Delhi

StateCommission

FA/13/205

M2K INFRASTRUCTURE PVT. LTD. - Complainant(s)

Versus

ANJU SINGH - Opp.Party(s)

29 Jul 2015

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Decision: 29.07.2015 

First Appeal- 205/2013

(Arising out of the order dated 04.12.2012 passed in Complainant Case No. 499/2009 by the Consumer Disputes Redressal Forum-VI (Distt. New Delhi), M-Block, New Delhi)

M2K Infrastructure Pvt. Ltd.,

E-13/29, Ist Floor Harsha Bhawan,

New Delhi-110001.

                                                                                 ….Appellant

Versus

Mrs. Anju Singh,

Flat No.406, Alankar Apartments,

Plot No.GH-48, Sector-56,

Gurgaon-122011.

                                                               ….Respondent

CORAM

Justice Veena Birbal, President

Salma Noor, Member

NP Kaushik, Member(Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, “the Act”) wherein challenge has been made to order dated 04.12.2012 passed by the Consumer Disputes Redressal Forum-VI, M-Block, New Delhi (in short, “the District Forum”) in Complaint Case No. 499/2009.

 

2. Briefly the facts relevant for the disposal of present appeal are as under:

    The respondent herein was the complainant before the District Forum. She had filed a complaint under Section 12 of the Act alleging therein that she booked a “Two Bedroom Flat” at Residential Group Housing Project “M2K Country Heights” at Dharuhera (Haryana) through the representative of appellant herein i.e. OP before the District Forum.  Initially the respondent paid Rs. 3 lacs on 15.1.07 along with application for advance registration.  Subsequently on the demand of appellant, second installment of Rs. 2 lacs was paid on 20.3.07. The third installment was demanded by the respondent vide letter dated 30.8.07.  By the said letter, appellant/OP had also informed that the respondent had been allotted Flat No. F-608. The appellant/OP had also added 100% PLC (preferential allotment charges) for which the respondent had neither requested nor had asked for.  The respondent/complainant had alleged that she was also not given any preferential location.  Even her choice was also not asked before allotment. The flat allotted to the respondent/complainant was at sixth floor. The respondent/complainant had alleged that in the letter dated 30.8.07, appellant/OP had also asked for option for power back up, air conditioning and car-park.  On getting the said letter, the husband of respondent, namely, Col. Vinod Kumar contacted the representative of the appellant/OP and told him that if the appellant wanted PLC, in that event, the floor of their choice be given.  The representative of the appellant had assured that they would be sending fresh “Apartment Buyers Agreement” wherein things would be corrected and had asked for making further payment. On the assurance of representative of appellant, the respondent further sent a cheque of Rs.1,90,690/- dated 29.9.07 along with the covering letter.  It was alleged that in all, respondent/complainant had paid Rs.6,90,690/- to the appellant from January 2007 to September 2007.

