RAJ KUMAR MATTU & ANR. vs ARDEE INFRASTRUCTURE PVT. LTD.

This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 challenging the impugned order dated 03.02.2016, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in consumer complaint No. 334/2012, vide which the said complaint was ordered to be dismissed.

The facts of the case are that the complainants/appellants made an application dated 11.07.2005 to the OP Builder, Ardee Infrastructure Pvt. Ltd., New Delhi for allotment of flat No. E-5A, II nd Floor, in their project "Platinum Independent Floors" in Ardee City situated at Village Vazirabad, District Gurgaon. The basic sale price of the flat was stated to be 30,55,500/- and a sum of 3,05,550/- as 10% of the total price towards earnest money was deposited by the complainants with the OP vide cheque No. 280221 dated 11.07.2005 drawn on Gurgaon Gramin Bank. It is the case of the complainants that the then Chairman of the OP Builder, Ashok Verma (who died later) had promised to give some discount on the price of the apartment to the complainants. However, since the final price payable for the property was not settled, the builder-buyer agreement could not be signed by them. The complainants followed-up the matter with the OP requesting them to finalise the price, but the same was not done. As a consequence, the loan that was sanctioned by the Gurgaon Gramin Bank was also not disbursed to them.

It is further stated in the consumer complaint that on 10.07.2007, the OP asked them to deposit a sum of 9,16,650/- for payment of three instalments with respect to the said flat. However, they requested the OP to send them the relevant papers/documents to enable them to raise loan. The OP sent them a letter dated 24.04.2012 as a show cause notice as to why the provisional booking made in their favour be not cancelled. Although the complainants sent letter dated 07.05.2012 in reply to the show cause notice, the OP sent another letter dated 09.06.2012, cancelling the booking of the flat. They also returned the amount deposited with them, i.e., 3,05,550/- vide cheque No. 803108 dated 05.06.2012, without any interest. Although the complainants got the said cheque encashed but they intimated to the OP vide letter dated 12.07.12 that they were accepting the said cheque under protest. Thus, the complainants filed the consumer complaint in question, alleging deficiency in service on the part of the OPs and seeking directions against them to execute the sale deed for the flat in question valued at 30,55,500/- and to put them in possession of the flat and also to pay compensation of various amounts for deficiency in service/mental harassment, etc.

The complaint was resisted by the OP builder by filing a written statement before the State Commission, in which they stated that the complainant did not come under the definition of consumer. They also stated that the complaint was barred by limitation as prescribed under the Act. The OPs alleged that the complainants committed breach of the agreement by not making the payments as agreed at the time of tentative booking. The OPs also stated that they had cancelled the allotment after giving due show-cause notice to them and they had also returned the money deposited with them to the complainants, that had been duly accepted by the complainants. The State Commission vide impugned order dismissed the consumer complaint, saying that since the complainants had accepted the amount refunded to them, the matter stood closed. The protest letter had been sent to the OPs after more than one month. Being aggrieved against this order of the State Commission, the appellants are before this Commission by way of the present first appeal.

It was argued by the learned counsel for the appellants during hearing that the former Chairman of the OP Builder was known to them and had promised to provide discount in the basic sale price of the flat. However, despite writing numerous letters to the OP Builders, requesting them to settle the final sale price, they did not take any action on his letter. The learned counsel stated that following the letter dated 10.07.2007 from the OP builders, vide which the OP demanded payment of a sum of 9,16,650/- for three instalments, the complainants had requested the OP Builder to provide all relevant documents etc. so that they could raise loan from the Bank. Due to failure of the OP Builder to indicate the final sale price etc., the complainants were not able to get the loan disbursed, although the Bank had agreed in principal to provide the loan. The learned counsel has drawn attention to the letters written by them to the OP builder from time to time, requesting them to provide the necessary documents to enable them to get the loan. In response to the show cause notice dated 24.04.2012 also, the complainants had sent letter dated 07.05.2012 to the OP builder explaining their position. However, the OPs cancelled the allotment vide their letter dated 09.06.2012 which reflected deficiency in service on their part.

The learned counsel for the OP Builder stated that the complainants were well-aware of the price of the apartment, as they had deposited 10% of the said price as earnest money with them in the year 2005 itself. Despite writing letters to them from time to time, the complainants failed to deposit the balance amount of the flat to them. The cancellation of the booking of the flat had been made after sending show cause notice to the complainants. The State Commission had rightly observed that since the money refunded to the complainants had been accepted by them, the relationship between the complainants and the OP builder had come to an end. The learned counsel further stated that at best, the OP builder was prepared to pay certain amount of simple interest to the complainants for the time the money remained deposited with them. The flat in question, had already been allotted to some other person and hence, there was no question of allotment of flat at this stage. The learned counsel argued that there had been no deficiency in service on their part, rather the complainants failed to deposit any further amount with them and kept on asking for discount on the sale price.

I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

The first point that merits our consideration is whether the complainants fall under the category of ''Consumer'' as per the provisions of the Consumer Protection Act, 1986. It is true that the complainants made booking of the flat in question while making payment of 10% value of the flat as earnest money and thereafter, they did not make any further payment to the OP Builder. However, the letter dated 10.07.2007 sent by the OP Builder as referred to above, brings out that the OP Builder did intimate to the complainants that the construction had already started and asked them to make payment of 9,16,650/- for three instalments. It is evident therefore, that this was not a case of mere booking of the flat, rather the OP builder had very much agreed to provide the said flat to the complainants and later on cancelled the allotment due to non-payment of the balance amount. It is held, therefore, that the complainants come within the definition of ''Consumer'' and they had a right to institute the consumer complaint in question.

The next issue that merits our consideration is whether the complaint in question was barred by limitation. The State Commission have already considered this issue and came to the conclusion that although the demand letter was sent on 10.07.2007, the cancellation of the flat was made by the OP builder vide their letter dated 09.06.2012 only. The cause of action has to be considered from the date of cancellation of the booking and hence, the complaint has been filed within limitation. We have no reason to disagree with the findings of the State Commission on this ground as well and uphold their view that the complaint was within limitation.

The main issue that merits decision in the present case relates to the fact whether there has been any deficiency in service or unfair trade practice on the part of the OP Builder. It is crystal clear from the facts on record that the complainants made payment of 10% of the basic sale price of the flat in the year 2005 at the time of initial booking and thereafter, they failed to make any further payment to the OP Builder. They have been constantly agitating before the OP Builder that their former chairman had promised to give some discount on the basic sale price of the flat to them and thereafter OP Builder should indicate the final sale price accordingly. However, there is nothing on record to prove that any discount was ever promised by the OP Builder to the complainant. It is the case of the complainants that the Builder-Buyer Agreement could not be executed due to non-finalisation of the price. It was, however, the duty of the complainants to make payment of the instalments of the flat, when intimation had been sent to them that the construction of the same had started. The complainant could have raised demand for getting discount on the total price of the flat, but they could not have withheld the payment of future instalments to the OP.

The facts and circumstances of the case clearly indicate that before making cancellation of the booking of the flat, the OP builder sent a show cause notice to the complainants to which they sent their reply also. After considering the said reply, the OP Builder decided to cancel the allotment and returned the amount deposited with them at the time of initial booking. Therefore, I do not find any deficiency in service or unfair trade practice on the part of the OP Builder on any ground.

Considering the fact that the initial amount paid by the complainants had been lying deposited with the OP Builder, I deem it fair that the OP Builder should pay interest to the complainants, as they must have been using the said money for their benefit. During the arguments also, the learned counsel for the respondent indicated their willingness to pay certain amount of simple interest to the complainant on this score. We, therefore, hold that it shall be in the interest of justice that a simple interest @9% p.a. be paid to the complainants by the OP Builder for the period the money remained deposited with them, i.e., from 11.07.2005 to 05.06.2012. The OP Builder is directed to make the payment of such interest within a period of six weeks from today. This appeal is partly allowed in these terms. There shall be no order as to costs.