Delhi

North East

CC/165/2015

Dharminder Singh - Complainant(s)

Versus

Dreamland Promoters - Opp.Party(s)

15 Oct 2018

ORDER

 

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 165/15

 

In the matter of:

	Dharminder Singh C/o Rati Ram H.No. 697, Village Ghitorni Delhi 110030 Through POA Suresh Kumar, S/o Kanwal Singh R/o H.No. B-269, Ashiana Baggicha Bhiwadi	Complainant
	Versus
	Dreamland Promoters & Consultants Pvt Ltd. F-132, Jai Vihar, Phase-1, Near Airforce Depot, Nangloi Road, Najafgarh, New Delhi – 110043. Also At: 211 to 213, 2nd Floor, Krishna Apra Plaza, Sector -18, Noida-201301.	Opposite Party

 

DATE OF INSTITUTION:       JUDGMENT RESERVED ON:               DATE OF DECISION      :

08.05.2015 15.10.2018 15.10.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Grievance of the complainant in the present complaint is that lured by the upcoming project of the OP namely Royal Heritage on Bhiwadi-Alwar Highway by various hoardings / advertisements / propaganda and brochures / price list, the complainant booked a plot in the said project for residential purpose on 26.09.2006 by making a initial payment of Rs. 1,50,000/- as booking amount duly acknowledged by OP vide receipt No. 1444 dated 26.09.2006 vide customer code no. BP-1202. The registration form clause provided for refund @10% per annum in case the OP was not in possession to offer plot within 12 months. The complainant pursued the OP for allotment and execution of builder-buyer agreement but the OP did neither and when he visited the site in January 2009, he saw no development there but was assured by the OP that the construction would start soon and in March 2009, OP sent an invitation for Bhoomi-Pujan for 25.03.2009 at the site. However, the complainant, on revisiting the site again in December 2009 saw no development activity there and further investigation revealed that the OP had taken money from the complainant and other such plot buyers without starting the construction and executing builder-buyer agreement for which other plot buyers had lodged complaint with EOW against the OP and its Directors. The complainant further submitted that the MD of the OP had filed an application/ affidavit dated 01.02.2013 before the Court of ACMM, New Delhi admitting that the project had been delayed and had undertaken to refund the received amount by the plot buyers alongwith interest @6% as per builder-buyer agreement alongwith an undertaking to deposit 20% of said amount within 40 days from filing of this affidavit as first installment and 20% of the amount every month thereafter alongwith interest till next six months i.e. August 2013. The complainant therefore, demanded refund of his deposit of Rs. 1,50,000/- in Nov. 2014 and submitted the documents as desired by OP duly acknowledged by OP vide cancellation check list dated 19.11.2014 but didn’t refund any amount to the complainant despite repeated follow ups. Meanwhile, the complainant discovered that multiple complaints as well as F.I.R. No. 1210/14 dated 23.12.2014 had also been registered against OP for selling the land meant for project for other builders. The complainant has also lodged a complaint dated 23.04.2015 with EOW received vide diary no. D 2975 dated 24.04.2015 with office of D.C.P./ EOW against the OP. Therefore, alleging deficiency in service on the part of OP for non-fulfillment/ non performance of its obligations and commitments resulting in monetary loss and sufferance of complainant being put to undue harassment and agony, the complainant was constrained to file present complaint against the OP praying for issuance of directions against the OP to refund Rs. 1,50,000/ alongwith interest 18% per annum from date of payment till realization alongwith Rs. 1,00,000/- as compensation on account of harassment and loss of opportunity and punitive damages and Rs. 21,000/- towards litigation expenses. Complainant has attached copy of receipt  no. 1444 dated 26.09.2006 for payment acknowledgment of  Rs. 1,50,000/- by OP, copy of Bhoomi Punjan invitation dated 25.03.2009 by OP, copy of affidavit filed by OP in Vipin Kalra V/s OP in court of ACMM, New Delhi, copy of cancellation check list dated 19.11.2015 duly signed by OP, acknowledging receipt of documents from complainant, copy of complaint against OP with EOW cell of Delhi Police dated 23.04.2015 with postal receipt.
2. Notice was issued to the OP on 18.07.2015 and its counsel entered appearance on 01.09.2015 and received copy of complaint with annexures and filed written statement on 09.02.2016 since in the interim period there were talks of settlement between the parties in terms of entering into an MOU. However on 08.01.2016, contrary to the statement of OP that one installment as per the settlement had been paid to the complainant, the complainant denied having received any such amount and therefore the MOU / compromise could not be effected. In the written statement filed by OP it took the preliminary objection that the complaint was time barred since the advance booking amount was paid by the complainant in 2006 whereas the complaint was filed in 2015 i.e. after a delay of almost 8 years against the statutory mandate of limitation of 2 years of filing