District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No. 88/2023.
Date of Institution:07.02.2023.
Date of Order:16.05..2023.
1. Anil Bhardwaj S/o Shri R.N.Bhardwaj, FCA 11, Jain colony, Ballabgarh, Distt. Faridabad.
2. Parul Bhardwaj W/o Anil Bhardwaj, FCA 11, Jain Colony, Ballabgarh, Distt. Faridabad.
…….Complainants……..
Versus
M/s. BPTP Limited, M-11, Middle Circle, Connaught Place, New Delhi through its Directors.
…Opposite party
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma…………Member.
Indira Bhadana………….Member.
PRESENT: Sh. C.B.Sharma , counsel for the complainant.
Sh. Jay Shankar, AR on behalf of opposite party.
ORDER:
The facts in brief of the complaint are that allured by
advertisement sin print media as well electronic media complainant booked one residential floor in the aforesaid project with the opposite party company and it allotted unit bearing No. PE-144-FF to complainant vide allotment letter dated 31.12.2009. Towards the price of aforesaid unit complainants paid Rs.7,75,500/- on different dates. Since allotment of the said unit complainants were pursuing the opposite party company seeking information with regards to balance amount payable by them as well as completion of the said unit. However, the officials at customer care of opposite party company were giving false information with regard to same. In the month of June 2010 customer care executive of the opposite party company told complainant that due to lack of some statutory approvals the said project had been cancelled and amount paid by the complainants should be returned within 3-4 months. When the complainants did not receive the amount, they again approached the opposite party company. At that time, customer care executive of opposite party company told complainants that opposite party company had got the necessary approval and it would complete the project very soon and would inform complainant accordingly. Thereafter, the complainants made number of visits to the office of opposite party company and each time it assured complainants that project was under construction and the complainant would receive information about the payment of balance payment by post as well through e-mail. Believing the representations of customer care executive complainants waited for the communication from the opposite party company. In between, the complainant constantly called up the customer care executives of the opposite party company, but they always received the same response. When the complainants did not receive any communication from the opposite party company for a long time, they approached the higher officials of the opposite party company in the year 2021, who informed them that their unit had been cancelled due to non
payment of balance amount. Complainants were utmost surprised and wonder struck to know the same as they were continuously pursuing the customer care executives of opposite party company to ascertain the status of construction as well balance amount payable by them. However, the executive of opposite party company always kept complainant in dark and never provided correct information. They always told complainants that construction of unit was under process and they would get information with regard to payment of balance amount through e-mail. The complainants were poor middle class person who had deposited their entire saving with the opposite party company with the hope of getting their dream home. But their all hopes and dreams stand shattered by the fraud played by the opposite party company with the same. The opposite party company received sum of Rs.7,75,500/- from the complainants and was using the same for the last more than 12 years without giving any intimation with regards to status of the unit allotted to the complainant. The complainant sent legal notice dated 09.01.2023 to the opposite party through registered post but all in vain. The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) deliver possession of the unit bearing No. PE-144-FF, Sector-77, Park Elite Floors, Greater Faridabad, Haryana or in alternative refund sum of Rs.7,75,500/- alongwith interest @ 18% p.a.
b) pay Rs. 2,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 22,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that despite allotment of Unit No. PE-144-FF in the Project “Park Elite Floors” in
favour of the complainants vide letter dated 31.12.2009 and payment of Rs.9.75 lacs, the possession thereof had not been offered to the complainant till date, which was blatant lie. It was submitted that the booking/allotment made in favour of the complainants stood terminated for non-payment of dues despite reminders in terms of last and final opportunity letter dated 14.03.2012 whereby the complainants were granted 15 days time to clear the dues, failing which, the booking/allotment was deemed terminated. Admittedly, the complainants never cleared the dues and accordingly by afflux of time, booking/allotment stood termination, formal notice whereof was issued to the complainants vide letter dated 05.07.2013. Thereafter, the opposite party after forfeiting the amount in terms of booking form, prepared the refund cheques and requested email id to collect the refund cheques. However, the complainants failed to collect the refund cheques. However, after more than 10 years of the termination of booking/allotment, the complainants had filed a false and frivolous complaint which ought to be dismissed out rightly with exemplary cost.
