Delhi

North East

CC/164/2015

Shri Suresh Kumar - Complainant(s)

Versus

Dreamland Promotors & Consultant Pvt. Ltd. - Opp.Party(s)

14 Aug 2020

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No. 164/15

 

In the matter of:

 

	Shri Suresh Kumar S/o Shri Kanwal Singh R/o- H.No. B-269 Ashiana Baggicha Bhiwadi, Rajasthan	Complainant
	Versus
	M/s Dreamland Promoters & Consultant Pvt. Ltd. Through its Director Pawan Bhadana 211-213, 2nd Floor, Krishna Apra Plaza Sector-18, Noida-201301   Also at: 3A, third Floor, M-6 Plaza Plot no.6, Jasola District Centre New Delhi-110025	Opposite Party

 

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

08.05.2015 14.08.2020 14.08.2020

 

Mr. Arun Kumar Arya, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1.  The facts in brief made out in the present complaint are that the complainant had booked a 200 sq. yd. residential flat with OP in its “Royal Heritage” project at village Daganhari, Bhiwadi-Alwar Highway on Delhi Alwar Bypass, Bhiwadi Rajasthan (hereinafter referred to as the project) in November 2006 on payment of Rs. 2,00,000/- as booking amount paid in cash on 01.11.2006 duly acknowledged receipt of by OP vide receipt no. 717 and complainant was issued Customer Code BP1662. As per one of the clauses in the registration form, complainant was assured of refund of the paid amount alongwith interest @10% p.a. if OP is not in position to offer the plot within 12 months. The complainant continuously persued the case with OP for allotment and execution of Builder Buyer Agreement but the same was not done. For the entire period of 2009 i.e. three years since complainant made the aforementioned payment to OP, there was no development or construction on the project site and even OP did not raise any further monetary demand for the said reason. Despite repeated follow ups by the complainant with OP regarding construction, OP kept giving excuses while admitting the project having been delayed and eventually after a considerable lapse of time, the complainant got to know that the other plot buyers have lodged several complaints against OP with Economic Offence Wing (EOW) and FIRs against OP for selling the project land to other developers and siphoning of funds i.e. money of the investors in the project. The complainant sought refund of the deposited sum of Rs. 2,00,000/- from OP by submission of all requisite documents duly received by OP on 19.11.2014 as per the cancellation cheque list but OP did not refund the said amount. The complainant also lodged a complaint against OP with EOW on 24.04.2015 vide Diary no. D-2975 but without any outcome. Lastly, therefore, the complainant being aggrieved with false assurance and deficiency of service on the part of OP for having failed to fulfill their obligation and commitment was constrained to file the present complaint before this Forum praying for issuance of direction against the OP to refund the of Rs 2,00,000/- alongwith interest @ 18% from the date of deposit till realization, complainant also prayed for compensation of  Rs. 1,00,000/- towards harassment and mental agony and Rs. 21,000/- towards cost of litigation.
2. Complainant has attached copy of receipt no. 171 dated 01.11.2006 issued by OP acknowledging payment of Rs. 2,00,000/- made by complainant to OP as booking amount for the project, copy of Bhumi Pujan invite issued by OP for date 25.03.2009 at the project site address, copy of affidavit dated 01.02.2013 given by OP in the Hon’ble court of ACMM Delhi undertaking to refund the amount of the investor with interest @ 6% p.a. as per application form for allotment of plot and builder buyer agreement and to deposit 20% of the said amount as first installment within 40 days of the affidavit, copy of  cancellation check list issued by OP acknowledging receipt of all documents from complainant (affidavit, indemnity, copy of PAN card, copy of address proof, original receipt and signature verification) on 19.11.2014 for process of refund and copy of complaint dated 23.04.2015 by complainant lodged against OP with EOW alongwith postal receipt dated 24.04.2015 in proof of dispatch.
3. Notice was issued to the OP on 18.07.2015. OP entered appearance on 01.09.2015 and took time to effect an amicable settlement with the complainant and to place on record the formal agreement documents / MoU. In the hearing held on 07.01.2016, counsel for OP submitted that in compliance of the undertaking given by it before the concerned ACMM court, it has paid 20% of the deposited amount of Rs. 2,00,000/- i.e. Rs. 40,000/- to the complainant as first installment of refund and prayed for a day’s time to place on record the proof of settlement and said payment. However, OP failed to place on record either of the documents on the next date i.e. 08.01.2016 and was therefore directed to file its written statement on the next date of hearing. i.e. 09.02.2016 subject to payment of cost of Rs. 1,000/- to be made to the complainant.
