DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 639/2009

Shri Tej Pal Singh

B-132, Chhattarpur Enclave,

Phase-IIj,

New Delhi-110068.                                                        ….Complainant

Versus

1. Bahri Estate Pvt. Ltd.

(Through its Authorised Representatives)

D-16A, Indira Enclave

Neb Sarai, Behind IGNOU

New Delhi-110068.

2. The Green City Group of Companies

(Through its Managing Director)

J-10-11, 2^nd Floor, Sector-18,

Noida UP.

3. Green City Build Tech Ltd.

(Green City Group of Companies)

(Through its Managing Director)

A-3, Sector 59, Noida 201301 (UP).

               ….Opposite Parties

                                                  Date of Institution      :         18.08.09         Date of Order              :         29.08.19

Coram:

Ms. Rekha Rani, President

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

1. Briefly put the complainant Tej Pal Singh booked a plot measuring 200 sq. yard’s for Bhiwadi Future Residential Project. The complainant the requisite application form which was provided by Bahri Estate Pvt. Ltd. hereinafter referred to as OP-1 on behalf of Green City Group of companies (OP-2) and Green City Build Tech Ltd. (OP-3).
   1. It is averred that as per the demand by OP-1 the complainant made a payment of Rs.2,00,000/- as registration money, vide cheque dated 06.10.2006 for sum of Rs.95,000/- and another cheque for sum of Rs.1,05,000/- drawn on State Bank of India. The cheques were drawn in favour of OP-3 and the same were duly received and acknowledged by OP-3 and have been credited in the account of OP-3. Photocopy of the said cheques issued are annexed as Annexure B and Annexure C respectively.
   2. It is next stated by the complainant that as per the terms and conditions of the application for advance registration for allotment of property in Future Residential Projects, OPs undertook to allot the flats within nine months of registration for allotment of property, otherwise the OPs will refund the advance money i.e. the registration money along with simple interest @ 11% per annum till its actual realization. Till August, 2007 the complainant visited the office of the OP frequently but was always assured that the project will be completed very shortly. In October, 2007 the complainant received a letter dated 17.10.2007 wherein it was stated that due to some circumstances OPs were delaying in allotting the plot and OPs also advised the complainant to transfer the booking in some other project which was not acceptable to the complainant. Thereafter, the complainant visited the office of OP in January, 2008 and was informed that due to delay in getting the license from the Government, the project has been postponed. In the month of March 2009, complainant received another letter from OP-3 stating that due to recession in economy OPs have postponed the Bhiwadi project for two years.
   3. It is next averred that the complainant again visited the office of OP-2 and OP-3 in the last week of March 2009 and asked the concerned officials to refund the booking amount as per the terms and conditions of the application dated 06.10.2006. The official of the OPs was not interested to refund the money instead they asked the complainant to transfer his booking in the other projects. However complainant was not interested for plots in other project and again requested them to refund the registration money but OPs paid no heed to his request of refund. Thereafter, complainant issued a legal notice to OPs. Aggrieved by the circumstances above, the complainant approached this forum with following prayers :-

1. Direct the OPs to pay a compensation of Rs.2,00,000/- to the complainant along with the simple interest @ 11% per annum, till its actual realization from the date of issuing of the cheques by the complainant to the OPs.
2. Direct the OPs to pay a further compensation of Rs.2,00,000/- to the complainant for their deficient services, mental torture, pain, agony, sufferings and pecuniary losses.
3. Award the cost of litigation in favour of the complainant and against the OPs.