complaint provided under Consumer Protection Act. It further took the defence on grounds of territorial jurisdiction since the office of OP did not fall under the jurisdiction of this Forum in as much as it was located at Noida and the project was at Bhiwadi, District Alwar, Rajasthan. The OP urged that the complainant failed to fulfill his obligation of paying the balance installment towards the said plot as per the terms and conditions of the application for allotment of plot dated 01.11.2006 despite acceptance and knowledge and demand raised by the OP and there was no grounds of asking for refund of the amount paid for registration since there was no negligence or deficiency of service by the OP. The OP further took the defence that the complainant did not honor clause 9 of the Allotment Application which stated that in the event of default in making payment of installments, the registration shall be cancelled save and except right to claim refund of the actual amount paid by the complainant and stated that the complainant despite having agreed to pay amounts demanded by OP without delay, breached the conditions of the application form and is a defaulting party who cannot be allowed to take benefits of his own wrongs by cancelling his registration and not paying the reasonable demand of money to OP as per the payment schedule and relied upon the judgment of Hon’ble Supreme Court in the case of Bharathi Knitting Mills Vs DHL Worldwide Express, II (1996) CPJ 25 for clear interpretation of terms and conditions of agreement. The OP denied the allegation of the complainant that it was unable to offer the plot within 12 months to the complainant as promised and submitted that since the complainant had only paid Rs. 1.5Lacs towards initial booking amount, he was required to pay further amounts / consideration for confirming “offer of allotment” to him within 12 months from date of booking and stated that in case of other applicants who had paid the remaining further installments, the OP had offered them their respective booked plots but the complainant did not pay the cost of the plot including other allied charges viz E.D.C. & I.D.C. etc amounting to approximately Rs. 9Lacs for which reason Builder Buyer Agreement could not be executed with him. With respect to the allegation of non development of the site in question raised by the complainant, the OP stated that the complainant had himself annexed the Bhoomi Poojan Card with his complaint and infact the OP had made an application before the Ld. Collector for CLU and the said permission was granted by the Ld. Collector for setting up and developing the plots on the site in question. Lastly OP submitted that the complainant breached the terms and conditions of the signed contract and putting unnecessary burden on the OP by making false allegation of no progress at site since on the contrary it was the reason of failure on the part of complainant to deposit the installments which resulted in non allotment of plot and therefore prayed for dismissal of the complaint on grounds taken in the written statement.
3. Rejoinder was filed by the complainant in rebuttal to the defence taken by OP in its written statement in which the complainant stated that an FIR for the offence of cheating got registered against Pawan Bhadana, MD of OP for having sold the land in question to third party whereas the money has been collected by the OP for plotting/allotting of plots on the said land which actually does not belong to OP. Further a complaint no. 117/14 under Section 156 (3) Cr.P.C. P.S. Dwarka was also under investigation and the MD, fearing arrest had proposed to settle the complaints in stages of installments payable from February to August 2016 but the same was done with a view to cheat the public and to siphon off the money. The complainant rebutted the allegation of the complaint being time barred on grounds that the period of limitation begins from the date OP received all the original papers on 19.11.2014 to process the refund but failed to do so despite receiving all the original papers as can be seen from Annexure C-4 filed by the complainant alongwith the complaint. The complainant further submitted that the registration of FIR against the OP was proof of his unfair trade practice and deficiency of service of duping the complainant of his hard earned money without showing any inclination to pay back despite non-existent project and raising frivolous defence. Lastly the complainant controverted the stand taken by the OP by submitting that the OP did not pay back the installment despite categorical admission which was done merely to escape criminal liability to settle with the complainant out of court with an intention to cheat and the written statement of OP is a bundle of lies.
4. Evidence by way of affidavit was filed by both complainant and OP reiterating their respective grievance / defence.
5. Complainant filed his written arguments on 29.11.2016 summarizing his grievance against the OP of non repayment of his deposit amount despite OP categorically admitting its liability and assuring the complainant of payment in five installments from November 2015 to September 2016 but failed to honor the same.

