Delhi

East Delhi

CC/41/2019

SHASHI PRAKESH - Complainant(s)

Versus

SAMIAH INTERNATIONAL - Opp.Party(s)

10 Feb 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.41/2019

 

	Shashi Prakash C/o Sh.Pankaj Aggarwal Top Floor, D-127, Shakarpur, Near Reliance Fresh Mart, Delhi – 110092.	….Complainant
Versus
	Samiah International Builders Ltd. F-6, DDA Commercial Complex, Main Drive, Vasundhara Enclave, Delhi - 110096	……OP

Date of Institution: 29.01.2019

Judgment Reserved on: 03.11.2022

Judgment Passed on:10.02.2023

               

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms. Rashmi Bansal (Member)

 

Order By: Shri Ravi Kumar (Member)

 

JUDGEMENT

        The Complainant has filed complaint against OP alleging deficiency in service by not refunding the amount deposited by him for booking the Flat in the project of the OP despite of cancelling the same.

The Complainant in his complaint has stated that on 11.08.2014 he had booked a Flat of 42 Sq. meter on 3^rd floor of OP’s project namely ‘Gulmohar Estate’ Kashipur Road, Rudrapur, Udham Singh Nagar, Uttrakhand. The cost of the flat was Rs.625000/- plus Service Tax and EMI of Rs.6443/- was fixed. The Complainant paid 49 EMIs totaling Rs.318750/- (including other charges). On 11.10.2018, OP sent a Demand cum Possession letter to the Complainant in which OP demanded Rs.656468/- including Rs.269910/- as interest and other charges as the total cost of the Flat got enhanced to Rs.975218/-. According to the Agreement dated 11.08.2014 under para ‘U’ if the allottee wants to pay the total balance amount of the Flat after possession then OP will charge 12.50% on the balance amount and if Complainant wants to sell the same to the OP then OP will pay 12.50% to the Complainant. In the Agreement it was not clear that the Allottee/Complainant will have to pay 12.50% interest at the time of possession. The Complainant was not in a position to pay this heavy amount and this also amounts to mal-practice and cheating by OP, giving mental pain to the Complainant. On 14.04.2018 Complainant had already requested for cancellation of Flat but OP did not refund the amount. Thereafter, Complainant sent Legal Notice to the OP, but this was also not replied. The Complainant has prayed for the Refund of entire amount of Rs.318750/- paid to the OP and compensation of Rs.50000/- and Rs.30000/- as litigation charges.

Notice was issued to the OP and it filed its reply wherein it has stated that complaint has been filed with wrong facts and Complainant has suppressed the material facts and trying to make wrong jurisdiction for getting undue benefits. The complaint is not maintainable and liable to be dismissed under order VII Rule 11 of CPC as no cause of action ever occurred in favour of the Complainant. The Property is situated at Rudrapur, Uttrakhand and Complainant does not fall withinin the definition of Consumer under Section 2(1)(d) of Consumer Protection Act, 2019. Rs.625000/- plus service tax was the basic cost of the Flat.  OP has admitted that Rs.318750/- was paid by the Complainant. As per sub para (vii) of the MOU, it is clearly mentioned that if the Allottee fails to pay total cost of the Flat plus Service Tax and other charges to the OP before taking possession then he shall pay 12.50% interest on the balance amount. It is admitted that Complainant had sent a request to cancel the booking of the Flat on the ground of bad health and that he cannot financially afford the Flat and apologized for the same and therefore the Complainant is not entitled for any relief from the Commission.

The Complainant filed his rejoinder to the Written Statement of OP and has stated that Registered Office of the OP is at  F-6, DDA Commercial Complex, Main Drive, Vasundhara Enclave, Delhi 110096. The complaint filed by him is maintainable and he has denied rest of the averments made by OP in their written statement. He also stated that he had booked residential Flat for own use and paid the amount from his hard earned salary. He is service class person and it is wrong to say that he had purchased the Flat for commercial use.

Complainant has filed his evidence by way of affidavit and has exhibited following document:-

- Copy of Flat booking document as Annexure A.

