JAYANT MEHROTRA Vs. ARIMAS DEVELOPERS PVT. LTD

JUDGEMENT

(1.) This consumer complaint under the Consumer Protection Act, 1986 (in short, the 'Act') is filed against the opposite party alleging deficiency by the opposite party in not refunding the amount deposited by the complainants towards a villa booked by them in the project 'Amoda Reserve', Lonavala, Maharashtra.

(2.) The complainants' case is that the opposite party did not provide any Agreement to Sell or progress of the project for nearly two years and upon cancellation of booking did not refund the full amount deposited by them for a 3 BHK Villa (No. F9B) admeasuring 2285 sq ft carpet area for a sale consideration of Rs.2,87,18,346.00 excluding stamp duty, registration, service tax and other taxes or levies booked on 21/7/2015 in the above project. Rs.89,77,356.00 was deposited with the opposite party which amounts to more than 20% of the total sale consideration on the clear assurance on email by the opposite party that the complainants could withdraw the full amount without any deduction of cancellation charges within 6 months. However, since the draft of the Agreement to Sell was not provided by the opposite party from the date of booking in July 2015 till the date of filing of this complaint, i.e. for a period of over two years, nor was any information provided regarding the progress of the project, on 1/3/2017 they cancelled the booking and sought refund of the amount deposited but despite numerous efforts to obtain the draft agreement they received evasive answers leading them to inform the opposite party that further payments would be made only on receipt of this document. The opposite party vide letter dtd. 10/3/2017 responded but gave no reason for the rejection of the request. Hence, a legal notice was issued by complainants on 1/4/2017 to the opposite party in reply to which it was conveyed that only Rs.79,54,982.00 would be refunded. The complainants allege that the opposite party had retained their money illegally while no Agreement to Sell was provided till date. Such actions are stated to be an unfair trade practice. Reliance is placed on this Commission's order in Subhash Chander Mahajan Vs. Parsvnath Developers Ltd., CC No. 144 of 2011 wherein the opposite party was directed to pay interest @ 18% per annum along with compensation of Rs.7,00,000.00 and litigation cost of Rs.2,00,000.00. Complainants also rely upon Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein the Hon'ble Supreme Court held that a higher rate of interest was payable where a purchaser was deprived of the benefit of escalation of price due to the return of the amount deposited. The complainants are before this Commission with the prayer to:

(3.) The opposite party resisted the complaint by way of a written statement supplemented with additional submissions after final arguments were over and stated that the complainants had booked the villa on 21/7/2015 and was informed that an Agreement to Sell was under finalization on 17/8/2015. In September 2015 he had signed the cost sheet which was a tacit agreement to continue with the booking. A Letter of Intent (LOI) was also sent to the complainants on 30/11/2015. However, on 25/7/2017 the complainants opted to seek a refund abruptly and the opposite party in October, 2017 and November, 2017 forwarded a copy of the Agreement to Sell. Preliminary objections of the opposite party are that (i) the complainants purchased the villa for commercial reasons since they have other properties and therefore the complaint was not maintainable under the Act; (ii) they were not 'consumers' under the Act as they reside in Bandra (West), Mumbai; (iii) they had made another booking of a flat in Indiabulls Sky Suits project of Indiabulls Real Estate Co. Pvt. Ltd., and sought similar relief in CC no. 1693 of 2017 in J M Vs India Bulls Real Estate Ltd., (iv) the complaint was filed in October 2017 after 2 years 4 months of the last payment in July 2015 and was, therefore, barred by limitation; (v) the complainants had sought a refund after negotiating for an upgraded villa and (vi) that the opposite party was not liable to pay any interest as per the terms and conditions of the application form dtd. 21/7/2015. Reliance was placed on the judgments of the Hon'ble Supreme Court in Madan Kumar (D) through LR vs District Magistrate, Sultanpur and Ors., (2009) 9 SCC 79 which held that in order to determine 'commercial purpose' to establish whether a person was a 'consumer', the 'immediate purpose' as distinct from the 'ultimate purpose' of purchase, sale in the same form or after conversion and a direct nexus with profit or loss would be the determinants of the character of a transaction whether it is for a 'commercial purpose' or not. As regards establishment of deficiency in service, it was submitted that the Hon'ble Supreme Court in SGS India Ltd., vs Dolphin International Ltd., 2021 SCC Online SC 879 has held that the onus of proof of deficiency in service is on the complainant and; in Indigo Airlines vs Kalpana Rani Debbarma (2020) 9 SCC 424, it was held that burden of proof would shift on the appellants only after the respondents/ complainants had discharged their initial burden in establishing the factum of deficiency in service; and in Ranveet Singh Bagga vs KLM Royal Dutch Airlines and Anr. (2000) 1 SCC 66, it was held that the burden of proving the deficiency in service is upon the person who alleges it. The opposite party contends that the complainant's have not substantiated their evidence in its averments regarding deficiency in service by the opposite party.