The complainants after having conducting their own due diligence and being completely satisfied, approached the opposite party through their broker namely ‘Kapur Estates’ with a desire to seek booking/allotment of an independent floor to be constructed on a 300 sq. yds. Plot for which, the booking amount was Rs.3 lacs. However, the complainants while tendering the duly signed booking form thereby consenting to abide by the terms and conditions thereof, deliberately tendered 2 cheques, one bearing NO. 799353 for a sum of Rs.1 lac of the current date and the other post dated cheque bearing No. 799354 for Rs.2 lacs dated 02.07.2009 for which receipts dated 15.06.2009 were issued. However, upon realizing that cheque for Rs.2 lacs was post dated, OP in good faith issued another receipt dated 01.07.2009 qua the same cheque bearing NO. 799354. However, the complainants had attempted at misleading this Hon’ble Commission by projecting
that 2 separate payments of Rs.2 lacs each were paid against2 receipts. The complainants had further concealed from this Hon’ble commission that when the cheque for Rs.2 lacs bearing No. 799354 was presented, the same was dishonored due to “insufficient funds”. In view of the fact that even complete booking amount had not been paid, the opposite party was well within its rights to cancel the booking, however, being a customer centric company, the opposite party allowed the complainants to clear the outstanding dues while raising demand for the next installment vide letter dated 09.08.2009. It was pertinent to point out that in the said demand, it was clearly reflected that against booking only Rs. 1 lac had been received and Rs.2 lacs was still outstanding. The complainants had also concealed that with a view to encourage the customers to make timely payment of the installments within stipulated time, the opposite party offered timely payment discount on the installments which were paid within the stipulated time. Thus, for the installment called by the opposite party vide letter dated 08.10.2009, the complainants availed TPD of Rs.12,163/-. The complainants had misrepresented that till date they had paid Rs.9.75 lacs to the opposite party. It was submitted that the complainants had paid a total amount of Rs.8,56,653/- including Rs.500 charged towards cheque dishonor charges and availed TPD of Rs.12,163.20. It was reiterated that against the booking amount of Rs.3 lacs, receipts dated 15.06.2009 and 01.07.2009 for Rs.2 lacs each were against the same cheque which was also dishonored and hence, no payment was received. The complainants had further misrepresented that they were allotted unit No. PE-144-FF in the project “Park Elite Floors-Sector-77 vide letter dated 31.12.2009. It was submitted that the Project Park Elite Floors was spread across entire Parklands and not confined to sector-77 only. It was further submitted that vide the said letter dated 31.12.2009 which had been filed with the complaint, the complainants were duly informed that their names were not shortlisted in the draw held for allotment and
gave them the option to seek refund after completing documentary formalities. However, the complainants voluntarily chose to wait for the second phase of allotment. Subsequently, the opposite party vide letter dated 09.07.0211 offered refund of deposited amount with interest or option of allotment while clarifying regarding increased super area etc. The complainants after weighing both the options available with them, voluntarily opted for allotment and accordingly submitted consent form. Thereafter, vide letter dated 06.10.2011, Unit NO. PE-144-GF, park Elite Floor was allotted in favour of the complainants. The complainants had further concealed from this Hon’ble Commission that vide letter dated 06.10.2011, the complainants were not only allotted unit NO. PE-144-GF, Park Elite Floor but demand for Rs.1,51004/- was also raised, payable by 27.10.2011 while offering TPD of Rs.4,005/- if the payment was made by 27.10.2011 while clarifying that the allotment offered should be final and binding subject to payment within 21 days. However, the complainants failed to make the payment and thus, reminder dated 01.11.2011 was also issued by the opposite party but to no avail. While the said demand was still unpaid, the opposite party raised demand towards the installment due towards start of construction alongwith reminder for the previous outstanding dues vide