Delhi

East Delhi

CC/1089/2014

DR.NIRMAL - Complainant(s)

Versus

AMRAPALI ESTATE - Opp.Party(s)

31 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC. NO-1089/14

In the matter of:

 

1. Dr. Nirmal Chopra

R/O G-1 House No. 717 sector 3

Vasundhra District Ghaziabad

Uttar Pradesh.

2. Mrs Preeti Chopra

W/O Nirmal Chopra

R/O G-1 House No. 717 sector 3

Vasundhra District Ghaziabad

Uttar Pradesh.

(Through Authorized Representative/ Complainant No.1)

 

  Complainants

 

Vs

 

Amrapali Princely Estate Pvt. Ltd.

Through its Managing Director

307 3^rd Floor Nipun Towers

Karkardooma Community Centre,

•  

                                                                                         Opposite Party

 

                                                         DATE OF ADMISSION-17/12/2014

                                                          DATE OF ORDER       -12/10/2015

 

ORDER

 

SH. N.A.ZAIDI, PRESIDENT

This complaint has been preferred by the complainant with the allegation that the respondent indulging in unfair trade practice in respect of Flat No. A-G06 ground floor tower A in its project “Amrapali Princely Estate” located om sectpr 76 Noida District Gautam Budh Nagar Uttar Pradesh. The completion certificate could not be issued in respect of the said project in view of National Green Tribunal order dated 03/04/2014 in application No.158 of 2013 as it was located in 10 Km Radius of Okhla Bird Sanctuary. The complainant was not aware regarding the order dated 03/04/2014. The respondent lured the complainant by false claim regarding the illegal sanction of this project and paid the booking amount of Rs.5,34,231/- on 07/05/2014. The further amount of Rs.4,45,394/- was paid on 29/05/2014 making 20% of the total cost of the project. An agreement was executed on 30/09/2014. This agreement has no legal sanction and the respondent has no right to sale the flat in question as completion could not be issued in respect of the same and also till the Court proceedings before the Supreme Court were over. These facts were concealed from the complainant that the flat is located within the area affected by the order dated 03/04/2014. No prudent person was purchased the immovable property regarding which the Court proceedings are pending therefore deliberate concealment by the respondent of National Green Tribunal order is unfair trade practice. The fact of order darted 03/04/2014 came to the knowledge of the complainant when SLP was filed before the Hon’ble Supreme Court by the J.P. group challenging the order dated 03/04/2014. In the light of the above the complainant has also alleged as he has paid Rs.50,000/- as brokage to the broker for selling the flat in question. The complainant has prayed for interest @ 18% on the amount of Rs.9,79,625/- from the date of the booking till the date of transfer. He has also claimed the brokerage which he has paid and Rs.2,00,000/- as damage on account of compensation.

        Respondent filed their reply wherein the execution of the flat buyer agreement dated 30/05/2014 and payment made by the complainant is admitted. The complainant was aware at the time of booking the circumstances prevailing in the project and knowing fully well he booked this flat. He took the benefit of discount. The rate was reduced to Rs.4212.75 per square feet from 4,304.50 per square feet. The complainant was aware regarding the Okhla Bird Sanctuary issue and the order of the National Green Tribunal. He has booked this flat with the intention to sale and earns the profit. He entered into an agreement with Mr. Vikram Bhatnagar on 29/04/2014 and submitted an application on 04/09/2014 for transfer of the said flat to Mr. Vikram Bhatnagar and Mr. Sheel Narayan Bhatnagar. It is only after the transfer that the complainant has raised the National Green Tribunal issue which is an afterthought. Rest all the allegations has been denied.

        Both the parties have filed on record the respective evidence.

