Delhi

East Delhi

CC/688/2013

SYED KAZIM ABBAS - Complainant(s)

Versus

ARIHANT INFRA. - Opp.Party(s)

15 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 688/2013  

 

1           2	SYED KAZIM ABBAS FLAT NO.102, PLOT NO.178 MEDIA ENCLAVE SECTOR-6, VAISHALI GHAZIABAD   ANDLEEB MEHDI FLAT NO.102, PLOT NO.178 MEDIA ENCLAVE SECTOR-6, VAISHALI GHAZIABAD	….Complainants
Versus
	M/s ARIHANT INFRA REALTORS PVT. LTD. 601, 6TH FLOOR, PLOT NO.17, SACHDEVA TOWER, COMMUNITY CENTRE, KARKAR DOOMA, DELHI - 110092	……OP

 

Date of Institution	:	05.08.2013
Judgment Reserved on	:	16.02.2023
Judgment Passed on	:	15.03.2023

               

QUORUM:

 

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

 

Order By: Shri S.S. Malhotra (President)

 

JUDGEMENT

1. By this order the Commission would dispose off the present complaint filed by the Complainant against OP w.r.t. deficiency in service in increasing the area/cost of the Flat and then for illegally issuing the cancellation letter dated 05.05.2012.    
2. The brief facts as stated by the complainant are that the Complainant on the representation made by OP, booked one flat in the upcoming project of OP in the project namely ‘Arihant Arden situated on Plot No. GH-7, Sector-1, Greater Noida, Uttar Pradesh, which was a Construction Linked Project and he was allotted Flat No.1103, 11^th Floor in Tower J, consisting Super area (as stated) to be 1025 sq.ft.  The Complainant deposited Rs.50,000/- by way of cheque on 02.07.2010 and Rs.1,37,062/- on 02.08.2010 and total amount of Rs.1,87,062/- was deposited which was 10% of the total cost of the Flat which was told to be Rs.18,70,625/-.  Subsequently, the OP issued allotment letter to the Complainant on 11.02.2011 but to the surprise of the Complainant the super area which was now mentioned in the Allotment Letter was as 1065 sq.ft. i.e. super area has been increased from 1025 sq.ft. to 1065 sq. ft. and consequently the cost has also been enhanced from Rs.18,70,625/- to 19,43,630/-.  When the Complainant contacted the OP, for explanation, he was informed that as a part of internal policy of the OP, the area of the said flat has been increased and accordingly the price has also been increased but it was assured that this increased amount has to be paid at the end of the term of the deposit scheme after adjusting all the expenses.  It is further submitted that this change was made by OP unilaterally without taking the complainant into confidence. It is further stated that Complainant made regular payments as per the demand raised by the OP and all the dues were paid on account of Flat booked by the Complainant.  However, on 05.05.2012 the OP acting in illegal and arbitrary manner sent a letter of cancellation of Flat thereby cancelling his allotment by stating that the Complainant was required to pay Rs.1,94,363/- and has paid only Rs.1,87,062/- and since a difference of Rs.7,301/- has not been paid by Complainant, the Flat was cancelled.  It is further submitted that the Complainant has always paid the amount as per demand raised by OP and paid 10% of the total cost of the Flat and there was no reason with the Complainant as to why he would not pay Rs.7,301/- but since he did not receive any letter from the OP, this amount was not paid.  It is further submitted that when he approached the OP, it was informed by the representative of OP that there is some litigation pending in the Hon’ble High Court of Allahabad and only after disposal of that matter it would be clear as to when they would be sending another demand letter and therefore cancellation of the allotment for an amount of Rs.7,301/- only which too was never informed by the OP is illegal and  arbitrary and thereafter various e-mails were written to the OP but of no consequence and it is further stated that complainant was always ready and willing to make the entire payment as per schedule and even a joint letter/ representation to the OP was written by other aggrieved investors but of no consequence and ultimately the Complainant issued legal notice to the OP which was duly received and even replied but mentioning baseless & false allegation, and having no other course, the Complainant has filed the present complaint inter alia seeking direction to the OP to revoke/ withdraw their cancellation letter dated 07.05.2012, to pass an order thereby directing OPs not to sell the same flat to some other person, to pay Rs.1,50,000/- as compensation to the Complainant for harassment, monetary loss and mental pain and agony, to pay a sum of Rs.88,000/- as cost of legal proceedings or any other relief as the Commission may deemed fit. No relief w.r.t. refund of money paid or w.r.t. possession of the flat has been sought. 