letter dated 23.01.2012 payable by 07.02.2012 while offering TPD. However, no payment was received. Despite non receipt of payments, the opposite party under the cover of letter dated 01.02.2012 enclosed two copies of the floor buyers agreement, which were to be signed by the complainants and returned to the opposite party within 21 days however, the complainant failed to execute the FBA. In view of the fact that the complainants neither made payments nor executed FBA despite issuance of reminders dated 01.11.2011, 23.01.2012 apart from demand letters, final demand notice dated 14.03.2022 was served to the complainants granting a final opportunity to clear all outstanding amounts overdue for payment along with
accumulated interest to avoid the cancellation/termination of the booking/allotment while clearly stipulating that if the dues were not cleared within 15 days, the booking/allotment should be deemed to be terminated automatically. As detailed above, the complainant still neglected to clear the dues and hence, booking/allotment stood terminated by afflux of time and a formal notice of termination thereof was issued on 05.07.2013 and request for collecting refund cheques in terms of booking was issued via email dated 24.04.2014 on the registered email id. But the complainants did not come forward to collect the refund cheques. The willful failure on the part of the complainants to comply with the terms of the final notice signified their acceptance and confirmation to termination/cancellation of allotment of the aforesaid unit PE-144-FF. Subsequently, a formal notice of termination/cancellation dated 05.07.2013 was issued to the complainants reiterating that the booking/allotment of a Unit PE-144-FF stands cancelled/terminated with effect from the date of final notice. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
To establish his case the complainant has led in his evidence, affidavit of Anil Bhardwaj, Ex.C-1 – letter dated 31.12.2009 regarding allotment in our project “Park Elite Floors”, Parklands, Faridabad, Ex.C-2 to 6- receipts, Ex.C-7 – demand draft dated 21.08.2009 for Rs.2,00,000/-, Ex.C-8 – legal notice,, Ex.C-9 – postal receipt.
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Jay Shankar, AR of opposite party, Ex.R1 – Resolution, Ex.R-2 (colly) – Receipt, Ex.R/3 – Cheque Return Advice,, Ex.R-4 – letter dated August 09,2009, Ex.R/5 – Receipt, Ex.R/6 (colly) – consent letter, Ex.R-7 – Reminder letter dated 01.11.2011 regarding request for dues, Ex.R/8 – letter dated 23.1.0212 regarding payment request, Ex.R-9 – letter dated February 01,2012, Ex.R-10 – postal receipts all the communications to the complainant, Ex.R-11 – Application for allotment by Sale of a residential independent floor of Parklands, Faridabad, Ex.R/12(colly) – letter dated 14.3.2012 regarding final demand notice
5. In this complaint, the complaint was filed by the complainant with the prayer to deliver possession of the unit bearing No. PE-144-FF, Sector-77, Park Elite Floors, Greater Faridabad, Haryana or in alternative refund sum of Rs.7,75,500/- alongwith interest @ 18% p.a.
6. After going through the evidence led by the parties, the Commission is of the opinion that the complainants booked one residential floor in Park Elite Floors, Sector-77, Faridabad with the opposite party and opposite party allotted unit bearing No. PE-144-FF to the complainant vide allotment letter dated 31.12.2009. As per Ex. C-2 to C-7 the complainants paid to the opposite party on different dates total amounting to Rs.9,75,000/-. As per the application filed by the opposite party for dismissal of the complaint in which he has stated that after forfeiting the amount in terms of booking form, prepared the refund cheques and requested the complainants vide email dated 24.4.2014 sent on their registered email id to collect the refund cheques.. However, the complainants failed to collect the refund cheques.
7. Keeping in view of the above submissions as well as the evidence led
by the parties, the Commission is of the opinion, the complaint is allowed. Opposite party is are directed to refund the deposited amount to the complainant with compensation in the form of simple interest @ 9% p.a from the respective date of deposit till the payment is made together with costs of Rs.20,000/- to the complainant. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 16.05.2023 (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
