Delhi

East Delhi

CC/48/2015

SURENDER - Complainant(s)

Versus

AADI BEST - Opp.Party(s)

16 Dec 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

                                                    CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC NO.48/2015
IN THE MATTER OF

 

1. Sh. Surender Kumar Nimesh

S/o late Sh. Buddh Singh

 

2. Smt. Kaushal Nimesh

W/o Sh Surender Kumar Nimesh

 

R/O BH-214, East Shalimar Bagh, Delhi-110088

 

(Complainant No.2 Smt. Kaushal Nimesh

Through her Special Attorney,

The husband of the Complainant No.1)

 

Complainant

 

Vs

 

AADI Best Consortium Pvt. Ltd.

Habitat 9 of Cloud 9 Towers

Having its Registered Office At

D-182, D-Block, Jhilmil Colony

Delhi-110095

 

ALSO At:

M/S Aadi Best Consortium Pvt. Ltd.,

Cloud 9, Plot No. RC-1/2, Sector-1, Vaishali,

Ghaziabad (U.P.)

 

                        

Opposite Party

 

 

                                                                                      Date of Admission - 27/02/2015

                                                                                    Date of Order          - 28/01/2016

ORDER

SH. N. A. ZAIDI, PRESIDENT

This complaint has been filed with the allegation that the Respondent project Cloud 9 Vaishali is coming up on 25,000 sq Mts area allotted by Ghaziabad Development Authority. The Complainant submitted an application for booking a residential flat No. F-701 measuring 1150 sq ft area on 10/11/2012 and deposited Rs.200,000/-, the total consideration was Rs.66,81,000/-. It was apprised by the Respondent that the property consisting of the above flat is free from all sorts of encumbrances and was not involved in any civil or criminal litigation, on the basis of such assurances the Complainant booked the above flat. as per the demand of the Respondent he deposited Rs.2,91,904/- on 01/12/2012 another Rs.2,00,000/- fide receipt No.003505 on 01/12/2012, Rs.2,00,000/- on 20/12/2012, Rs.1,00,000/- on 20/12/12  vide receipt No.003606, Rs. 1,78,000/- on 01/02/2013 vide receipt No. 003927, Rs.2,00,000/- on 13/02/2013 vide receipt No. 004077 thus the total sum of Rs.13,69,904/- was advanced by the Complainant to the Respondent paying 20% of the booking amount. After payment of 20% booking amount he was asked to execute the buyer allotment letter which was executed on 20/02/2013. Before signing the agreement he noticed that the date of agreement is to be mentioned has been left blank and it was told that it will be filled up by the Respondent later on. The agreement is one sided and it was brought to the notice of the Respondent but they shows inability to change the agreement and under their pressure he has to sign the agreement. When he received the copy of the agreement the date of the execution of the agreement was mentioned as 20/02/2013 when the actual date of signing was 14/12/12. Balance payment was also demanded. Complainant avail the loan facility from the Allahabad Bank which was sanctioned on 11/03/2013. An amount of Rs.13,96,523.81 was paid to the Respondent on behalf of the Complainant on 21/03/2013 vide receipt No.004523. The further amount of Rs.3,45,804/- was deposited by the bank to the Respondent on 30/04/2013 vide receipt No.004610, thus the total sum of Rs.31,12,231.81 has been paid on behalf of the Complainant  to the Respondent up to 30/04/2013. On July 2013 to the utter shock to the Complainant he found that the land was occupied by the PAC and their tents were there and he came to know that the land is a disputed land and not free from encumbrances and it is involved in criminal litigation. Two First Information Report bearing No. 611/311/1824/2012 dated 25/12/12 and First Information Report No. 866/13 dated 21/05/2013 u/s 447/427 IPC and 420/467/468/471 of IPC were lodging by 41-V (Battalion) Vahini PAC Janpad Ghaziabad U.P. against the Respondent.

            The PAC has taken physical possession of the property. The post datting of the agreement has been to show that the agreement was entered before the filing of the FIR. The agreement is based on fraud. He wrote a letter to the authority on 04/01/2013 and pointed out that the Respondent has misrepresented to them regarding the title of the said flat. When he visited their office he was manhandled and he was forced to write the cancellation of the allotment due to personal reason and in need of money. Both these letters dated 10/08/2013 and 11/08/2013 were got executed under coersion, he got the complaint registered on 12/08/2013 at Police Station Indrapuram. The Respondent   demanded all the original documents regarding the booking and no claim certificate from the bank. He informed the Allahabad bank green park branch regarding the fraud committed by the Respondent and requested for the closing of the loan account. The Manager of the Allahabad Bank wrote to the Respondent and for refund of the money. The Respondent clandestinely got deposited the amount in the Bank Account of Complainant a sum of Rs.23,81,455/- in the last week of October 2013 instead of Rs.31,12,231.81. The Complainant has prayed for the refund of the amount of Rs.7,30,776.81 with interest on entire amount of Rs.31,12,231.81 and Rs.10,00,000/- as compensation.  

            Respondent filed their reply taking the plea that facts has been suppressed, they are bonafide purchaser of the land from GDA and PAC has lodged false and frivolous FIR, in which final report has already been submitted by the Police. The construction work is in full swing and likely to be completed very shortly. The agreement was executed on 14/12/2012 and it was signed by both the parties on the same day. The PAC put its tent on their own land and lodged false FIR which was investigated by the Police and found it to be false. The project in which Complainant allotted apartment was sold by GDA to the Respondent through proper sale deed. The plan was also sanctioned and possession was delivered by the GDA. Rest of the allegations of coersion and fraud etc has been denied. The amount of Rs.23,81,455 was refunded as per agreement, the complaint deserves to be dismissed.  

