DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)
GOVT. OF NCT OF DELHI
CONVENIENT SHOPPING CENTRE, FIRST FLOOR,
SAINI ENCLAVE, DELHI – 110 092
C.C. NO. 915/12
Shri Prayag Raj Gupta
S/o Late Sh. Gaja Nand Gupta
R/o C-231, Vivek Vihar Phase – I
Delhi – 110 095 ….Complainant
Vs.
M/s. Ansal Properties & Infrastructure Ltd.
Through its
Principal Officer/Manager/Director/Managing Director
1202-04, 12th Floor, Antriksh Bhawan
22, K.G. Marg, New Delhi – 110 001 ….Opponent
Date of Institution: 02.11.2012
Judgment Reserved for : 05.07.2016
Judgment Passed on : 08.07.2016
CORUM:
Sh. Sukhdev Singh (President)
Dr. P.N. Tiwari (Member)
Ms. Harpreet Kaur Charya (Member)
Order By : Shri Sukhdev Singh (President)
JUDGEMENT
The complainant Shri Prayag Raj Gupta has filed a complaint against M/s. Ansal Properties & Infrastructure Ltd., praying for refund of Rs. 1,88,040/- alongwith interest @ 18% p.a., compensation of Rs. 1,00,000/- on account of deficiency in service, mental torture, agony and harassment and Rs. 30,000/- as litigation cost.
2. The facts in brief are that the complainant booked a residential plot with M/s Ansal Township & Projects Ltd. (OP) having its registered office at Unit 101, 1st Floor, 5th Avenue, PWD Colony, Jodhpur, Rajasthan, in their project at Jodhpur viz. Ansals Sushant City by making an initial payment of Rs. 93,840/- which was paid vide cheque No. 260510 against receipt. He was allotted plot No. C-0364 Type G measuring 204.516 sq. yard approx. @ Rs. 2300/- per sq. yard in the said project by the OP and a Plot Buyer’s Agreement dated 18.04.2006 was also executed between both the parties. The total sale price of the plot was fixed at Rs. 4,70,387/- which had to be paid in installments. OP assured the complainant that the sale deed would be executed and got registered in favour of the complainant and the said plot would be handed over to him within two years.
He has further stated that the complainant visited the said project site, but there was no development work. On enquiry, he was told that the development work could not be carried out at the site due to unavoidable circumstances and the future payment would be received only after resumption of the work/development work at the site. He made several visits to the registered office of the OP at Delhi about the progress/status of the work of the said project. The officials of OP at the registered office also gave the same reasons. However, the complainant paid them Rs. 94,200/- vide cheque No. 926953/- against receipt no. 30095 dated 10.05.2007. Thus, he has stated that the complainant had paid Rs. 1,88,040/- to the OP till 10.05.2007. However, the complainant was never informed about the resumption of construction/development work at the project site.
He has further stated that in July 2012, he received from the OP an undated letter alongwith cheque No. 656483 dated 21.06.2012 of Rs. 93,963/- drawn on HDFC bank in favour of the complainant whereby the OP had informed the complainant that they had cancelled the allotment of the said plot of the complainant due to non-payment of the amount outstanding towards the plot as per the schedule. They made reference to their letter of dated 07.05.2007, which he has stated that he did not receive the same. Thus, he has stated that against an amount of Rs. 1,88,040/-, the OP has only sent a cheque of Rs. 93,963/- to the complainant which the complainant has not accepted. He has stated that this act of OP was clearly an unfair trade practice.
He has also stated that he had made the payment of Rs. 94,200/- to the OP on 10.05.2007 vide receipt No. 30095 dated 10.05.2007 i.e. after the alleged date of cancellation of booking of the said plot. By accepting the said amount of Rs. 94,200/- from the complainant after the alleged date of cancellation of the booking of the said plot i.e. 07.05.2007, the receipt and acceptance of the said amount from the complainant automatically ceased the alleged cancellation. He has also stated that though they have cancelled the plot on 07.05.2007 but they have sent the cheque towards the end of July, 2012 after a period of more than 5 years which also amounts to deficiency in service as well as unfair trade practice.
