State Consumer Disputes Redressal Commission
M/S Pav Realty Pvt. Ltd. vs Mr. Neeraj Sharma & Anr. on 22 September, 2023
FA/415/2015 D.O.D.: 22.09.2023
M/S PAV REALITY PVT. LTD. VS MR. NEERAJ SHARMA & ORS.
IN THE DELHI STATE CONSUMER DISPUTESREDRESSAL
COMMISSION
Date of Institution: 01.09.2015
Date of hearing: 22.05.2023
Date of Decision: 22.09.2023
FIRST APPEAL NO.- 415/2015
IN THE MATTER OF
M/S PAV REALITY PVT. LTD.
THROUGH DIRECTORS
HAVING REGISTERED OFFICE AT:
502, 5TH FLOOR , SACHDEVA CORPORATE TOWER,
KARKARDOOMA COMMUNITY CENTRE, DELHI-110092.
(Through: Mr. Sagar Saxena, Advocate)
...Appellant
VERSUS
1. MR.NEERAJ SHARMA,
S/o MR. SHYAM SUNDER SHARMA.
2. MRS.SUSHMA SHARMA,
W/O MR.NEERAJ SHARMA.
BOTH R/O: UTSAV 9/307, SECTOR-3
RAJENDER NAGAR, SAHIBABAD
GHAZIABAD-201005.
(Through: Mr. Sanjeev Nirwani, Advocate)
...Respondents
DISMISSED PAGE 1 OF 7
FA/415/2015 D.O.D.: 22.09.2023
M/S PAV REALITY PVT. LTD. VS MR. NEERAJ SHARMA & ORS.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MR. J.P. AGRAWAL, MEMBER (GENERAL)
Present: Mr. Parmeet Singh, counsel for the appellant.
Mr Sanjeev Nirwani, counsel for the respondent
PER :HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are as under:
"...This complaint has been filed with the allegation that the respondent had announced their proposed project of office spaces and hotel building at "Orbit Plaza" Crossings Republik, NH24 Ghaziabad. They promised to deliver the possession within 32 months from the date of allotment. The complainant for the purpose of self employment and to earn livelihood after leaving the job got interested in space of 821/Sq feet a consolidated sum of Rs 25,05,840/- and made the payment of Rs. 300,000/- on 08/02/2010 The allotment letter dated 08/04/2010 says that the possession will be handed over on 10/12/2012 Complainant made total payment of Rs. 13,53,446/- till 01/02/2012 but the progress of the work at the site was not satisfactory. The respondent kept on demanding money and started levying interest on the amount Rs.5,88,105 which was not paid and appropriated a sum of Rs. 18,829/- towards interest on 22/03/2014. The respondent later on, informed that they are not constructing the seventh to ninth floors and the Building will only be five storied. The complaisant fat cheated of unilateral change in the plan They demanded Re 1.04 405- to enable the respondent to process refund of entire deposit On 01/05/2014 complainant signed documents by the respondent. On 21/06/2014 they sent a cheque of Rs 7,48,012/- which was accepted by the DISMISSED PAGE 2 OF 7 FA/415/2015 D.O.D.: 22.09.2023 M/S PAV REALITY PVT. LTD. VS MR. NEERAJ SHARMA & ORS.
complainant as part payment when they are under obligation to refund the balance amount of Rs 6,05,434 and sum of Rs 1.84.495/- with interest Complainant has prayed for the refund of Rs 7,89.920/- Rs. 100,000/- as compensation and Rs 55,000/- cost of litigation"
2. The District Commission after taking into consideration the material available on record passed the order dated 27.07.2015, whereby it held as under:
"Perusal of order sheet shows that the notice was served upon the opposite party through speed post and opportunity was provided to the respondent to file the written statement & case proceded exparte The complainant Smt. Sushma Sharma filed her affidavit in support of the complaint and the documents, allotment letter, the copy of the ledger of the complainant account maintained by the respondent were also filed. The complainant have also filed the demand letter issued by the respondent, the letter of cancellation on the ground that the three floors of the building have not been constructed and the completion has not been done within the stipulated time. They are holding back all the amount and demanded the balance amount Rs.7.89,929/- All these documents are not controverted by the respondent. The statement on oath is uncontroverted. There is no explaination given by the respondent for delay in handing over the possession and scraping up the three floors of the proposed building where the complainant has booked his space. The act of scraping the three floors cannot be attributed to the complainant default. It has been stated on oath by the complainant that they were not given any notice for the change in the proposed plan. The entire act on the part of the respondent shows that they got the deposit from the complainant by projecting the building as nine storey structure and booked his space. This is unfair on the part of respondent. In these circumstances any deduction mad by the respondent from DISMISSED PAGE 3 OF 7 FA/415/2015 D.O.D.: 22.09.2023 M/S PAV REALITY PVT. LTD. VS MR. NEERAJ SHARMA & ORS.