3. The OP has filed reply to this complaint taking preliminary objection that OP is a renowned company in the field of infrastructure having reputation and goodwill and present complaint has been filed to cause disrepute and malign the goodwill of the OP and further to pressurize the OP to make unlawful gaines for themselves.  The complaint is liable to be dismissed as all the facts mentioned in the complaint are false, malafide, after thought and made with sole motive to blame and bring bad name to the OP and it is further submitted that the Complainant booked a Flat bearing No. 1103, 11^th floor, Tower J which was to be constructed by OP at Greater Noida and paid Rs.1,87,062/- towards initial payment against the total payable amount of Rs.19,43,630/- and 2^nd instalment in consideration of the said Flat should have been made on or before 30.01.2011 but despite writing of various letters, Complainant failed to make the payment as per schedule plan and not only this, the Complainant was given another opportunity to make the payment of Rs.6,10,407/- by extending the date upto 31.03.2011 but Complainant failed to make the payment despite reminders and letters and second payment was never made by the Complainant despite the extension of dates and as such Complainant by his continuous act has manifested by way of non-payment of the arrears and in these circumstances OP was left with no other option but to cancel the allotment which was provisionally allotted and therefore on account of the non-payment of the amount at scheduled time by Complainant, the OP cannot be blamed by levelling such allegation and therefore complaint is liable to be dismissed and be dismissed. 
4. The deposit of money by the Complainant is not disputed but contents of preliminary objections are reiterated that Complainant had not made the differential payment of the initial 10% and even did not make the payment of IInd Installment by 31.03.2011 despite their assurance.  It is reiterated that allegations made in the complaint are malicious, fabricated & to bring dis–repute to the OP. As far as the fact w.r.t. change of area is concerned, the intimation for change of area for the better uses of the unit and enjoyment of the complainant have been sent at the address provided by Complainant for communication vide letter dated 03.12.2010 which is Annexure-A and which is quite noticeable as this letter was sent prior to the execution of allotment letter and Complainant at that time has not raised any objection w.r.t. increase in the area or increase in the price but after thought allegation are being levelled and in fact Complainant never paid any payment thereafter.  It is further submitted that Complainant was duly informed as to how an amount of Rs.19,43,630/- has been calculated instead of Rs.18,70,625/- and it was on account of increase in the initial area which was also increased from 1025 sq. ft. to 1065 sq. ft..  It is further submitted that intimation as to the increase of area for better enjoyment was also given telephonically and personally and also by letter dated 03.12.2010 at the address provided, through Blaze Flash Couriers Ltd. and Complainant instead of appreciating the efforts made by OP to make the space bigger and better by creating extra space, rather, is tarnishing the honest and positive efforts of the OP and not only this, the allotment letter specifically mentions that upon grant of permission by concerned authorities the area may be enhanced for better utility and enhanced enjoyment.  Therefore, allegation by the Complainant are false, fabricated and dishonest.  It is further submitted that payment schedule was opted by the Complainant on his own choice so as to make the payment as per their convenience which was done but despite having agreed to the payment schedule, the payment was not made as per schedule and not only this, balance difference in amount of 10%, was not paid.  Second instalment of consideration of Flat of Rs.6,10,407/- which was payable by 30.01.2011 and which date was extended upto 31.03.2011 was also not paid.  