Punjab

Patiala

CC/14/297

Pawan Kumar Singla - Complainant(s)

Versus

Derector, Nature Heights - Opp.Party(s)

Sanjeev Kumar Garg

28 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No. CC/14/297 of 21.10.2014

                                      Decided on: 28.04.2015

 

Pawan Kumar Singla son of Sh.Milkhi Ram, resident of House No.9, Punjabi Bagh Colony, Circular Road, Bouran Gate, Nabha, Mob.No.98148-21556.

         

 

                                                                   …..............Complainant

                                      Versus

1. Director, Nature Heights Infra Limited, 9-Sunder Nagri, Hanumangarh Road, Abohar.
2. Regional Manager(RM), Nature Heights Infra Limited, SCO No.134, Ist Floor, Above ICICI Bank, Cabin No.3, Chhoti Baradari, Patiala.
3. Parmod Kumar Jindal (Ex.M.C.) son of Sarup Chand, Agent of M/s Nature Heights Infra Limited, Resident of Ward No.7, Backside Cinema Road, Nabha, District Patiala.

 

                                                                  …...............Ops

 

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member

                                     

                                                                            

Present:

For the complainant:     Sh.Sunil Kumar Garg , Advocate

For Ops No.1&2:          Sh.V.K.Kaushal,Advocate               

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

1. It is the case of the complainant that in the month of September,2011 , Op no.1 had launched a project namely Talwara 5000-125, disclosing the terms and conditions. Op no.1 through Ops no.2&3 approached the complainant at Nabha. The complainant booked a plot measuring 5000sq.ft in the said project located at village Badingli Tehsil Mukerian District Hoshiarur on 3.10.2011. Op no.2 received a sum of Rs.1,56,250/- towards the first installment in the branch office at Patiala and issued a receipt for the same. All the Ops assured that the development of the project will be undertaken very soon after obtaining CLU from the concerned department and that the possession will also be delivered to the complainant very soon. However, after the lapse  of a period of about three years, no development of any kind/construction had started. The complainant learnt that even the land for the project has not been acquired.
2. It is further the case of the complainant that he was assured by the Ops that the prices of the plots will be raised by 50% per square ft. and in that way the complainant has suffered a loss in the profit of Rs.2,50,000/-. After the passing of a period of two years from the date of the launching of the project, the complainant realized that there was no other option except to have asked for the refund of the earnest money. He made several requests to the Ops to refund his earnest money but the Ops put forth the matter under one or the other pretext and ultimately they refused to refund the same after the complainant had got the Ops served with a legal notice through his counsel Sh.Anil Kumar Jindal, Advocate. The complainant has on account of false mis-representation, promises and unfair trade practice on the part of the Ops suffered a loss in a sum of Rs.2,50,000/- and further suffered a loss of interest on the principal amount which approximately @ 13% per annum comes to Rs.70,000/-due to the deficiency of service on the part of the Ops and thus, the complainant is entitled to recover a sum of Rs.4,76,250/- from the Ops. Accordingly, the complainant brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986( for short the Act) for a direction to the Ops to refund him Rs.1,56,250/-, the earnest money; to pay him Rs.2,50,000/- on account of loss of profit and further to award  interest @13% on the earnest money for the period of three years amounting to Rs.70,000/- and further to award him Rs.50,000/- by way of compensation on account of the harassment and mental agony qua the deficiency in service and unfair trade practice.
3. The cognizance of the complaint was taken against Ops no.1&2, who on appearance filed the written version having raised certain preliminary objections, interalia, that the Forum has got no jurisdiction to try the complaint; that the complainant is not a consumer as defined under the Act and that the complainant has not approached the Forum with clean hands as he has not disclosed about the terms and conditions of the agreement dated 31.10.2011. As regards the facts of the complaint, it is admitted by the Ops that the project namely Talwara 5000-125 was launched by them but it is denied that they had approached the complainant at Nabha in connection with the booking of the plot and rather the complainant  of his own had booked the plot. It is admitted by