3. It was further alleged that in January, 2008, the respondent received “Apartment Buyers Agreement” (in short, the “agreement”) vide letter of appellant dated 5.1.08 wherein 100% PLC and charges for covered parking were added despite the fact that the respondent had opted for open parking having less charges.  Thereafter the husband of the respondent contacted the officials of appellant for making necessary correction.  But no action was taken.  It was alleged that number of letters were also written by the respondent for doing the needful.  The officials of appellant gave assurances that positive action would be done. But nothing was done. In these circumstances, respondent did not sign the agreement as it was not presently the correct picture of PLC and car parking. The respondent/complainant also wrote letter on 27.5.08 for doing necessary corrections.  But no action was taken by appellant.  On the other hand, a reminder was sent by the appellant/OP asking the respondent/complainant to sign and return the agreement.  Respondent again wrote letter on 12.6.08 for taking corrective measures.  But no action was taken.  However, appellant kept on sending reminders for payment.  Ultimately on 6.9.08, the appellant sent a letter asking the respondent/complainant to return the set of agreement for correction.  The same was sent by the respondent vide letter dated 19.9.08 and assured the appellant that on sending the correct “agreement”, further payment would be made. The respondent also asked the appellant to clarify the criteria/policy to declare any flat as being preferential location which they never clarified. The appellant never sent back the agreement after making necessary correction and rather kept on sending reminders for making further payment. The respondent contacted the office of appellant number of times and fed up with the attitude and poor response of the appellant, the respondent had filed the complaint before the District Forum and requested for refund of amount along with interest and compensation.    
4. The appellant/OP contested the complaint by filing written statement.  The appellant admitted that the respondent had booked a flat on an advance registration form dated 15.1.07.  It was stated that the booking was subject to terms and conditions stated in the said form i.e. Ex-CW2.  It was stated that as per the aforesaid form, the appellant had to allot the flat within one year from the date of the booking and within said period, flat was allotted, as such the amount deposited was not refundable.  The appellant also admitted having received Rs.6,90,690/- deposited by the respondent by way of three installments.  It was alleged that the respondent did not clear the outstanding dues and did not comply with the further demands and as such was not entitled for refund of the amount.  It was also alleged that as per terms and conditions, the respondent was bound to sign the agreement. It was alleged that flat was allotted in preferential location and that is why the PLC were demanded.  It was alleged that frivolous complaint was filed and respondent was not entitle for any relief.  
5. Both the parties led evidences by way of affidavits.
6. After hearing the Counsel for the appellant/OP and husband of the respondent/complainant, District Forum directed the appellant to refund Rs.6,90,690/- paid by the complainant with interest @ 9% from the date of seeking refund till payment.  The Ld. District Forum further directed the appellant to pay Rs.2 lacs  for harassing the respondent/complainant. 
7. Aggrieved with the aforesaid order, present appeal is filed.
8. Ld. Counsel for the appellant has contended that it is the respondent/complainant who had committed default in making payment. It is contended that only part payment of Rs.6,90,690/- was made by respondent and thereafter no payment was made by her despite number of reminders sent, as such respondent was not entitled for the refund of the deposited amount.  It is contended that even the punitive damages of Rs. 2 lacs has been wrongly given as the complainant had not suffered any mental agony or harassment.  It is submitted that the Ld. District Forum has not considered Article 3 Clause K(xv) of the agreement as per which if allottee was not desirous of going ahead with the deal and intended to get the agreement cancelled, in that event he shall be entitled for refund of amount paid by him after deducting 15% of the total consideration.  It is contended that the total consideration amount of the flat was Rs.23,63,400/- and as per aforesaid Article of agreement, in all the respondent was entitled for refund of only Rs.3,10,000/- out of the amount deposited by her.  It is submitted that ample opportunity was given to respondent to clear the outstanding dues towards the consideration of apartment and fault lies with her and in these circumstances, impugned order passed is illegal being contrary to material on record.
9. On the other hand, respondent has submitted that impugned order is legal and valid and does not call for any interference.  It is stated that hard money of the respondent was retained by the appellant and at that time the children of respondent were of growing age and lot of money was required to be spent on them which was held up wrongly by the appellant.  The husband of the respondent also suffered heart attack.  It is submitted that agreement was not executed between the parties due to fault on the part of the appellant. It is contended that further payments were not made as necessary corrections as agreed were not made by the appellant in the agreement.  It is submitted that the agreement was never executed between the parties as such the relevant clause of agreement relied upon by the appellant is not applicable to the facts of present case.
10. We have heard the Counsel for the parties and gone through the material on record. 
11. It is admitted position that the respondent/complainant had booked a flat with appellant vide application form dated 15.1.07. It is also admitted position that the appellant had received Rs.3 lacs at the time of booking i.e. 15.1.07.  Thereafter, Rs. 2 lacs on 20.3.07 and also received third installment of Rs.1,90,690/- on 29.9.07.  In all, the appellant received Rs.6,90,690/- from the respondent.  According to appellant, preferential allotment of flat F-608 in the Housing Project of appellant at Dharuhera was also made in favour of the respondent.  In the pleadings as well as evidence on record, the respondent/complainant has categorically stated that on 30.8.07, the appellant had informed the respondent that she has been allotted flat No. F-608 and demanded third installment vide aforesaid letter.  As per her, the appellant had added PLC (preferential location charges) though the flat was not in preferential location.  No material is placed on record by appellant to show that the respondent had asked for flat having preferential location. According to respondent, the flat was allotted on sixth floor which is not of preferential location.  The evidence on record also establishes that the husband of the respondent had spoken to Shri Anuj, an official of appellant on 29.9.07 who had assured that either the floor would be given of her choice or the PLC will be deleted and it was also assured that the agreement would be sent with the correct position.  On the assurance of official of appellant, 3^rd installment of Rs.1,90,690/- was paid.
12. It is also not denied by the appellant that in mid January, 2008, the agreement” was sent to the respondent.  Even the said letter mentioned “100% PLC charges” and also “charges for covered parking” though the respondent had opted for uncovered parking for which charges were less.  Thereafter, number of letters were sent by the respondent/complainant for deleting PLC and charges for cover parking.  All these letters had been placed on record before the District Forum as Ex-C8 to Ex-C11 & Ex-C13 to Ex-C16.  Despite that the appellant had been sending further demands to the respondent. The respondent had refused to meet further demands without making necessary correction in the agreement.  It is also admitted position that on 6.9.08, appellant had sent a letter to the respondent to return the agreement for correction  and the same was returned by the respondent vide letter dated 19.9.08.
13. The relevant portion of letter dated 6.9.08 of the appellant is reproduced as under:

