DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.477/2008
Sh. Vinod Kumar Gupta
Omaxe Gree Valley
Rosebay 201, Sector-41-42,
Faridabad-121003 ….Complainant
Versus
Central Himalayan Land Development Co. Ltd.
3rd Floor, 2 Community Centre,
East of Kailash, New Delhi-110065 ……Opposite Party
Date of Institution : 31.07.08 Date of Order : 18.03.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Sh. N.K. Goel, President
Briefly stated, the case of the Complainant is that he had booked a plot of area 400 sq. yards @ Rs.2890/- per sq. yds. in the project of OP and paid Rs.1,15,600 on 09.05.05 and the OP allotted the plot No.CC 09/08 in the Scheme CN/02/05EO-AL/137 and the rest of the amount was to be deposited in installments as and when demanded by the OP. Thereafter, the Complainant was asked to deposit further 15% of the cost price of the plot i.e. 1,73,400/- which was also paid by him vide cheque No.389961 dated 11.08.05 drawn on Jammu & Kashmir Bank Ltd. vide receipt dated 13.08.05. Thus, the Complainant paid 25% of the total cost of the said plot i.e. Rs.2,89,000/-. However, in the meantime, he visited the plot and he came to know that the plot was situated in a very disadvantage and rural type area and completely different as described by the staff of the OP. He also came to know that under the existing State Govt.’s rules the OP was not entitled to allot a plot larger than 299 sq. yds. but however the OP had allotted 400 sq. yds. plot to him in contravention of the existing rules of the State Government. Accordingly, he approached the OP and made his protest regarding non-disclosure of the said rule of the State Government and he also made it clear to the OP that in case the OP did not allot 400 sq. yds. plot to him, then he would be constrained to rescind the contract but the OP did not give any plausible answer to him and as such the Complainant was constrained to rescind the said contract and requested the OP to refund the deposited amount but the OP did not make any response to his request. It is further submitted that finding no alternative the Complainant wrote two letters dated 07.08.07 & 27.09.07 to the OP for refund of the deposited amount but the OP instead of refunding the amount sent a letter dated 27.09.07 to the Complainant stating that the plot allotted to the Complainant had already been forfeited due to non-payment of the rest amount in terms of clauses 11 & 12 of the brochure forming part of the application. The Complainant sent a legal notice dated 05.12.07 to the OP for immediate refund of the deposited amount of Rs.2,89,000/- alongwith interest @ 18% p.a. from the date of payments made by him till realization but the OP gave a reply dated 06.12.07 which is highly unsatisfactory, malafide and full of false and frivolous contents and the OP is trying to grab the hard earned money of the Complainant. Hence, pleading deficiency in service on the part of OP, the complaint has been filed with the following prayers:-
- Direct the OP to pay an amount of Rs.2,89,000/- as deposited by the Complainant with the OP alongwith interest @ 18% p.a. from the date of payments till its realization,
- Direct the OP to pay compensation of Rs.50,000/- to the Complainant in lieu of the mental agony and harassment caused to the Complainant due to callous and arbitrary act of the OP,
- Direct the OP to pay a sum of Rs.15,000/- to the Complainant as litigation cost.
OP in the written statement has inter-alia stated that the Complainant was allotted a plot under scheme CN/02/05EO-AL/137 measuring 400 sq. yds. vide allotment letter dated 28.06.05 and in that letter full particulars of the site were mentioned and the Complainant deposited the required amount with them. The Complainant defaulted in the payment of the remaining balance amount i.e. Rs.8,67,000/- which was due as per the payment schedule plan 7A opted by the Complainant despite numerous reminders. It is stated that as per plan 7A the Complainant was supposed to make the payment of entire remaining amount within 90 days from the date of allotment as per clause 15 of the terms enumerated overleaf the allotment letter. It is denied that after making a general enquiry, the Complainant came to know that as per the existing State Govt.’s rules, the OP was not entitled to allot a plot larger than 299 yds. It is submitted that the Complainant has failed to provide or annex any document in support of his averments regarding the alleged rule. It is submitted that the OP was having all the necessary approvals on the date of allotment of the plot to the Complainant and other esteemed customers and the OP was/is the sole and absolute owner of the land and has every right to allot the plots of sizes as per requirement and the State Govt. has no right to interfere in the same. It is submitted that after allotment of the plot vide allotment letter dated 28.06.05, the Complainant made the payment of the allotment money on 11.08.05 and thereafter remained silent approx. for two years and approached the OP only on 07.09.07 with the request for refund of allotment money. Accordingly, in terms of the clause No.11(v) the allotment of the Complainant stood cancelled on 13.08.05 and the money so deposited by the Complainant also stood forfeited. The clause No.11(v) is reproduced as under:-
“(v) In case the allottee fails to deposit the due amount within the stipulated time, allotment will be liable for cancellation. In case of such cancellation, the money so deposited till the date of cancellation will be forfeited.”
