Haryana

StateCommission

A/175/2017

TDI INFRASTRUCTURE PVT.LTD. - Complainant(s)

Versus

ASHA RANI - Opp.Party(s)

ABHINAV KALIA

25 Jan 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      175 of 2017

Date of Institution:      15.02.2017

Date of Decision :       25.01.2018

 

M/s TDI Infrastructure Limited (formerly known as M/s Intime Promoters Private Limited through its authorised signatory Amit Batra, 10, Shaheed Bhagat Singh Marg, Gole Market, New Delhi.

 

                                      Appellant-Opposite Party

Versus

 

Asha Rani wife of Shri Baldev Raj, Resident of 232-R, Model Town, Panipat, District Panipat.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

 

Argued by:          Shri Puneet Tuli, Advocate for appellant.

Shri Bhupender Singh Ghangas, Advocate for respondent.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated December 14^th, 2016 passed by District Consumer Disputes Redressal Forum, Panipat (for short ‘the District Forum’).  

2.                M/s Taneja Developers and Infrastructure Limited – Opposite Parties (for short referred to as ‘the builder’) developed a residential township project near Village Faridpur, District Panipat. Smt. Asha Rani-complainant (respondent herein) got booked a plot measuring 50 square yards under the above mentioned project by submitting registration form along with draft No.329704 dated December 03^rd, 2005 amounting to Rs.4,37,500/-. The payment was received by the builder vide receipt dated January 16^th, 2006. Thereafter, registration of the complainant regarding allotment of the above mentioned plot in the name of the complainant was cancelled by the builder vide letter dated July 02^nd, 2008 mentioning that the builder shall be liable to refund the amount already deposited by the complainant alongwith advance registration form within 30 days after surrendering the receipt regarding payment. The receipt regarding payment was returned by the complainant alongwith letter dated July 31^st, 2008 requesting the builder to refund the application money.  Thereafter, the builder did not refund the above mentioned amount despite time and again requests by the complainant. The complainant visited the office of the builder at Panipat as well as Delhi number of times in this regard. The complainant had to face un-necessary harassment, mental agony and had to spend lot of money in this litigation due to faults of the builder.

3.                The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer to direct the builder – opposite parties to refund an amount of Rs.4,37,500/- already paid by the complainant, to the complainant with interest at the rate of 18% per annum and to pay an amount of Rs.5,00,000/- on account of un-necessary harassment, mental agony and litigation expenses.

4.                The opposite parties (builder) in their written version have taken plea that the District Forum, Panipat has no jurisdiction to decide this complaint; that the complaint is hopelessly time barred and that the complainant is stopped from filing the present complaint by her own acts and conduct. The allotment in favour of the complainant was cancelled vide letter dated July 02^nd, 2008 and the present complaint was filed on March 06^th, 2013 after five years. The opposite parties denied the factum of deposit of the amount until and unless the original receipt is produced by the complainant. Booking of the plot was cancelled vide letter dated July 02^nd, 2008 as the complainant failed to comply with the terms and conditions of the advance registration form. As per cancellation letter dated July 02^nd, 2008 it was conveyed to the complainant that he will be entitled to refund of advance registration money subject to the company policy i.e. deduction of 50% of the advance registration amount. It is denied that after receiving cancellation letter, the complainant deposited the original receipt in the office of the builder. The complainant is not entitled to receive any amount as prayed in the complaint. It is prayed that the complaint filed by the complainant be dismissed with cost.

5.                Parties adduced evidence in support of their respective claims before the District Forum.

6.                After hearing arguments, vide impugned order dated December 14^th, 2016 passed by the learned District Forum, the complaint filed by the complainant was allowed directing the builder to refund 80%  of the total amount Rs.4,37,500/- deposited by the complainant at the time of submitting registration form, alongwith interest at the rate of 9% per annum from July 31^st, 2008; to pay an amount of Rs.4400/- on account of un-necessary harassment, mental agony and to pay an amount of Rs.2200/- as litigation expenses.

7.                Aggrieved with the impugned order dated December 14^th, 2016 passed by the learned District Forum, the builder-opposite parties have filed the present First Appeal No.175 of 2017 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant on the grounds mentioned in the written version as well as memorandum of appeal.

8.                We have heard learned counsel for the parties and perused the case file.

9.                During the course of arguments, there was no controversy of any type in between both the parties that the complainant submitted advance registration form for allotment of a residential plot measuring 350 square yards with the builder - M/s TDI Infrastructure Limited alongwith a draft dated December 03^rd, 2005 (Annexure-1) amounting to Rs.4,37,500/-. The above mentioned amount was received by the builder vide receipt dated January 16^th, 2006 (Annexure-2). As per terms and conditions of Plot Buyer’s Agreement, the complainant was required to make payment of the remaining sale price amount as per Payments Plans mentioned in the agreement. It is evident from the reminder dated September 06^th, 2007 (Annexure C-3) that the complainant did not make payment of second installment amounting to Rs.3,18,150/- to the builder as per terms and conditions of the Plot Buyer’s Agreement. After issuance of reminder (Annexure C-3), as the complainant did not make payment of second installment of the sale price amount, the builder issued cancellation letter dated July 02^nd, 2008 (Annexure C-4) mentioning that registration regarding allotment of the plot in the name of the complainant stands cancelled, however, the complainant is entitled to refund of the application money deposited with the advance registration form, though subject to the company policy of surrendering the original receipt within 30 days of the receipt of the letter.