“We are in receipt of your abovementioned letter. Your concerns are replied as under:

 

Regarding your request for correction in ‘Annexure C’ to the Apartment Buyer Agreement, we would like to inform you that the open parking shall be made available to you as per your requirement and for this purpose you are requested to send us both copies of the Agreement and thereafter a fresh set of the Agreements will be sent to you after making provision for Open Car Parking in the said Agreement.  We have also noted your request for change of Flat/Floor without any preferential location and your request will be considered subject to availability.  Further, as on date the provision of power back-up is not decided and approved and is being worked upon by the Company.  The same shall be implemented after approval, as per Company Policy.

 

 

14. The evidence on record also establishes that after sending the  agreement for correction on 19.9.08, the appellant did not bother to send back the same with necessary corrections. The evidence on record shows that thereafter number of letters were also sent but the appellant did not bother to respond to said letters and rather kept on sending letters dated 1.4.08, 21.4.08, 5.5.08 & 12.5.08 for making further payment. In these circumstances, the appellant was not justified in making further demands.
15.  It is also admitted position that the respondent never asked for preferential allotment.  It has also not been clarified by appellant in what manner the flat allotted was of preferential location.  Even the evidence on record shows that the respondent had opted for uncovered parking for which charges were less but demand sent along with agreement was for covered parking which was on higher side as compared to uncovered parking.  Considering the evidence on record, the District Forum has rightly held that the demanding money without agreement is unfair trade practice.  Further when agreement between the parties was never executed, the appellant is not justified in resorting to Article 3 Clause K(xv)         of the agreement.  The contention raised in this regard has no force.
16. Perusal of record shows that during the course of hearing of complaint case, appellant had also offered to waive PLC and covered parking charges and offered a house to which the respondent had refused as much time had elapsed by then.
17. In view of above discussion, no illegality is seen in the impugned order whereby the District Forum has ordered for refund of amount with 9% interest from the date of seeking refund till payment. Considering the totality of facts and circumstances including sufferings of respondent, punitive damages of Rs.2 lacs has also been rightly awarded. 
18. Accordingly the appeal stands dismissed. 
19. A copy of this order as per the statutory requirement be forwarded to the parties free of charge. The record received from concerned District Forum be also sent back along with copy of the order.
20.  The file be consigned to Record Room.

(Justice Veena Birbal)

President

 

(Salma Noor)

 Member

 

(NP Kaushik)

Member(Judicial)

sa