the Ops that a sum of Rs.1,56,250/- was received by them from the complainant on 31.10.2011 towards the first installment regarding the allotment of the plot against a receipt. It is denied that the Ops had promised to deliver the possession very soon. It is very much provided under the terms and conditions of the agreement that on completion of the sale price, the vendor would execute sale deed in favor of the purchaser and the actual and physical possession had to be delivered to the complainant only after the execution of the sale deed in his favor. As  per the application moved by the complainant produced alongwith the complaint, it was very much stated that an amount of Rs.6,25,000/- had to be paid by the complainant during the tenure of four years while the complainant paid single installment and failed to pay rest of the amount for the reasons best known to him.
4. It is denied by the ops that the land has not been acquired by them. They have already deposited the requisite fee with PUDA. It is denied that the Ops assured the complainant with regard to any hike in the price of the plots at Rs.50/- per square ft. after launching of the project. It is denied that the complainant has suffered any loss in profit. It is denied that no progress has been made in the project at site. The complainant had failed to perform his part of contract and for that reason the earnest money deposited by the complainant with the Ops stands forfeited and no claim of the complainant can be entertained by any court of law. He has got no right for the refund of the earnest money. The complainant has approached the Forum pre-maturely  i.e. before the performance of his part of the  contract. There is no deficiency of service on the part of the Ops. After denouncing the other averments of the complaint, going against the Ops, it was prayed to dismiss the complaint.
5. In support of his complaint, the complainant produced in evidence, Ex.CA, his sworn affidavit alongwith documents Exs.C1 to C7 and the counsel for the complainant closed the evidence.
6. On the other hand, on behalf of the Ops, their counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Sikander Singh, Sr.Operation  Executive of Op no.1 alongwith documents Exs.Op1 to Op8  and closed their evidence.
7. The parties filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
8. There is no dispute about the parties having entered into the agreement dated 31.10.2011,Ex.C7. The complainant has sought the refund of the earnest money of Rs.1,56,250/-,the payment of Rs.2,50,000/- on account of loss in profit and the payment of interest @13% per annum on the principal amount of Rs.1,56,250/-, which have been calculated at Rs.70,000/- for the period of three years. Now it has to be seen whether as per the terms and conditions of the agreement for sale,Ex.C7, the complainant is entitled to the said reliefs. It is provided on page 4 of the agreement , “ That the total price of the intended property to be sold is fixed at Rs.6,25,000/- (six lac twenty five thousand only) that at the time of execution the purchaser would pay a sum of Rs.6,25,000/- ( six lac twenty thousand only). That the purchaser would be at liberty to pay such sum in easy installment of Rs.1,56,250/-( one lac fifty six thousand two hundred fifty only) payable on or before yearly during these four years”. It is further provided in the said terms and conditions, “ The financial discipline in the agreement would be  a condition precedent. That on completion of sale price the vendor would execute sale deed in favor of the purchaser only after passing of three months’ period to enable the co. to scrutinize the entire A/C”. It is further provided, “That All kinds of expenses will be borne by purchaser in getting sale deed regd. and would pay and all kind of expenses, charges, surcharges, service charges if fixed by Central Govt. or State Govt. or by local authorities, which would be over and above sale price”. It is further provided, “ That if the purchaser himself/herself/itself does not want to get the sale deed regd. willingly even in that condition refund of amounts alongwith 13% per annum compounded growth will be payable to him/her etc.” It is further provided , “ That both parties will remain bound by the terms and conditions however if vendor fails to perform his part of contract then purchaser would be at liberty to enforce it in a court of law and if the purchaser fails to perform his part of contract the entire earnest money paid to the Vendor would be forfeited and no claim would be entertainable in court of law or before vendor.”
