KAILASH KUMARI Vs. OMAXE LTD.

JUDGEMENT

(1.) The present First Appeal (FA) has been filed by the Appellant against Respondent(s) as detailed above, under Sec. 19 of Consumer Protection Act 1986, against the order dtd. 25/10/2017 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula (hereinafter referred to as the 'State Commission'), in Consumer Complaint (CC) no. 350/2016 inter alia praying to set aside the order passed by the State Commission.

(2.) The Appellant was the complainant and the respondent(s) were OPs in the said CC/350/2016 before the State Commission. Notice was issued to the Respondent(s). Parties filed Written Arguments/Synopsis on 25/10/2023 (Appellant/Complainant) and 2/12/2022 (Respondents/OPs) respectively.

(3.) Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that: - Complainant booked a flat in Omaxe City project of the OP at Sonepat vide application dtd. 28/3/2013. Vide allotment letter dtd. 4/4/2013, OP allotted a flat no OWF/Ground/2700 in the project 'OMAXE WISTERIA FLOOR'. As per application, total consideration was Rs.64,11,500.00, with BSP (Basic Sale Price) being Rs.57,50,000.00. A booking amount of Rs.5.00 lakhs was paid along with application. Complainant paid a total amount of Rs.27,90,418.00. OP claims to have sent daft BBA (Builder Buyer Agreement) in original for signatures by the Complainant on 25/1/2014. However, the same was not signed, and a reminder letter dtd. 5/6/2014 was sent by OP. Complainant contends that she did not sign the BBA as some terms and Conditions of same were found unacceptable and conveyed the same to OP, but OP refused to amend the BBA. The Complainant further contends that upon inspecting the construction site, she discovered use of substandard materials by OPs, which raised concerns about safety. Despite raising concerns with OPs, Complainant claims to have received no satisfactory response. Hence, she sought refund of total amount deposited. OPs on the other hand contended that complainant failed to make payments towards sale consideration, resulting in forfeiture of the amount paid. State Commission relying on the judgement of this Commission in FA/06/2014 Randhir Singh vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27/11/2014, vide impugned order dtd. 25/10/2017, came to a conclusion that Complainant is entitled to refund of the amount deposited by her minus the earnest money of Rs.5,75,000.00 but she is not entitled to interest because there was lapse on her part qua signatures of agreement as well as deposit of amount. Before State Commission, OP had argued that it was only after complainant did not pay despite many chances being given that the allotment was cancelled on 26/8/2013 and earnest money of Rs.5,75,000.00 was forfeited. In October, 2013, cancellation was revoked and unit was re-allotted. But the Complainant did not sign the agreement, so allotment was cancelled again on 1/9/2014 and Rs.5,75,000.00 earnest money was forfeited. On the other hand Complainant had argued that BBA sent to her was one sided, terms & Conditions were favorable to builder only, that is why it was not signed. The State Commission did not accept the contention of Complainant of materials being of sub-standard due to lack of evidence. Relying on conditions of booking application, State Commission observed that OPs were competent to cancel the allotment and forfeit the earnest money.