It is further submitted that Complainant never approached the OP through any means as stated by them to make any payment as per schedule payment as even after various reminders being sent, the Complainant failed to make any payment and therefore the OP as per Article 2.1 and 2.2 of the Allotment Letter was entitled to forfeit the Earnest Money along with non-refundable amount in case of non-fulfilment/ breach of terms and conditions and exercising such power from the agreed terms and conditions the OP rightfully forfeited the amount, and not only this, the OP has on its own, returned the Earnest Money without any request or compulsion, with the only intention of developing and maintaining goodwill of the OP with its customer and therefore the complainant has no cause of action to file the present complaint.  It is further submitted that the provisional allotment were made to the Complainant on the basis of representation to abide by the terms and conditions but since Complainant has failed to make any payment as per scheduled plan, and is stating facts with intention to defame the OP & for its unlawful gains, the OP seeks justice from this Commission by praying that the complaint of the Complainant be dismissed.
5. The Complainant has filed Rejoinder thereby denying the contents of the Written Statement and reiterating & reaffirming the contents of the complaint.  It is denied that the construction at the site of the OP was in accordance with Government plans and it is stated that the project was highly delayed and not only this the OP had also informed the Complainant about some pending litigation before the Hon’ble High Court of Allahabad which has caused the delay.  It is denied that OP sent any demand letter to the Complainant of Rs.6,10,407/- as alleged and it is reiterated that as and when Complainant visited the office of OP1 the above mentioned explanation for delay was being furnished, and project was not even initiated in November, 2010 i.e. when the Second instalment is being allegedly claimed.  It is further denied that any letter was written by the OP prior to the allotment letter w.r.t. the information of increase in area or increase in the actual price and it is was given at the time of issuing allotment letter only. It is denied that OP has ever demanded Rs.6,10,407/- and it is denied that complaint of the Complainant is liable to be dismissed as alleged. 
6. Complainant has filed its own evidence and OP has filed evidence of Sh. Kaushal Jain, MD of the OP.    
7. Matter was fixed for arguments but meanwhile OP has filed an application seeking permission to place additional documents on record which application was allowed by the Commission and additional documents were allowed to be taken on record and consequently Sh. Kaushal Jain, the MD of the OP filed another consolidated affidavit thereby exhibiting those document also which were alleged to have been filed on record, but could not be exhibited earlier.  Complainant was also given opportunity to file additional evidence. 
8. The Commission has heard the arguments and perused the record. 
9.   The crux of the matter is that Complainant booked a Flat in the project of OP and initial area admittedly was of 1025 sq.ft. and the initial cost of Rs.18,70,625/- and 10% of which the Complainant paid in two instalments i.e. Rs.50,000/- on 02.07.2010 and Rs. 1,37,062/- on 02.08.2010.  Subsequently, the OP without any intimation to the Complainant increased the area from 1025 sq.ft. to 1065 sq.ft. and proportionately the cost of Flat was also increased to Rs.19,43,630/- and the letter of allotment was issued w.r.t. the enhanced area and enhanced cost which was objected to by the Complainant but no satisfactory reply was given by the OP nor OP ever demanded the amount and ultimately OP cancelled the Flat and returned the deposited amount of the Complainant by way of cheque which cheque admittedly has not been encashed by the Complainant and Complainant has claimed that letter of  cancellation be revoked/ withdrawn and OP be directed not to sell the same apart from compensation is being sought.  
10. The defence of the OP is that the area was increased to give better benefits and facilities to the Complainant and letter was written to the Complainant for making payment of difference of the 10% amount which comes to Rs.7,301/- and not only this, the additional demand of the 2^nd instalment was also made, & since it was construction linked project and even 2^nd Instalment was not being paid by the Complainant and that since the Complainant has not deposited the 2^nd instalment despite the extension of date, the allotment of Flat was ultimately cancelled and amount was returned although the Complainant did not get the cheque encashed.  The controversy therefore is:

• As to whether OP enhanced the area and the proportionate cost after giving the information to the Complainant, with the consent of the Complainant or whether any prior notice was given or not
• And secondly whether any letter demanding the 2^nd instalment was ever served upon the Complainant or not.    

11. It is matter of record that OP has not placed any document on record to prove that prior to enhancement of the area any letter was given by the OP to the Complainant or not by way of Registered Post.  In general parlance the areas of each project are measured, drawings are obtained, drawing are got approved from the authorities, necessary permissions are taken by the builder from the all appropriate authorities and only thereafter, the approved drawings comes in the brochure of the company so as to inform the general public as to what the  OP/ builder is likely to make or offer i.e. the area, the super area, the number of rooms, number of WCs and so on and so forth like balconies and common areas.  Once that drawings has been approved w.r.t. 1025 sq. ft., then how that drawing has been changed to 1065 sq.ft. has not been explained.  The only presumption can be that either the complete drawing plan was not got sanctioned by the OP or in the alternative the sanction plan was altered with new drawings.  In both the eventualities there is deficiency on the part of OPs. It is not the question of construction of single flat. By charging the area of one Flat, all Flats above and below this flat would also be of same dimension.  The whole Project is under change. If area of 40 sq. ft. is increased in each flat, then what would be the comprehensive increase, can be easily imagined.  From where the whole land is being increased, can be presumed easily as the Area of the Project/Land is limited and pre-determined.  The proposed plan is already sanctioned. Either there is complete change in entire layout plan or in the alternative some additional land is sought to be covered for increasing area by taking necessary permission.  Therefore, the contention of OP that it had given more space to enjoy the comfort by the complainant is, although can be a good-intention, but changing the drawing and also changing the area is neither free nor with the consent of the Complainant.  It is not the case of the OP at all that he is giving some extra area at no additional cost.  Therefore, the contention of OP that he is giving extra area to the occupant does have much bearing. If the area is being altered or if the drawing is being rescheduled then a notice was required to be given to the Complainant and then it was an option for the Complainant either to retain that flat or reject the same.  Therefore, this contention of the OP is not well found. 
12. The OP could not have increased the super area without the consent of those persons to whom, the booking has already been made for a specific amount.  The OP has filed documents and he filed a letter dated 03.12.2010 on record with the subject i.e. intimating regarding super area of the Flat from 1025 sq. ft. to 1065 sq. ft.  The accompanying receipt from Blaze Flash Courier ltd. is placed on record. 
13. The Commission has perused the allotment letter dated 01.03.2011.  It has been exhibited as Annexure A/4 to the Complaint.  Furthermore, intimation for change of area for the better usage of the unit and enjoyment of the complainants have been made at the address provided by the complainants for communication vide letter dated 04.12.2010 the same is exhibited as OPW1/4. The accompanying receipt attached with this document is of a courier receipt from Blaze Flash Courier Ltd.  The same is being denied by the Complainant by stating that the said letter was never received by them and the information w.r.t. enhancement of area came to them as a surprise only when allotment letter dated 01.03.2011 was issued, and in the allotment letter itself, at page 19, under the Head of General Terms and Conditions it is specifically mentioned that any correspondence which would be done by the builder or by the allottee would be by Registered Post Only. The OP has not filed any evidence or an  affidavit from the Blaze Flash Courier Ltd. nor filed evidence of the concerned official of Blaze Flash Courier Ltd., so that the fact be brought on record that the said letter was duly delivered to the Complainant. Admittedly it has not been sent by registered post which is in violation of the Terms and Conditions of the Allotment Letter itself.  