KAVITA SIKKA vs OASIS LANDMARK LLP, & ANR.

The present complaint has been filed by the complainant alleging deficiency in services on the part of the opposite party/ developer on various counts.

The facts of the case, as per the complainant for the disposal of the present complaint are, that the complainant is an elderly single mother and school teacher who was lured by the representation made by one of the agent of the Opposite parties, Mr Priyank Aul, and booked a residential flat on 22.06.2016, for herself in a residential group housing complex proposed to be developed by opposite party no. 2 under the name and style of ''Godrej Icon'' situated at sector 88A-89A, Gurugram. In pursuance to the said booking the opposite party has issued a provisional allotment letter dated 17.01.2017 in favour of the complainant, whereby the opposite party has allotted flat/apartment no. 80803 on 8 th floor in Tower 8 of the said project. The total consideration of the flat was Rs.1,62,65,360/- out of which the complainant has made a total payment of Rs.32,27,600/- in different installments as per the payment plan.

It was alleged by the complainant that the opposite party has not issued the allotment letter immediately, as per the terms of the booking form despite collecting 20% of the sales consideration, and despite repeated reminders from the complainant, which is a clear cut violation of the provisions of RERA Act. Thereafter, the complainant vide e-mail requested the officials of the OP to cancel her booking and on visiting the office of the opposite party, one Mr. Priyank Aul, who as per the complainant is the property dealer, advised the complainant not to cancel her booking and rather to sell and transfer the same to a third person in order to avoid forfeiture of 10%-20% of earnest money on getting refund of deposited amount.

On the advice of Mr. Priyank Aul, the complainant met one Mr Hiran Andani, who was interested in purchasing the subject flat from the complainant. It was further alleged by the complainant that the Opposite party has compelled the complainant to sign an apartment buyer''s agreement for the purpose of giving effect to the transfer of her interest and rights of the allotted flat to a third party. Therefore the complainant has signed the apartment buyer''s agreement on 08.02.2017 under duress.

In addition to it, the complainant alleged that since the opposite parties has not executed the transfer of allotted flat in favour of Mr. Hiran Andani, therefore, the son of the complainant approached opposite parties for shifting the complainant''s allotted flat to another project of the opposite parties namely ''Godrej Frontier'' on the ground that no proper lighting facilities was available on the highway besides which the opposite parties'' ''Godrej Icon'' project is situated and requested the opposite party to allot a 2 BHK flat instead of 4 BHK flat to the complainant, stating that she being an old lady, residing alone, would not be able to afford the maintenance of such a big flat. In reply, the officials of the opposite parties informed the complainant that no two BHK flat is available in that project.

On getting no positive response, the complainant vide letter dated 29.03.2017, informed the opposite parties that she was no more interested in buying the 4 BHK apartment and requested the opposite parties to process the refund of her deposited amount and has also served legal notice to the opposite parties in this regard in April, 2017, but the opposite parties have failed to respond. Hence, being aggrieved by the aforesaid conduct of the opposite parties, the complainant has filed instant complaint alleging deficiency in services on the part of the opposite parties with the following prayers -

" Direct the opposite parties to pay Rs. 34,27,600/- alongwith interest at the rate of 18% p.a. from the date of booking till the date of realization;

Award compensation of Rs. 1,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainants due to the actions/ omissions;

Opposite parties may be directed to pay Rs. 1,00,000/- as litigation expenses."

I have heard the arguments of learned counsel Ms. Malvika Kalra, for the complainant on admission stage and perused the record. Learned counsel for the complainant contended that complainant is an elderly lady of 59 years and she lives alone. She has booked the 4 BHK flat on the advice of Mr. Priyank Aul and since there was a delay on the part of opposite parties, she changed her mind and decided to get her booking cancelled, for which she met Mr. Priyank Aul. Mr Priyank Aul suggested the complainant not to cancel her allotment, in order to avoid forfeiture of 10%-20% of the earnest money instead she should transfer her allotted apartment to some third party. Complainant, by following the advice of Mr Priyank Aul, met and entered into talks with one Mr Hiran Andani an intended buyer as per the complainant. Further signed the Apartment buyer''s Agreement on 08.02.2017 under the alleged duress and pressure created by the opposite parties'' officials stating that in order to get the transfer of her rights of allotted apartment affected in favour of third party, the buyer is under obligation to get the Apartment Buyer''s Agreement executed.

It was further contended by the learned counsel for the complainant that the opposite parties did not get the transfer of allotment of the subjected flat in favour of third party despite repeated exchange of correspondence with the complainant, therefore the complainant''s son visited the office of the opposite parties and requested them to shift her allotment of flat from ''Godrej Icon'' to another project of the opposite parties i.e. ''Godrej Frontier'' by allotting 2 BHK flat instead of 4 BHK as originally allotted by the opposite parties on the ground that the complainant being an old single lady would not be able to afford the expenses for maintenance of 4 BHK flat.

I have gone through the record. There is no evidence tendered by the complainant that Mr Priyank Aul is an agent of the opposite parties. Learned counsel for the complainant admitted that Mr Priyank Aul was a property dealer who represented himself as an agent on behalf of the opposite party. All the actions taken by her were on his advice. There is nothing on record to support her allegations that she was coerced or compelled by the opposite parties to sign the Agreement. The complainant in her complaint specifically stated that the opposite parties were fully aware that she had sold her property and had come under capital gains tax, thus, she needed them to transfer her money so that she could buy a ready built apartment by March, 2017, but the opposite parties have failed to refund the money of the complainant despite repeated reminders which amounts to deficiency in services. It is evident from the records and pleadings of the complainant that she was fully aware of the fact that as per clause 2.5 of the agreement 20% of the cost of property plus applicable taxed shall be treated as earnest money. Further, as per the clause 2.10 the opposite party would be entitled to forfeit the earnest money on cancellation of booking and cannot now plead ignorance of this fact.

The complainant has failed to establish deficiency in service on the part of the opposite parties or that Mr Priyank Aul was their agent and hence, the complaint is liable to be dismissed at admission stage itself with no order as to the costs.