It is stated as follows:-
“…The act of the opposite party of forfeiture of deposited amount and cancellation of the allotment was in accordance with the terms and conditions as agreed between the parties and there is no illegality and infirmity in the same.”
It is further stated that by way of present complaint, the Complainant is trying to take benefit of his own wrong and he also failed to adhere to financial disciplines and as such he is not at all entitled for any relief. OP has prayed for dismissal of the complaint with heavy costs.
No rejoinder/replication has been filed on behalf of the Complainant to the written statement of OP.
Complainant has filed his own affidavit in evidence while affidavit of Sh. S. K. Sharma, Senior Manager has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the Complainant.
No one has appeared on behalf of the OP to advance oral arguments despite opportunity given in this behalf. We have perused the file very carefully.
Complainant as well as the OP have put reliance on the same set of documents (Copies Ex. CW-1/1 to Ex. CW-1/10). Complainant has also relied on documents copies of which are Ex. CW1/10A and Ex.CW1/10B.
The complainant was allotted a plot No. CC 09/08 measuring 400 sq. yds. @ Rs.2890/- per sq. yards, vide customer code CN/02/05EO-AL/137 for a total consideration of Rs.11,56,000/- vide allotment letter copy of which is Ex. CW-1/1. Vide this allotment letter, the payment clause of the complainant was 7A. Ex. CW-1/9 is the brochure in respect of Scheme Code CN/02/05 (Scheme in question). Clause 7 deals with mode of payment and sub-clause 7A deals with cash down plan which provides that in this plan, rebate of 6% on the total amount shall be given and the balance amount (after adjusting registration and allotment money already paid ) shall be payable within 90 days from the date of allotment. Thus, the complainant was required to make the entire payment of the balance amount within 90 days from the date of allotment i.e. 28.06.05, the date of allotment of the above stated plot to him. However, according to the Complainant himself, he deposited a sum of Rs.2,89,000/- till 13.08.05 and thereafter he did not deposit any further amount toward sale consideration of the said plot with the OP.
Clause 11 of the Scheme inter-alia provides that “in case the allottee fails to deposit the due amount within stipulated time, allotment will be liable for cancellation. In cash of such cancellation, the money so deposited till the date of cancellation will be forfeited.” Thus, the said amount of Rs.2,89,000/- paid by the complainant to the OP till 13.08.05 was liable to be forfeited in case the payment of the balance amount was not made by him to the OP within 90 days from the date of allotment i.e. 28.06.05.
The complainant did not deposit the remaining amount with the OP despite receipt of letters copies of which are Ex. CW1/3 and Ex. CW1/4. On the other hand, the complainant has filed a copy of the letter dated 07.08. (year not legible) sent by him asking the OP to refund the amount and change his address. Vide this letter, he stated that as per present Govt. rules the OP could not give any plot above 299 sq. yds. and hence the OP was requested to refund the amount of Rs.2,89,000/-. According to the Complainant himself, he had sent a legal notice dated 06.012.07 to the OP. Copy of the legal notice is Annexure CW-1/10A. Para 4 of the legal notice is material and the same is reproduced as hereunder:
“4. That my aforesaid client after making the payment of 25% of the total cost of the plot in question, visited the site and found that the rates of land in the area where the plot was allotted to my client are at very lower side and as such my client contacted you and requested for cancellation of his allotment and refund of his money.”
Thus, it is clear that in the said legal notice the complainant or for that matter his Advocate did not plead that as per the prevalent existing State Govt. policy the OP was not legally entitled to allot a plot of size of more than 299 sq. yds to the complainant. Even otherwise, the complainant has not filed even a single paper on the record which may even remotely show that there was any such State Govt. rule in vogue at the relevant time and as such the OP was not legally justified in allotting a plot of 400 sq. yds. to the complainant.
The complainant had already been allotted a particular plot No. CC 09/08 measuring 400 sq. yds. on 28.06.05. Therefore, heavy onus was laid upon him to prove that he was totally justified in not paying the remaining payment towards total sale consideration of the said plot to the OP. However, as stated hereinabove, the complainant has failed to place any iota of evidence on the record. Therefore, we are constrained to hold that the complainant has failed to prove any deficiency in service on the part of the OP. We hold that in terms of the stipulation contained in Clause 11 of the Scheme, the OP was also legally justified and within its right to forfeit the amount of Rs.2,89,000/- paid by the complainant to the OP towards the part payment.
In view of the above discussion, we do not find any merit in the complaint and dismiss it.
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 18.03.17.