- Copy of Agreement as Annexure B.

- Copy of letter dated 8.8.2014 of OP as Annexure C.

- Cheque details given by the Complainant as Annexure D                       and E.

- Copy of Demand cum possession letter dated 11.10.2018  as Annexure F.

- Copy of said letter dated 14.04.2018 of the Complainant for cancellation of Flat as Annexure G.

- Copy of Legal Notice as Annexure H.

The Complainant has also filed Demand cum Possession letter dated 27.02.2021 of the OP when he had already filed present case in this Commission.

OP has not filed evidence by way of Affidavit.

This Commission has heard the arguments of the Complainant and perused the documents on record. OP has not advanced their arguments in its defense.

As far as OP’s objection with regard to jurisdiction of this Commission is concerned the same is not tenable as the Registered Office of the OP is in Vasundhara Enclave, Delhi – 110096 which falls within the jurisdiction of this Commission hence the objection of the OP is untenable.

It is not in dispute that Complainant had booked a Flat in the project of the OP named as ‘Gulmohar Estate’, Kashipur Road, Rudrapur, Udham Singh Nagar, Uttrakhand and the cost of the Flat as per ‘Annexure C’ is Rs.6.25 Lakhs plus service Tax. EMI of Rs.6443/- (including service tax) was fixed between the parties and complainant admittedly paid 49 EMIs totaling Rs.318750/- (including other charges). Actual EMI was for five years i.e. 60 EMI plus service tax which comes to Rs.386580/- plus service tax and the amount left after 5 years was Rs.625000 -Rs.386580/- = Rs.238420/- plus service tax. Further it is also written in ‘Annexure C’ which has been filed by the Complainant that if the Complainant wanted to pay total balance amount of Flat after possession then OP will charge interest @12.50% on the balance amount and if he (Complainant) wanted to sell the flat after possession through company then interest at the same rate 12.50% will be liable to the paid by the OP to the Complainant.

Para Q of Agreement dated 11.08.2014 - ‘Annexure-B’ filed by the Complainant reads as under:-

“AND WHEREAS the Allottee shall make regular payment of all the EMI that are required to be paid by him/her and if a such EMIs is delayed he/she shall not be liable to pay any penal interest but if there is default three EMI before 48 EMI then the allotment of the aforesaid flat shall automatically cancelled and company will deduct of 5% of the total value of the Flat. Rest of the amount shall be returned to the allottee after the completed of cancellation procedure.”

    The Complainant had requested OP to cancel the Flat booking and wrote letter dated 14.04.2018 ‘Annexure G’ as he was unable to pay total amount because of his poor health and financial constrains and requested for refund of Rs.318750/- he had deposited.

Further on perusal of Annexure B it is observed that OP themselves had written on the letter dated 14.04.2018 ‘ Two lac Seventy Five Thousand only – refund after 3 months amount of Rs.275000/’.

Thus despite of Agreement dated 11.08.2014 under Para Q and the OP acknowledging on the letter dated 14.04.2018, OP has not refunded the amount to the Complainant which amounts to deficiency in service.

The Complainant had admittedly paid Rs.318750/- (including other charges) to the OP and as per para Q of the Agreement dated 11.08.2014, OP should return Rs.284375/- (deduct 5% of the cost of the Flat i.e. Rs.625000 + service tax = Rs.34375/- from the amount of Rs.318750/- which comes to Rs.284375/-) 

 For the reasons stated supra, this Commission holds OP liable for deficiency in service and directs as follows:

• OP to refund Rs.284375/- to the Complainant alongwith interest of 7% p.a. to the Complainant from 14/04/2018 within 30 days of receipt of this Order and in case of failure OP shall pay interest @ 9% on the said amount till the date of payment.
• OP shall pay Rs.15000/- to the Complainant towards compensation and legal expenses.

 

This Order shall be complied within 30 days of the receipt of the Order.

Delay in passing of the Order is account of heavy pendency of cases.

File be consigned to Record Room.

 

Announced on 10^th day of February, 2023.