MADHAV JOSHI Vs. VATIKA LIMITED

JUDGEMENT

(1.) The present Consumer Complaint has been filed by Madhav Joshi (hereinafter referred to as the "Complainant ") under Section 21(a)(i) of the Consumer Protection Act, 1986 (in short "the Act ") against Vatika Limited (hereinafter referred to as the "Opposite Party ") for failure to cancel the Agreement to Sell and refund the amount paid by the Complainant.

(2.) Brief facts of the case are that during 2013-2014, the Complainant was temporarily residing in Gurgaon, and was considering moving there on a permanent basis. The Complainant saw attractive advertisements for the 'Seven Lamps ' Project in Sector - 82, Gurgaon and filled an Application Form dated 27/12/2013. He opted for possession linked payment plan, whereby 35% of the Total Consideration Value (hereinafter referred to as the "'TCV ") was payable at the time of execution of the Agreement to Sell (hereinafter referred to as the "ATS), and the balance 65% of TCV was to be paid at the time of possession. Thereafter on 27.03.2014, an Agreement to Sell (hereinafter referred to as the "ATS ") was executed. The Complainant paid Rs. 51,54,120.00 to the Opposite Party i.e. about 40% of the total consideration. It was alleged that as agreed between the parties, the Complainant was not sure to move to Gurgaon, therefore, as per the Clause 2 and Clause 20 of the ATS, the exit option and the interest of the Complainant was protected. The Complainant was made to understand that if he decided not to move to Gurgaon and wanted to cancel the ATS, the amount paid by him would be refunded, after deduction of 10% of the TCV. Accordingly, 10% of the TCV was Rs.12,76,720.00 . In the meantime, the Opposite Party informed the Complainant that the apartment was ready for possession and he has to pay Rs.92,80,944.00 . However, as the Complainant had already decided not to move to Gurgaon and for cancellation of ATS, he tried to inform the Opposite Party on several occasions, but to no avail. Finally on 09.04.2018, the Complainant made hand delivery of letter to the Opposite Party, and requested to refund his money. The Opposite Party, vide letter dated 23.04.2018, replied that cancellation of ATS could only be on mutual agreement between both the parties. Thus, the Complainant sent a legal notice on 22.07.2018 to the Opposite Party to cancel the Agreement and to refund the amount paid by him after deduction of 10% of the total consideration, viz. Rs.12,76,720.00 . However, the Opposite Party vide letter dated 04.07.2018 agreed for termination of Agreement, but refused to refund the amount. Alleging Unfair Trade Practice and Deficiency of Services on the part of Opposite Party, the Complainant filed the present Complaint with a prayer, seeking refund of the amount paid, after deduction of 10% of the total consideration, viz. Rs.12,76,720.00 ; Rs.2,00,000.00 towards litigation expenses and Rs.1,00,000.00 towards mental agony.

(3.) The Opposite Party filed its written version, denying all the averments. The preliminary objection was that the Complainant was not a 'Consumer ' as the apartment was purchased solely for investment purpose and not for his own use and occupation. The Complainant approached the Opposite Party through a third-party broker for booking an apartment. As per the pre-payment policy dated 01.07.2013 if the Complainant cancels or terminates the booking, then the pre-payment rebate/discount given would be nullified and amount paid by the Complainant would be refunded as per the policy. The total sale consideration of the apartment was Rs.1,38,41,120.00 . The Opposite Party submitted that by virtue of Clause 2 of the Agreement, it was entitled to forfeit the earnest deposit made by the Complainant as well as cancel the Agreement in case of failure to make payments within the stipulated time, which leads to cancellation of the earnest deposit. By the delay in making the balance payment of Rs.92,80,944.00 as well as failure to respond to possession letters sent by Opposite Party, the termination notice dated 04.07.2018 was issued on the Complainant.