Haryana

Karnal

CC/159/2020

Smt. Pooja Gulati - Complainant(s)

Versus

Alpha International City - Opp.Party(s)

Ramesh Kumar

15 Dec 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL  COMMISSION, KARNAL.

 

                                                          Complaint No. 159 of 2020

                                                          Date of instt.16.03.2020

                                                          Date of Decision 15.12.2021

 

1.     Smt. Pooja Gulati wife of late Shri Vijender Gulati. Aadhar no.887275743964 mobile no.9896668684.

2.     Neonika Gulati minor daughter of late Shri Vijender Gulati.

3.      Lavish Gulati minor son of late Shri Vijender Gulati.

4.      Dhariya minor son of late Shri Vijender. The minor complainants no.2 to 4 are living under the car and custody of the complainant no.1 being the natural guardian who has got no adverse interest to that of minor, all residents of House no.18/152, New Char Chaman, Karnal.                                                                                                  

                                                …….Complainants.

                                              Versus

1.     Alpha International City, Project office Sector 28-29 near Liberty Chowk, G.T. Road, Karnal (Haryana) through its Manager.

2.     Alpha G. Corporation Development Pvt. Ltd; Registered office 806 Meghdooth 94, Nehru Place, Delhi-110019 through its Managing Director.

 

                                                                   …..Opposite Parties.

 

Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

 

 Argued by: Shri Ramesh Kumar counsel for complainants.

Shri Vishal Chawla, representative on behalf of opposite parties.

 

                    (Jaswant Singh President)

ORDER:   

                 

                        The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that OPs have allotted the plot no.475, in Sector-28A, Karnal measuring 250 Sq. yards to one Manisha Mehra wife of Shri Satish Mohan resident of House no.538, Sector-7, Urban Estate, Karnal on the application no.384. Lateron, OPs have allotted the said plot to Shri Vijender Gulati (Husband of complainant no.1 and father of the complainants no.2 to 4), vide allotment no.1334/12 for a sum of Rs.49,29,711/-. After the allotment Shri Vijender Gulati (since deceased) has paid a sum of Rs.42,97,500/- to the OPs in different installments. Shri Vijender Gulati had expired on 29.03.2014 and at that time a sum of Rs.6,32,211/- was due towards him.

2.             Further, after the death of Shri Vijender Gulati, it has become impossible for the complainants to pay the installments to the OPs. So, keeping in view the circumstances the complainant no.1 moved an application in the year 2016 in the office of OPs requesting thereby to cancel the allotment of plot and to refund the amount so deposited by Shri Vijender Gulati. The said application was entertained and accepted by the OPs and OPs had paid a sum of Rs.28,69,104/- to the complainant no.1 on 15.05.2017, vide cheque no.906200 of HDFC Bank, and OPs has also paid a sum of Rs.7,87,146/- to India Bulls Home Loan Company for the clearance of the loan taken by Shri Vijender Gulati and a sum of Rs.6,41,250/- has been deducted by the OPs illegally and unlawfully on account of 15% BSP. It is submitted that according to the terms of the allotment letter clause no.4 it is clearly mentioned that at the time of cancellation no amount would be deducted. It is pertinent to mention here that at the time of accept the application for cancellation of plot the OPs have not disclosed to the complainants regarding the alleged deduction. Complainant approached in the office of the OPs several time and requested to pay the remaining amount of Rs.6,41,250/-, but the OPs did not pay any heed to the request of complainants. Complainants moved an application dated 27.08.2017 to the OPs in this regard but OPs failed to pay the abovesaid amount. Thereafter, complainants moved an application dated 04.10.2019 before the CM Window, but till today no action has been taken against the OPs. OPs knowingly, intentionally and deliberately has not paid the amount of Rs.6,41,250/- to the complainants being legal heir of deceased Vijender Gulati and as such the complainants are is entitled to recover the aforesaid amount alongwith interest from the OPs. Then complainant sent a legal notice dated 04.12.2019 to the OPs in this regard but it also did not yield any result. In this way there was deficiency in service on the part of the OPs. Hence complainant filed the present complaint.

3.             On notice, OPs appeared and filed written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; limitation and concealment of true and material facts. On merits, it is pleaded that plot no.475 was got financed by Shri Vijender Gulati through Indiabulls Housing Finance Limited Loan Sanction letter dated 06.11.2012 after purchasing it from Manisha Mehra vide agreement to sell dated 31.12.2011. A Tripartite Agreement dated 21.11.2012 was also entered into in between Shri Vijender Gulati, Indiabulls Housing Finance Limited and OPs in furtherance of loan obtained by Shri Vijender Gulati. Therefore, in pursuance to request of the complainants dated 07.09.2016 and upon completion of formalities and processing of the Request, foreclosure of Loan account, the cancellation of the Plot was accepted by the OPs and the cheque in a sum of Rs.28,69,104/- for refund was handed over to the complainant on 15.06.2017 and Rs.7,87,146/- to M/s Indiabulls Housing Finance Limited and a sum of Booking amount Rs.6,41,250/-was forfeited in accordance with Plot Buyer Agreement and Tripartite Agreement. It is further pleaded that the complainants encashed the aforesaid cheque without any protest. Now at the belated stage, complainants filed the present complaint after three and half years. It is further pleaded that complainants are bound by all the terms and conditions contained in the Plot Buyer’s Agreement dated 15.12.2011. As per the Plot Buyer’s Agreement and later the Tripartite Agreement for getting the allotment of the plot, therefore, it is totally safe to state that the complainants were aware of the clauses and terms involved in the transaction. It was known to the complainants that in case of cancellation/termination of the plot, 15% of the Basic Sale Price (BSP) (which is also the booking amount) and the other amounts due and payable to the OPs, including any interest accrued on delayed payments shall be deducted as forfeiture in lieu of cancellation of the allotment of the plot in question. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Complainants tendered into evidence affidavit of Pooja Gulati complainant no.1 Ex.CW1/A, allotment letter Ex.C1, application dated 25.07.2011 to Manisha Ex.C2, payment receipts Ex.C3 to Ex.C12, Application to Vijender Gulati dated 30.12.2015 with call letter Ex.C13, application to Vijender Gulati Ex.C14, refund detail Ex.C15, letter dated 15.06.2017 for cancellation of allotment and refund of plot Ex.16, NOC of Indiabulls Home Loans Ex.C16A,  receipt dated 04.10.2019 Ex.C17, reminder dated 23.08.2017 Ex.C18, postal receipt Ex.C19, legal notice Ex.C20 and Aadhar card of Pooja Gulati Ex.C21 and closed the evidence on 09.02.2021 by suffering separate statement.

6.             On the other hand, OPs tendered into evidence affidavit of Vijay Kumar authorized representative Ex.OP1/A and affidavit of late Shri Vijender Gulati Ex.OP1 and closed the evidence on 01.07.2021 by suffering separate statement.

7.             We have heard the learned counsel for the complainant and representative of the OPs and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainants while reiterating the contents of the complainant, has vehemently argued that initially OPs have allotted the plot no.475, in Sector-28A, Karnal measuring 250 Sq. yards to one Manisha Mehra. Lateron, OPs have allotted the said plot to Shri Vijender Gulati (husband of complainant no.1 and father of the complainants no.2 to 4), vide allotment no.1334/12 for a sum of Rs.49,29,711/-. After the allotment Shri Vijender Gulati (since deceased) has paid a sum of Rs.42,97,500/- to the OPs in different installments. Shri Vijender Gulati had expired on 29.03.2014 and at that time only a sum of Rs.6,32,211/- was due towards him. He further argued that after the death of Shri Vijender Gulati, it has become impossible for the complainants to pay the remaining amount to the OPs. So, keeping in view the circumstances, the complainant no.1 moved an application in the office of OPs requesting thereby to cancel the allotment of plot and to refund the amount deposited by Shri Vijender Gulati. The said application was entertained and accepted by the OPs and OPs had paid a sum of Rs.28,69,104/- to the complainant no.1 on 15.05.2017, vide cheque no.906200 of HDFC Bank, and OPs has also paid a sum of Rs.7,87,146/- to India Bulls Home Loan Company for the clearance of the loan taken by Shri Vijender Gulati and a sum of Rs.6,41,250/- has been deducted by the OPs illegally and unlawfully on account of 15% BSP. He further argued that  according to clause no.4 of the Plot Buyer’s Agreement, it is clearly mentioned that at the time of cancellation of plot, no amount would be deducted. He further argued that at the time of acceptance of the application for cancellation of plot, the OPs have not disclosed to the complainants regarding the alleged deduction. Thereafter, complainants approached the OPs several times and requested to pay the amount of Rs.6,41,250/- but OPs did not pay any heed to the request of complainants. Hence, prayed for allowing the complaint. Learned counsel of complainant has placed reliance on the case laws titled as Pioneer Urban Land & Infrastructure Ltd. Versus Govindan Raghavan in civil appeal no.12238 of 2018 and Pioneer Urban Land & Infrastructure Ltd. Versus Geetu Gidwani Verma & Anr. in Civil appeal no.1677 of 2019 decided on 02.04.2019

