Delhi

StateCommission

CC/13/40

SUNIL KR.ANAND - Complainant(s)

Versus

BPTP & ORS. - Opp.Party(s)

16 Jul 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision:16.07.2018

 

 

Complaint Case No.40/2013

 

 

Shri Sunil Kumar Anand,

Q-411, Sector 21,

Jalvayu VIhar, Noida- 201301.

…. Complainant

 

Versus

 

 

1.       BPTP Limited,

Through its Managing Director,

Plot BPTP 5, Udyog Vihar,

Phase – IV, Gurgaon – 122015.

 

ALSO AT:

 

M-11, Middle Circle,

Connaught Circus,

New Delhi -110001.

 

2.       The General Manager,

          BPTP Limited,

Plot BPTP 5, Udyog Vihar,

Phase – IV, Gurgaon – 122015.

 

ALSO AT:

 

M-11, Middle Circle,

Connaught Circus,

New Delhi -110001.

… Opposite Parties

 

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1. Whether reporters of local newspaper be allowed to see the judgment?

  

2. To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. A complaint under Section 17 of the Consumer Protection Act, 1986 (in short, the “Act”) is filed by the complainant Shri Sunil Kumar Anand wherein it is stated he is a retired Captain from Indian Navy. At the time of filing of complaint he was serving in the Merchant Navy and was frequently on assignments in the sea for long uninterrupted period of 2-4 months. It is stated that the complainant had invested his life savings in booking a plot in the project of OP, namely, Amstoria in Gurgaon at the rate of Rs.38,250/- per sq. yards. The complainant was allotted a plot No.C-213, admeasuring 225 sq. yards in Amstoria, Gurgaon (hereinafter referred to as the plot). It is stated that after paying an amount of Rs.48,95,000/-  i.e. more than half price of the plot alongwith development charges, preferential location charges (PLC) as well as club membership charges, the complainant could not pay further instalment of Rs.11,90,787.50 which had fallen due on 28.05.2011 as at that time he was in the sea on an assignment. It is stated that on 30.05.2011 the OP had sent a reminder to the complainant for payment of Rs.11,90,787/- by 14.06.2011. However, no information was received by the complainant being on an assignment in the sea. It is stated that on 17.06.2011, OP again wrote a letter informing the complainant that in case payment was not received the allotment would be cancelled. The complainant could not be informed of aforesaid letter also. It is stated that on 07.07.2011, after getting back from the sea, the complainant was busy in making arrangement for engagement of his son and could contact the OP. It is stated that in November, 2011, complainant came to know about the reminder being received from the OP, thereupon, he immediately contacted the office of the OP.  It is stated that thereafter he got occupied in making arrangement of his son’s marriage. Thereafter, the complainant on 03.02.2012 visited the office of OP and came to know that his plot had been blocked vide letter dated 10.08.2011. It is stated that on 07.02.2012 complainant sent an email to OP seeking restoration of the plot and explained that he was on the ship when the reminders were sent to him. The complainant offered to make payment of outstanding alongwith interest. Again complainant joined ship on 22.02.2012 and remained in the sea till 20.05.2012, it is stated that before leaving, complainant authorized his son for pursuing the matter with the OP. It is stated that on 02.04.2012 OP sent a reminder to complainant stating that restoration charges are under finalization. However, on 08.06.2012, suddenly the OP informed the complainant that his request for restoration has been declined.
2. It is stated that on 17.08.2012, OP informed that complainant may apply for a new booking with them in any of the ongoing project. It is alleged that such a stand was totally a new stand specially when assurance was given to the complainant that the plot would be restored to him subject to payment of restoration charges. It is alleged that complainant had also sent a legal notice asking the OP to restore the plot after accepting the balance payment and other dues from him. However, no action was taken by OP. It is alleged that having agreed to restore the plot, OP was under obligation to restore the plot in his favour and having failed to do so, OP has adopted an unfair trade practice. Complainant has alleged deficiency in service on the part of the OP also. Complainant has made prayer for restoration of the plot allotted to him alongwith compensation on account of mental harassment and agony. An alternate prayer is also made by complainant for refund of Rs.48,95,000/- alongwith interest @24% from the date of deposit till date of realization and also compensation of Rs.30 lakh on account of mental agony and harassment.
3. The complaint is opposed by OP by filing written statement, wherein it is stated that the complaint is liable to be dismissed as complainant has defaulted in adhering to the terms and condition of the application form, allotment letter and the Flat Buyer Agreement, wherein complainant had undertake to make timely payments. It is stated that it is admitted case of the complainant that despite receipt of demand letter dated 13.05.2011 and reminders dated 30.05.2011, 17.06.2011 and last and final opportunity letter dated 31.08.2011, the complainant has failed to discharge the obligation of making the timely payments. It is stated that the complainant cannot take advantage of his own wrongs. It is stated that the demand letter dated 13.05.2011 and the last final opportunity letter dated 31.08.2011 were sent to the complainant informing that the payment was to be made within 15 days of the said letter and despite that complainant preferred to sit quietly for several months and approached the OP only on 03.02.2012 i.e. after gap of 05 months of cancellation of the plot requesting for restoration of the plot and seeking time for making payment of outstanding dues. It is stated that on the request of the complainant for restoration of the plot the matter was referred to management for consideration, however, the management considered it not a fit case for restoration and the complainant was informed on 08.06.2012 and again vide letter email dated 17.08.2012 that his request has been declined. It is stated that vide email, the complainant was also given option of  applying for a new booking directly in any of the ongoing projects of the OP, however, complainant did not come forward. It is stated that due to default on the part of the complainant he has no right over the plot in question. OP has admitted receipt of Rs.48,95,000/- from the complainant. It is denied that OP has agreed to restore the plot after finalisation of restoration charges as has been alleged. It is stated that the complainant is not entitled for refund of the amount of Rs.48,95,000/- as the allotment has been cancelled and earnest money stands forfeited. It is stated that the legal notice dated 16.09.2012 was received from the complainant and the OP has duly replied the same vide reply dated 02.05.2013. It is prayed that the complaint is liable to be dismissed.
4. Rejoinder is filed denying the averments made by the OP against the complainant and contents of complaint are reiterated.
5. Both the parties filed evidence in the form of affidavits. Complainant has filed his own evidence in the form of affidavit wherein the contents of the complaint case are reiterated on oath. In the evidence, the complainant has placed on record copy of receipts dated 31.10.2010 and 04.01.2011 i.e. Ex. CW -1/1 and Ex. CW -1/2, copy of allotment letter dated 08.09.2011 Ex. CW -1/3, copy of receipts dated 15.02.2011  and 04.02.2011 i.e. Ex. CW -1/4 and Ex. CW -1/6, copy of OP letter dated 14.04.2011 Ex. CW -1/5, copy of letter dated 13.05.2011 seeking payment Ex. CW -1/9, copy of OP’s reminder dated 30.05.2011 Ex.,CW-1/10, copy of OP letter dated 17.06.2011 Ex. CW -1/11, copy of invitation letter of wedding of his son dated 19.01.2012 Ex. CW -1/12, copy of complainant’ application dated 03.02.2012 requesting for restoration Ex. CW -13, copy of letter dated 20.02.2012 Ex. CW -1/14, copy of interest calculation sheet calculated upto 21.02.2012 given by OP Ex. CW-1/15, copy of emails exchanged with OP Exb.CW-1/16, copy of legal notice dated 16.09.2012 Ex.  CW -1/17, copy of continuous discharge certificate cum searfarer’s identify document Ex. CW -1/18, copy of order dated 14.09.2013 passed by National Commission Ex. CW -1/19.
6. OP has filed evidence by way of affidavit of Shri Inderjeet, authorized representative of OP, wherein the contents of the written statement are reiterated on oath. Copy of letter dated 13.05.2011, emails dated 13.05.2011 and 31.08.2011 sent to complainant have been exhibited in the evidence. It is stated that on account of persistent failure on the part of the complainant to clear the dues, the allotment was cancelled alongwith forfeiture of the earnest money. It is stated that during the settlement talks in Lok Adalat, the OP had offered restoration of the plot with an interest waiver of 50% but the complainant declined to accept the same. It is prayed that complaint is liable to be dismissed.
7. We have heard counsel for the parties and perused the material on record.
8. It is admitted position that by paying Rs.8,60,000/- vide receipt Ex. CWS -1/1, a plot was booked by the complainant with the OP on 31.10.2010. It is also admitted position that vide allotment letter dated 08.02.2011 Ex. CW-/13 the complainant was allotted plot No.C-213, measuring 225 sq. yds in Amstoria in Gurgaon. It is also admitted by OP that a sum of Rs.48,95,000/- has been received from complainant vide receipts Ex.CW-1/1, CW-1/2, EX-CW 1/4 and Ex.CW -1/6 respectively. It is own case of complainant that letters dated 12.05.2011, 30.05.2011, 17.06.2011 i.e. Ex. CW -1/9, Ex. CW -1/10, Ex. CW -1/11 were written by OP to complainant giving reminders for making further payment. The stand of the complainant is that he could not be informed about said letter as he was sent on an assignment in sea. Complainant has denied having received letter dated 31.08.2011 vide which final opportunity was given to him to make the payment. It is stand of complainant that no proof has been filed by the OP to show that the aforesaid letter was sent to the complainant. However, OP has placed on record letter dated 31.08.2011 sent by way of email to complainant informing cancellation of unit.
9. As per allotment letter Ex.CW-1/3, allotment was subject to timely remittance of all payments and for delayed payment 13% p.a. interest was to be charged. First reminder was sent on May, 2011 and cancellation was done on 31.08.2011. OP has acted in haste in cancellation of plot. There was delay of only 03 months on b ehalf of complainant and substantial amount had already been received by OP. OP could have waited when allotment letter provides for interest on delayed payment. Even request for restoration of plot was declined by OP vide letter dated 08.06.2012. After cancellation of plot, OP has also not returned the money to complainant. On one hand plot is cancelled and at the same time entire money paid by complainant is with OP i.e. Rs.48,95,000/- which is an unfair trade practice. Ld. counsel for complainant states that complainant is not interested in plot as much time has elapsed now. In fact OP has also offered for plot after waiving 50% of the interest during the pendency of proceedings before us. Complainant states that now he has no requirement of plot.
10. Ld. Counsel for OP submits that since complainant has violated terms and conditions of Plot Buyer Agreement dated 19.04.2012, OP is entitled for forfeiture of earnest money. The percentage of earnest money is not mentioned in the written statement. Complainant has denied having executed Plot Buyer Agreement as is alleged by OP. In reply dated 02.05.2013  of OP to the legal notice of complainant, OP has admitted that no Plot Buyer Agreement between the parties was executed. Relevant para of reply of OP to legal notice is as under:

 

“The contents of para 7 of the notice are denied. It is reiterated that the allotment in the name of your client stood cancelled since September, 2011. Thus, there was no occasion to give the copy of buyer’s agreement to your client or to execute it or to receive the payments from your client.”

    

11. No alleged Plot Buyer Agreement is also placed on record by OP. In these circumstances, OP can’t forfeit the earnest money as is alleged.
12. In Satish Batra v. Sudhir Rawal, reported as VIII(2012) SLT 160, wherein the question was “whether the seller is entitled to forfeit the earnest money deposit where the sale of an immovable property falls through by reason of the fault or failure of the purchaser, Hon’ble Supreme Court has held as under:

 

“17. Law is, therefore, clear that to justify the forfeiture of advance money being part of ‘earnest money’ the terms of the contract should be clear and explicit. Earnest money is paid or given at the time when the contract is entered into and, as a pledge for its due performance by the depositor to be forfeited in case of non-performance, by the depositor. There can be converse situation also that if the seller fails to perform the contract the purchaser can also get the double the amount, if it is so stipulated. It is also the law that part payment of purchase price cannot be forfeited unless it is a guarantee for the due performance of the contract. In other words, if the payment is made only towards part payment of consideration and not intended as earnest money then the forfeiture clause will not apply.”

13. In the present case, no Plot Buyer Agreement has been executed between the parties. Parties have not signed any contract, therefore the alleged terms and conditioned of aforementioned Plot Buyer Agreement  will not apply in the present case. OP can’t forfeit the earnest money as is contended. There is no clause of forfeiture in the allotment letter Ex. CW -1/3. Further, in written statement it has also come that OP had offered an alternative unit in another project of the OP whereby it had agreed to adjust money paid by the complainant, meaning thereby OP was ready to adjust money paid by complainant in its other project without forfeiture of earnest money.
14. In the facts and circumstances of the case, we allow the complaint with the direction to the OP to refund the amount of Rs.48,95,000/- alongwith simple interest @ 9% per annum from the date of payment till realization. OP shall also pay a sum of Rs.25,000/- as cost of litigation to the complainant.     
15. Complaint stands allowed in aforesaid terms.
16. A copy of this order as per the statutory requirement be forwarded to the parties free of charge. Thereafter the file be consigned to Record Room.

                                                                                                                                                                                        (Justice Veena Birbal)

                                                                                                                                                                                                            President

 

(Salma Noor)

Member