- The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party (OP) as detailed above, inter alia praying for directions to the OP to:-
- Refund the amount of ₹1,10,623/- along with interest at the rate of 18% per annum.
- Pay an interest at the rate of 18% platinum on the sum of ₹96,67,596/-.
- Pay a sum of ₹5,00,000 towards mental agony, harassment and cost of litigation.
- Notice was issued to the OP. Parties filed Written Statement/Reply, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A. The details of the flat allotted to the Complainant/other relevant details, based on pleadings of the parties and other records of the case are also given in the Table- A.
- Brief facts of the case, as emerged from the pleadings of the parties and other case records are that: -
- One Mr. Krishan Kumar Sangwan and Mr Anurag (original allottees) were allotted apartment number PGN-11-0406 measuring 1900 sq. ft. for a total price of ₹1,01,14,640/- in the project of the OP, namely ‘Palm Gardens’ vide allotment letter dated 16/11/2011. A Buyer’s Agreement was signed on 16/12/2011 as per which the committed date of possession was 36 months with a grace period of 3 months from the start of construction.
- The complainant is a subsequent purchaser, who purchased the apartment in question from the original allottees in April 2014. The original allottees happen to be real brother and nephew of the complainant herein. Subsequently, on 24th April 2014, the buyers agreement was endorsed in favour of the complainant and the apartment in question was transferred in the name of the complainant.
- Vide legal notice dated 25th November 2016 complainant sought refund of the amount of ₹96,67,596/- along with interest @24% per annum from the OP.
- Subsequently complainant and the OP entered into settlement agreement dated 9th March 2017 in terms of which amount of ₹95,56,973/- was to be refunded to the complainant in six instalments after adjusting Rs.1,06,850/- paid towards brokerage and ₹3773/- towards delayed interest payment charges, without forfeiting any other amount in terms of the agreement.
- Receipt of Rs.95,56,973/- under the said settlement agreement is admitted by both the sides.
- Present complaint has been filed seeking refund of Rs.1,10,623/- along with interest on this amount and interest on ₹96,67,596/-.
- Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
- It was argued by the OP that in terms of the settlement agreement it was mutually agreed that complainant would withdraw his legal notice, all his claims, complaints etc. Since the apartment in question was booked by the original allottees through their broker, OP had paid the broker an amount of ₹1,06,850/- towards brokerage. The brokerage amount was agreed between the parties to be deducted in the settlement agreement. The complainant has executed the settlement agreement with free will and without any coercion. The parties to the settlement agreement have also treated the settlement agreement to be binding on them superseding any prior oral or written agreement, commitment and understanding. The buyer’s agreement has been superseded by settlement agreement dated 9th March 2017. The complainant despite having received the amounts and benefits in terms of the settlement agreement has filed the present complaints alleging that OP did not deliver the possession of the apartment within 36 months.
- The complainant on the other hand argued that the OP has agreed to handover the possession of the said unit within 36 months from the date of buyer’s agreement and the time was essence of the contract. The complainant duly complied with all obligations on his part, the opposite party has diverted the funds collected from the complainant. After the lapse of more than 5 years from the date of execution of buyer’s agreement, the flat has not been handed over yet. As the wife of the complainant was suffering from serious ailment and subsequently died, the complainant decided to get the refund. The complainant was compelled into the settlement agreement dated 9th March 2017, OP illegally deducted a sum of ₹1,06,850/- towards brokerage and a sum of ₹3773/- towards delayed payment charges and did not pay any interest on the amount of ₹96,67,596/- utilised by the OP which amounts to unfair trade practice and deficiency in service. The complainant relying on the judgement of Hon’ble Supreme Court in M/s Laureate Buildwell Pvt. Ltd. vs Charanjeet Singh (2021) SCC online SC 479, argued that the subsequent purchaser who takes over the obligations of the original purchaser to pay the balance amount, also steps into his shoes for other rights of the original purchaser.
- In the present case the parties have already settled the matter through settlement agreement dated 9th March 2017 under which the refund has already been received by the complainant. I don't find much weight in the argument of the complainant that he was compelled to enter into the said agreement. The OP has clarified as to why the deductions towards brokerage and delayed interest have been made. In view of the settlement agreement the complainant is not entitled to refund of the brokerage amount or delayed payment or any interest on the principal amount paid by him/original allottees.
- For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is dismissed.
- The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.
Annexure-A | Details of the Unit and other related details | Sr No | Particulars | | 1 | Project Name/Location etc. | ‘Palm Gardens’, Sector -83, Village Kherki Daula, Gurugram | 2 | Apartment no. | PGN-11-0406 | 3 | Size (Built up/Covered/Super Area) | 176.52 sq.mtr. (1900 sq.ft.) | 4 | Date of allotment | 16.11.2011 | 5 | Date of signing Buyer’s Agreement | 16.12.2011 | 6 | Committed date of possession as per Agreement (with Grace period of three months) | 16.03.2015 | 7 | In case the Complainant are not the original allottees, D/o Transfer by the OP in the name of Complainant | 24.04.2014 | 8 | Total Consideration as per agreement | Rs. 1,01,14,640/- | 9 | Amount Paid | Rs.96,67,596/- | 10 | D/o Filing CC in NCDRC | 17.06.2019 | 11 | D/o Issue of Notice to OP | 20.06.2019 | 12 | D/o Filing Reply/Written Statement by OP | 11.01.2021 | 13 | D/o Filing Evidence by way of Affidavit by the Complainant | 08.09.2022 | 14 | D/o Filing Evidence by way of Affidavit by the OP | 09.12.2022 | 15 | D/o filing Written Synopsis by the Complainant | 08.09.2022 | 16 | D/o filing Written Synopsis by the OP | Not filed |
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