010. OP thereafter wrote a letter dated 20.07.2010 justifying the demand of Rs.42,12,023/-. OP wrote that the certified architects assessed the super area of the Unit D-1/1002 at 2257 sq. feet. OP referred to clause 'd' of the flat buyer's agreement providing for increase/ decrease in super area.
Next submission of the OP is that the complainants shied away from making payments as per flat buyer's agreement. In such case he was entitled to forfeit the earnest money to the tune of 15% of the total price.
In response to the delay in the delivery of possession, OP stated that in case of default of payment as per schedule, the period of delivering the possession would get extended.
OP admitted having received an amount of Rs.42,12,023/- from the complainant. It stated that after deducting 15% of the sale price towards earnest money, the balance may be refunded to the complainant.
Referring to the non-completion of the project, OP in its written version dated 24.03.2012 stated that the project was at the final finishing stage. OP admitted having received the legal notice dated 27.01.2011 and its reply dated 07.02.2011 thereto.
Denying the averments of the OP, complainant stated in its rejoinder that the allegation of default in paying instalments was false.
Parties filed affidavit towards evidence. Written arguments too were filed. I have heard at length the counsel for the complainant Sh. Mahendru Kumar and Counsel for the OP Ms. Kawaljit Kaur. Before proceeding further, it may be mentioned here that during the course of arguments Counsel for the OP Ms. Kawaljit Kaur stated at the bar that the flat in question stood sold to a third party after cancellation of the allotment in question.
Now we are confronted with the question whether the OP was justified in issuing the letter of cancellation dated 21.06.2010. OP allegedly issued three letters of demand dated 01.06.2010, 07.06.2010 and 14.06.2010. Perusal of the affidavit towards evidence filed by the OP shows that the OP has not proved the alleged reminders dated 01.06.2010, 07.06.2010 and 14.06.2010. It may also be mentioned here that not even the photocopies of the said three reminders dated 01.06.2010, 07.06.2010 and 14.06.2010 have been filed by the OP. OP has relied upon the cancellation notice dated 21.06.2010 in its affidavit which is exhibited OP W-1/2. Perusal of the photocopy of cancellation letter dated 21.06.2010 shows that the OP has not filed the office copy of the said letter of cancellation. In its affidavit OP did not state anything in relation to the mode of communication of the said letter of the cancellation to the complainants. In other words OP is silent on the point whether the letter of cancellation was served upon the complainants by way of ordinary post, registered post or by hand. Similarly the OP is silent on the mode of communication of the said letter of cancellation in its written version. Clearly, OP failed to prove the letter of cancellation dated 21.06.2010. During the course of the dictation of these orders in the Court, complainants filed a copy of the letter dated 20.07.2010 received by them from the OP. The same is Exhibited C-1 while dictating these orders. The letter dated 20.07.2010 Exhibited as Ex C-1 is a document admitted by the OP. Perusal of the letter dated 20.07.2010 as referred to above, shows that the OP had demanded an amount of Rs.4,67,140/-. The demand is made towards increase in super area and car parking. Complainants were asked to pay the said amount either in lumpsum or in two instalments. Once OP relies upon the letter of cancellation dated 21.06.2010, there was no question of asking for money from the complainant on 20.07.2010. It further falsifies the case of the OP that it issued the letter of cancellation dated 21.06.2010. Not only this, admittedly the complainants made payments towards instalments on 18.12.2009 and 15.06.2010 for the amounts of Rs.2,60,000/- and Rs.1,69,900/- respectively. There were admittedly paid by the complainants to the OP. Having received the money on 15.06.2010 it did not lie in the mouth of the OP that it cancelled the allotment on 21.06.2010. In the whole of the pleadings or the affidavits from the side of the OP, there is not even a whisper of any amount outstanding against the complainants towards the payment of instalments of the price of the flat. This leads to the safe inference that the letters of the demand dated 01.06.2010, 07.06.2010 and 14.06.2010 and the letter of cancellation dated 21.06.2010 are all false and fabricated documents. It may be reiterated here that the copies of letters of demands dated 01.06.2010, 07.06.2010 and 14.06.2010 have not even been filed. OP admitted having received the letter dated 02.08.2010 sent by the complainants in response to its letter dated 20.07.2010. It further strengthens the case of the complainants that as in July/ August 2010, nothing was outstanding against complainants towards sale consideration. We, therefore, arrived at a safe conclusion that the letter of cancellation dated 21.06.2010 never existed. In the absence of letter of cancellation, question of deducting earnest money whatsoever does not arise. Allotment of the flat in favour of the complainants still exists. Flat is not available for possession. OP has not only been 'deficient in service' but also guilty of indulging in 'unfair trade practice'. OP has dishonestly pleaded the cancellation of allotment by manufacturing documents. He is also guilty of misleading the Court. In the circumstances OP is directed to pay to the complainant as under:
OP shall refund an amount of Rs.42,12,023/- alongwith interest @18% per annum from the date of its deposit till the date of its realization.
OP shall pay to the complainants compensation to the tune of Rs.10,00,000/- (Rupees ten lakhs only) for causing inconvenience, harassment, sadness, frustration, anguish and mental agony.
OP shall pay to the complainants litigation charges to the tune of Rs.50,000/-.
The aforesaid amounts shall be paid by the OP to the complainants within a period of 30 days from today failing which these amounts shall carry interest @24% per annum.
Complaint is accordingly disposed of. File be consigned to Records.
(N P KAUSHIK) MEMBER (JUDICIAL)