STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
First Appeal No.813 of 2017
Date of Institution: 06.07.2017
Date of final hearing: 12.04.2023
Date of pronouncement: 20.04.2023
Krishna Bhalla w/o Shri Ram Bhalla, resident of 6292/C/6, Vasant Kunj, New Delhi, now residing at 25-R, Model Town-II, Rewari.
…..Appellant
Versus
- The Director, Ansal Landmark Townships (Pvt) Ltd. 112, Ansal Bhawan, 16-Kasturba Gandhi Marg, New Delhi-110001.
- The Manager, Ansal Landmark Townships (P) Ltd., Sector-4, Karnal.
…..Respondents
CORAM: Naresh Katyal, Judicial Member
Present:- None for the appellant.
Sh. A.P.S. Nain proxy counsel for Sh. Ajay Ghangas, counsel for the respondents.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 69 days in filing of this appeal is condoned for the reasons stated in the application for condonation of delay which constitute sufficient cause and same supported by affidavit.
2. Krishna Bhalla-complainant booked a residential plot in Sushant City, Karnal; paid Rs.3,25,000/- vide cheque No.614076 dated 07.11.2005 and same stood encashed against receipt No.3478 dated 27.12.2005. Customer code was given as 805/K0041. Opposite party (OP) No.1 neither allotted plot to her nor refunded amount deposited by her. It is pleaded that initially plot was allotted in her name, but lateron when the price of plot had gone up, it was sold by OPs to someone else at higher amount. OPs neither intimated her regarding allotment of plot nor issued allotment letter in her favour. OPs failed to tell her regarding status of payment made by her in year 2005. After receipt of payment; OPs never made any correspondence with her. She was assured that allotment of plot would be intimated and agreement to that effect would be executed after development of site. In year 2007 she shifted to Rewari; handed over copy of her ration card and got noted her fresh address to OPs for correspondence. No allotment letter was issued to her despite requests and reminders. She sent letter dated 07.08.2012 through registered post, but to no effect. By pleading unfair trade practice, deficiency in service towards OPs she filed complaint by asserting sufferance to her on account of mental pain, agony and harassment.
3. In response, OPs raised contest. In the defence it is asserted that complaint is not maintainable; complainant has no locus standi and cause of action; she has supressed true and material facts. It is pleaded that allotment of plot No.D-3070 was made in her favour on 15.03.2008 and receipt regarding adjustment of booking amount was issued in her favour on 09.04.2008. Thereafter, many call notices, remainders and letters were issued to her to deposit the outstanding amount, but she failed to deposit the same. Many letters were written to her to update her contact details for communication. Complainant never responded; no amount was deposited by her. Contact details initially provided to OPs continued in their record on which OPs continued to send letters to her. Lastly, notice for cancellation of plot No. D-3070 dated 20.03.2010 was sent to her and she was requested to deposit the demanded amount within three days of receipt of notice, else allotment would stand automatically cancelled and company would be free to deal with property in any manner deemed fit by it. Complainant did not deposit the demanded amount. Allotment of plot No. D-3070 was cancelled and it was re-allotted to some other person. It is pleaded that plot in question had already been cancelled, prior to filing of complaint and re-allotted to some other person. Only Civil Court has jurisdiction to decide the complaint. Other averments were denied. It is pleaded that there is no deficiency in service and there is no untrade practice on the part of Ops and prayer for dismissal of the complaint has been made.
4. Parties led their respective evidence.
5. On subjectively analyzing the evidence brought on record, learned District Consumer Commission, Karnal vide order dated 16.03.2017 has partly allowed complaint No. 545 of 2012 by directing the opposite party no.1 to refund the booking amount of Rs.3,25,000/- to complainant and to pay Rs.5500/- to complainant on account of mental agony, harassment and litigation expenses.
6. Feeling aggrieved therefrom, complainant-appellant has preferred this appeal. In proceedings of this appeal, appellant/complainant did not appear on many dates. Learned counsel for respondents addressed arguments on 12.04.2023.
7. Learned counsel for respondents has argued that impugned order directing refund of booking amount of Rs.3,25,000/- and order of payment of pay Rs.5500/- to complainant on premises of mental agony, harassment and litigation expenses is not legally sustainable. Respondents were justified in forfeiting complainant’s booking amount of Rs.3,25,000/- due to willful neglect of complainant, as she has not responded to umpteenth number of communications of OPs/respondents, in connection with allotment of plot to her. She failed to make remaining payment towards plot allotted to her. It is urged that booking amount of Rs.3,25,000/- has been forfeited, after prior notice to complainant/appellant and action of OPs/respondents cannot be found faulted.
