IMPORTANT POINT
Shop Buyer’s Agreement – Only a ‘reasonable amount’ can be forfeited as earnest money – Any amount exceeding 10% of total sale price cannot be forfeited by Builder.

JUDGMENT

Sangita Dhingra Sehgal, (President)—The present Complaint has been filed before this Commission by the Complainant alleging deficiency in service and unfair trade practice on the part of Opposite Parties and has prayed for the following reliefs:—

i. to direct the Respondent No.1 to refund an amount of Rs.10,00,662/- paid towards the cost of the shop booked by complainant.

ii. to direct the Respondent No.1 to pay simple interest at @18% per annum from the dates of payments made to the Respondent No.1.

iii. to direct the Respondent No.2 to pay Rs.50,000/- towards penalty for providing incorrect information.

iv. to pay appropriate penalty for delay in completion of the project thereby causing mental agony to the Complainant.

v. to direct the Respondents to pay litigation cost; and to pass such other orders as this Hon’ble Forum may deem fit and proper in the light of the facts and circumstances of this case.

2. Brief facts necessary for the adjudication of the present Complaint are that the Complainant booked a shop bearing No.253, having an area of 550 sq. ft. at a total cost of Rs.36,30,000/- (Rupees Thirty-Six Lakh Thirty-Thousand Only) in a project named “Ansals Townwalk” being developed by the Opposite Party No.1 (M/s. Ansal Housing Ltd.), located at Sector-104, Gurugram, Haryana in October, 2013. The Buyer’s Agreement was executed between the Complainant and the Opposite Party No.1 in July, 2014, with a clear understanding with regard to timely completion of the said shop within 48 months and handing over the possession of the same by July, 2018. The Complainant till date has made a total payment amounting to Rs.10,00,662/- (Rupees Ten Lakh Six Hundred and Sixty-Two Only) towards the sale consideration of the shop in question. Despite the payment of a significant sum, when the Complainant visited the site to check the progress of the construction, it was found that there was no shop with the dimensions the Complainant applied for. The Complainant vide letter dated 24.03.2015 sought a refund of the amount paid without interest till 30.04.2015, however, the amount was not refunded to the Complainant. Aggrieved by the aforesaid, the Complainant has approached this Commission.

3. Written Statement has been filed by the Opposite Party No. 1, denying all the contentions and allegations of the Complainant. It is submitted that the Complainant is not a consumer under the Consumer Protection Act, 1986, and that the shop in question was booked by the Complainant for reaping commercial gain on the resale of the said shop in the real estate market. It is further submitted that the Complainant is a defaulter in payments, and that the Complainant has deliberately chosen to ignore several demand notices and payment reminders issued by the Opposite Party No. 1. The Opposite Party No. 1 has also submitted that a final demand letter dated 29.04.2016 for the outstanding amount of Rs.28,31,369/- (Rupees Twenty-Eight Thousand Thirty-One Thousand Three Hundred and Sixty-Nine Only) had been sent to the Complainant, however the same has been ignored by the Complainant. Additionally, it is also submitted that the Opposite Party No.1 is bound to cancel the allotment on account of non- payment of dues on the part of the Complainant. Pressing the aforesaid contentions and submissions, the counsel for the Opposite Party No.1 has prayed for the dismissal of the present Complaint.

4. Written Statement has not been filed by the Opposite Party No.2 within the stipulated time period.

5. The Complainant has filed their Rejoinder rebutting the Written Statement filed by the Opposite Party No.1. Thereafter, both parties filed their Evidence by way of Affidavit to prove their averments on record.

6. Written Arguments have been filed by the Complainant, wherein the contents of the Complaint have been reiterated. The Complainant has placed reliance on the following judgments in support of his case:—

A. Lilavati Krtilal Mehta Medical Trust vs. Unique Sh