3. The complainant has also given a legal notice of dated 28.08.2012, which has not been replied. He has stated that the complainant was willing to make the payment subject to re-allotment and handing over the said plot to him by the OP. Therefore, he has prayed that OP be directed to hand over the possession of the said plot to the complainant on receipt of balance payment after adjusting the already paid amount of Rs. 1,88,040/- out of the total agreed consideration of Rs. 4,70,387/-. He has made alternative prayer for refund of Rs. 1,88,040/- being the total amount paid along with interest @ 18% p.a. Further, he has paid for compensation of Rs. 1,00,000/- towards deficiency in service and mental torture, agony and harassment suffered by him along with cost of Rs. 30,000/- as litigation charges.
4. In the reply filed on behalf of the OP, they have taken various pleas such as complainant not making the payment due to his own financial crisis; he has already been refunded the amount in 2012; complainant himself was a defaulter; this forum has no jurisdiction to adjudicate the complaint as the complainant was not a consumer as neither the respondent has rendered any service to the complainant nor the complainant has hired any services from the respondent. The same was barred by limitation as the same has been filed after lapse of more than two years from the date of booking in April 2006. It has been stated that the complainant was a defaulter and despite demand letters / show-cause notices of dated 08.03.2007, 17.04.2007 and 16.08.2007 and cancellation letters dated 07.05.2007 and 20.06.2012, he did not make any payment nor responded to such communications.
It has further been stated that the development work at the site was going on which was at its regular pace. However, the complainant regularly defaulted in payment of the installments despite various call notices/reminders. It has further been stated that on 20.06.2012, a cancellation letter was sent to the complainant along with refund cheque of RS. 93,963/- intimating the complainant that the said allotment has been cancelled and the earnest money stands forfeited as per the Plot Buyers’ Agreement dated 18.04.2006. Other pleas of the complainant have been denied.
The complainant in his rejoinder to the Written Statement has controverted the pleas made in the written statement and has reasserted his pleas made in the complaint.
In support of his complaint, the complainant has examined himself and has deposed on affidavit. He has narrated the facts, which have been stated in the complaint. He has got exhibited copy of Plot Buyers’ Agreement as Ex. CW1/A. He has deposed that he has paid an amount of Rs. 1,88,040/- till 10.05.2007. He has got exhibited the receipt Ex. CW1/B. He has also got exhibited copy of statement of accounts as Ex. CW1/C. He has further got exhibited undated letter sent by OP alongwith copy of the cheque for an amount of Rs. 93,963/- as Ex. CW1/D. He has got exhibited legal notice dated 28.08.2012 alongwith postal receipts as Ex. CW1/E.
5. In defence, OP has examined Shri F.N. Rai, authorized representative of M/s. Ansal Properties & Infrastructure Ltd., and has deposed on affidavit. He has got exhibited board resolution dated 27.05.2013 authorizing him to depose, as Ex. RW1/1. He has got exhibited the payment letters alongwith PODs as Annexure-B. He has also stated that cancellation letters of dated 07.05.2007 and 20.06.2012 were sent to the complainant, which has been marked as Annexure-C. He has also made reference to reply dated 12.12.2012 to the legal notice, which has been marked as Annexure-D.
6. We have heard the complainant and Ld. Counsel for the OP. It has been argued on behalf of the OP that this District Forum was not having jurisdiction as the dispute in respect of a plot of land bearing No. C-0364 was at Sushant City, Jodhpur, Rajasthan. The agreement was executed at Jodhpur. He has further argued that the complainant was not a consumer and there was no deficiency on the part of the OP as no service was provided to the complainant. He has also argued that there was a simple sale of plot, which was not covered under the Consumer Protection Act. He has relied upon judgments such as (i) Ganeshlal vs. Shyam (MANU/SC/1134/2013), where it has been laid down that where the sale of plot of land simpliciter was concerned and if there were any complaint, the same would not be covered under the Consumer Protection Act. (ii) Shristi Udaipur Hotels and Resorts (P) Ltd, vs. Housing and Urban Development Corporation Limited (MANU/DE/1153/2014), where it has been laid down that for invoking the jurisdiction on the basis of registered office, the complainant must be in a position to point out specific acts of omission/commission committed by the OP within the jurisdiction of the said court. He has further argued that the complaint was barred by limitation as the same was filed after lapse of more than two years from the date of booking in April 2006.