2. OP-1 resisted the complaint inter-alia stating that OP-1 is merely an authorized agent of OP-2 and OP-3 and is working on commission basis. It is submitted that OP-1 is also authorized agent to several other reputed builders like Unitech, DLF, EMR, MGF and others.
   1. It is next submitted that no allegations are made against OP-1 by the complainant. The complainant had not paid a single penny to OP-1 and there is no privity of contract between OP-1 and complainant. It is reiterated that OP-1 merely acted as courier for the complainant and all the documents and cheques issued by and signed by the complainant are in the name of or in the favour of OP-2.
   2. OP-1 has raised a preliminary objection stating that this Forum has no jurisdiction to try the present complaint as OP-2 who has floated the scheme which carries on the business from its Noida office and the project for which the complainant applied is situated in Bhiwadi District Alwar (Rajasthan). It is next submitted that OP-1 is also working from its office situated at Gurgaon and the complainant applied for the allotment of the said plot from the Gurgaon office of OP-1. Therefore, the present Forum lacks territorial jurisdiction to try the complaint.
   3. It is reiterated that OP-1 is merely an agent and agent cannot be penalized for the misdeed of the principle; the said fact has been supported by various authorities. It is therefore, prayed that the complaint be dismissed with costs.
3. OP-2 and OP-3 were served by registered post as well as dasti notice but they chose not to contest the case. Hence, OP-2 and OP-3 were proceeded exparte vide order dated 21.07.2010.   
4. Rejoinder to the written statement of OP-1 is filed by the complainant wherein facts of the complaint are reiterated and evidence by way of affidavit is filed by the complainant. Evidence of Shri Hemant Bhari Director has been filed on behalf OP-1.
5.  Written arguments have been filed by the complainant and OP-1.
6. Arguments on behalf of the complainant and OP-1 have been heard and record is perused very carefully.
7. Before we proceed with the merits of the case, it is important to decide the preliminary objection of territorial jurisdiction first. OP-1 states that this Forum lacks territorial jurisdiction to try this complaint. However, on the asking of this Forum OP-1 filed Form-18 and Form-32 of Company Act. On going through Form-18 it is observed that the registered office of OP-1 is at D-16/A Indira Enclave, Neb Sarai, behind IGNOU New Delhi with effect from 01.11.2005. The said fact is reiterated by the complainant in its written argument wherein the complainant avers that he entered into an agreement for registration of the plot with OP-1 at its office address in New Delhi on 06.10.2006. OP-1 has tried to mislead the Forum by stating that it’s office is situated at Gurgaon. Complainant has placed on record copy of his application annexed as Annexure-A. Hence, we are of the opinion that territorial jurisdiction to try the present complaint rests with this Forum.
8. Complainant admittedly, paid Rs. 2,00,000/- towards consideration for 200 sq. yard’s plot at Bhiwadi Project of OP-2 and OP-3. Application for advance registration for allotment of property in future residential projects is annexed as Annexure-A with the complaint. As per the terms and conditions of the company in case the company does not allot the plot within nine months, the company will refund the advance payment along with simple interest @ 11% per annum from the date of payment till realization. For ready reference clause-C of the Agreement Form is reproduced as under:-

“In case the company is not in a position to make offer of allotment for the unit within a period of nine months from the date of my/our application for any reason whatsoever, we shall only be entitled to refund of the Advance for provisional Registration paid by along with simple interest @11% p.a. from the date of payment such advance, subject to my/our giving your 30 days notice of the same.”

9. It is a clear case of deficiency in service as after taking part consideration from the complainant, OPs failed to fulfill its promise by not providing the plot in the agreed time period. Nor did they refund the registration money. This is violation of the agreed terms contained in the registration form. The complainant was convinced to invest money on the assurance as contained in the above reproduced clause. Therefore OPs cannot escape their part of liability.
10.  OP-1 though claims itself to be an agent of OP-2 and OP-3 but OP-1 was the face of OP-2 and OP-3, the registration of the plot took place in the office of OP-1 and the registration form bears its stamp and signature of its authorized representative. However the cheque towards registration money was drawn in favour of OP-3. OP No.2 and OP No.3 despite service chose not to contest the case, therefore there is no reason to disbelieve the version of complainant as regard to OP No.2 and OP No.3.
11. Hence, this forum is of the opinion that OP-1, OP-2 and OP-3 are jointly and severally liable. We allow the complaint and direct OPs to refund the registration amount of Rs.2,00,000/- @ 11% per annum as agreed between the parties from the date of payment made by the complainant i.e. 10.10.2006 till realization. Additionally OPs are directed to pay Rs.20,000/- towards mental agony, harassment and litigation cost to the complainant within a period of two months from the date of receipt of the copy of this order. Failing which the OPs shall become liable to pay interest @ 15% p.a. on Rs.2,00,000/- from the date of payment made by the complainant i.e. 10.10.2006 till realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 29.08.19.