9. Thus a perusal of the aforesaid terms and conditions of the agreement of sale Ex.C7 would go to show that the purchaser was obliged to deposit a sum of Rs.6,25,000/-,the price of the property, in yearly installment of Rs.1,56,250/- and only after the payment of the entire sale consideration of Rs.6,25,000/- the seller had to execute the sale deed in favour of the purchaser, three months after the deposit of the entire sale price. It is also provided that in case the purchaser did not want the sale deed to be registered willingly even then the seller would refund the sale price deposited, with 13% per annum compounded growth.  Similarly, it is provided that in case the purchaser failed to perform his part of contract, the entire earnest money would be forfeited and no claim would be entertained in court of law or before the vendor.
10. There is no condition incorporated in the agreement,Ex.C7 that the prospective purchaser would be entitled to the refund of the earnest money deposited in part. The refund is payable only when the prospective purchaser deposits the entire sale price and he does not want the sale deed to be executed in his favour  and in that eventuality the refund is payable with interest @13% P.A. with compounded growth.
11. The complainant had deposited a sum of Rs.1,56,250/- with Op no.2, vide receipt Ex.C2 dated 31.10.2011 towards the Ist installment. The complainant was supposed to deposit the remaining three installments on 31.10.2012, 31.10.2013 and 31.10.2014 but the complainant failed to deposit the same meaning thereby that the complainant himself breached the terms and conditions of the agreement of sale Ex.C7. It is categorically recorded in the agreement that financial discipline in the agreement would be a condition precedent. No provision having been made in the agreement regarding the cancellation of the agreement until the payment of the entire sale price  and the refund of the deposit of the partly paid earnest money, the complainant could not say that there was any deficiency of service on the part of the Op. The complainant had by virtue of his application Ex.C1,  undertaken to deposit the earnest money in a tenure of four years and at no point of time, the complainant cancelled the agreement, which was not possible because of the absence of any provision regarding the same made in the agreement. To our mind, the complainant also could not ask for the specific performance of the agreement because of his failure to deposit the entire sale price. Therefore, looking in the case from any angle, it cannot be said that there was any deficiency of service on the part of the Op.
12. Citation Sanjeev Kumar  Vs. Emerging India Housing Corp.Pvt.Ltd. and others, complaint No.CC/13/118 of 9.4.2013 decided by this Forum on 17.07.2013 at bar by the learned counsel for the complainant was rendered on different facts in as much as in the case of the citation  the Ops had refunded a sum of Rs.4lacs having withheld a sum of Rs.12,500/- towards administrative charges, which were also got refunded by us. In our case, the Ops have come forward with the plea  of the earnest money of the complainant having been forfeited and regarding which we have discussed the matter at length.
13. As regards the plea taken up by the complainant that he lost a profit of Rs.2,50,000/- on account of the hike to be made in the price of the property @ Rs.50/- per square ft., nothing is to be found in this regard in the agreement,Ex.C7. Again there is no question of the complainant having suffered any harassment and the mental agony because no  deficiency in service on the part of the Ops is pointed out. The lapse occurred on the part of the complainant in not having deposited the entire sale price of the property to be purchased by the complainant from the Ops. Had the complainant deposited the entire sale price and in that event the Ops not refunded the earnest money deposited by him, he could certainly be granted a relief regarding the refund of the same with interest @13% P.A. with compounded growth or in case the Ops had not executed the sale deed despite the complainant having deposited the entire sale price, we would have granted the appropriate relief regarding the payment of the compensation on account of the harassment and mental agony experienced by him but now when the complainant himself has not complied with the terms and conditions of the agreement and there being no provision made in the agreement for the refund of the partly paid earnest money, we are not in a position to grant any relief to the complainant. Consequently, it would appear that there are no merits in the complaint and the same is hereby dismissed.

Pronounced

Dated:28.04.2015

 

                 Sonia Bansal               Neelam Gupta                    D.R.Arora

        Member                        Member                                     President