7. On the other hand, the complainant has argued that the court was having jurisdiction, as under the Plot Buyers’ Agreement, there was a specific mention that the courts at Delhi were having jurisdiction. He has made reference to Clause 20 of the Plot Buyers’ Agreement, which states “any disputes arising out of this Agreement shall be subject to jurisdiction of Delhi Courts only”. He has further argued that even after cancellation of the plot, the OP has accepted the payment, which extends the period of limitation.
8. The first and foremost point, which requires consideration, is in respect of jurisdiction. If Clause 20 of Plot Buyers’ Agreement is looked into, it is noticed that under the Plot Buyers’ Agreement, the jurisdiction to Delhi courts has been conferred under the said agreement. If the argument of the complainant is accepted, then the courts at Delhi have the jurisdiction, though the agreement has been executed at Jodhpur. However, the law is well settled that consent of the parties cannot confer jurisdiction on a court. The fact that jurisdiction cannot be conferred through an agreement, the plea of the complainant that the courts at Delhi have the jurisdiction cannot be accepted. Therefore, this Forum has no jurisdiction to entertain the complaint. Not only this, no cause of action have arisen at Delhi office as the Plot Buyers’ Agreement (Ex. CW1/A) has been executed at Jodhpur. Receipt dated 10.05.2007 (Ex. CW1/B) for an amount of Rs. 94,200/- has been issued from Jodhpur office. Further, statement of accounts (Ex.CW1/C) showing the outstanding amount is of Jodhpur office. Therefore, from the documents, it cannot be said that any cause of action has arisen at Delhi office. That being so, even the jurisdiction on the basis of cause of action cannot be said to have arisen at Delhi to confer the jurisdiction at District Forum, Delhi. Therefore, this Forum having located at Delhi was not having jurisdiction to entertain the complaint.
9. Coming to the second argument of the complainant that by accepting the amount, the period of limitation stands extended, a look has to be made to the documents on record. If Ex. CW1/B is looked into, it is noticed that the complainant has made payment of an amount of Rs. 94,200/- on 10.05.2007 against receipt No. 30095. Ex. CW1/D is undated letter of Ansal Properties and Infrastructure Ltd., which has been in reference to their letter of dated 07.05.2007 through which booking of plot No. C-0364 in Sushant City, Jodhpur was cancelled and amount of Rs. 93,963/- after deducting earnest money has been sent vide cheque no. 656483 dated 21.06.2012. However, the complainant has not placed on record the letter of dated 07.05.2007 by way of which the plot was cancelled. The cause of action has arisen on the date of cancellation of the plot i.e. 07.05.2007. By depositing an amount of Rs. 94,200/- on 10.05.2007, immediately after three days of cancellation of plot show that the complainant has made the payment in order to cover up the cancellation. M/s Ansal Properties & Infrastructure Ltd. (OP) has placed on record the copies of show cause notices dated 08.03.2007, 17.11.2007 and 16.08.2007 which show that the complainant has been given show cause notices for not making the payment which was due under the agreement. Further, letter dated 07.05.2007 is to the affect in respect of cancellation of booking of plot and forfeiture of the earnest money. When the company has cancelled the plot and forfeited the earnest money, there was no point in depositing the amount with the company as has been done by the complainant. This will not give rise to further cause of action as the cause of action has arisen on 07.05.2007 itself when the plot was cancelled. Since, the plot was cancelled on 07.05.2007 and the complaint has been filed on 31.10.2012 after a period of more than five years certainly the complaint was barred by limitation.
10. The last argument which has been advanced on behalf of the M/s Ansal Properties & Infrastructure Ltd. (OP) has been that the complainant was not a consumer as it was only a sale of plot of land simpliciter, which was not covered under the Act. In Ganeshlal vs. Shyam (Supra), the Hon’ble Supreme Court has laid down that a dispute between the parties concerning the sale of plot of land simpliciter was not covered under the Act. In the present case also, the agreement between the parties has been with regard to sale of plot of land. Since the dispute has been in respect of sale of plot of land simpliciter the same cannot be covered under the Act. The judgment relied upon by OP helps them.
11. In view of the above findings, we are of the opinion that this Forum was not having jurisdiction to entertain the complaint. Therefore, the same deserves dismissal. Hence, the same is dismissed. There is no order as to cost.
Copy of the order be supplied to the parties as per rules.
File be consigned to Record Room.
(DR. P.N. TIWARI) (HARPREET KAUR CHARYA)
Member Member
(SUKHDEV SINGH)
President
