IMPORTANT POINTS
(1) Third party – The opposite party has contested the complaint on the grounds of maintainability alleging that the complainant was not a ‘consumer’ within the ambit of section 2(1)(d) of the Act as she booked another flat in the same project and transferred it to a Third Party.
(2) Cancellation of Allotment – Cancellation of the allotment was also required to be done by the opposite party after due opportunity to the complainants.

ORDER

This complaint has been filed under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) alleging deficiency in services in respect of non-delivery of a flat booked by the Complainant with the Opposite party in the project ‘Araya’, promoted and developed by it.

2. The facts, in brief are that according to the Complainant, they had booked a flat on 18.12.2012 in the project ‘Araya’, Sector 62, Golf Course Extension Road, Gurgaon, Haryana by paying an amount of Rs.40,00,000/-. Allotment was made on 19.12.2012 which clearly stated that the Buyer’s Agreement will be forwarded within 30 days, after which complainant started receiving the demand letters for the payment of more money amounting to Rs.2 Crores. However, the complainant did not make the payment since the Buyer’s Agreement were not sent to the complainant by the opposite party. Complainant submits that in the absence of the Buyer’s Agreement he could not apply for loan from the bank. Therefore, there was deficiency in service by the opposite party in not forwarding the Buyers Agreement to the complainant. Thereafter, complainant received a letter dated 10.02.2014 from the opposite party terminating the allotment and also forfeiting the amount of Rs.40 lakhs deposited by the complainant with the opposite party.

3. The complainant therefore filed a criminal complaint with the Commissioner of Police, Gurgaon, Haryana where the authorized person of the opposite party was summoned on 16.04.2015. In reply to that complaint, the opposite party made no reference to the Buyers Agreement which is the subject matter of the issue. The complainant submits that he is still pursuing with the opposite party for the refund of the money with interest but to no avail.

4. The case of the complainant is that there was no concluded contract in force between the complainant and the opposite party since the application form became void once the Buyer’s Agreement was not sent. It is contended that the opposite party should have returned the booking amount to the complainant. The termination letter without mentioning the Buyer’s Agreement was a valid legal proof on record that such an agreement was not in place. Therefore, the complainant filed a consumer complaint no. 1015 of 2016 before this Commission which was however withdrawn on 13.07.2016 with permission to approach the appropriate forum. Thereafter, the complainant approached State Commission in Consumer Complaint no. 428 of 2016 which was also withdrawn in view of the judgment passed by this Commission in Ambrish Kumar Shukla vs. Ferous Infrastructure Pvt. Ltd. in CC no. 97 of 2016 on the ground of pecuniary jurisdiction. The Complainant has alleged deficiency in service and unfair trade practices and is before this Commission with the following prayer:—

(a) Direct the opposite party to pay the booking amount of Rs. 40 Lakhs deposited by the complainant with the opposite party.

(b) Grant sum of Rs.33,60,000/- (Rs. Thirty Three Lakhs Sixty Thousand only)(towards interest of principal amount deposited till date) at the rate of 24% per annum along with pendent lite and future interest or which this Hon’ble Commission may deem fit in the interest of justice.

(c) Grant a sum of Rs.25 Lakhs towards exemplary damages and mental damages detailed above in the complaint.

(d) Grant cost of litigation of Rs.10 lakhs to the complainant.

(e) Any other order, relief or direction which this Hon’ble commission may deem fit and proper under the circumstances of the case may kindly be passed in favour of the complainant and against the opposite party.

5. The complaint was resisted by the opposite party by way of reply. The preliminary objection raised by the Opposite party is that this Commission does not have the pecuniary jurisdiction in the matter as the total sum involved in this complaint was only Rs.40 Lakhs and the prayer of the complainant was for refund of the same. Therefore, the law laid down by this Commission in