            Both the parties have filed their Affidavits. The Complainant has also filed their Rejoinder challenging the contention of the Respondent.

            Heard the Ld. Counsel for the parties and perused the record.

            The short question which arises for our consideration in this complaint is as to whether the respondent has deducted 20% amount out of the total amount deposited by the Complainant rightly. This is contended by the Complainant that the project in question since has fallen in dispute and there was no hope of getting the clear title of the flat which he has booked with the Respondent. He opted for cancellation of the booking in support of his contention he relied upon the FIR lodged by the 41-V PAC Battalion of police where in they have alleged that the Respondent have encroached upon their land and damages their sewer pipe line and the Respondent have not obtained any no objection certificate from the force. Another report in this regard was also lodged on 21/05/2013 earlier report was lodged on 25/12/2012 alleging more or less the same allegations against the Respondent. The Complainant further contended that the Respondent was not having necessary permission from the competent authority, their Map was not duly sanctioned as such the Respondent cannot take the benefit of agreement executed with the Complainant in respect of the flat in question as it was based on misrepresentation and concealment of the facts as such that is not binding upon the Complainant. The Respondent in their reply have taken the plea that land was allotted by the GDA, the PAC has lodged false and frivolous complaint and construction on this plot is going on as per the plan sanctioned by the competent authority. In support of their contention they filed on record the deed executed by the Ghaziabad Development Authority in favour of Aadi Best Consortium Pvt. Ltd. An agreement to sale also been filed. They have also filed on record the report submitted by the Tehsildar of GDA wherein they have mentioned that there is some land in possession of PAC and there is dispute regarding this fact that the construction which has been under taken is on the land which is allotted to the Respondent or he has encroaching upon the land of the PAC which is to be decided by the committee. This is also been filed on record that in the year 1999 PAC is found in possession of 9.40 Acre of the land of Ghaziabad Development Authority. He has also informed through this report dated 21/02/2015 that the construction was stopped on the objection of the PAC that Respondent is encroaching upon the land of the PAC. According to this document this dispute is still alive. There is no document to show on record that the land over which they are raising construction is free from dispute. In these circumstances the cancellation sought by the Complainant cannot be said to be illegal and the respondent cannot take the benefit of clause “T” of flat buyer agreement which says that “if any misrepresentation/concealment/suppression of material fact are found to be made by the allottee the allotment will be cancelled and the earnest money of 20% along with the over charges as specified shall be forfeited and the allottee shall be liable to the company for such misrepresentation etc”. In the present case the misrepresentation is on the part of the Respondent builder who did not disclosed this fact to the Complainant that the dispute regarding this land is pending since 1999, as it is clear from their own documents filed along with reply. In such circumstances no part of earnest money could have been forfeited by the Respondent. The Ld. Counsel for the Respondent whemently argued that in the application for cancellation which has been submitted by the Respondent along with reply they have voluntarily and specifically mentioned that they are cancelling this booking for their personal reason and have requested the Director to deposit the amount in his account after deducting the 20% with service tax in his bank account. The counsel for the Complainant argued that this document was got executed under duress and they immediately lodged FIR regarding the high handedness and illegal act of the Respondent on 11/07/2015. The FIR which has been lodged at Police Station Anand Vihar in detailed contains the events and the reason for cancellation etc. This application since was not executed voluntarily. The Respondent cannot take the benefit of this document when it is clear from their own documents that the land over which this project is developed is not free form the dispute. They have not filed on record any no objection from the Ghaziabad Development Authority or from the competent authorities of raising construction over this land nor they have filed on record any documents showing that they have ever been granted permission in to raise construction over this land. The sanctioned map plan for raising the construction has also not been filed. The documents submitted by the Respondent which has been issued by the Tehsildar under the RTI clearly shows that the dispute with the PAC and GDA still exist. There is a dispute as to whether this land over which this project is developed encroaches the part of PAC land. In these circumstances when the allotment of this land is under the dispute and this fact was never brought to the notice to the Complainant, the FIR regarding the encroachment of land by the PAC has been matter of investigation, they have not produce any NOC when it was asked by the Complainant, the withdrawal of allotment cannot be said to be unjustified. It is incumbent upon the Respondent to have provided the Complainant all the documents sought by him when he has written the letters and specifically asked for the clarification. It was never disclosed that they ever get the clear title of the land in question or there is no dispute with the PAC. In these circumstances the Respondent cannot take the benefit of flat buyer agreement and cannot claim that they have not concealed the facts from the Complainant. In these circumstances deduction made by the Respondent from the amount deposited by the Complainant is unjustified.

            We allow this complaint. We direct the Respondent to refund to the Complainant the amount of Rs.7,30,776.81 to gather with 9% interest thereon from the date of filing this complaint till it is finally paid. We further award the compensation of Rs.50,000/- on account of harassment mental pain and agony and Rs.15,000/- as cost of litigation. This amount be paid within 45 days. If this amount is not paid, the Complainant shall be entitled for 9% interest over this amount also till it is finally paid.

 

Copy of this order be provided to both the parties.

 

 

(DR.P.N.TIWARI)                        (POONAM MALHOTRA)                                (N.A.ZAIDI)                                                                                                                                                    MEMBER                                       MEMBER                                        PRESIDENT