National Consumer Disputes Redressal
M/S. R.N.A. Builders (N.G.) vs Dharampal Kuldeep Singh & Anr. on 11 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 354 OF 2014 (Against the Order dated 14/03/2014 in Complaint No. 134/2011 of the State Commission Maharastra) 1. M/S. R.N.A. BUILDERS (N.G.) THROUGH SHRI NARENDRA GUPTA, MANAGING DIRECTOR/SOLE PROPRIETOR, RAJA BAHADUR BUILDING 28, BOMBAY SAMACHAR MARG, 1ST FLOOR, NEAR SHARE BAZAAR, OPP. STATE BANK OF INDIA, FORT, MUMBAI-400023, ...........Appellant(s) Versus 1. DHARAMPAL KULDEEP SINGH & ANR. AND SHRI KAUSHLENDRA DHARAMPAL SINGH, BOTH OF THANE, ADULT INDIAN INHABITANTS, PRESENTLY RESIDING AT BUIDING NO. 2, GOLDEN NEST PHASE-III, FLAT NO. 302, MIRA ROAD, (E) MUMABI 2. KAUSHLENDRA DHARAMPAL SINGH - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBER
For the Appellant : MR. S.B. PRABHAVALKAR For the Respondent : MS. ASTHA TYAGI
Dated : 11 Jan 2017 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by appellant against the order dated 14.03.2014 passed by the State Consumer Disputes Redressal Commission, Gujarat (in short, 'the State Commission') in Complt. No. CC/11/134 - Dharampal Kuldeep Singh & Anr Vs. M/s. R.N.A. Builders (N.G.) by which, complaint was allowed.
2. Brief facts of the case are that Complainants booked a flat No.502 on 5th floor, B building in project "NG Sterling", Next to Queen's Merry High School, Golden Nest, Off. Mira-Bhayander Road, Mira Road (East), Dist. Thane for total consideration of `33,51,750/-. Earnest money of `51,000/- was paid to the opponent on 29/02/2009 and earnest money receipt was issued by the opponent in favour of the complainants. Further payment was to be made as per progress of the work. The complainants made further payment from time to time. Total amount of `3,01,000/- was paid by the complainants to the opponent. Thereafter, there was no communication from the opponent for further payment or payment of stamp duty. There was no progress in the work. On 29/04/2010, a letter was received by the complainants from opponent purporting to be a reminder stating that plinth work had been completed and calling upon the complainants to pay to the opponent a sum of `2,29,253/- within seven days from the date of said letter. Complainants received said letter after seven days. On 01/05/2010 complainants went to site of the opponent with a cheque of `2,50,000/-, a higher figure than demanded so that if there is any interest or penalty for the delay, same could be met. The staff of opponent however refused to accept the payment claiming that booking was cancelled. On 05/05/2010 complainants received a registered post letter purporting to cancel the booking on account of non-payment. Alleging deficiency on the part of OP, complainants filed complaint before State Commission.
3. OP resisted complaint, admitted booking of the flat by complainant and receipt of payment as alleged by complainant in the complaint. It was further submitted that as complainant failed to pay remaining balance amount as per terms mentioned in the earnest money receipt, booking was cancelled. Denying any deficiency on their part, prayed for dismissal of complaint.
4. Learned State Commission after hearing both the parties, allowed complaint and directed OP to handover possession of disputed flat on receiving balance payment or in the alternate at the option of the complainant, OP was directed to refund deposited amount with 21% p.a. interest from the date of filing complaint along with cost of Rs.25,000/- against which, this appeal has been filed.
5. Heard learned Counsel for the parties finally at admission stage and perused record.
6. Learned Counsel for OP submitted that as complainant failed to make payment in time, booking of flat was cancelled and after that complainant did not fall within purview of consumer; even then, learned State Commission committed error in allowing complaint. It was further argued that as disputed flat has already been sold by registered sale deed to third person, impugned order is not executable; hence, appeal be allowed and direction no. 2 of impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, appeal be dismissed
7. It is not disputed that complainants booked Flat No. 502 in OP's project for a sum of Rs.33,51,701/- and complainants deposited Rs.51,000/- as earnest money on 29.2.2009 and Rs.3,01,000/- later on.
8. As per conditions of earnest money receipt dated 29.2.2009 complainant was required to pay balance amount which became due as per progress of work and it was further mentioned in that clause that interest will be charged if payments are delayed. Learned Counsel for appellant has drawn my attention towards letter dated 21.4.2010 issued by OP to complainant asking him to pay Rs. 2,29,253/- within 7 days and if the payment delayed, 21% p.a. interest will be payable. Appellant has not placed any document on record when this letter was delivered to the complainants. As per complaint, complainant received notice on 29.4.2010. As per notice dated 5.12.2010 issued by complainants, complainants visited OP's site on 1.5.2010 and tried to handover cheque of Rs. 2,50,000/- which was refused by OP and later on OP cancelled booking by letter dated 5.5.2010. In letter dated 21.4.2010, it has been mentioned that payment has to be made within 7 days from the date of letter which is prima facie wrong wording because until and unless letter is received by complainant, time for making payment cannot begin and only after receipt of letter time for making payment starts. As per complainant, letter was received on 29.4.2010 and he approached OP on 1.5.2010 for taking cheque of Rs.2,50,000/- which was refused and OP has committed deficiency in cancelling allotment by letter dated 5.5.2010 inspite of the fact that as per earnest money, receipt, and notice dated 21.4.2010, payment was payable along with interest at the rate of 21% p.a. on delayed payment and in such circumstances, on the basis of letter dated 5.5.2010, cancellation of flat cannot be inferred and complainant continues to be a consumer and learned State Commission has not committed any error in allowing complaint.
9. Learned Counsel for OP further submitted that disputed flat has already been sold by OP vide registered sale deed dated 11.07.2011 in favour of other person. This Commission vide order dated 23.11.2015, rejected application of OP for taking this document on record as it was not referred in the written statement filed before State Commission. But, at the same time, this document can also not be ignored because complaint was filed on or after 31.5.2011 whereas this flat had already been sold by OP to third person vide registered sale deed dated 11.07.2011 and nothing on record to suggest that flat was sold by OP to third person after receipt of notice of the complaint. In such circumstances, third party's rights cannot be affected by directing OP to execute sale deed of same flat in favour of the complainant.
10. As observed above that disputed flat has already vested in third person, OP can be permitted to allot another flat of same dimensions in the same building if it is still in ownership and possession of OP and in case no flat is available, OP is bound to compensate to the complainant on account of escalation of price. As complainant has made payment of only Rs.3,01,000/- against total cost of Rs. 33,51,750/-, it would be appropriate to direct OP to pay compensation of Rs. 5 lakhs in addition to interest allowed by learned State Commission.
11. Consequently, appeal filed by the appellant/OP is partly allowed and impugned order dated 14.03.2014 passed by the learned State Commission in Complt. No. CC/11/134 - Dharampal Kuldeep Singh & Anr Vs.. M/s. R.N.A. Builders (N.G.) is modified and OP is directed to handover vacant possession of any other flat in the same building to the complainant, if complainant agrees, on making payment of balance consideration without interest, or in the alternate to pay compensation of Rs. 5 lakhs in addition to 21% p.a. interest allowed by learned State Commission in para 3 of the final order clause. Parties to bear their costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER