Delhi

North

CC/392/2022

RUPINDER SINGH DHILLON - Complainant(s)

Versus

ADMIRED HEIGHT PROJECT PVT LTD - Opp.Party(s)

12 Nov 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.392/2022

In the matter of

Rupinder Singh Dhillon

S/o Shri Gurnam Singh Dhillon

R/o BN-48, BN-Block, Shalimar Bagh

Delhi- 110088

Office at 3900, Mori Gate

Delhi-110006                                                …                 Complainant

Versus

Admired Height Projects Pvt Ltd

Regd Office: Room No. 205, Welcome Plaza

S-551, School Block-2, Shakurpur

New Delhi- 110092                               …                 Opposite Party

 

ORDER

12/11/2024

 

(Divya Jyoti Jaipuriar)

1. The Complainant is working for gain within the territorial jurisdiction of this Commission. He, initially, booked an apartment with M/s Imperial Housing Ventures Pvt Ltd (not a party) in its project “Paras Tierra”, which was subject matter of a civil suit bearing CC No. 3445/2016 filed by the Complainant herein before the court of Ld. CMM, Karkardooma Courts, Delhi. It is stated that in terms of the settlement dated 12.11.2018 between the parties, the said suit was subsequently disposed of vide Court’s order dated 18.02.2019. In the said settlement, the Complainant (First Party), M/s Imperial Housing Ventures Pvt Ltd. (second party) and M/s Admired Heights Projects Pvt Ltd. (third party) (Opposite Party herein) have agreed that the Complainant herein would be allotted a commercial shop in the project named “Paras One33” in lieu of the apartment booked in “Paras Tierra”. The Complainant agreed to the said settlement and accepted the commercial shop that he intended to use as office space for his son to earn livelihood by way of self-employment.
2. In the settlement agreement dated 12.11.2018, which was the basis of disposal of the civil suit initiated by the Complainant herein, there were three parties- Complainant herein as the First Party, M/s Imperial Housing     Ventures Pvt Ltd as Second Party and the OP herein as the third party. In the said settlement agreement dated 12.11.2018, all three parties agreed to following payment terms:

 

Unit no. of commercial shop	LGF/20
Super Area: commercial shop	333 Sq ft.
Basic sale price @ 13000/-(after discount)	Rs. 43,29,000/-
Add one charges @500/-Sq ft.	Rs. 1,66,500/-
Sale consideration amount for commercial shop	Rs. 44,95,500/-
Note: GST, as applicable Possession Charges+ Stamp duty+ Registration & legal Charges will be over and above the sale consideration and to be paid by the Allottee (s)/ First party as and when demanded.
Payment made to second party towards part consideration for property	Rs. 35,00,000/-
Agreed deduction: ii) Booking amount paid to the second party for the property i.e. 127/1103	Rs. 6,08,000/-
ii) Balance amount after deductions will be shifted to the commercial shop no. LGF/20 in paras One33 Note: GST  shall be paid separately and directly by the first party to the third party	Rs. 28,92,000/-
iii) Booking amount receive against the commercial shop no. LGF/20 Excluding GST of Rs. 24,000/- which had already been received by the Third party.	Rs.2,00,000/-
Balance amount due to be paid by first party to the third party towards Sale Consideration for the commercial shop against Offer of possession demand	Rs. 14,03,500/-

“Note: GST, as applicable Possession Charges + Stamp duty + Registration & legal Charges will be over and above the sale consideration and to be paid by the Allottee (s)/ First party as and when demanded.”

 