the amount deposited by the complainant and not paying him the interest amount by the respondent is unfair trade practice. The complaint deserves to be allowed. The respondent is directed to refund to the complainant the balance amount of Rs.7,89,929/- with 9)% interest thereon from the date of filing of this complaint, till it is finally paid. We further award compensation of Rs 50,000/- on account of harassment, mental pain, agony and cost of litigation. If this amount is not paid within 45 days from the date of the order, the complainant shall be entitled to pay 9% interest over this amount also."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant has preferred the present appeal, contending that the District Commission erred in establishing deficiency on the part of Appellant and failed to consider that the acted as per agreement and forfeiture of the earnest money being accordance with the agreed terms and conditions of the agreement/allotment letter dated 10.04.2010. The Appellant further submitted that the said impugned order suffers from serious errors of law and facts and has been passed in the absence of due and proper consideration of the evidence on record of the case. Pressing the aforesaid submissions, the Appellant has prayed for setting aside the impugned judgment passed by the District Commission.
4. The Respondent, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinized before passing the said order.
5. We have perused the material available on record and heard the counsel for the parties.
6. The main question for consideration before us is whether the District Commission has erred in establishing deficiency on the part of Appellant.
DISMISSED PAGE 4 OF 7 FA/415/2015 D.O.D.: 22.09.2023
M/S PAV REALITY PVT. LTD. VS MR. NEERAJ SHARMA & ORS.
7. The counsel on behalf of the Appellant argued that the Appellant rightly deducted earnest money as per allotment letter dated 10.04.2014.
8. To deal with this issue we deem it appropriate to refer revision petition no.4053 of 2014 titled as Vinod Kumar Gandhi versus Puri constructions pvt. ltd. decided on 19.01.2016:-
"10 .On reading of the above, it is clear that the aforesaid letter of provisional allotment was only a counter offer given by the respondent and it would have culminated into a contract only if the petitioner/complainant had counter signed the letter and indicative terms and conditions and sent the same to the respondent. Learned counsel for respondent has drawn our attention to a copy of indicative terms and conditions of the provisional allotment which bears the signatures of the petitioner. It is submitted that since the petitioner had signed the indicative terms and conditions of the provisional allotment, the contract had come into force.
11. We do not find any merit in the contention of learned counsel for the respondent/opposite party because the aforesaid signed copy of indicative terms and conditions of provisional allotment letter is dated 28.12.2007 meaning thereby that at the time of taking of booking amount, signatures of the petitioner on the indicative terms and conditions was obtained. Subsequent to this, on 26.2.2008 provisional offer letter was sent with a condition that if the petitioner was agreeable to the terms and conditions he should sign the letter and indicative terms and conditions and send it to the respondent. The petitioner did not sign the provisional allotment letter and DISMISSED PAGE 5 OF 7 FA/415/2015 D.O.D.: 22.09.2023 M/S PAV REALITY PVT. LTD. VS MR. NEERAJ SHARMA & ORS.
accompanying terms and conditions meaning thereby he did not accept the counter offer given by the respondent. Thus, it is clear that no valid contract between the parties came into existence and since the complainant was not agreeable to allotment of flat at 9th floor, he sought refund of his money which should have been refunded by the respondent without any deduction. The respondent by deducting Rs.50,000/- has actually committed deficiency in service and this fact went unnoticed by the fora below. Thus, in our view the order of the fora below suffers from material irregularity and cannot be sustained..."
9. In the aforementioned dicta, the Appellant issued an allotment agreement with terms and conditions, however, the Complainant/Respondent did not agree with some terms and conditions, therefore, he did not sign the allotment agreement. Accordingly, the Hon'ble NCDRC held that there is deficiency on the part of the Opposites Party/Appellant in deducting earnest money without any valid agreement. In the present case, the Complainant/Respondent only applied for the allotment of office space, and no Builder Buyer Agreement was executed between the parties. However, the Opposite Party/Appellant cancelled the allotment of the Complainant/Respondent and refunded the amount of Rs. 7,48,012/- after deducting the earnest money, i.e., Rs. 6,05,434/- as per Allotment Letter. As the agreement was not was not signed by the Complainant/Respondent, the Opposite Party/Appellant cannot deduct earnest money.
10. Furthermore, it is evident from the record that the Builder Buyer Agreement was not executed between the parties. Moreover, the Opposite Party/Appellant failed to provide any explanation.
DISMISSED PAGE 6 OF 7 FA/415/2015 D.O.D.: 22.09.2023
M/S PAV REALITY PVT. LTD. VS MR. NEERAJ SHARMA & ORS.
11. Relying on the above-settled law, the deficiency in service on the part of the Opposite Party/Appellant shall stand proved in deducting earnest money and keeping the hard earn money of the Complainant/Respondent.
12. Consequently, we uphold the order dated 27.07.2015 passed by the District Consumer Disputes Redressal Commission (East), Saini Enclave, Delhi-110092. Resultantly, the present Appeal stands dismissed with no order as to costs.
13. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
14. FDR, if any, be released in favour of the Respondent.
15. A copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulations, 2005. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
16. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER(GENERAL) Pronounced On:
22.09.2023 DISMISSED PAGE 7 OF 7