District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.51/2021.
Date of Institution: 02.02.2021.
Date of Order: 15.11.2022.
Kanta Sharma aged about 62 years W/o Shri Naresh Kumar, r/o House No. 135, Rajeev Nagar, Near, Sector-17, Old Faridabad, District Faridabad.
…….Complainant……..
Versus
M/s. RPS Infrastructure Ltd., 1117-1120, 11th floor, Tower-B, DLF Tower, Jasola, District centre Delhi through its Director/Principal Officer.
Site address:
M/s. RPS Infrastructure Ltd., RPS Infinia, 12/6, Milestone, Mathura Road, Sarai Khawaja, Faridabad, through its Site Manager/Incharge. …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. Rajiv Kumar Nangia, counsel for the complainant.
Shri Rajesh Jain, AR alongwith Sh. M.P.Dagar, counsel for opposite party.
ORDER:
The facts in brief of the complaint are that the opposite party allure the common public that the opposite party had launched an IT Park Project namely “RPS-Infinia” on the land measuring 7.587 acres, situated at 12/6, Milestone, Mathura Road, Sarai Khawaja, Sector-27C, Faridabad and having license bearing No. 19 of 2010 for the development of above said project from the office of Director, Town & Country Planning Haryana, Chandigarh and also assured that the opposite party would hand over the physical possession of the units to the purchasers latest by 42 months (36 months plus six months grace period) from the date of execution of buyer-seller agreement. Believing on the assurance of the opposite party, the complainant had booked an IT/ITES Unit and make a booking amount of Rs.4,41,871/-. Thereafter, the opposite party had executed an Buyer’s Agreement on 31.05.2013 and allotted the IT/IES Unit bearing No.412, 4th floor, Tower-AZURE-02, Super area 650 sq. ft. approx. in the said project “RPS-Infinia”, Sector-27C, Mathura Road, Faridabad and also issued allotment letter on 03.06.2013. The BSP of the said unit was Rs.45,50,000/- i.e. @ 7000/- per sq/ ft. plus EDC/IDC and other legal charges. The complainant had paid a total sum of Rs.9,93,796/- i.e. more than BSP of the said unit as per payment schedule i.e. time link payment plan to the opposite party. As per the terms and conditions especially as per clause No. 18 of the Buyer’s agreement, the opposite party was to offer the possession of the fully furnished unit to the complainant upto 30.11.2016 (including six months grace period), but the opposite party failed to hand over the physical possession of the said unit to the complainant upto the stipulated period. Accordingly, the complainant approached the opposite party to know the status of said project, then the officials of the opposite party assured the complainant that the opposite party would hand over the possession of the said unit upto the end of December,2017. But the opposite party failed to deliver the possession of the said booked unit even after passing the grace period of six months as per Buyer’s agreement. On one hand, the opposite party failed to fulfil the terms and conditions of the said buyer’s agreement and on the other hand, started unnecessary/illegal demands from the complainant on one pretext or the other. Whereas, as per actual position of the site/project, the above mentioned site/project the construction had not even started, and the opposite party was not in a position to give any satisfactory reply to the complainant. The opposite party was guilty of rendering of deliberate, deficient services by adopting unfair trade practice by not offering and delivering the actual, physical possession of the said booked unit even after receiving more than the BSP, till date. The complainant by compelled by the circumstances and above said illegal act of the opposite party, the complainant approached the opposite party and requested to refund his above said entire amount with interest, but the opposite party also did not pay any heed. The complainant sent legal notice dated 29.10.2016 to the opposite party 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 parties to:
a) refund entire amount of Rs.9,93,796/- alongwith interest @ 18% p.a. from the date of payment till realization, paid by the complainant to the opposite party on account of booking amo0unt and part payments of IT/ITES Unit bearing NO. 412, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”. Sector-27C, Mathura Road, Faridabad.
