FIRST ADDITIONAL BENCH

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.29 of 2014

Date of Institution: 13.02.2014 Date of Decision : 05.09.2016

1. Rakesh Anand s/o late Sh. Narinder Raj Anand, r/o H.No. 579 Top Floor, Sector 4, Panchkula.

2. Rashmi Anand w/o Sh. Rakesh Anand r/o H.No.579, Top Floor, Sector 4, Panchkula. …..Complainants

Versus

M/s Royale Empire (Royale Minaar) through its Managing Director Sh. Jiwan Garg and Sh. Prince Garg having its site off: Kishanpura, Zirakpur District SAS Nagar, Mohali (Pb.) II Address :

Regd. Off: House No.909, Sector-9, Panchkula (Haryana)

….Opposite Parties

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

Shri J. S. Klar, Presiding Judicial Member.

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Shri J.S Gill, Member. Shri. H.S. Guram, Member. Present:-

For the complainant : Sh. Anish Babbar, Advocate For opposite parties : Ex-parte.

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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs. on the averments that OPs floated a scheme for allotment of built up flats in their project namely "Royale Empire (Royale Minaar)" comprising of 3 BHK having covered area of 1495 sq. ft and super area 1850 sq. ft approximately with all fixtures. The sale consideration price was of Rs.45 lacs only, which was to be paid, as per specified schedule mentioned in the agreement of sale. The complainants paid the booking amount of Rs.8,60,000/- on 27.05.2011, as per schedule, which was duly received by the OPs against receipt dated 29.05.2011 and a flat no.503, Block A was allotted, vide allotment letter dated 29.05.2011 and agreement to sell was also executed between the parties in this regard. The complainants paid the installments in time. As per the terms and conditions agreed upon between the parties, time was the essence of the contract. The possession of the flat was to be handed over within 21-24 months from the date of above agreement i.e. 29.5.2011, as such, the possession of the flat was required to be delivered on 29.5.2013. The time frame within which the possession of the flat was to be delivered has already expired and even further period of 7-8 months approximately has elapsed, but the possession of the flat has not been delivered to them till date. The complainants also lodged police complaint against OP, but of no use. They also served legal notice upon OPs, but all in vain. The OPs had never disclosed the details of installments to be paid and period up to which the total amount of flat was to be paid. The acts and omissions on the part of OPs not only amounts to deficient services, but also to unfair trade practice. The complainants have, thus, filed the complaint directing OPs to deliver the possession of the flat and to pay the compensation @ 3.50 sq. ft p.m on the amount deposited on account of delay in offering the possession, as per terms and conditions agreed in the agreement to sell and further to pay interest @ 18% p.m thereof as agreed and to refund them the amount Rs.8,60,000/-, which was deposited by the complainants. It was has been further prayed that OPs be directed to pay a sum of Rs.3 lac as compensation on account of physical and mental harassment, Rs.30,000/- as costs of litigation and Rs.10,000/- towards miscellaneous expenses.

2. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complaint is not maintainable in the present form and complainant has no locus standi to file the present complaint. It denied any deficiency in service on its part. The complainant is estopped by his own act and conduct from filing the complaint. The complainant has not come to the forum with clean hands and has suppressed the material facts from the Forum. It is admitted that complainant had booked a plot with it for an amount of Rs.45,00,000/- and he had paid Rs.8,60,000/-as booking amount, but he had not paid the remaining amount. Many persons including complainant have booked their flats/plots with it, but they have not paid the full and final payment against their respective flats. Due to heavy fall of the prices in the property, the OP was facing financial problems and on account of non-payment of remaining amount of above said flats, OP could not raise the construction work over the property. The OP many times requested the complainant along with other persons to make the remaining payment of the amount, but they have not made the same. The complainant failed to make the balance amount of the flat, as per schedule and terms and conditions of the agreement. On merits, OP averred that construction work is at full swing but complainant has not paid the remaining amount to it. The flat was to be handed over to the complainant 21-24 months, but complainant did not deposit the remaining amount in

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respect of his flat. OP many times requested to him to make the payment, but all in vain. The issuance of legal notice by the complainant upon it was denied. It denied any deficiency in service or unfair trade practice on its part. The complainant failed to deposit the balance amount with it, as per the agreement and as such, the earnest money paid by him is stands forfeited. It denied any delay on its part and prayed for dismissal of the complaint.

3. The complainants tendered in evidence affidavit of complainant Ex.C-1/A along with copies of documents Ex.C-1 to Ex.C-13 and closed the evidence. But OP failed to produce its evidence, despite granting several opportunities. On 08.01.2016, the OP burdened with cost of Rs.3000/-. On 19.02.2016 OP again did not appear and last opportunity was granted to him for concluding the entire evidence on payment of cost of Rs.5000/-, but on next date none appeared on its behalf and hence it was proceeded against exparte, vide order dated 04.05.2016.

4. We have heard learned counsel for the complainant as OP has been set exparte in this case and have also examined the record in this case.

