IMPORTANT POINT
Allotment of flat – Refusal of delivery of possession to buyer – Complainant to file case within two years from date of refusal of delivery of possession.

JUDGMENT

Sangita Dhingra Sehgal, President.—The facts of the case as per the District Commission record are:

1. “The present complainant has been filed under Section 34 of Consumer Protection Act, 2019 (in short CP Act) against the Opposite Party (in short OP) alleging deficiency of services.

2. Briefly stated the facts of the case that the Complainant are a “Consumer” as defined in the CP Act. The Complainants seek redressal of the grievances for deficiency in services, unfair trade practices and failure of services against the OP.

3. It is further alleged that Complainants jointly booked a residential apartment in M3M Woodshire, Sector-107, Dwarka Expressway, Gurgaon for their residential purpose i.e. two bedroom plus study Apartment no. 903, Floor 9, Tower B-09 super area 1534 sq. feet for a total consideration of Rs.98,51,554/- (Rs. Ninety Eight Lakhs Fifty One Thousand Five Hundred Fifty Four only) which included basic sale price of Rs.82,06,000/- plus DC, Club Membership, IFMS, Car Parking and PLC charges paid a sum of Rs.16,92,099/- towards the cost of the residential apartment vide application dated 03.12.2012.

4. It is further alleged that the provisional allotment letter was issued to Complainants jointly under the signatures of authorized signatory and 20% of the basic price was paid by Complainants to the OP from August, 2012 to February. However, no Apartment Buyers’ Agreement was executed between the parties and the only documents which were executed by the Complainants were application form for allotment for provisional booking vide which complainants were entitled to claim refund from the company without any deduction on account.

5. It is also alleged the OP cancelled the said booking vide cancellation letter of July, 2014 without returning the aforesaid amount of Rs.16,92,099/-. It is stated that since no money was paid with the cancellation notice hence, cancellation is not tenable under the law. It is also stated the time again said money was demand however, no money was returned to complainants jointly nor any interest thereon was paid to complainants.

6. It is also stated the apartment allotted to complainants jointly has been resold by the OP. The Hon’ble Apex Court has held in such cases that OP has to return the sale price or consideration amount paid by the complainant. It is also alleged that no Flat Buyer agreement was executed between the parties that the application form does not contain any covenant regarding cancellation.

7. Thus as such the OP is liable to refund the money of Rs.16,92,099/- with interest @ 18 % p.a. It is also alleged the cause of action to file the present complaint first arose when the payments qua the residential property at Dwarka was given and pursuant to which payment of Rs.16,92,099/- was paid by the complainants to the OP. The cause of action further arose when the defendant Company did not enter into any agreement qua the said booking and unilaterally cancelled the same and the cause of action is still subsisting and continuing one as the forfeited amount is still not refunded.

8. It is further alleged that the complaint is within limitation inasmuch as no refund till date has been processed by the OP and even no interest has been paid on the said booking. Even if it is presumed that booking stands cancelled even then the OP is liable to refund the amount deducting towards earnest money which has not been done, the complainant is entitled for refund. Hence the complainant of the still is within limitation. It is also stated that the valuation for the purpose of court fee is Rs.16,92,099/- on which a requisite court fee is affixed.

9. It is also alleged the present complaint is filed by the complainants who are consumers as per the CP Act. This Commission has the jurisdiction in as much as payment made to OP is less than Rs.50 Lacs hence the Commission has having the jurisdiction to try and entertain the present complaint.

10. It is prayed that OP be