DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.628/2008
Sh. Praveen Kant
H.No.RZ-147, B-Block, Roshan Vihar,
New Roshanpura Extension,
Najafgarh, New Delhi-110043 ….Complainant
Versus
The General Manager
Central Himalayan Land Development Co. Ltd.
3rd Floor, 2, Community Centre,
East of Kailash, New Delhi-110065 ……Opposite Party
Date of Institution : 11.11.08 Date of Order : 16.05.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Briefly, stated that the case of the Complainant is that he had applied for a residential plot of “ready possession category” in the project of OP viz. Cloud 9 Hill Town, Khabrar, Distt. Nainital (Uttrakhand) on 12.09.07 and deposited registration amount of Rs.1,90,687/- drawn on PNB, Najafgarh on account of registration money. The draw of lots was held on 12.10.07. The OP informed him that he has been allotted plot No. SV-454 measuring 239.20 sq. yds. of ready possession category and asked him to deposit Rs.214757/- within 30 days from the date of allotment and 75% payment of Rs.946036/- within 90 days. The total cost of the plot was worked out to Rs.13,51,480/-. He had a doubt in his mind that as per advertisement and brochure, only 294 plots of both ready possession and deferred possession category were available with the OP. He decided to ascertain from the OP regarding allotment of plot No.SV 454. The OP’s Sr. Manager Sh. S. K. Sharma supplied a copy of forged lay out plan having duly marked plot No. SV454 which showed to be approved and stamped by Nainital Jheel Parichheter Vishesh Chheter Viikas Paradhikaran, Nainital vide approval No.06/07 dated 23.07.07. Believing that it was a genuine copy of the plan, he visited the site and met Sh. P. K. Jha, Manager Customer Care of OP, who showed the site of the plot No. SV-454 and gave the same approved plan which was given by Sh. S. K. Sharma. It is stated as under:
“9. That in order to verify the correctness of the claims of the Opposite Party regarding the existence of plot No. SV-454 in the approved lay out plan No. 06/07 dated 23.7.2007 and to ascertain the genuineness of copy of lay out plan supplied to the Complainant by Sh. S.K. Sharma, Senior Manager of the Opposite Party, the Complainant visited the Office of the Nainital Jheel Parichheter Vishesh Chheter Vikas Paradhikaran (Lake Development Authority, Nainital) on the same day on which site office of the Opposite Party at Khabrar was visited i.e. on 4.11.2007 and requested the officials of the Authority at Nainital to verify the correctness/genuineness of the copy of lay out plan of Cloud 9 Hill Town, Khabrar supplied to the Complainant by Opposite Party’s Headquarters office at New Delhi.
10. That to the Complainant’s shock and surprise, it was revealed from the approved lay out plan No. 06/07 dated 23.7.2007 of the Cloud 9 Hill Town at Authority’s Nainital Office that Plot No. SV-454 is not existed in the above approved lay out plan. The entire lay out plan approved by the Authority vide No. 06/07 dated 23.7.2007 had been changed by the Opposite party at their own without the approval of the Nainital Jheel Parichheter Vishesh Chheter Vikas Paradhikaran, Nainital and plot Nos. approved by the authority vide approval No. 06/07 dated 23.7.2007 were not in existence in the changed lay out plan supplied to the Complainant by the Opposite Party. Not only this, the Opposite Party retained the same approval No. and stamp of the Authority on the changed layout plan without any approval of the Authority and supplied a copy of forged lay out plan to the Complainant, which the Complainant believed it to be genuine. Had the Complainant not visited the office of the Authority at Nainital for ascertaining the correctness/genuineness of the copy of the lay out plan supplied to the Complainant by the Opposite Party’s Headquarters office, New Delhi, the above act of the Opposite Party could not have been revealed and the Complainant would have accepted the allotment which could jeopardize his interest and ultimately had to remorse.”
He surrendered the allotment of plot No. SV-454 to the OP vide letter dated 05.11.07 with request to refund the registration money amounting to Rs.1,90,687/- deposited with the application form stating the reasons as personal and unavoidable circumstances because the Opposite Party had stipulated a very unreasonable condition in the brochure that 25% of the Registration money shall be forfeited in case the allotment is surrendered up to 30 days, 50% of the Registration money shall be forfeited in case the allotment is surrendered after 30 days but before 60 days and full Registration money shall be forfeited if it is surrendered after 60 calendar days but before 90 days. As at the time of surrender of the plot he had no documentary evidence from Nainital Authority office regarding forging of approved lay out plan by the OP. He sought the information through RTI from the Secretary, Lake Development Authority, Nainital. The said Secretary informed that the plot No.SV-454 does not exist in the lay out plan No. 06/07 Jheel dated 23.7.2007 approved by the authority dated 23.07.07 and they had not received any change of lay out plan from the OP. The OP vide letter dated 13.03.08 informed him that they had marked the number of plot according to their own convenience without allotting the area dimension, location etc. of the plot or project. In the approved lay out plan the plot bearing No. D-8 was actually shown as plot No. SV-454. It is stated as hereunder:
“After bringing out the above lapse by the Complainant to the notice of the Opposite Party, the Opposite Party submitted an affidavit in the office of the Authority at Nainital and it was got certified from the Authority that on comparison of lay out plan approved by the Authority vide No. 06/07 dated 23.7.2007 and that submitted by the Company/Opposite Party along with Affidavit, it was found that Plot No. D-8 of the approved lay out plan No. 06/07 dated 23.7.2007 is plot No. SV-454. The above certificate was issued to the Opposite Party by the Authority’s Office, Nainital on 5.3.2008 vide No. 06/07/NDA/2007-08. It is, therefore, clear that Plot No. SV-454 was not existed in the lay out plan of the Cloud 9 Hill Town approved by the Authority vide No. 06/07 dated 23.7.2007. The Opposite Party with a view to cover up the above fraudulent act approached the Authority only after the Complainant brought this act to the notice of the Opposite Party and then obtained a certificate from the Authority on 5.3.2008 in which it was mentioned that the Opposite Party changed the Nos. of plots of the approved lay out plan at their own convenience and Plot No. D-8 in the approved lay out plan No. 06/07 dated 23.7.2007 is now Plot No. SV-454. However, even after obtaining the above certificate, the fact remains that Plot No. SV-454 was not existed in the approved lay out plan No. 06/07 dated 23.7.2007 of Cloud 9 Hill Town, Khabrar before 5.3.2008 and the Opposite Party changed the Nos. of plots without the approval of the Authority with a view to defraud the allottee/Complainant as it never intimated to the Complainant the alteration made in the approved lay out plan without the approval of the Authority until the same was detected by the Complainant and brought it to the notice of the Opposite Party.”