3. After the settlement between the parties, the OP herein issued the allotment letter dated 03.12.2018 in which the OP has confirmed the sale consideration amount of Rs. 44,95,500/- for the allotted shop bearing number LGF/20 in its “Paras One33” project. The payment plan along with the allotment letter also confirmed the balance amount to be paid at the time of possession at Rs. 14,03,500/-, which is in conformity with the settlement between the parties before Karkardooma Court. Thereafter, the Complainant and the OP also signed the Builder Buyer Agreement/ Unit Buyer Agreement on 12.12.2018.
4. It is the case of the Complainant that after the said fresh allotment of the shop, he received a demand letter on 02.08.2021 by which the OP has demanded payment of Rs. 21,32,397.50. As the said demand was in excess of the agreed sum as recorded in the settlement agreement before the Karkardooma Court as well as in the allotment letter, the Complainant sought explanation from the OP for the enhancement. He has also sought copy of the completion certification from the OP. For the said purpose, the Complainant sent several communications to the OP including the letters dated 21.10.2021 and 08.12.2021. The Complainant also alleges that he has approached some financial institutions/ banks for availing loans/ financial assistance for making the balance payment, but the loan/ financial assistance could not be arranged as the OP did not cooperate with the Complainant and the respective financial institutions/ banks despite several requests in this regard. It is further stated by the Complainant that the OP has clearly agreed to provide all cooperation for availing financial assistance/ loans for purchase of the said unit in question.
5. The Complainant also alleges that when the settlement agreement between the parties was signed, it was not communicated that the unit in question is not a lockable independent unit. When the OP issued the demand letter dated 02.08.2021, it was for the first time that the Complainant came to know that the shop unit is not a lockable unit with boundary walls. Complainant is aggrieved with non-disclosure of relevant information at the time of settlement before Karkardooma Court as well as while issuing the allotment letter by the OP.
6. It is the case of the Complainant that the OP has not replied to his queries and letters and without giving any notice, the OP, vide its letter dated 15.02.2022 has cancelled/ terminated the allotment to the Complainant. This termination, however, was deemed to be withdrawn as the OP has issued a fresh demand letter dated 16.03.2022. The Complainant also alleges that OP has subsequently provided the copy of the occupancy certificate on 26.02.2022. This also indicates that the cancellation/ termination letter issued by OP was also deemed withdrawn.
7. However, a second cancellation/ termination letter dated 13.04.2022 was also issued to the Complainant by the OP. This termination letter was also deemed to have been withdrawn as the OP has issued another demand letter to the Complainant on 22.08.2022. By way of the letter dated 22.08.2022, which is marked as “Reminder-1”, OP has asked the Complainant to make the payment of Rs. 2,53,007/- on account of leasing expenses and lease registration charges. In this letter dated 22.08.2022, the OP has clearly mentioned that this demand is being raised with reference to “on-going discussion regarding leasing of your [Complainant’s] premises to Reliance Smart Bazaar”.
8. The Complainant, by way of this complaint, has raised the issue of unfair trade practice by OP, inter alia, (i) by increasing the amount payable at the time of possession from the amount so agreed in the settlement agreement signed before Karkardooma Court; (ii) non-disclosure of the fact that the shop so booked by the Complainant is not a lockable independent unit until the offer of possession was issued; (iii) non-cooperation by the OP in availing loan/ financial assistance by the Complainant from the banks/ financial institutions; (iv) cancellation/ termination of the allotment without giving any notice in violation of the agreement; (v) not refunding the amount so paid by the Complainant to the OP after alleged cancellation; and (vi) not responding to the mails, letters and communications of the Complainant by the OP.
9. We have issued notice to the OP but as the reply of the OP was not filed within the statutory period as prescribed under section 38 of CPA, 2019, the right to file reply by OP was closed by way of order dated 16.12.2022. The said order of this commission was never challenged by the OP, therefore the said order has attained finality. However as the OP was being represented by an Advocate, OP was permitted to participate in the subsequent proceedings.
10. The complainant has filed its evidence. In view of the fact that the right to file reply by the OP was closed, the right to file evidence by OP was also closed. At this stage we would like to refer to the judgment of Hon’ble Supreme Court of India in the matter of Kaushik Nareinbhai Patel & Co. V/s M/s S.J.R. Prime Corporation Pvt. Ltd. & Ors. [2024 INSC 542],  in which Hon’ble Supreme Court has held that in absence of Written statement, there cannot be any pleadings in the eyes of law. Hon’ble Supreme Court has further held that OP can participate in the proceedings even though the right to file reply was forfeited, but it cannot bring forth any admissible evidence on record. Hon’ble Supreme Court has ruled that in absence of any specific provision in the Consumer Protection Act, Order VI rule 7 of CPC would apply to the proceedings before Consumer Commissions. Accordingly, if the previous pleadings are not available on account of forfeiture of right to file the written statement then the OP would not be allowed to bring in pleadings indirectly to introduce its case.
11. We allowed both the parties to file written arguments however in the written arguments filed by the OP herein, OP has made averments defending its case and to bring on record new pleadings. In its written arguments the OP has made not only legal submissions but has also introduced new documents and pleadings. In view of the judgements of Hon’ble Supreme Court in Kaushik Narsinbhai Patel (Supra), in absence of any written statement of the OP, the new averments in the written arguments of the OP cannot be considered by this Commission.
12. It is indeed a fact that the booking of the shop at “Paras One 33” was in compliance of the settlement agreement between the parties before the Karkardooma Court. As the settlement agreement became the basis of disposal of the civil suit initiated by the Complainant herein, the said settlement has attained the nature of a decree by which all parties were bound to accept and implement. Hence, we find force in the argument of the Complainant that the OP could not increase the payable amount at the time of offering possession. In the settlement agreement, the parties have agreed that at the time of possession, the Complainant would pay a sum of Rs. 14,03,500/- to the OP and applicable GST, applicable Possession Charges, Stamp duty, Registration & legal Charges. In the demand letters dated 02.08.2021 and 16.03.2022, the OP has demanded additional charges under the heads of lease rent, ESC, Power Back up, IDC and fire fighting in addition to the GST and possession charges. Further the size of the unit was also increased without any explanation, for which the OP has demanded additional price. The possible increase in the size of the unit was not mentioned in the settlement agreement.
13. It is also a fact that neither in the settlement agreement, nor in allotment letter nor in the builder buyer agreement, the OP has disclosed that the said unit is not a lockable independent unit. The Complainant was kept in complete dark about the fact that the said shop can only be leased to a third party as part of the entire area covering almost 50 shops altogether. This non-disclosure of the fact that the shop is not a lockable independent unit is clearly an unfair trade practice adopted by the OP.
14. There were several communications from the Complainant to the OP asking for (i) providing copy of completion/ occupancy certificate; (ii) seeking cooperation for availing loan/ financial assistance from banks/ financial institutions; (iii) for explaining the escalated cost of the shop; (iv) for completion of legal formalities; etc. There were very few replies by the OP and such replies were not timely. For example, the OP has sent the copy of completion certificate almost after six months since the Complainant asked for the same that too after the OP communicated about cancelation/ termination of the allotment. Further there was no communication to explain the escalation of price from the settlement agreement. Hence, non-reply of the queries by the OP is clearly a deficiency of service.
15. Subsequently the OP, vide its letters dated 15.02.2022 and 13.04.2022 has cancelled/ terminated the allotment of the retail shop unit. By the said termination letters, the OP has also informed the Complainant that OP is forfeiting the applicable charges as per the terms and condition of application and allotment letter. However the OP has not intimated the exact amount that it intends to forfeit. The OP has not refunded the balance amount to the Complainant as well. In this context we would like to refer to close 9.2 of the builder buyer agreement which reads as under:

“9.2 Upon the occurrence of any Event of Default, the Developer may, at its sole direction, and without prejudice to any other right/ remedy available under applicable laws, call upon the allottee by way of a written notice to rectify / cure the Event of default within a time period of 15 days. On the failure of the allottee to do so and without prejudice to any other right or remedy available to the Developer under Applicable Laws or as otherwise envisaged in terms hereof, Developer shall have the right to cancel the allotment under notice to the allottee. The unit shall vest with the developer absolutely and the developer shall refund the monies received by the developer till the date of such cancellation (subject to forfeiting/ withholding/ deducting therefrom an amount equivalent to the earnest money, interest on delayed payment, brokerage, service tax, other charges and tax) to the allottee. It is hereby clarified that allottee shall not be entitled any refund of the amount paid by him/ her/ it or due from him/ her/ it towards taxes, maintenance charges, interest on delayed payment(s). The developer shall thereafter be free to resell and/or deal with the Unit in any manner whatsoever at its sole direction. The amount(s), if any, paid over and above the Earnest Money, processing fee, interest on delayed payments, brokerage, other charges and taxes as may be applicable etc. would be refunded to the allottee by the developer only after realizing such amounts to be refundedon resale and on surrender of the original receipts and the allotment letter, if issued in accordance with the terms and conditions contained in the Application and agreement, but without any interestor compensation of whatsoever nature. The developer shall have the first lien and charge on the Unit for all its dues payable by the Allottee to the developer.”