        The limited issue which arises for our consideration in the present complaint is as to whether at the time of booking of this flat by the complainant. Complainant was made aware by the respondent regarding the fact that the completion certificate has not been granted by the Noida Authority and the order passed by the National Green Tribunal restricting the consideration activities in 10 Km radius of the Okhla Bird Sanctuary. The complainant has filed on record the order passed by the National Green Tribunal which is Annexure-1 on record. This is not disputed by the respondent that this project was not covered by the said order. The complainant booked this flat on 07/05/2014 and paid the amount Rs.5,34,231/- Annexure C-2 & C-3 are the receipts of depositing the payment, paper No.30 is the receipt dated 29/05/2013 depositing the amount of Rs.1,39,394/-. In all these receipts there is no mention of this fact that there is restriction imposed by the National Green Tribunal. The allotment/flat buyer agreement was executed between the parties on 30/05/2014. It is contended by the complainant that this fact was not disclosed even at the time of execution of the agreement. It was the duty of the respondent to have brought this fact to the notice of the complainant that there is legal impediment with regard to the project in question. By concealing this fact the respondent made the complainant to enter into the agreement which he might not have entered on the effect of the order of the National Green Tribunal and the stay granted by the Court would have brought to the notice. As the complainant is a practicing Advocate before the Hon’ble Supreme Court, he has denied in the Rejoinder the allegation of the respondent regarding the information ever given to him and he has also filed his affidavit specifically stating on oath that he came to know regarding existence of the order dated 03/04/2014 when SLP filed by the JP group challenging that order was dismissed by the Hon’ble Supreme Court, published in Newspaper and on Electronic media. The burden lies upon the respondent to prove this fact that this fact was brought to the notice of the complainant. It is argued by the complainant that it was the duty of the respondent to have mentioned this fact in the letter of the allotment and as well as it should be even form part of the parties’ agreement. There is no evidence coming from the side of the respondent. In this regard on the contrary, they are taking shelter of matter being published in Newspaper and Magazines and taking the plea that the complainant is a practicing lawyer in the Supreme Court and cannot escape from noticing the legal issue reported in the Newspaper and on Television. The respondent have raised the issue of selling this flat to Mr. Vikram Bhatnagar and argued that he has booked this flat with the intention of earning the profit otherwise he would not sold this flat to Sh. Bhatnagar. The complainant argued that he being a legal practitioner was aware of the consequences of the National Green Tribunal order and he was not ready to take the risk of investing of such a huge amount in a flat which may and may not be available to him. As the local authorities, in view of the order of the National Green Tribunal may not have ever granted the necessary permission and completion certificate. If somebody else is ready to take the risk then it was prudent on his part to have sold this flat and retrieve this money which he has deposited to the respondent from the purchaser. Such transaction cannot be held to the commercial in nature and it cannot be accepted that the complainant is not the consumer. The respondent has also raised the issue of territorial jurisdiction much emphasis in the written argument filed regarding the jurisdiction clause. The Amrapali Princely Estate office is located in the Karkardooma Community center. The amount which where depositing by the complainant that the respondent was also deposited at their Karkardooma community center it bears the seal of their New Delhi office. The agreement which was executed between the parties was also came into being at Delhi. In these circumstances the plea raised by the respondent that the complaint cannot be filed at Delhi has no force. This fact is not in dispute that the complainant has to sell this flat in view of the fact that the matter was covered by the National Green Tribunal order dated 03/04/2014 and the money which was deposited by him was in possession of the respondent. They were earning interest over that money and the complainant was under the fear that this project may never be allowed to continue and the competent authority may not allow the respondent to transfer these flats to the allottees. This uncertainty has force the complainant to move into the rented accommodation regarding which he has filed the rented agreement and was residing rented accommodation. He transferred this flat to Mr. Bhatnagar and was able to retrieve his money. He has to pay brokerage of Rs.50,000/- to over load the liability of this flat under the fear of being never allowed to be occupied by the National Green Tribunal. This is admitted to the respondent that on the request of the complainant the flat in Amrapali Princely Estate, the allotment was transferred in the name of Sh. Vikram Bhatnagar in the month of July 2014. This amount was paid to the respondent by the complainant in May 2014 and this was used by the respondent till it was adjusted in the deal complainant entered into with Mr. Vikram Bhatnagar in July 2014. He is entitled for 9% interest over this total amount of Rs.9,79,625/- till 1^st August 2014. This is not been substantiated by the complainant by cogent evidence that he has paid Rs.50,000/- as brokerage in the deal. He struck with Mr. Vikram Bhatnagar as such that amount cannot be allowed to him. This fact has since proved on record that the respondent has sold this flat concealing the material facts and the fact that the completion certificate cannot be granted in view of the National Green Tribunal order. This is a clear case of unfair trade practice and this is resulted into mental agony, harassment and on the same time financial loss to the complainant for which he is entitled to be compensated.

We allow the compensation of Rs.1,00,000/- to the complainant and the amount shall be paid by the respondent to the complainant within one month from the date service of the order. Failing which the complainant should be entitled for 9% interest over this amount till it is finally paid.

The copy of the order be sent to the parties as per rules.

 

SUBHASH GUPTA                 POONAM MALHOTRA                           N.A.ZAIDI

      MEMBER                                 MEMBER                                          PRESIDENT