FORMAT OF COMPLAINT U/s 35 OF THE CONSUMER PROTECTION ACT, 2019 (Flat & Plot Buyers)

BEFORE THE HONORABLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, GURUGRAM

XXXXXX

…..Complainant

Versus

1. M/s XXXXXXXXXXX

Also at
XXXXXXX
Through its Directors/Authorized Person.

…..Opposite Parties

COMPLAINT U/s 35 OF THE CONSUMER PROTECTION ACT, 2019

Respected Sir,

The complainant most respectfully showeth as under:

1. That the complainant is a Non Resident Indian and is planning to settle in Gurugram (HR), India. The complainant is working as independent consultant in USA.

2. That the Opposite Parties runs its business under the name and style of XXXXXXXX having its Registered Office situated at XXXXXXXXXand Marketing/Corporate Office situated at XXXXXXXX.

3. That during the year 2012, the representative of the Opposite Parties represented to the complainant that the Opposite Parties is a domineering personality in the real estate sector and has constructed grand residential and commercial projects. It was also represented that the Opposite Parties holds goodwill in the real estate sector of Gurugram and is one of the world’s leading real estate company and the well known Brand in the field of real estate business of the region of NCR, wherein the Opposite Parties would be providing luxurious residence/flats (2, 3 and 4 BHK flats/units in sizes of 1565 Sq. Feet, 2475 Sq. Feet & 2925 Sq. Feet respectively) & Commercial Building, SEZs etc. with all services available therein in the form of service apartments.

4. That the complainant believing upon the said rosy representation to be true by the Opposite Parties, the complainant resolved to buy one such Flat measuring 1565 Sq. Ft., Basic Sale Price Rs.99,56,530/- (Ninety Nine Lakhs, Fifty Six Thousand, Five Hundred & Thirty Only) @ Rs.6,362/- per Sq. ft. exclusive of External Development Charges (EDC) and Infrastructure Charges (IDC) in the upcoming Group Housing project of the Opposite Parties namely “The Peaceful Homes” situated at XXXXXXXX in the name of the complainant.

5. That the Opposite Parties at that time also assured the complainant that the construction of the said project will be started within six months from the date of booking. The complainant believing on the false assurance and alluring representation of the Opposite Parties intended to purchase a flat and applied for the booking of a 2 BHK Flat/Unit, Measuring a Super Area of 1565 Square Feet, in the project namely Residential Group Housing Society “The Peaceful Homes” situated at XXXXXXXX to be developed byXXXXXXX as on May 28, 2012. The Opposite Parties was bound to deliver the possession of the allotted unit to the complainant within 36 Months from the date of booking or from the end of year 2012 as represented by the Opposite Parties as per clause 35 of Booking Application. The copy of the application form is annexed herein after with the complaint as Annexure C-1.

6. That for the purpose of the booking, the complainant has made payment to the Opposite Parties of Rs. XXXXXXX. The details of the payments received from the complainant by the Opposite Parties and acknowledged by the Opposite Parties for the purpose of booking is as follows:

Sr. No. Date of Payments Receipts Amount (Rs.)
1. June 27, 2012 10,00,000/-
2. August 27, 2012 9,00,000/-
3. April 25, 2013 6,65,643/-
Total Booking Amount (Rs. Twenty Five Lakh, Sixty Five Thousand, Six Hundred and Forty Three only)
25,65,643/-

The copy of the receipts against Payments of the booking amount is annexed herein after with the complaint as Annexure C-2, C-3 and C-4 (Confirmation Letter of Booking Amount of Rs. 19,00,000/- dated October 4, 2012) and Annexure C-5.

7. That the complainant on dated June 10, 2013 received the “Allotment Letter” bearing Ref No. XXXX, addressing the complainant and stating that “ This has reference to your application dated May, 28, 2012 for allotment of a unit in our Residential Group Housing Colony “ XXXXX”, at Sector 70 A, Gurugram Haryana. In this regard the company confirms the receipt of an amount of Rs. 25,65,643/- (Rs. Twenty Five Lakhs, Sixty Five Thousand, Six hundred and Forty Three Only).
We are pleased to allot you a Unit in the Peaceful Homes, as per details given below:
Unit Type Super Area (Sq. Ft) Tower Floor Unit No.
2BHK 1565 C 26 C261

The BSP of Rs. 6362/- per Sq Ft along with the Preferencial Location Charge (PLC) of Rs. 350 per Sq ft and clud membership, EDC/IDC and other charges as per the payment plant attached”. The Copy of Allotment Letter is annexed as Annexure C-6.

8. That the Opposite Parties though at the time of booking of the flat had assured and represented that the said project will be started within the six month i.e. by the end of year 2012 but on the other hand as per Flat Buyer Agreement it was represented by the Opposite Parties that the construction of the project will start in May, 2014. If the Opposite Parties had not falsely assured the complainant about starting of the project in the year 2014, the complainant would have not booked the flat in the said project.

9. That as per the terms and conditions of the agreement, the complainant chose to pay the payment of flat as per the installment payment plan. The Opposite Parties was bound to deliver the possession of the allotted unit to the complainant within 36 Months from the date of booking or from the end of year 2012 as represented by the Opposite Parties as per clause 35 of Booking Application. But the Opposite Parties did not complete the said project within prescribed time. However, the clause of the said Flat Buyer Agreement is totally one-side and the agreement is not having a balanced approach. The agreement is not only incomplete but also invalid and bad in law. The complainant has no other option except to sign the said one sided agreement. The Copy of Flat Buyer Agreement dated 31st May, 2014 is annexed as Annexure C-7 and construction linked payment plan Annexure C-8.

10. That according to the Flat Buyer Agreement, the Total Cost of the Flat is as under:
CALCULATION OF COST OF FLAT

Sr. No. Particulars Sq. Ft. Area (Sq. Ft.) Total Amount (RS.)
1. Net Basic Sale Price 6,362 1,565 99,56,530
2. PLC (Preferential Location Charges 350 5,47,750
3. IFMS (Interest Free Maintenance Charges) 100 1,56,500
4. CM (Club Membership) – 2,00,000
5. EDC/IDC (External/Infrastructre Development Charges) 395 6,18,175
6. Stamp Duty – –
7. Other Charges – –
8. Net Cost 1,14,78,955
9. Service Tax (BSP) 3.708% 3,69,188
10. Service Tax (Others) 12.36% 92,422
Total Cost 1,19,40,565

11. That the complaint regularly made payment on time to the Opposite Parties as and when due, required and demanded by the Opposite Parties. The details of the payments received from the complainant by the Opposite Parties and acknowledged by the Opposite Parties is as follows:

Details of Payments

Sr. No. Date of Payment Receipts Amount (Rs.)
1. June 27, 2012 10,00,000/-
2. August 27, 2012 9,00,000/-
3. April 25, 2013 6,65,643/-
4. May 8, 2014 (Admitted in Statement) 5,32,978/-

5. May 8, 2014 5,00,000/-
6. March 24, 2015 5,00,000/-
7. March 25, 2015 16,286/-
8. July 14, 2015 8,27,824/-
9. October 19, 2015 5,00,000/-
10. December 29, 2015 5,00,000/-
11. December 30, 2015 3,47,307/-
Total 62,90,038/-

The copies against the above detailed payments have been marked as Annexure C-9 to C-15 (Sr. No. 5 to 11) which has been attached with the complaint herein after.

12. That the Flat Buyer Agreement dated May 31, 2014 is arbitrary and heavily loaded in favour of Opposite Parties and the said project of the Opposite Parties is a construction linked plan and the payments of installments were to be made as per various stages of construction. Clauses of the Flat Buyer Agreement which are not in consonance with law shall not be maintainable. Every agreement of which the object, terms or conditions is unlawful is void being against the public policy and none of terms can be enforced separately and independently. After booking of said apartment, the complainant made payment of all installments to the tune of Rs.62,90,038/-. It is pertinent to mention here that none of the payments were delayed on behalf of complainant and the same were duly credited in the account of the Opposite Parties. The Statement of Account/Payments as on March 7, 2016 regarding the same is annexed as Annexure C-16.

13. That the Opposite Parties has not completed the construction even as per Flat Buyer Agreement. The Opposite Parties has to hand over the possession of the apartment to the complainant in all respect up to till May 31, 2017 or up to November 30, 2017 but the Opposite Parties failed to do so. The complainant asked from the Opposite Parties about the date of completion of the construction as well as handing over the possession of the apartment but the Opposite Parties did not give any satisfactory answer to the complainant or always made a false excuse for delaying the project. Admittedly the Opposite Parties did not fulfill its promise and the condition of the Flat Buyer Agreement or when the complainant made his inquiry about the final date of delivery the unit/apartment, the Opposite Parties did not give any answer of the queries of the complainant. Hence, conduct of the Opposite Parties is illegal and malafide.

14. That the complainant made several requests to the Opposite Parties to adhere to the terms and conditions with regard to the possession of the said flat and to hand over the possession within the prescribed time limits (36 months with a grace period of further 6 months (42 Months) from the date of commencement of the construction) even as per 11a of the Flat Buyer Agreement.

15. That the complainant on the expiration of the contract period contacted to the Opposite Parties and requested to hand over the possession of his 2 BHK Flat/Unit No. C261, Measuring a Super Area of 1565 Square Feet, 26th Floor, Tower C, in the project namely Residential Group Housing Society “XXXXX” situated at SXXXXXXX. At the same time, the complainant also requested to the Opposite Parties to receive the Balance Sale Consideration.

16. That, however, the complainant got astonished and shocked to know that the project was still not completed by the Opposite Parties even within the time limits prescribed in the Flat Buyer Agreement. The Opposite Parties made false excuses for not adhering to the Terms and Conditions of the Flat Buyer Agreement and behaved badly with the complainant and again said that it would take two-three months in handing over the possession to the complainant.

17. That the complainant believing in the Opposite Parties after four–five months again requested to the Opposite Parties to hand over the possession and expressed his bonafide readiness and willingness to make payments of the Balance Sale Consideration. But the Opposite Parties again not behaved fairly and made the false excuses again and demanded some more time for the possession/completion of the project. The complainant being a good natured as well as law abiding person in good faith again believed the Opposite Parties.

18. That it clearly seems that the intention of the Opposite Parties from the very beginning was to cheat the innocent consumer as well as complainant.

19. That the complainant after waiting for a long period of almost one year for expecting completion of the said project had requested to the Opposite Parties for cancellation of his allotted Flat and return the amount to him. The complainant in this regard has sent an Email on dated July 25, 2018 to the Opposite Parties. The copy of email communications is attached herein after as Annexure C-17.

20. That the Opposite Parties did not return the payments to the complainant. Hence, the complainant again requested to the Opposite Parties vide Email sent on dated October 10, 2018 for the cancellation of his allotted Flat and return the amount to him. The copy of email communications is attached herein after as Annexure C-18.

21. That the complainant was shocked to get the Termination/Cancellation Letter bearing reference No. GTPH-0070 from the Opposite Parties dated June 13, 2019. According to the Termination/Cancellation Letter, the Opposite Parties intentionally and willfully deducted Rs. 53,26,849/- (Rs. Fifty Three Lakh, Twenty Six Thousand, Eight Hundred and Forty Nine Only). This malafide act of the Opposite Parties caused a lot of monetary loss as well as mental agony and harassment to the complainant without any default of the complainant. The copy of the Termination/Cancellation Letter is attached as Annexure C-19 hereinafter with the complaint. When the complainant had left no other option then the complainant approached this Hon’ble Commission to get justice.

22. That the complainants had purchased the said flat/apartment for his personal use, as such complainant is a consumer as per Section 2 (7) (ii) of the Consumer Protection Act, 2019 and in the number of cases the Hon’ble National Commission has held that the services provided in relation to housing activities are covered in the act and the opposite parties are deficient in service by rendering deficient service as per Section 2 (11) under the consumer protection act, 2019 :-

2(11): “deficiency” means any fault, imperfection, shortcoming or inade¬quacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes – i. Any act of negligence or omission or commission by such person causes loss or injury to the consumer. ii. Deliberate withholding of relevant information by such person to the consumer.

23. The Opposite Parties caused deficiency in services & negligence. The Opposite Parties have used unfair trade practices, unprofessional attitude, unfair contract & malpractice. Hence, the present complaint is genuine, authentic and follows the provisions of the consumer protection act.

24. That it is crystal clear that the Opposite Parties has cheated the complainant by giving false assurance and representation and has received Rs.62,90,038/- (Rs. Sixty Two Lakh, Ninety thousand and Thirty Eight Only) which is 54.8% of the Net Cost (Rs. 1,14,78,955/-) of the Flat from the complainant deceitfully.

25. That the Opposite Parties due to inducing the complainant by false representation and collecting his hard earned money is guilty of cheating. The Opposite Parties has also committed breach of trust and also cheated the complainant by causing wrongful loss to wrongful gain to him. It is an offence Under Section 406/420/120-B/34 Indian Penal Code. The complainant has reserving his right to sue the Opposite Parties for the above noted offences in the appropriate court of law.

GROUNDS OF THE COMPLAINT:

26. That the Opposite Parties was bound to deliver the possession of the allotted unit to the complainant within 36 Months from the date of booking or from the end of year 2012 as represented by the Opposite Parties. But the Opposite Parties did not complete the said project within prescribed time.

27. That according to the Flat Buyer Agreement, the Total Cost of the Flat is Rs. 1,14,78,955/-. The complainant has paid till date Rs. 62,90,038/- which is 54.8% of the Net Cost the Flat.

28. That because the complainant has given a huge amount to the Opposite Parties & the complainant had no option except to sign the Flat Buyer Agreement to in the month of May, 2014. The complainant continuously pressed the Opposite Parties for accelerating the progress at project site but the Opposite Parties did not honour the Flat Buyer Agreement.

29. That the Opposite Parties have not completed the construction even as per Flat Buyer Agreement. The Opposite Parties has to hand over the possession of the apartment to the complainant in all respect up to till May 31, 2017 or up to November 30, 2017 but the Opposite Parties failed to do so.

30. That the complainant made several requests to the Opposite Parties to adhere to the terms and conditions with regard to the possession of the said flat and to hand over the possession within the prescribed time limits (36 months with a grace period of further 6 months (42 Months) from the date of commencement of the construction) even as per 11a of the Flat Buyer Agreement. But the Opposite Parties paid no heed to the request of the complainant.

31. That the Opposite Parties had criminal intension to dupe the complainant. The intention of the Opposite Parties from the very beginning was to cheat the innocent consumer (s)/complainant (s).

32. That the Opposite Parties has not adhered to or honoured the terms and conditions of the contract or Flat Buyer Agreement. The Opposite Parties has failed to fulfill its obligation towards the complainant.

33. That the Opposite Parties has Terminated/Cancelled the allotted Flat of the complainant on dated June 13, 2019 and the Opposite Parties intentionally and willfully deducted Rs. 53,26,849/- (Rs. Fifty Three Lakh, Twenty Six Thousand, Eight Hundred and Forty Nine Only) without any fault of the complainant instead of refunding the payments to the complainant. Thus, this act of deduction from the payments of the complainant clearly depicts the very true picture of the intention of the Opposite Parties.

34. That the complainant has suffered a huge loss on account of willful, unlawful and malafide cancellation or termination of the above mentioned flat.

35. That the act of Opposite Parties will amount to deficiency of service under the consumer protection act. The Opposite Parties is not true to its contract on the other hand deducted a huge amount of the complainant.

36. That the Branch/Corporate Office of the Opposite Parties is situated at Gurugram and the cause of action also arouse at Gurugram. The cause of action arouse when the Opposite Parties cancelled/terminated the allotted flat to the complainant vide Termination/Cancellation Letter dated June 13, 2019 instead of refunding the amount to the complainant & caused a huge financial loss to the complainant.

Hence, the Honorable District Consumer Disputes Redressal Commission, Gurugram, has got jurisdiction to entertain this complaint.

37. That Honorable District Consumer Disputes Redressal Commission, Gurugram has pecuniary jurisdiction to decide the present complaint as The complainant has paid till date Rs. 62,90,038/- as consideration to the Opposite Parties. Hence, this Honorable Commission has power to adjudicate the present complaint and the matter in dispute.

38. That the complainant has not filed any such or similar complaint against the Opposite Parties herein with respect to the same cause of action in any other court of law. No such or similar complaint is pending for adjudication before any competent court of law.

39. That the dispute amount of the case is above Rs. Fifty Lakh. Hence, Court Fee of Rs. 2,000/- (Rs. Two Thousand Only) has been paid online and the same is enclosed with the complaint

P R A Y E R

In view of the submissions contained in the preceding paragraphs, the complainant most respectfully prays to the Hon’ble Commission that:

1) Appropriate Order may pleased be passed directing the Opposite Parties to refund the amount i.e. Rs. 62,90,038/- (Rs. Sixty Two Lakh, Ninety Thousand and Thirty Eight Only) paid by the complainant to the Opposite Parties with interest at the rate of 24% P. A. from the date of respective deposits till the date of realization of the amount.

2) To direct the Opposite Parties to pay to the complainant as compensation for damages because of the acts and omission of the Opposite Parties described as follows:

A. The compensation on account of mental agony, harassment, discomfort and undue hardships caused to the complainant on the part of the Opposite Parties estimated Rs. 20,00,000/- (Rs. Twenty Lakh Only).

B. Damages suffered by the complainant because of the opportunity lost in purchasing the said Flat estimated at Rs. 10,00,000/-(Rs. Ten Lakh Only) as well as the aggregate cost incurred by the complainant to visit the site during these 7 years estimanted at Rs. 7,00,000/- (Rs Seven Lakh Only).

C. Legal consultation as well as litigation fees paid by the complainant to the legal counsel of Rs. 2,00,000/- (Rs. Two Lakh Only).

D. Incidental and Miscellaneous expenses incurred by the complainant estimated at Rs. 1,50,000/- ( Rs. One Lakh & Fifty Thousand Only).

E. Appropriate Order may pleased be passed directing the Opposite Parties to refund the cost of filing the present complaint.

3) Any other such orders may kindly be passed and relief be granted in the interest of justice and in favour of the complainant as the Hon’ble Commission deems fit keeping in view the facts as well as circumstances of the present complaint.

Place: Gurugram
Dated: ……../….20……

COMPLAINANT

XXXXXX

Through: Sh. Jaswant Singh Katariya, Advocate, Gurugram

VERIFICATION:
It is verified that the contents of the Para No. 1 to Para No. 36 of the above complaint are true and correct to the best of my knowledge & Para No. 37 to Para No. 39 on belief. No part if it is false and nothing has been concealed there from. Verified at Gurugram on …../…….20….

COMPLAINANT

Note: Please draft the Complaint as per Actual Facts. The above format is for General Purpose only.