b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 55,000 /-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 the complainant had not approached this Hon’ble Commission with clean hands and had concealed the material facts that the complainant failed to remit 9 instalments despite repeated reminders/demand letters dated 10.09.2013, 12.11.2013, 10.01.2014, 03.12.2014, 23.01.2015, 23.03.2015, 16.5.2015, 24.07.2015 and 07.10.2015 having been sent by the opposite party which compelled the opposite party to cancel the allotment of the unit in question and on the date of cancellation i.e. 28.10.2015, an amount of Rs.22,78,958/- was outstanding as on 16.12.2015 against allotment of unit No. 412 in Tower T-02 (Azure-02), RPS Infinia, 12/6, Milestone, Main Mathura road, hereinafter referred to as the said “Unit”. The complaint was barred by law of limitation as the allotment of the unit in question was cancelled by the opposite party vide letter dated 28.10.2015 and vide letter dated 16.12.2015, the complainant was asked to complete the formalities for refund of her amount of Rs.3,11,296/- after forfeiture of the earnest money amounting to Rs.6,82,500/- but the complainant failed to come forward to initiate the process of refund hence, her right to receive any amount form the opposite party after a lapse of around 6 years was extinguished. It was submitted that the complainant ought to have avail the remedy of arbitration proceeding available to him as per Clause No. 51 of Buyer’s Agreement which contains a conciliation and arbitration clause and invoke the arbitration jurisdiction first for speedy disposal instead of the present complaint where every opportunity to entail evidence by examination and cross-examination of witnesses. The relevant clause No. 51of the Buyer’s Agreement dated 31.05.2013 entered into between the complainant and the opposite party in respect of the said unit was reproduced herein below:
“Clause 51 – That any dispute arising out of or touching upon or in relation to the terms of this agreement including interpretation and validity of the terms thereof and the respective rights and obligation of the parties, shall be settle amicably by mutual discussions falling which the same shall be referred for arbitration. The sole arbitrator shall be appointed by the intending seller who decision shall be final and binding upon the parties. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996 and the venue shall be at an appropriate at New Delhi or Faridabad. However, the court and District Faridabad alone shall have the exclusive jurisdiction”
The complainant had no locus standi to file the present complaint. The complainant had ceased to be a consumer for the purposes of filing the present complaint as the allotment of the unit in question i.e. said unit was cancelled owing to failure of the complainant to remit 9 instalments, therefore, the complainant ceased to be an allottee thereby disabling her to file the instant complaint. It was further submitted that the complainant was not a consumer as she had simply invested hermoney for commercial purposes. It was submitted the complainant had invested her money towards booking of said units for profits and therefore, she was only an investor thus, the present complaint was a gross abuse of the process of law and the same had been filed by the complainant with ulterior motive or raking up false and frivolous disputes for the sole purpose of unjustly enriching himself . It was submitted that the complainant approached the opposite party and applied for allotment of an IT space/Unit vide application alongwith price list dated 09.04.2013 and considering the application duly signed and submitted by the complainant, the said IT/ITES Space-Unit No. 0412, at 4th floor, Tower No. Azure-02/T-02 having approximate super area of 650 sq. ft.(subject to final measurement at the time of completion and offer of possession) situated at RPS-OXY Park now known as RPS Infinia, 12/6, Milestone, Mathura road,Sarai Khawaja, Faridabad (Haryana) was tentatively allotted to him vide allotment letter dated 03.06.2013 for a basic sale price of Rs.45,50,000/- calculated @ Rs.7000/- per sq. ft., besides other charges towards specification charges, external development Charges (EDC), Infrastructure Development charges (IDC), Executive Club Membership Charges, Interest Free Maintenance charges and other additional charges aggregating to total sale consideration of Rs.52,85,000/-. To that effect, the requisite buyer’s agreement was executed by the opposite party on the one hand and the complainant on the other on 31.05.2013. It was submitted that in the manner aforesaid vide allotment letter dated 03.06.2013, the complainant became allottee of the said unit upon agreed terms and conditions as stipulate din application for allotment and the buyer’s agreement. It was further submitted that the aforesaid super area of 650 sq. ft was tentative and was always subject to final measurement on grant of occupation and at the time of offer of possession. It was submitted that in terms of stipulations made in the clause 16 and 19 of Buyer’s agreement, the opposite party had to make an endeavour to give possession of the said unit within 36 months from the date of execution of the Buyers Agreement or from the date of getting various section for the concerned authorities for starting the construction of the project whichever was later exclusive of the time taken by the competent authorities towards various approval such as issuance of the occupation certificates/completion certificates etc. and subject to forcemajeure circumstances and subject to receipt of all the payments as per the payment plan and other charges due and payable upto date of offer of possession.