16. The clause referred above clearly indicates that before cancelling/ terminating the unit of the Complainant, the OP was required to give a notice to the Complainant to rectify / cure the Event of default within a time period of 15 days. In the case in hand, there is no document on record to suggest that any such notice was given to the Complainant. Even in the demand letters, there are no averments about cancellation/ termination of the allotment in event of default in payment.
17. Further in the clause 9.2 referred above , upon cancellation/ termination, the OP is entitled to forfeit only the amount equivalent to earnest money, interest on delayed payment, brokerage, service tax, other charges and taxes. The remaining balance amount, hence, is to be returned to the Complainant in the event of cancellation/ termination. The OP has not provided any calculation of the forfeiture amount and has also not refunded the balance amount to the Complainant till date. However, as the OP has made several demands with respect to the same shop in question from the Complainant despite issuing termination/ cancellation letters, the cancellation/ termination letters dated 15.02.2022 and 13.04.2022 automatically stands withdrawn.
18. There were communications between Complainant and OP after the issuance of cancellation/ termination letters. Such communications were in form of demand letters and emails. In response to these communications, OP has subsequently issued another demand letter dated 16.03.2022 and reminder-1 cum demand letter dated 23.08.2022 and asked the Complainant to make the payment of Rs. 21,34,148.60 on account of several heads and Rs. 2,53,007/- on account of leasing expenses and lease registration charges, respectively. In the letter dated 23.08.2022, the OP has clearly mentioned that this demand is being raised with reference to “on-going discussion regarding leasing of your [Complainant’s] premises to Reliance Smart Bazaar”.
19. During arguments, it was argued by the Ld. Advocate for the OP that the demand letter dated 23.08.2022 was issued inadvertently and the said unit stands cancelled/ terminated in the name of the Complainant. However, on the issue that why the balance money, after forfeiting the applicable charges, was not returned to the Complainant, there was no reply.
20. It has also been argued by the Ld. Advocate for the OP that the said unit now stands allotted to a third party w.e.f. 30.05.2022 after the cancellation. However there is no reasonable explanation that why the OP was communicating with the Complainant for clearing the dues and to get the said unit registered in his name, even after the OP has created a third party interest in the said shop. The OP has filed copy of the Builder Buyer Agreement along with its written arguments, but the said Builder Buyer Agreement is unsigned by either of the parties on the last page. The names, addresses and signature of the witnesses are also missing. Hence, we have serious doubts on the correctness of the said builder buyer agreement dated 30.05.2022.
21. After examining the facts and pleadings of the parties, we are of the opinion that the OP has been indulging in the unfair trade practice on several levels including, inter alia, (i) in not adhering to the settlement agreement signed between the parties before Karkardooma Court; (ii) by not disclosing the fact that the shop so booked by the Complainant was not a lockable independent unit until the offer of possession was issued; (iii) by not cooperating with the Complainant for availing loan/ financial assistance from the banks/ financial institutions; (iv) by cancelling/ terminating the allotment without giving any notice in violation of the agreement; (v) by not refunding the amount so paid by the Complainant to the OP after alleged cancellation; (vi) not responding to the mails, letters and communications of the Complainant by the OP; and (vii) communicating with the Complainant including raising demands of the payments from the Complainant even after cancelling/ terminating the allotment.
22. At this stage, we are of the opinion that the conduct of the OP herein may also require police investigation for examining that whether any offences under the relevant law have been committed or not by the OP. As this Commission does not have power to order police investigation, the Complainant would be at liberty to initiate any other appropriate legal proceedings against the OP herein, if so advised.
23. At this stage, we would like to record that the Complainant has prayed for handing over the possession of the same unit or an alternate unit, in case of non-availability of the unit in addition to the prayer for compensation and litigation expenses. However considering the fact that the dispute with respect to the said shop is continuing from the year 2021, it might be possible that the shop in question might have been transferred to a third party and there might not be any alternative shop available in the same project, we deem it appropriate to award refund of the payment made by the Complainant to the OP.
24. Accordingly, while holding the OP liable for deficiency of service as recorded in this order, we direct as under:
    1. OP is directed to refund the sum Rs. 28,92,000/-, which has been received by the OP in terms of the settlement agreement signed before Karkardooma Court along with an interest @ 7% PA from the date of agreement i.e. 12.11.2018 to the Complainant within a period of four weeks from the date of receipt of this order.
    2. OP is directed to pay an additional sum of Rs. 5,00,000/- as compensation and litigation expenses, to the Complainant within a period of four weeks from the date of receipt of this order.
25. It is clarified that if the order is not complied with by the OP within the stipulated period, then the OP shall be liable to pay additional interest @ 9% PA on the entire amount payable on the date of expiry of four weeks from the date of receipt of this order. Pending applications are also disposed of in above terms.
26. Office is directed to supply the copy of this order to the parties in accordance with the rules. Thereafter file be consigned to record room.

 

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Harpreet Kaur Charya, Member