The OP stopped appearing September 2017 onwards and despite repeated opportunity granted to it for filing written arguments and cost imposed on it for non compliance vide order dated 14.03.2018, neither the OP appeared, nor filed written arguments or paid the cost and therefore its right to file written arguments was closed vide order dated 07.05.2018.

6. We have heard oral arguments addressed by the counsel of the complainant and have thoroughly perused the documentary evidence placed on record by both the parties.

It is not in dispute that the complainant had paid Rs. 1,50,000/- to OP on 26.09.2006 towards initial booking amount for plot no./customer code BP1202 in the project Royal Heritage on Bhiwadi Alwar Highway. The dispute arose subsequently when the OP failed to offer the plot within 12 months as per the registration form clause to the complainant. The defence taken by the OP is uncorroborated / unsupported by documentary evidence to the effect that contrary to its averment that the complainant was asked to pay the remaining installments, not a single demand letter is placed on record by the OP. Further as per OP’s own admission, clause 9 of the application entitled the complainant to claim refund in the event of default in making payment of installments resulting in cancellation of registration. OP has nowhere placed on record any such contract entered into between the complainant and itself however. Further contrary to the averment of the OP that it had offered other plot buyers their respective booked plots on receipt of payments, no such allotment proof has been placed on record with respect to any other applicant much less a Builder Buyer Agreement. Merely a Bhoomi Poojan Card does not by any stretch of imagination prove or show any construction or development at the site and the and the documents pertaining to the land and correspondence with the District Collector Alwar are mere application without any concrete order granting permission of CLU or development of plots on the land in question. Further contrary to the allegation of the OP that the complainant breached the terms and conditions of the signed contract, there is no such contract placed on record by the OP either with its written statement or with evidence by way of affidavit. As regards the limitation, the same would commence once the demand for refund is raised which in the present case was raised by the complainant in November 2014 and the complaint was filed in May 2015 and therefore admissible and within time. As regard territorial jurisdiction Section 11 2 (b) of CPA has not provided any criteria of guideline on bases of which the complainant can ensure that the district Forum would, in all probability, grant such permission; this therefore is a matter within the discretion of the District Forum which it exercised in admitting this complaint in 2015 on 18.07.2015.The defence taken by OP is therefore inconclusive, vague, uncorroborated, baseless and frivolous, devoid of merits.

7. We therefore find force in the present complaint and the complainant has been successful in making out case of deficiency of service and unfair trade practice on the part of OP on account of non refund of his deposit amount of Rs. 1,50,000/- despite receipt of original documents in November 2014 and assurance to repay the same by September 2016.

We therefore, direct the OP to refund the amount of Rs. 1,50,000/- to the complainant alongwith interest @ 9% p.a. from the date of institution of the complaint till realization. We also direct the OP to pay a sum of Rs. 10,000/- to the complainant on account of harassment and Rs. 5,000/- to the complainant towards litigation expenses. Let the order be complied with by OP within 30 days from the date of receipt of copy of this order.

8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 15.10.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member