It was submitted that when the complainant did not take any step to remit the overdue outstanding after having been requested repeatedly vide demand notices and reminders dated 10.09.2013, 12.11.2013, 10.01.2014, 03.12.2014, 23.01.2015, 23.03.2015, 16.5.2015 and 24.07.2015 and 07.10.2015, the opposite party issued again a final reminder dated 16.09.2015 to remit outstanding amount of Rs.20,.41,903/- which the complainant did not pay any heed to. Constrained by the aforesaid conduct of the complainant, the opposite party by affording the complainant last and final opportunity to remit the outstanding dues vide letter dated 16.09.2015 but the complainant failed to comply with the same and under the aforesaid compelling circumstances, the opposite party was constrained to cancel the allotment of the said unit w.e.f 28.10.2015 and the complainant was duly intimated about the same vide letter dated 28.10.2015 whereby she was further asked to submit her objections, if any, on the decision of the opposite party to cancel the allotment. It was submitted that in terms of allotment, the complainant had left with no right, lien and interest in respect of allotment of said unit except to get refund of her deposit amounting to Rs.3,11,296/- after deduction of earnest money as well as amount of non-refundable in nature such as tax, cess etc. amounting to Rs.6,82,500/-. It was further submitted that the opposite party, vide letter dated 16.12.2015, further asked the complainant to complete the formalities so that the process of refund could be initiated but the complainant did not come forward for the same. 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.
5. In this case the complaint was filed by the complainant against opposite party– M/s.RPS Infrastructure Ltd. with the prayer to: a) refund entire amount of Rs.9,93,796/- alongwth interest @ 18% p.a. from the date of payment till realization, paid by the complainant to the opposite party on account of booking amo0unt and part payments of IT/ITES Unit bearing NO. 412, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”. Sector-27C, Mathura Road, Faridabad. b) pay Rs. 5,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 55,000 /-as litigation expenses.
To establish his case the complainant has led in his evidence, Ex.CW1/A – affidavit of Kanta Sharma, Ex.C-1 – Buyer’s agreement,, Ex.C-2 – allotment letter, Ex.C-3 – letter dated 03.01.2015, Ex.C-4 – legal notice.
On the other hand counsel for the opposite party strongly agitated and
opposed. As per the evidence of the opposite party Ex.R1/A – affidavit of Rajesh Jain S/o Shir S.P.Jain, Authorized Representative, RPS Infrastructure ltd., 1117-1120, 11th floor , Tower-B, DLF Towers, Jasola District Centre, new Delhi, Ex.R1/1 – Certificate of Incorporaton,, Ex.R1/2 – Resolution, Ex.R1/3 – Demand notice, Ex.R1/4 – reminder letter dated 16.09.2015, Ex.R1/5 - IT/ITES Unit Buyer’s Agreement, Ex.R1/6 – Application Form, Ex.R1/7 – allotment letter, Ex.R1/8 – Form LC-V – licence No. 19 of 2020, Ex.R1/9 – letter dated 02.09.2010.
6. In this complaint, the complaint was filed by the complainant with the prayer to refund entire amount of Rs.9,93,796/- alongwith interest @ 18% p.a. from the date of payment till realization, paid by the complainant to the opposite party on account of booking amo0unt and part payments of IT/ITES Unit bearing NO. 412, 4th floor, Tower-AZURE-02, super area 650 sq. ft. approx. in the said project “RPS-Infinia”. Sector-27C, Mathura Road, Faridabad.
7. Counsel for the opposite party stated at Bar and argued at length that the allotment of the unit was cancelled on 28.10.2015 and the complaint was filed on 02.02.2021. The complaint is time barred. Earnest money of Rs.6,82,500/- was forfeited by the opposite party. But not going into the discussion of the case, Shri Rajesh Jain, AR on behalf of opposite party has made a statement that the unit of complainant was cancelled due to non payment of due instalments by the complainants and cancellation letter has been sent to the complainant by the company. Now the respondent company has no objection to refund the deposit amount of the complainant as per agreement after deduction of earnest money and statutory dues like service tax, VAT etc. within next 6 months.
On the other hand, Shri Rajiv Kumar Nangia, counsel for the complainant has orally stated that he has got “No Objection” on the above statement of Shri Rajesh Jain, AR on behalf of the opposite party.
8. After going through the evidence led by both the parties as well as the statement of the AR of the opposite party, in the interest of justice, the complaint is allowed.
9. Opposite party is directed to:
1) refund the deposited amount of the complainant alongwith interest @ 6% p.a. from the date of filing of complaint till its realization as per agreement after deduction of earnest money and statutory dues like service tax. VAT etc.
ii) pay Rs.3300/- as compensation on account of mental tension, agony and harassment .
iii) pay Rs.2200/- as litigation expenses to the complainant.
Compliance of this order be made within 30 days from the date of receipt of copy of order. Copy of this order be given to the parties concerned free of costs and file be consigned to record room.
Announced on: 15.11.2022 (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.