5. The complainant Rakesh Anand swore his affidavit Ex.C-1/A in this exparte case. He stated that he applied for flat with OP on 27.05.2011 and paid the booking amount of Rs.8,60,000/-. The OP received this amount, as per the schedule of payment and issued receipt dated 29.05.2011 in this regard, whereupon Flat No.503, Block-A was allotted, vide allotment letter dated 29.05.2011. Consequently, an agreement of sale was also entered into between the parties recording the terms and conditions of sale. He further stated that in his affidavit that the complainants got approved their loan from their banker so that the amount as required to be paid, as per schedule, be got paid within the scheduled time. The request of the complainants for enhancement of loan was not approved. He further deposed that time was essence of the agreement of sale and flat was to be handed over within 21-24 months to the complainants from the date of the agreement i.e. 29.05.2011. The grievance raised by the complainant in his affidavit is that the possession was to be delivered uptil 29.05.2011, but its possession was not delivered even after lapse of 7-8 months. The OP only raised the construction of raw skeleton in the form of iron pillar on the spot. The OP has not carried out any development thereat. The complainants sought refund of the amount of Rs.8,60,000/- with interest, which was deposited by them as booking amount. He further stated that in case the OP/builder failed to deliver the possession of the flat within time, then complainant/buyer shall be entitled to compensation @ Rs.3.50 per sq. ft for the period of delay. Ex.C-1 is receipt dated 29.05.2011 for deposit of the booking amount of Rs.8,60,000/- with OP. Ex.C-2 is allotment letter allotting flat no.503 to complainants in the project called as "Royale Empire (Project Royale Minaar) situated at Kishanpura, Zirakpur, District Mohali. Ex.C-3 is the agreement of sale recording terms and conditions between the parties. Ex.C-4 and Ex.C-5 are letters addressed to complainants by HDFC Bank with regard to approval of his loan. The complainants filed police complaint against OP, vide Ex.C-6 and complaint to SSP, vide Ex.C-7. The compromise, which was entered into between the parties is Ex.C-8. The legal notice is Ex.C-9.

6. From appraisal of above-referred evidence on the record and hearing the submissions of counsel for complainants, it is found that agreement of sale Ex.C-3 is the basic document in this case. The relationship between the parties is governed by the agreement of sale recording terms and conditions to be performed by each of the parties. Clause 3 of this agreement of sale Ex.C-3 records the schedule of payment plan of Royale Empire, which is reproduced as under :-

PAYMENT PLAN OF ROYALE EMPIRE

Amount

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It is, thus, evident that first installment of Rs.3,80,000/- was due on 27.06.2011, 2nd installment of

Rs.3,80,000/- was due on 27.08.2011, 3rd installment of Rs.3,80,000/- was due on 27.10.2011, 4th

installment of Rs.3,80,000/- was due on 27.12.2011 and similarly 5th and 9th installments were to be paid at

the time of possession, as indicated in the table above. The complainants only paid the booking amount of

Rs.8,60,000/- and has not paid any of the installments to OP. There is no such evidence on the file to

substantiate it. Clause 3(e) of the agreement of sale Ex.C-3 lays down that in case the second party fails to

pay the installment with interest within six months of the due date, the first party shall have the right to

cancel the allotment and forfeit the total money deposited, however in exceptional circumstances, the first

party may at its sole discretion condone the delay in payment, by charging interest @ 18% p.a. The

possession of the completed flat, as per Clause 7 of Ex.C-3 is to be offered by the first party within 21-24

months from the date of booking. We find that complainants only paid the booking amount and have not

paid the rest of the amount to OP in this case at any time. The complainants could not establish it on the

record by any cogent evidence that OP raised no construction at the site of flat. There is mere affidavit of the

complainant Rakesh Anand, which is not supported by any evidence aliunde. No installment was paid by the

complainants to OP at any time. The complainants were at fault in not making any payment of the

installment to OP. The complainants referred to law laid down in Mapsko Builders Pvt. Ltd and another

…versus… Sunil Dahiya (MRS.), reported in III(2013) CPJ 616 (NC). We find that in the cited authority,

sufficient and substantial amount of money was received by the builder and in the very circumstances of the

case, deficiency was found on the part of the builders therein. In the case in hand except paying the booking

amount, no other payment was made by the complainant to OP at any time. The complainants themselves

violated the terms and conditions of the agreement of sale Ex.C-3. We, thus, find no deficiency in service or

unfair trade practice on the part of OP in this case for giving direction to refund this amount. We rely upon

Clause 3(e) of the agreement of sale in this regard, as parties are bound by the terms and conditions thereof.

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7. In the light of our above discussion, there is no merit in the complaint and same is exparte dismissed without any order as to costs.

8. Arguments in this complaint were heard on 01.09.2016 and the order was reserved. Now the order be communicated to the parties.

9. The complaint could not be decided within the statutory period due to heavy pendency of court cases.

(J. S. KLAR)

PRESIDING JUDICIAL MEMBER

(J.S GILL)

MEMBER

(H.S.GURAM)

MEMBER

September 5, 2016 (ravi)

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