On 26.03.08 he again requested the OP to refund/remit all the amount but instead of acting in business like manner by paying the amount the OP vide letter dated 26.04.08 threatened him to prosecute him under different sections of IPC/Cr.P.C. on the plea that he had caused defamation to the OP Company. He sent a legal notice on 24.05.08. The OP vide letter dated 16.06.08 had accepted all the facts but denied non existence of plot No.SV454 in the lay out plan. The Complainant has prayed as under: -
- Direct the OP to pay an amount of Rs.47672/- on account of 25% registration money retained/deducted by the OP, illegally.
- Direct the OP to pay an amount of Rs.1 lac as compensation/damages for causing injury and mental agony and interest on the registration money of Rs.190687/- for the period from 12.09.07 to 17.11.07 and interest on the part of registration money of Rs.47672/- withheld illegally during the period from 18.11.07 to date.
OP in the written statement has stated that the Complainant himself vide letter dated 05.11.07 had surrendered the allotment on the pretext of some personal reasons and unavoidable circumstances and undertook at his own that after receiving the registration amount as per company rule he will not make any kind of other claim against the company. After considering the request of the Complainant as per clause 14.1 paid the registration amount to the Complainant after forfeiting 25% of registration amount vide cheque and the same was duly encashed by the Complainant. As after surrendering the allotment and receiving back the registration amount as per rules there is no relationship between the parties hence the Complainant has no locus-standi to file the complaint. OP has further stated that legally or otherwise forfeiting of 25% of registration amount can only be questioned by way of proceedings under the Cooperative Act or in civil suit and cannot be agitated before the consumer forum as there is no deficiency in service or defects in goods sold. Hence, it is prayed that the present complaint may be dismissed.
Complainant has filed rejoinder to the written statement of OP
Complainant has filed his own affidavit in evidence while affidavit of Sh. S. K. Sharma, Sr. Manager has been filed in evidence on behalf of the OP.
Written arguments have been filed.
We have heard the arguments on behalf of the Complainant and have also gone through the file very carefully.
It is not in dispute that the Complainant had applied for a residential plot in the project of OP namely, “Cloud 9 Hill Town, Khabrar, Distt. Nainital (Uttrakhand) on 12.09.07 and deposited an amount of Rs.1,90,687/- The Complainant was allotted plot No. SV-454 measuring 239.20 sq. yds. under ready possession category and OP asked the Complainant to deposit Rs.214757/- within 30 days from the date of allotment and 75% payment of Rs.946036/- within 90 days. The total cost of the plot was worked out to Rs.13,51,480/-.
The complainant vide his letter dated 5.11.07 (copy placed as Annex. F by the complainant) informed the OP that he had surrendered the plot in question due to some personal reasons and unavoidable circumstances with immediate effect. He requested the OP Company to accept the surrender/withdrawal of the plot and to refund the registration money as per rules. He also submitted the indemnity bond with the said communication. We mark it as Annex. F-I for the purposes of identification. In the said indemnity bond the complainant has in categorical terms and words stated that he had agreed to the refund of the amount as per terms of clause 14.1 of the brochure of the scheme CM/04/07. It is also the case of the OP that the amount had been refunded to the complainant as per the terms of clause 14.1 of the brochure of the scheme. OP has filed a copy of letter dated 19.11.07 as Ex. OPW1/6 whereby the OP sent the registration money after deducting Rs. 47672/- (25% deduction as per clause 14.1) and sent the remaining amount to the complainant. Very surprisingly enough the complainant has not disclosed the factum that OP had refunded the registration amount minus Rs. 47672/- to him in the complaint. Let the things remain as they are. From the averments made in the complaint, it clearly stands proved on the record that the complainant had never made any written application to the Secretary, Nainital Jheel Parichheter Vishesh Chheter Vikas Paradhikaran (Lake Development Authority, Nainital) regarding verification of layout plan of the project in question and it was for the first time that after surrendering the plot the complainant had requested the Secretary of the above said authority in writing vide letter dated 13.11.07 to provide the information. Thus, subsequent correspondence, if any, with the said authority by the complainant after surrendering of the plot is of no consequence. It is not the case of the complainant that he had accepted the registration amount minus Rs. 47672/- under protest or while reserving his right to initiate appropriate legal proceedings for recovery of the said amount. Therefore, we hold that as soon as the complainant received the registration money minus Rs. 47672/- (25% deduction as per clause 14.1), he seized to be a consumer as defined in the Consumer Protection Act. Even otherwise, he has failed to prove any deficiency in service on the part of the OP.
In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.
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 16.05.16.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
Case No. 628/08
16.5.2016
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(NAINA BAKSHI) (N.K. GOEL) MEMBER PRESIDENT
