Haryana

StateCommission

CC/403/2017

GAUTAM SHARMA - Complainant(s)

Versus

VATIKA LTD. - Opp.Party(s)

RAVI KANT

13 Jun 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.403 of  2017

Date of the Institution:03.07.2017

Date of Decision:    13.06.2022

 

Gautam Sharma # B5/87, Paschim Vihar, New Delhi 110063.

                                                                   .….Complainant

Versus

1. Vatika Limited (Anil Bhalla CMD and its other Directors) (Unit of Vatika Group) Vatika Triangle, 4^th Floor, Sushant Lok, M.G.Road,Gurgaon, Haryana.
2. Vatika Landbase Pvt.Ltd. (Anil Bhalla CMD and other Directors) (Unit of Vatika Group) Vatika Triangle4th Floor, M.G.Road, Sushant Lok, Gurgaon.

                                                          .….Opposite Parties

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Mr.Om Prakash, Advocate for the complainant.

Ms.Vertika H.Singh, Advocate for the Opposite Parties.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that the complainant namely Gautam Sharma booked one plot measuring 300 sq.yard @  Rs.4200/- per sq. Yard at Vatika City Jaipur by paying Rs.350625/- vide cheque No.841901 dated 19.03.2005 drawn on Union Bank of India Paschim Vihar Branch, which was acknowledged vide receipt No.3435 dated 24.03.2005 issued by Vatika Landbase Pvt. Ltd. Gurgaon.  Opposite party vide letter dated 19.03.2005 promised to accomplish the process of obtaining necessary approvals from authorities and commencement of the project within nine months or by 19^th December 2005 from the date of issue of the letter of the OP, failing which OP was to refund the payments received from him with 9% simple interest.  Further vide communication dated 21.04.2005, signed and issued by one Karishma Kaul Babbar Head CRM the OP sought payment of Rs.2,79,375/- in favour of Vatika Landbase Pvt. Ltd. being second installment within seven days, also sending therewith schedule of payment plan in respect of the 300 sq. yard plot allotted to him vide priority No.GL/027 showing therewith the total cost of the plot as Rs.12,60,000/-. The payment of Rs.279375/- was paid by him vide cheque No.290862 dated 01.08.2005. OP vide its letter dated 24.12.2005 invited him to its office located at 7^th floor Vatika Triangle, Sushant Lok Phase I Block A  M G Road Gurgaon at 2.00 pm on 16.01.2006 for allotment of firm number of his plot against his priority No.GL/027.  In continuation of this exercise plot No.20, in north Avenue Island General Category Plot Ref No.IP/NAV/20 at Vatika City Township, Jaipur was allocated/allotted by the OP to him.   OP executed buyer agreement with him confirming the allotment of 300 sq. yard plot in North Avenue Island Vide plot reference No.IP/NAV/20 showing therewith the per square yard rate of the plot as Rs.4200/-, total consideration of plot as Rs.12,60,000/- and confirming receipt of Rs.6,30,000/- from him by the time of signing of the agreement.  He again deposited Rs.4,35,000/- against its demand vide receipt No.18251 dated 03.03.2008 through cheque No.48082 dated 25.02.2008 drawn on HSBC Bank, Delhi. The OPs did not hand over the possession of developed plot even after a lapse of three years. He issued a legal notice dated 23.09.2016 to the OPs, but, to no avail.  He requested the OPs to refund the entire amount deposited alongwith interest @ 18% from the respective dates of payment till realization. Thus there was deficiency in service on the part of the OPs.

2.                Notice of the complaint was issued against the O.Ps. and the written statement was filed, wherein the O.Ps.  agreed that on 19.03.2005, complainant booked a plot measuring 300 sq. yards @ Rs.4200/- per sq. yd for a total sale consideration of Rs.12,60,000/-.  Inspite of several reminders, the complainant had not turned up for payment.  However, the complainant did not turn up despite the public noticed dated 08.12.2015 as a consequence of which the allotment of the said unit of the complainant was terminated by the OPs. The complainant had bought the said unit from a third party broker and not from the OPs directly.  The complainant  was well aware that the proposed residential township was planned to be constructed in 300 acres in the first phase.  The complainant had bought the said unit in March 2015 and the said issue pertaining to sale price of the said unit is time barred.  The complainant never made any request for refund of the amount paid by him. The payment of Rs.2,79,375/- was made by complainant after a lapse of four months from the stipulated time period, but the OPs did not charge any interest on delayed payment. The OPs had issued a letter dated 01.10.2005 in order to announce the grant of approval to Vatika City Jaipur by the competent Authority, Jaipur. The parties had executed the building Buyer agreement on 09.04.2008 and as per clause 10 of the agreement, the OPs were liable to handover the possession of the plot within a period of three years from the date of execution of agreement unless there was a delay or failure due to reason beyond the control of the promoter. The OP was facing with several issues due to which construction got hampered as the Hon’ble High Court has put stay qua 70% of land of the huge area acquired by the OP.  While resorting to fine tuning and amendment in Master Layout plan due to which the OPs requested him fore-allotment of the said plot.  An option for  re-allotment were sent to him vide email dated 29.06.2015. Vide mail dated 12.08.2015, the complainant chose the unit No.VP/Eave/2. The complainant was never threatened with cancellation of allotment. It was only mentioned vide letter dated 25.06.2015 that the complainant may contact the company and allotment shall be cancelled in case of not hearing anything from him within 15 days from the receipt of letter dated 25.06.2015.  No legal notice was ever received in the office of the OPs. The allotment of the unit of the complainant already stand terminated in the year December, 2016 due to non payment.  The complainant is not entitled for any kind of refund since the allotment of the unit of the complainant was terminated due to non payment of the due installments.  As per terms and conditions of the agreement, OPs issued cheque No.322644 dated 18.03.2016 amounting to Rs.7,73,085/-  to him, but, the cheque was not encahsed.  Thus there was no deficiency in service or any sort of unfair trade practice on the part of the O.Ps.  Objections about maintainability of complaint, concealment of true facts, time barred etc. were also raised and requested to dismiss the complaint.