9.             Per contra, representative of OPs submitted that plot no.475 was got financed by Shri Vijender Gulati through Indiabulls Housing Finance Limited Loan Sanction letter dated 06.11.2012 after purchasing it from Manisha Mehra vide agreement to sell dated 31.12.2011. A Tripartite Agreement dated 21.11.2012 was also entered into in between Shri Vijender Gulati, Indiabulls Housing Finance Limited and OPs in furtherance of loan obtained by Shri Vijender Gulati. Therefore, in pursuance to request of the complainants dated 07.09.2016 and upon completion of formalities and processing of the Request, foreclosure of Loan account, the cancellation of the Plot was accepted by the OPs and the cheque in a sum of Rs.28,69,104/- for refund was handed over to the complainant on 15.06.2017 and Rs.7,87,146/- to M/s Indiabulls Housing Finance Limited and a sum of Booking amount Rs.6,41,250/-was forfeited in accordance with Plot Buyer Agreement and Tripartite Agreement. He further submitted that complainants are bound by all the terms and conditions contained in the Plot Buyer’s Agreement dated 15.12.2011. He further submitted that complainants were very well known that in case of cancellation/termination of the plot, 15% of the Basic Sale Price (BSP) (which is also the booking amount) and the other amounts due and payable to the OPs, including any interest accrued on delayed payments shall be deducted as forfeiture in lieu of cancellation of the allotment of the plot in question. Hence, prayed for dismissal of the complaint.

10.           Admittedly, the husband of complainant no.1 and father of the complainants no.2 to 4 namely Vijender Gulati had purchased a plot no.475, in Sector-28A, Karnal measuring 250 Sq. yards to one Manisha Mehra and paid a sum of Rs.42,97,500/- to the OPs in different installments. Vijender Gulati had expired on 29.03.2014 and at that time only sum of Rs.6,32,211/- was due towards him. It is also admitted fact that the request of complainants regarding cancellation of the Plot was accepted by the OPs and OPs had refunded the amount of Rs.28,69,104/- to the complainants on 15.06.2017 and Rs.7,87,146/- to M/s Indiabulls Housing Finance Limited and Booking amount of Rs.6,41,250/-was deducted by the OPs.

11.           The OPs has taken a plea that the present complaint has been filed by the complainant is barred by limitation. In this regard, plot buyer’s agreement Ex.C1 executed between the parties on 15.12.2011 and husband of complainant no.1 deposited the amount of Rs.42,97,500/- as per schedule of the agreement. After the death of husband of complainant no.1, she requested the OPs to refund the deposited amount. OPs refunded the amount in the year 2017 after deducted the 15% of the basic sale price. It is evident from the receipt of CM Grievance Redress & Monitoring System Haryana Chief Minister Office Ex.C17 dated 04.10.2019, 1^st reminder dated 23.08.2017 Ex.C18 and legal notice Ex.C20 dated 04.12.2019 that the complainants continuously requested the OPs for refund of the remaining amount till the year 2019 and present complaint was filed before this Commission on 16.03.2020 which is well within period of limitation as prescribed in Section 69 of the Consumer Protection Act, 2019. Hence, the plea taken by the OPs has no force.

12.           As per the version of the OPs, company had forfeited the amount of Rs.6,41,250/- in accordance with the clause 27 and 30 of the Plot Buyer’s Agreement dated 15.12.2011. The said clauses reproduced as under:-

Clause 27

“ The Allottee(s) shall have no right to cancel this plot Buyer’s Agreement,  unless otherwise agreed by the Owner/Company, in which case the Owners/Company shall forfeit the Booking Amount and interest due on delayed payments (if any). The Allottee(s) agree(s) that refund shall be made in accordance with Clause 30 herein..”