8. None has put in appearance on behalf of appellant even today. This is being so, this Commission has left with no other option but to pursue the memorandum of appeal filed by appellant. It is apparent from order dated 21.08.2017 of this Commission that only contention of appellant in appeal was confined to not granting of interest to complainant, while refunding her booking amount. Precisely this the stance of respondents in this appeal that no interest is tenable. So, in wake of this; the only poser before this Commission is: as to whether appellant is entitled to claim interest on amount of Rs.3,25,000/- deposited by her with OPs or not?
9. Undisputedly, complainant has attaired character of being a ‘consumer’ of respondents, once she booked plot in Sushant Colony, Karnal. It is admitted that she deposited Rs.3,25,000/- vide cheque No. 614076 dated 07.11.2005 towards booking amount of plot, which was encashed. Admittedly, Plot No. D-3070 was allotted in her name. Admittedly she did not make payment of installments qua balance of sale consideration which eventually led to cancellation of plot allotted to her, and its consequent re-allotment. Allotment letter in favour of complainant of Plot No. D-3070 is Ex.R-38, which was addressed to complainant at address: 6292/C/4 Vasant Vihar Kunj, New Delhi. It is deciphered on perusal of phraseology of letter Ex.R-38 that it sans any condition that :in the event of complainant, not depositing installments regarding sale consideration; booking amount deposited by her would stand forfeited. There are number of letters viz. Ex.R-6, R-7, R-12 to R-16, R-19 to R-24, R-26 to R-33, R-35 & R-36 so relied upon by OPs. Collectively, all these letters too, do not recite anything of forfeiture of booking amount, on failure of complainant to pay remaining installments. Only through notices dated 30.01.2010, 06.03.2010 & 20.03.2010 which are Ex.R-8, R-4, R-2 respectively; respondents/OPs have expressly mentioned about their action concerning the forfeiture of booking amount. The integral part of these letters runs as under:-
“That the despite our several efforts and letters/reminders etc. sent to you, you did made neither any payments, nor any response from you, having received the payments/correspondence or heard from you on the subject plot, we have reason to believe that you are no longer interested in continuing the booking/allotment of the subject plot. We are therefore, not left with any other alternative, but to cancel the above booking/allotment of the subject plot mentioned above and to forfeit the amount as per terms of the allotment/agreement. As you have not deposited (remitted) the total outstanding dues against the subject plot as per plan of allotment letter and agreement.
However, to give you a last and final opportunity, you are hereby called upon to deposit a sum of Rs.20,58,549/- due and payable till now within 03 days of the receipt of this letter failing which your allotment shall stand automatically cancelled and the company shall be free to deal with the said property in any manner deemed fit by it.”
10. Obviously, unilateral condition regarding forfeiture of booking amount of Rs.3,25,000/- has been imposed by OPs/respondents which will not legally bind the complainant/appellant in any manner. It is just because no agreement has got the light of day between the parties regarding allotment of plot. Allotment letter Ex.R-8 sans any condition regarding forfeiture of booking amount. Therefore, forfeiture of booking amount by respondents/OPs was unjustified and rightly held as such by learned District Commission in impugned order dated 16.03.2017.
11. Facts remains that booking amount of Rs.3,25,000/- have been retained by OPs/respondents and they have used it for long span of time. Action of OPs/respondents to use the booking amount of complainant has been accentuated with galore of illegalities. By no stretch of legal interpretation; it can be viewed that complainant is not entitled to interest on booking amount of Rs.3,25,000/- at legal pedestal. May be, complainant was not vigilant in pursuing her cause with OPs/respondents, yet it will not foreclose her right to claim interest. Ends of justice would meet, if interest @ 7% per annum from the date of order of District Commission (16.03.2017) till actual realization be paid to her. Since appeal has been decided in absencia of complainant/appellant therefore, OPs/respondents would pay the amount of interest directly to complainant at her present address as mentioned by her in the present appeal. With these observations this appeal stands accepted in terms mentioned above. Impugned Order dated 16.03.2017 passed by learned District Consumer Commission, Karnal stood modified to the extent of payment of interest to complainant/appellant, in terms of this Judgement.
12. Applications pending, if any stand disposed of in terms of the aforesaid judgment.
13. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
14. File be consigned to record room.
Date of decision: 20th April, 2023