3.                When the complaint was posted for recording evidence of the parties, complainant-Gautam Sharma in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-26 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainant, O.Ps. has tendered the affidavit of Mr.Vipin Kumar Marya, Senior Manager-Legal as  Ex. RA and further tendered the documents Ex.R-1 to R-7 and closed its evidence.

5.                The arguments have been advanced by Mr.Om Prakash, learned counsel for the complainant as well as Ms.Vertika H. Singh learned counsel for the opposite parties.  With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited, alongwith the interest? 

7.                While unfolding the arguments, it has been argued by Om Prakash, the learned counsel for the complainant that as far as the executing the buyers agreement  is concerned it is not in dispute.  It is also not in dispute that the price of the plot was Rs.12,60,000/-.  A total sum of Rs.11,97,000/- had been paid by the complainant to the  O.Ps.  As per the buyers agreement  and the terms and conditions incorporated therein including date of delivery of the possession of the plot, the possession complete in all respect was to be delivered to the complainant by the O.Ps.  within 36 months subject to some reservations.  The period within which, the possession of the plot was to be delivered had already expired despite depositing the amount of Rs.11,97,000/-.   The OPs illegally terminated the plot in question. In these circumstances the complainant had no other option, but, to seek the refund of the amount alongwith interest, which he had already paid. 

8.                On the other hand, it has been argued by Ms.Vertika H.Singh, learned counsel for the O.Ps. that complainant has not paid the installment as per the payment schedule.  There was a delay in making the payment of the amount.  It is not in dispute that the parties had executed the building Buyer agreement on 09.04.2008 and as per clause 10 of the agreement, the OPs were liable to handover the possession of the plot within a period of three years from the date of execution of agreement unless the delay or failure was due to reason beyond the control of the promoter. The Hon’ble High Court has put stay in respect of 70% of land of the huge township acquired by the OP.  An option for  re-allotment were sent to him vide email dated 29.06.2015 by the OPs. Vide mail dated 12.08.2015, the complainant chose the unit No.VP/Eave/2. No legal notice was ever received in the office of the OPs. The allotment of the unit of the complainant already stand terminated in the year December, 2016 due to non payment.  The complainant is not entitled for any kind of refund since the allotment of the unit of the complainant was terminated due to non payment of the due installments.  As per terms and conditions of the agreement, OPs issued cheque No.322644 dated 18.03.2016 amounting to Rs.7,73,085/-  to him, but, the cheque was not encahsed by him.  Thus, the complainant was not entitled for the refund as prayed for.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, plot was purchased by the complainant for a cost of Rs.12,60,000/- against which an amount of Rs.11,97,000/-  had been paid.  Buyer agreement  is also not disputed.  As per buyer agreement, the possession of the plot was to be delivered within period of 36 months complete  subject to some reservation.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 10 years had expired, the possession of the plot has not been delivered by O.Ps.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps.   It is the normal trend of the developers/O.Ps. that  developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly,  the delivery of possession or completion of the project is delayed as in the present case.   The OPs illegally terminated the plot in question. When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite parties  and thus, complainant is well within his legal rights to get the refund of the amount of Rs.11,97,000/-  (Eleven Lac Ninety Seven Thousand Only)   which he had already deposited with the O.Ps.  Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, he had to knock the door of this Commission even for seeking refund of the amount.  In such like cases  the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint,  the O.Ps. are directed to refund of the amount of Rs.11,97,000/-  (Eleven Lac Ninety Seven Thousand Only)   alongwith interest @ 6%  per annum from  May 2011 till realization.   In case, there is a breach in making payment within the stipulated period  of  30 days, in that eventuality, the complainant would further be entitled to get the interest @ 9% per annum, for the defaulting period.   The complainant is also entitled of Rs.50,000/- (Fifty Thousand Only) for compensation of mental and physical agony.  In addition, the complainant is also entitled of Rs.25,000/-  (Twenty Five Thousand Only) as litigation charges.  It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

 

June 13th, 2022     Suresh Chander Kaushik,                   S.P.Sood

                             Member                                              Judicial Member                                 

S.K.(Pvt.Secy)