Clause 30

“30.1- The Allotee(s) understand(s), agree(s) and accept(s) that upon cancellation/termination, the Owner/Company shall be under no obligation, save and except the refund of the amounts already paid by the Allottee(s) to the Owner/Company without any interest an after forfeiting the Booking amount and the other amounts due and payable to it, including any interest accrued on delayed payment. Refund, if any, shall be made by the Owner/Company after realization of such refundable amount on further sale/resale of the said plot(s) to any third party OR within a period of 180 (one hundred and eighty) days from the date of such termination of allotment, whichever is earlier.

30.2- Upon cancellation/termination of allotment and dispatch of the payment of the refundable amount by the Owner/Company, the Allottee(s) shall have no further rights, claims, etc., against the Owner/Company and shall be deemed to have waived all such rights, claims, causes of action, interest charges or lien arising out of and/or in relation to the allotment and/or said plot(s), and the said payment of the refundable amount shall also be deemed to be a valid and full settlement of all such rights, claims, causes of action, interest, charges or lien and a valid and complete release and discharge of the Owner/Company in respect of all such rights, claims, causes of action, interest, charges or lien. The owner/Company shall thenceforth be free to deal with the said Plot(s) in any manner whatsoever, in sole and absolute discretion.”

 

13.           We have perused the abovesaid clauses of the Plot Buyer’s Agreement. On calculation of the deposited amount, OPs had deducted 15% on the deposited amount. But in the said clauses nothing has mentioned that company have right to deduct the said amount at the time of refund the deposited amount.

 14.          As per the version of the complainants, after the death of husband of complainant no.1, complainants were not able to deposit the remaining amount and requested for refund the deposited amount but OPs have taken the plea that as per terms and conditions of the pot buyer’s agreement they have forfeited the 15% of deposited amount of the plot in question without considering the financial condition of complainants, despite that complainants had requested for refund of the entire deposited amount. This fact has not been disclosed by the OPs at the time of accepting the request of the complainants. Moreover, there is nothing mentioned in the plot buyer’s agreement that the company have right to forfeit such amount  Moreover, as per the judgment titled as Pioneer Urban Land & Infrastructure Ltd. Versus Govindan Raghavan in civil appeal no.12238 of 2018 and Pioneer Urban Land & Infrastructure Ltd. Versus Geetu Gidwani Verma & Anr. in Civil appeal no.1677 of 2019 decided on 02.04.2019 Hon’ble Supreme Court held that the clauses of the Agreement were one-sided. In the present case also, the clauses of the plot buyer’s agreement are one sided and only in favour of the OPs as without considering the request of complainants to refund the deposited amount, they forfeited the 15% of the deposited amount, which is not justified at all.

15.           Keeping in view the ratio of the law laid down in the abovesaid judgments, the facts and circumstances of the present complaint, we are of the considered view that the act of the OPs while deducting the amount of Rs.6,41,250/- amounts to deficiency in service and unfair trade practice. Hence complainants are entitled for the said amount alongwith compensation for harassment and litigation expenses.

16.           Learned counsel for complainants further submitted  that the interest at rate of 12% be awarded on the refunding amount of Rs.28,69,104/- for the period from January, 2016 to May, 2017. We found no substance with the contention of the complainants. It is admitted fact that complainants had not claimed the interest at the time of cancellation of allotment of plot and to refund the deposited amount.  Hence, the complainants are not entitled for the interest on the said amount.

17.           In view of the above discussion, we partly allow the present complaint and direct the OPs to pay Rs.6,41,250/-to the complainants with interest @ 9% per annum from 15.06.2017 i.e. when the OPs had refunded the part deposited amount to the complainant till its realization. We further direct the OPs to pay Rs.25,000/- as compensation for rendering the deficient services and Rs.11,000/- as litigation expenses. This order shall be complied with within 45 days from the date of receipt of copy of this order failing which the abovesaid amount will carry interest @ 12% per annum till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:15.12.2021

                                                                       

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

 

 

             (Vineet Kaushik)

                   Member