4. Written statement was filed by the OP in which it took the preliminary objection of the present complaint being time barred and hit by latches as the payment of advance booking of Rs. 2,00,000/- was made by complainant to OP in November 2006 but the complaint seeking refund thereof was filed in 2015 after a delay of about eight years contrary to the statutory period of limitation of two years from the cause of action. OP also urged that the last communication between the parties was in the year 2006 and with the period for cause of action for filing complaint already having lapsed in year 2008, the complaint filed in 2015 was barred by limitation. OP also objected to the maintainability of the complaint on ground of territorial jurisdiction urging that the OP neither resides or carries out its business nor has a branch office within the local limits of jurisdiction of this Forum and urged that its office being located at Noida and project situated at Bhiwadi (Alwar) were both outside the ambit of jurisdiction of this Forum. OP, while admitting that the complainant having registered for allotment of plot in the said project through application dated 01.11.2006 and receipt of Rs. 2,00,000/- made by complainant in cash to it, took the defence that both parties were bound by the terms and conditions of the application form which terms were accepted by the complainant and signed too with consent but complainant failed to perform his part of contractual liability of making timely payments of installments for the allotment of plot for reason best known to him and failed to adhere to the payment schedule despite receipt of several written reminders from OP and OP in this regard placed reliance on clause 9 of the Application Form which stipulated that I / We agree that in the event of default in making payment of any installments / amounts as demanded by the Company or any of the other terms and conditions agreed herein my / our request for registration in advance shall be treated as cancelled and I / We shall be left with no right, lien or interest whatsoever save and except to claim refund of the actual amount paid by me / us. OP further submitted that the complainant has defaulted in his part despite OP being ready to comply with its part of obligation but complainant instead of fulfilling his contractual liability, opted for cancellation of registration and filed the present complaint against OP without any prior notice. OP further urged that after paying the initial booking amount towards the plot in the said project, the complainant was required to enter into a detailed agreement with OP and to pay further installments / payments for the plot in question to OP but failed to make any further payment in this regard whereas other applicants who had, like the complainant booked the plots in the said project not only paid the initial booking amount but also the paid the remaining installments as per the agreement and OP had accordingly offered them respective booked plots. OP took the defence that when the complainant had not paid any installments except registration money of Rs. 2,00,000/- against the total consideration of Rs. 10,00,000/- for the said plot, there was no question of execution of any builder buyer agreement. OP defended itself on the development of project aspect by placing reliance on the bhumi pujan card placed on record by complainant himself and submitted in this regard that on its application to the District Collector Alwar for converted land use (CLU), the order granting the same and permission for setting up development of plots was given by the concerned authorities. OP denied the allegation of the complainant of no development on the project site till the end of 2009 and submitted per contra that its associate had assured the complainant of commencement of development activity on the project site as soon as the plan receives approval and license from the authority and complainant was asked several times by OP’s office to pay the requisite amount which he failed to honor and since the complainant has himself breached the terms and conditions of the signed contract, he cannot put unnecessary burden of false allegation on the OP. Lastly, OP submitted that there was no deficiency of service on its part and therefore not liable to pay any compensation to the complainant since the complainant himself had violated the terms and conditions of the application form and had chosen to cancel his registration of allotment of plot. For the defence so taken, OP prayed for dismissal of the complaint.
5. OP has attached copy of advance registration form dated 01.11.2006 with respect to the 200 sq. yd. plot @ Rs. 3,990/- per sq. fit with terms and conditions enumerated therein and signed by both parties and copy of land paper, application form, conversion order and project approval issued by office of District Collector Alwar.
6. Rejoinder in rebuttal to the defence taken by OP was filed by the complainant in which complainant urged that the criminal proceedings pending against OP are a matter of record arising out of the act of OP of duping the public of its hard earn money by selling the project land to a third party and giving false assurance to its investors for plotting / allotting of flats on non-existent land for which the director of OP is facing criminal proceedings before Dwarka Court and to avoid arrest in which case, OP through its director had filed an affidavit to refund the investor money in installments. In so far as the preliminary objection of limitation raised by OP is concerned, complainant urged that the limitation in case of refund starts from date of notice of refund or demand for refund which since in the present case was raised on 19.11.2014 by complainant, limitation is to be reckoned from the said date. On the issue of territorial jurisdiction complainant placed reliance on the then prevailing judgments passed by Hon’ble Delhi SCDRC holding Delhi as one district and complaint can be filed in any of the Forums and the payment having been made to OP in Delhi and OP having its registered office in Delhi, Delhi Consumer Forum has jurisdiction to entertain the present complaint. Complainant, on merits urged that despite OP having admitted to refund the payment with interest @ 6% p.a. before the concerned criminal court, has failed to fulfill its commitment to refund and even the project in question has failed to see the light of the day and the OP has intention to swallow the payments made by the prospective allottees which is why it has made payment of only one installment of 20% of deposited sum towards settlement in order to escape arrest. Lastly, complainant urged that there was no question of putting OP to notice before filing the present complaint since it had itself collected the original documents under its signed and sealed to process refund and for no defence available to OP in law, its written statement is nothing but a bundle of lies and complainant therefore prayed for rejection of the defence taken by OP and prayed for relief claimed.
7. Evidence by way of affidavit was filed by complainant exhibit documents relied upon as exhibit C-1 to C-5.
8. Evidence by way of affidavit was filed by OP through its Director exhibiting documents relied upon as R/W-1 and R/W-2 (colly).
9. Written arguments were filed by the complainant in reassertion / reiteration of his grievance against OP and placed on record copy of order sheets and judgment of Hon’ble SCDRC Delhi against OP in M/s Dreamland Promoters and Consultant Pvt. Ltd. Vs Pramod Kumar in RP. No. 3317.
10. OP stopped appearing after May 2017 and its right to file written arguments was closed vide order dated 07.05.2018 after according it several opportunities to do so. However, in accordance with the settled law passed by Hon’ble NCDRC in Bank of India Vs N.V. Deoras 1997 (3) CPR 63 (NC), whereby it was held that the written version and pleadings filed by a party in absentia shall be considered when the case is taken up for hearing and decision on merits, the pleadings filed by OP shall be considered in its defence.
11. In hearing held on 15.10.2018, counsel for complainant during the course of oral arguments submitted that out of Rs. 2,00,000/- paid by complainant to OP, OP has refunded Rs. 40,000/- to the complainant in November 2015 in furtherance to and after a year of the cancellation check list submitted by complainant to OP in November 2014. Complainant was directed to place on record the proof of receipt of the said amount which order was complied with by complainant in hearing held on 08.11.2019 on which date the complainant filed application under Order VI Rule 17 CPC for amendment of prayer clause by way of seeking relief of refund of Rs. 1,60,000/- instead of Rs. 2,00,000/- as against  initially prayed for  in the complaint and attached copy of bank statement of the complainant issued by HDFC Bank highlighting Chq Dep-MICR clearing-Bhiwadi, RA of Rs. 40,000/-
12. We have heard the arguments addressed by the counsel for complainant through video conferencing and have given our anxious consideration to the documentary evidence placed on record.
13. It is an admitted fact that toward the booking of the 200 sq yd plot by complainant with OPs Royal Heritage Bhiwadi Project, the complainant had paid a sum of Rs. 2,00,000/- in cash to OP in November 2006 and registration Form enumerating nine (9) terms and conditions was duly signed by the complainant as first applicant and was counter signed by Jeet Properties on behalf of OP as its dealer. The dispute arose when even after three years of the said payment made by complainant to OP, there was no construction activity on the project site  and a mere bhumi pujan invite for March 2009 was sent by OP to the complainant. As per the complainant, there was no construction activity in the project site even for the next five years i.e. till end of 2014 around which period the complainant had discovered that the OP was facing criminal investigation for duping many investors like him of their hard earn money in December 2014 compelling the complainant also to file a complaint against OP with EOW in April 2015. In between, the complainant had raised a demand for cancellation of registration and sought refund of the deposit amount of Rs. 2,00,000/-with OP and submitted all requisite documents in this regard with OP on 19.11.2014 which was also acknowledged by OP. In the affidavit filed by one of its director before the Hon’ble court of ACMM Delhi, OP undertook to refund the deposited amount of investors in installments, first being of 20% of the deposited amount in furtherance to which the OP refunded Rs. 40,000/- to the complainant in November 2015 as submitted / admitted by complainant himself. On keen perusal of written statement and documents filed by OP alongwith it, we observe that the OP has raised preliminary objection of maintainability on grounds of limitation and territorial jurisdiction. The former objection stands rejected in the light of the landmark decision of the Hon'ble Supreme Court in Meerut Development Authority Vs M.K. Gupta IV (2012) CPJ 12 (SC) wherein Hon'ble Supreme Court held that in cases of non-delivery of possession and non-refund of the deposited sum by the builder, the buyer has a recurrent cause for filing a complaint for non-delivery of possession of the plot or non-refund of the consideration paid thereagainst. Hence, the present complaint is not barred by limitation since the complainant had paid the initial deposited amount of Rs. 2,00,000/- in November 2006 to OP and seeing that there was no development on the construction site even till next eight years, sought refund of the said amount in November 2014 from OP on submission of all requisite documents but since no refund came forth from OP, the complainant filed the present complaint in May 2015 after which a part refund of                       Rs. 40,000/- was made by the OP to the complainant in November 2015 (after one year of submission of all documents for process of refund) giving rise to continuing cause of action against OP in favour of the complainant. The objection thus raised in this regard is not entertainable. In so far as objection of territorial jurisdiction raised by OP is concerned, urging that its concerned office is located at Noida is outside the jurisdiction of this Forum and therefore the complaint should not be entertained on this ground, Section 2(1)(aa) of the Act defines “branch office” as

1. Any establishment described as a branch by the Opposite party; or
2. Any establishment carrying on either the same or substantially the same activity as that carried on by the head office of the establishment

The question of territorial jurisdiction came before Hon'ble National Commission in Patel Roadways Ltd. Vs Tokusou Menon Paper Manufacturing Co. Ltd. 1997 (1) CPR 144 (NC) in which the amendments to the act effected in 1993 were referred which conferred jurisdiction on the Fora within whose jurisdiction the “Branch Office” of the opposite party was situated to hear complaints against the opposite party even in cases where no part of cause of action arose within the jurisdiction of the Fora. However, two qualifications were introduced to avail such jurisdiction. Either the permission of the District Forum should have been obtained or the opposite parties should have acquiesced in such institution. In the present case, the OP by filing all its pleadings before this Forum and not aggressively pressing its preliminary objection by way of application or otherwise is deemed to have acquiesced to the jurisdiction of this Forum and the law prevailing at the relevant period passed by Hon’ble Delhi SCDRC holding Delhi as one district were relied upon by complainant for maintainability in view of payment having made by him to OP in Delhi giving rise to cause of action in a Consumer Forum located at Delhi. Therefore, this objection raised by OP is also dismissed. On merits OP has raised objection that the complainant did not fulfilled his part of obligation of making payments of the installments towards the plot in question despite several written reminders to the complainant from OP but no such communication has been placed on record by OP to corroborate its allegation of non-payment of installments by the complainant and any such demand, if at all raised by OP in this regard. Further, we observe that OP has contended that there were other applicants in the said project who had paid the remaining installments as per the construction plan and OP had offered them their respective booked plots. However, no such details of allottees has been placed on record by OP to show or prove its contention of having allotted plots to other investors in the said project. Therefore both the averments of OP are bald and unsubstantiated / uncorroborated and stand defeated on the concept of ipse dixit (assertion made without proof). A mere invite of bhumi pujan sent by OP to the prospective allottees / investors is nothing but an eye wash / moonshine to hoodwink unsuspecting and gullible investors / depositors and is in no way any commitment for development of the project which actually never saw the light of the day for almost a decade since the time complainant first deposited booking amount in 2006 till filing of the present complaint in 2015. The Hon'ble Supreme Court in the landmark decision of Lucknow Development Authority Vs M.K. Gupta III (1993) CPJ 7 (SC) held that when a person hires the services of a builder, or contractor, for the construction of a house or a flat, and the same is for consideration, it is a “service” as defined in Section 2(1)(o) of the Consumer Protection Act and the inordinate delay in handing over possession of the flat clearly amounts to deficiency of service. In present case, the OP in its pleadings has maintained a studied silence on the aspect of commencement of construction, much less completion of the project and instead has been evasive in this regard, trying to shift the blame on the complainant for not having paid further installments calling him a defaulter and blaming him for cancellation of registration. The Hon’ble Delhi SCDRC in Abhey Kumar Sharma Vs Ansal Hi-tech Township Ltd. I (2020) CPJ 284 (Del) held that non delivery of possession and hard earned money of complainant having been retained by builder for number of years is deficiency of service as well as unfair trade practice and a person cannot be made to wait indefinitely for possession and is therefore entitled to seek refund of the amount paid by him with compensation. The Hon'ble Supreme Court in M/s Fortune Infrastructure & Anr Vs Trevor D’Lima III (2018) CPJ 1 (SC) and in the recent judgments of Kolkata West International City Pvt. Ltd. Vs Devasis Rudra II (2019) CPJ 29 (SC) and Pioneer Urban Land & Infrastructure Ltd. Vs Govindan Raghavan II (2019) CPJ 34 (SC) in somewhat similar matters inter alia relating to non-delivery of possession of the flat / house, held that the complainant cannot be made to wait indefinitely for a long period and is therefore entitled for refund of the deposited amount with some reasonable interest. The ratio of the aforesaid judgments were followed by Hon'ble National Commission in Avnish Kumar Vs Sare Gurugram Pvt. Ltd. I (2020) CPJ 426 (NC), Morzaria Products LLP Vs Marvel Omega Builder Pvt. Ltd. I (2020) CPJ 465 (NC) and Bivash Banerjee & Ors Vs Ramprastha Promoters and Developers Pvt. Ltd. I (2020) CPJ 517 (NC) wherein Hon'ble National Commission held that a flat purchaser cannot be made to wait indefinitely for delivery of possession. In the present case, from keen perusal of the documents placed on record by OP alongwith its written statement pertaining to the project land, we observe that the application for conversion the agriculture land to residential with respect to the present project was made by OP to the District Collector Alwar on 11.05.2007 whereas the initial deposited amount of Rs. 2,00,000/- was already taken by the OP from thecomplainant in November 2006 towards the said project without any sanction or license for converted land use (CLU) and the approval for the same was given by office of Rural Development Trust Bhiwadi on 26.12.2007 for land usage change and amended order to this effect was submitted by OP to the office of District Collector Alwar (Rajasthan) on 19.01.2008 in furtherance to which the office of District Collector Alwar (Rajasthan) vide order dated 19.04.2008 confirmed that the OP had got the usage changed from agriculture land to residential change over for the purpose of Group Housing Development and had also acknowledged the submission of the application dated 15.04.2008 by OP only for group housing and also granted NOC for conditional residential (group housing), thereby amending its previous order dated 19.01.2008. As per the general condition dated 21.04.2008 for group housing submitted by OP before office of District Collector of Alwar, it would start the development work of the project as per site plan within three months of approval of the project site plan and would complete the said period within the period of three years failing which the period can be increased by two years subject to penalty of 5% of change over fees with approval of state government and the OP also undertook that only after the completion of 25% of the job in the project area, booking of plots and allotment will be done. However, the conduct of OP was not at all in accordance with the undertaking given by its director Pawan Bhadana before the concerned authorities i.e. District Collector Always in as much as it started inviting deposits for the said project in 2006 much before it had even made a formal application to the concerned land authorities in May 2007 for conversion of land use from agricultural to residential which approval came forth only in April 2008 after which the OP was required to initiate the construction work in the said project within next three months i.e. July 2008 and complete the same in next three years i.e. by July 2011 and a maximum extension of two years i.e. July 2013 could be availed of by OP subject to penalty. However, OP did not commence the construction work even till the filing of the present complaint in May 2015 which allegation by the complainant has not been rebutted by OP by way of any cogent evidence viz site plan photographs or progress in construction on the project site. Contrary to the general condition that only after the completion of 25% of the job in the project area, booking of plots and allotment will be done, OP started taking booking of plots in 2006 itself without any construction plan or any development on the project site. Therefore, such act of commission and omission on the part of the OP is manifest of unfair trade practice and OP’s reliance on clause 9 of the allotment registration form shall not come into its rescue for blaming complainant for default in payment not to ignore the undertaking that OP gave vide the said clause to refund the deposited amount which it failed to honor. The Hon'ble Supreme Court in Pioneer (Supra) case held that such one sided clauses present in builder buyer agreement amount to unfair trade practice.

14. After thorough appreciation of the documentary evidence placed on record and appraisal of the same, we find OP guilty of deficiency of service and unfair trade practice and allow the present complaint against it with directions to OP to refund the balance amount of Rs. 1,60,000/- alongwith interest by way of damages @ 6% from the date of payment i.e. 01.11.2006 till realization to the complainant. We rely on the recent judgment of Hon'ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs D.S. Dhanda II (2019) CPJ 117 (SC) wherein it is observed that when interest is awarded by way of damages, awarding additional compensation is unjustified. Taking into consideration the principle of restitutio in integrum which specifies that the aggrieved person should necessarily be compensated for financial loss suffered due to the event, we further direct the OP to pay a sum of Rs. 20,000/- towards cost of litigation to the complainant.  Let the order be complied within 30 days by OP from the date of receipt of copy of this order.
15. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
16.  File be consigned to record room.
17.  Announced on 14.08.2020.

 

(Arun Kumar Arya)      President

(Sonica Mehrotra)  Member