State Consumer Disputes Redressal Commission
Nameesh Miglani vs M/S Jmd Promoters Ltd. on 31 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint No.53 of 2011 Date of Institution: 01.12.2011 Date of Decision: 31.07.2012 Nameesh Miglani son of Shri S.N. Miglani, Resident of 15-D, Pocket-I, DDA Flats, Sector-7, Dwarka, New Delhi. Complainant Versus M/s JMD Promoters Ltd. having corporate office at JMD Regent Square, 3rd Floor, Gurgaon. Opposite Party BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Pardeep Solath, Advocate for complainant. None for opposite party. O R D E R
Justice R.S. Madan, President:
Complainant had booked a flat No.D-401, Fourth Floor, Super Area 1875 Sq. ft (approx.) @ Rs.1750/- per sq. ft for a total sum of Rs.32,81,250/- with the opposite party by making booking amount and further instalments payment on construction linked basis schedule of payment. The Flat Buyers Agreement was also duly executed on 22.7.2006 between the complainant and the opposite party. The complainant made payment of Rs.17,75,000/- through cheques to the opposite party from time to time till 18.09.2006, which is more than 50% of the total amount payable by the complainant to the opposite party.
As per the allegations of the complainant, due to recession in the real estate market, the opposite party slowed down the construction but kept on demanding payments as per payment schedule from time to time without bothering the stages of construction. The complainant also paid few instalments alongwith interest @ 18% per annum to the opposite party and is still ready to pay 18% interest to the opposite party for the delayed period, if any. The length of the project was three years but the builder failed to complete the project after expiry of four years and even flats have not been handed over to the owners till date.
Complainant received a letter dated 15.10.2009 whereby the allotment of his flat has been cancelled on the basis of several demand letters for payment. The opposite party also deposited the amount of Rs.17,75,000/- vide cheque No.375888 dated 14.10.2009 drawn on OBC Greater Kailash, New Delhi in the account of the complainant without his consent, which is towards the refund of the deposited price of the flat in question by the complainant.
Complainant immediately arranged more funds and sent letter through registered post dated 26.10.2009 to the opposite party enclosing with two cheques of Rs.17,75,000/- bearing No.500985 dated 26.10.2009 with an additional amount of Rs.10 lacs vide cheque bearing No.500986 dated 26.10.2009 (Annexure C-3 and Annexure C-4). The complainant further promised to pay the remaining amount alongwith 18% interest for delayed period by writing letter dated 26.10.2009. Complainant filed complaint No.953 of 2009 on 13.11.2009 before the District Consumer Forum, Gurgaon which was withdrawn by the complainant on 21.10.2011 with liberty to file fresh before State Consumer Commission, Haryana. Hence, this complaint with the following prayer on behalf of the complainant:-
(a) The impugned notice for cancellation of flat in question dated 15.10.2009 be set aside by directing the opposite party to withdraw the same and restore the flat in question in the name of the complainant with all the benefits attached with the flat in question by accepting the payments made by the complainant, in favour of the complainant and against the opposite party.
(b) The opposite party be direct to hand over the flat No.D-401, Fourth Floor, Super Area 1875 sq. ft (approx.) @ Rs.1750/- per sq. ft for a total sum of Rs.32,81,250/-.
(c) To pay a compensation of Rs.50,000/- on account of harassment and expenses incurred by the complainant.
(d) To pay cost of proceedings to the extent of Rs.10,000/-.
Notice of the complaint was issued to the opposite party. complainant appeared through counsel but failed to file written statement even after availing last opportunity subject to cost of Rs.3,000/- and accordingly the defence of the opposite party was struck off vide order dated 28.05.2012.
In exparte evidence the complainant tendered his affidavit Ex.C-1, Buyers Agreement Ex.C-1, Letter of cancellation Ex.C-2, letter dated 26.10.2009 Ex.C-3, photo copy of cheque dated 26.10.2009 Ex.C-4 and order dated 21.10.2011 of the District Consumer Forum Ex.C-5 and closed his evidence.
Heard.
Evidence perused.
Heaving heard the learned counsel for the complainant and perusing the evidence produced on the record, we find it a genuine case of the complainant. It has been established on the record that the complainant had booked the flat with the opposite party for a total amount of Rs.32,81,250/-. It is also established that the complainant had deposited a sum of Rs.17,75,000/- with the opposite party. It has come on the record that the length of the project was three years but the opposite party failed to complete the project after expiry of four years. The opposite party cancelled the allotment of flat of the complainant and deposited the payment of Rs.17,75,000/- in the account of the complainant without the consent of the complainant. The complainant had written a registered letter to the opposite party enclosing two cheques of Rs.17,75,000/- bearing No.500985 dated 26.10.2009 with an additional amount of Rs.10 lacs vide cheque bearing No.500986 dated 26.10.2009 (Annexure C-3 and Annexure C-4) and requested to restore the flat in his favour but the opposite party did not accede to the genuine request of the complainant. Under the facts and circumstances of the case, we feel that such an illegal practice of the opposite party should not be allowed to sustain.
Hence, this complaint is accepted, the cancellation of the flat of the complainant is set aside with the direction to the opposite party to restore the allotment of Flat No.D-401, Fourth Floor, Super Area 1875 Sq. ft (approx.) @ Rs.1750/- per sq. ft for a total sum of Rs.32,81,250/-. However, the opposite party can charge interest @ 18% per annum on the delayed payment of instalments, if any. However, at the same time it cannot be denied that the complainant has suffered at the hands of the opposite party and therefore the complainant is awarded compensation of Rs.50,000/- for mental agony and harassment which shall be paid by the opposite party without any further delay. Cost of litigation is quantified at Rs.11,000/-.
Announced: Justice R.S. Madan 31.07.2012 President B.M. Bedi Judicial Member