Therefore, contention of the Complainant appears to be well found that they never received any such letter and OP has failed to prove that any prior communication was given by the OP to the Complainant w.r.t enhancement of the area or of the cost. Here one another fact is also relevant that if a person has given Rs.1,87,062/- as 10% of total consideration then for a meagre amount of Rs.7,301/- he would not put his paid amount in danger at the risk of cancellation of the Flat and apparently it also does not appear to be reasonable that a person who has paid Rs.1,87,062/- and has booked a Flat would face cancellation for an only amount of Rs.7,301/-. Therefore, OP has failed to prove that he has served any notice to the Complainant prior to demanding Rs.7,301/- only or prior to enhancing the area/costing of the Flat by way of Registered Post which amounts to deficiency in service.  Secondly the contention of the OP is that it is not a case of Rs.7,301/- rather another demand was raised by the OP to the Complainant and demand of Rs.6,10,407/- was made from the Complainant vide exhibit OPW1/7 towards 2^nd Installment.  Even this demand letter is not supported with any registered postal receipt.  Therefore, OPs contention that it raised a demand of Rs.6,10,407/- has also not been proved in absence of necessary documents and the contention of  Complainant is well found that they never received any letter from the OP either w.r.t. deficiency in the first 10% amount or w.r.t. further demand, being a Construction Linked Payment Plan.  Therefore, facts w.r.t. writing a letter by the OP to the Complainant for cancelling the Flat is not well found and therefore it is held that OP has unlawfully and illegally cancelled the flat of the Complainant. 
14. The second issue is as to whether the Complainant is entitled to the Flat. As observed here in above there is no such prayer made by the complainant. Further, it has also not been stated that the complainant is ready for making the balance payment to the OP.   It is admitted case of the Complainant that in the entire period i.e. from the date of booking the flat, upto the date of alleged letter written by OP w.r.t. cancellation or upto the date of filing the complaint the Complainant has not, on their own tried to contact the OP w.r.t. their further payments and the Complainant has only paid 10% of total costs.  It cannot be believed that apart from 10% the Complainant has no liability to make payment and therefore by just making payment of 10%, it would not be in the interest of justice nor the balance of convenience would be in favour of the complainant that order w.r.t. handling the possession of Flat be passed.  The only relief which the Complainant would be entitled would be w.r.t. refund of the amount although even that has not been prayed for by the complainant.
15. The contention of the OP is that the amount has been forfeited. This contention of OP is also not well found.  It is matter of record that the OP himself claims that on account of non paying the difference in the proportionate cost and also by not paying the second instalment Flat was cancelled and amount of Rs.1,87,062/- as deposited by the Complainant was returned to him.  It means that the OP had not exercised the option w.r.t. forfeiting the amount of complainant rather fairly returned the amount to the Complainant.  It is altogether different aspect that Complainant did not get the said cheque encashed and amount remained with the OP.  It is also admitted case that OP has not returned the amount by way of demand draft but had only issued a cheque and therefore unless, the cheque is presented by the Complainant and is encashed the amount would remain with the OP.  One fact is therefore now clear that OP has not exercised the option of forfeiting the amount and secondly amount is still lying with him. 
16. In nutshell the Complainant would not be entitled for Flat on account of non-making the further payments irrespective of the fact that he did not receive  any demand letter from the OP and OP is not entitled to retain the amount so deposited by the Complainant. 
17. The Commission therefore inter alia holds that there was deficiency in service on the part of the OP in increasing the area and the proportionate cost of the Flat without intimation and therefore cancellation of the Flat on such ground was not proper and  OP has  not returned the amount to the Complainant from the date of filing the complaint. 
18. The Commission therefore directs the OP as follows: 

• Not to cancel the Flat allotted to the Complainant till he return Rs.1,87,062/- with interest @ 6% p.a. to the Complainant w.e.f. filing the complaint.    

In these circumstances no order has been passed for compensation or legal charges. 

This Order is to be complied within 30 days from the date of receiving the same & in case the OP would not pay the amount within 30 days, the rate of interest would be 9% from the date of filing the case upto the date of realization on the entire amount.              

This order be complied with within 30 days from the date of receipt of the order.

Copy of the order be supplied/sent to both the parties free of cost as per rules.

File be consigned to Record Room

Announced on 15.03.2023.