10.              It is evident from the letter dated July 31^st, 2008 (Annexure-5) submitted by the complainant with the builder that the receipt regarding payment of the amount was handed over to the builder within 30 days from the receipt of the cancellation letter with a request for refund of the total advance money Rs.4,37,500/-.  Regarding receipt of the letter dated July 02^nd, 2008 (Annexure C-4) along with receipt regarding payment of the amount, there is no specific denial in the written version. From the pleas taken by the builder more particularly in paragraphs No.1 and 3 of the written version, it clearly appears that the builder – opposite parties have no hesitation in taking false pleas. The builder denied in paragraph No.1 of the written version on merits regarding deposit of an amount of Rs.4,37,500/- which is almost an admitted fact in this case. The opposite parties - builder forgot that they themselves have taken plea that registration regarding allotment of the plot has been cancelled due to non-payment of the second installment of the sale price amount.

11.              Now the situation is quite clear the complainant could not make payment of second installment of an amount of Rs.3,18,150/-, as mentioned in Annexure C-3 and due to this reason the registration regarding allotment of the plot in favour of the complainant was cancelled vide letter dated July 02^nd, 2008 (Annexure C-4). It also stands proved that the complainant deposited the receipt regarding payment dated July 16^th, 2006 (Annexure C-2) with the builder alongwith a letter of request dated July 31^st, 2008 (Annexure C-5) to refund the total amount of Rs.4,37,500/- to the complainant. The complainant has fulfilled all terms and conditions for refund of the total amount deposited with the builder.

12.              Learned District Forum directed the opposite parties – builder only to pay 80% of the total amount Rs.4,37,500/- paid by the complainant, to the complainant.  The complainant is satisfied with the findings given by the learned District Forum as the complainant did not prefer to file appeal against the impugned order passed by the learned District Forum. The opposite parties have challenged the findings of the learned District Forum directing the opposite parties to pay 80% of the total amount deposited on the plea that as per policy of the opposite parties, the complainant was entitled to receive only 50% of the total amount deposited at the time of submitting registration form. In the cancellation letter dated July 02^nd, 2008 (Annexure C-2) only it has been mentioned that the complainant shall be entitled for refund of the application money deposited with advance registration form though subject to the company policy on surrendering the original receipt issued which may be surrendered within 30 days of the receipt. In this letter it is not mentioned that the complainant is entitled for refund of only 50% of the total amount deposited. The Plot Buyer’s Agreement although not exhibited, is also placed on the file but it is nowhere mentioned in Plot Buyer’s Agreement also that the complainant is entitled for refund of only 50% of the total amount deposited with registration form. Under Clause 5 of the Plot Buyer’s Agreement, it is mentioned that in case purchaser fails to pay installments with interest within three months from the due date of the outstanding amount, the seller shall forfeit the entire amount of earnest money deposited by him/her and agreement shall stand cancelled. The relief cannot be declined to the complainant on the basis of Clause 5 of the Plot Buyer’s Agreement also because in the cancellation letter (Annexure C-4), the opposite parties have not mentioned that the amount already deposited by the complainant stands forfeited. Only it is mentioned that the amount shall be refunded to the purchaser subject to the company policy. The opposite parties did not place on the file any such document to show any such policy of the company that the purchaser shall be refunded only 50% of the total advance money deposited. Keeping in mind all these circumstances, the findings given by the learned District Forum to direct the opposite parties to refund only 80% of the total amount deposited is valid and justified, more particularly, in the circumstances as the complainant did not challenge the impugned order dated December 14^th, 2016.

13.              Learned counsel for the appellant-opposite parties also argued that the complaint has been filed by the complainant beyond the prescribed period of limitation. After receiving cancellation letter Annexure C-4, the complainant requested the opposite parties vide letter dated July 31^st, 2008 (Annexure C-5) for refund of the amount and handed over the receipt regarding payment also to the opposite parties on the same date. The present complaint was filed by the complainant on March 06^th, 2013 after more than a period of four years and seven months. We are not much impressed with this contention of the learned counsel for the opposite parties. It is true that the complainant requested the opposite parties on July 31^st, 2008 for refund of the amount but the opposite parties did not pass any specific order and did not issue any letter specifically denying refund of the amount as requested through letter Annexure C-5. The complainant has taken plea that she visited the office of the opposite parties at Panipat and Delhi number of times for getting refund of the amount. Despite repeated requests, the opposite parties did not make payment of the amount. The complainant continued requesting the opposite parties but the opposite parties did not decline orally or in writing payment of the above mentioned amount and un-necessarily lingered on the matter.  Thus, there was recurring cause of action against the opposite parties. Ultimately, the complainant served a legal notice upon the opposite parties on January 03^rd, 2013.  Cause of action finally arose to file this complaint when the opposite parties did not make payment despite service of legal notice.  Ours this view finds support from a decision of the Hon’ble National Commission dated March 02^nd, 2016 in Consumer Case No.201 of 2010 Bombay Stock Exchange Limited versus New India Assurance Company Limited. It is held that the complaint has been filed within the period of limitation. We feel findings of the learned District Forum awarding an amount of Rs.4400/- as compensation on account of un-necessary harassment, mental agony as well as an amount of Rs.2200/- as litigation expenses are also valid and justified.

14.              As a result, as per discussion above in detail, we find no illegality in the impugned order dated December 14^th, 2016 passed by the learned District Forum. Hence, the findings of the learned District Forum stand affirmed and the appeal stands dismissed.

15.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced: 25.01.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL