DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

1.                 Sh. Vikas Ahluwalia

2.                 Smt. Kanwal Baldua, Co-owner both residents of House No.967, Sector 4, District Panchkula Haryana.

                                      ---Complainant.

Versus

1.                 The Emaar MGF Land Limited, SCO 120-122, 1^st Floor, Sector
17-C, Chandigarh 160017 through its Branch Head.

2.                 Emaar MGF Land Limited, Corporate Office, ECE House, 28, Kasturba Gandhi Marg, New Delhi 110001 through its Director.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by:  Sh. Deepak Aggarwal, counsel for the complainants

                        Sh. Rohit Kumar, proxy counsel for Sh. Rohit Khanna, Counsel for the OPs.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Vikas Ahluwalia and Smt. Kanwal Baldua have filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following reliefs :-

i)                   to refund the total amount of Rs.2,50,000/- alongwith interest

ii)                to pay Rs.2.00 lacs as compensation for mental agony and harassment as well as price escalation

iii)              to pay Rs.21,000/- as litigation expenses.

iv)              Any other relief.

2.                           In brief, the case of the complainants is that allured by the advertisement and the projections made by the opposite parties, they decided to purchase a floor in the residential project being developed by the opposite parties under the name and style of ‘The Terraces” at Mohali Hills, Sector 108, SAS Nagar.  Accordingly, they booked a unit in the above said project and also paid Rs.2,50,000/- as the booking amount.  The total price of the flat was Rs.39,89,631/- which was to be repaid in installments.  Thereafter the complainants received a letter whereby they were provisionally allotted flat bearing No.725 on the first floor.  Subsequently the opposite parties sent the “Independent Floors Buyer’s Agreement” (C-1) with the request to send the same back after signing it.  According to the complainants, after going through the said agreement, it appeared that the said agreement is totally unilateral and contrary to the projections and assurances given at the time the complainant submitted the application for allotment of the unit.  Thereafter, the complainants visited the project a number of times and found that no work has been started at the site.  In such circumstances, the complainants requested the opposite parties to refund the amount paid by them.   However, the opposite parties sent letter dated 3.4.2009 (C-4) whereby the complainants were assured that the opposite parties would give a special incentive to be calculated as 12% simple interest w.e.f. 15.10.2008 till the date of allotment and the last installment would be waived.  However, according to the complainants, they were not agreeable to the terms and conditions of the agreement sent by the opposite parties.  Therefore, the complainants insisted for cancellation of the flat and refund of the amount through (correspondence  is C-5 to C-11).  Ultimately the opposite parties asked the complainants to return all the original documents i.e. the original allotment letter, original receipts and buyer’s agreement so that the amount can be refunded.  In response, the complainants returned all the documents including the buyer’s agreement (without their signature) vide Annexure C-12.  However, despite that the opposite parties failed to refund the amount which according to the complainants amounts to deficiency in service and unfair trade practice on their part.

                   In these circumstances the present complaint has been filed seeking the reliefs mentioned above. 

3.                           In their written statement the opposite parties have admitted that the complainants booked a unit with them and paid a sum of Rs.2,50,000/- as the booking amount.  According to the opposite parties, as per the terms and conditions of booking, the complainants were required to execute the buyer’s agreement and in case the same was not executed, the complainants were not entitled for allotment of any unit.  It has further been pleaded that it was also agreed upon by the complainants that if they failed to execute and deliver the agreement to the opposite parties then their application shall be treated as cancelled and the amount paid shall be forfeited without any notice or reminder.   According to the opposite parties, despite the fact that they had sent the buyer’s agreement to the complainants with the request to send it back within 30 days after executing the same, the complainants failed to return and execute the same and, therefore, they are not entitled to refund of the amount.   It has been averred that the development work at the site is in full swing.    It has also been averred that after payment of the initial booking amount, the complainants did not pay any further amount and are in default.    The remaining averments have been denied being wrong.   Pleading that there is no deficiency in service on their part prayer for dismissal of the complaint has been made.

4.                           We have heard the learned counsel for the parties and have gone through the documents on record.

5.                           It was argued by the ld. Counsel for the complainants that despite the fact that the complainants had booked the unit in the year 2008, the opposite parties have failed to develop the area and to construct the floors.  The opposite parties had agreed to deliver the possession of the units within 36 months of the signing of the agreement.  As the construction work has not been started so far, in these circumstances the complainants were justified in seeking refund of the amount. Failure on the part of the opposite parties to refund the booking amount amounts to deficiency in service.  Therefore, the complainants are entitled to refund of the booking amount and compensation.

6.                           On the other hand, the ld. Counsel for the opposite parties has argued vehemently that the complainants are not entitled to the refund of the booking amount in view of the conditions laid down in the allotment letter.  Our attention has been drawn to the conditions mentioned in the application form of the complainant.  One of the clauses of the said application form reads as under :-

                                       “I/We agree that the allotment shall become final and binding upon Emaar MGF only after the acceptance by it, of the signed Buyer’s Agreement within a period of 30 (thirty) days from the date of its dispatch by registered post, together with all the annexures, draft tri-partite maintenance agreement together with the amounts due and payable as set forth in the schedule of payments annexed herewith (“Payment Plan”). If I/We fail to execute and deliver Buyer’s agreement to Emaar MGF, then my/our application shall be treated as cancelled and all the sums/monies paid/deposited by me/us with Emaar MGF shall stand forfeited without any notice/ reminders.” 

7.                           According to the ld. Counsel for the opposite parties, as the complainants failed to execute and deliver the buyer’s agreement to the opposite parties, they are not entitled to the refund of the booking amount and the opposite parties have a right to forfeit the same.

8.                           The contention of the ld. Counsel for the complainants is that though the agreement was not executed by the complainants and was not sent by them, yet the same was returned to the opposite parties.  In this regard reference is made to Annexure C-12. From the bare perusal of the letter C-12 it is apparent that this letter is the forwarding letter of the opposite parties at the time of sending the agreement to the complainants.  This letter is not written by the complainants and vide this letter the agreement was not sent to the opposite parties.  In these circumstances, there is no material on record to prove that the complainants had returned the agreement to the opposite parties without signing the same.  As such, the clause mentioned above is squarely applicable to the facts and circumstances of the case and the complainants are not entitled to the refund of the amount.  This view also stands fortified by the ratio of the order passed by our own Hon’ble State Consumer Disputes Redressal Commission in F.A. No.265 of 2012-Rajbir Singh Vs. The Manager, The Emaar MGF Land Limited & Anr. decided on 16.8.2012.

9.                           In view of the above discussion, we are of the opinion that there is no merit in this complaint and the same is hereby dismissed leaving the parties to bear their own costs.

10.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

26.2.2013.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER