| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 294 of 09-05-2014 Decided on : 29-02-2016 Hardeep Singh, aged about 37 years S/o Harkrishan Singh Sunita Rani aged about 30 years W/o Hardeep Singh Both R/o H. No. 15436, Street No. 1, Hazura Kapura Colony, Bathinda, Tehsil and District Bathinda.
….....Complainants Versus Emerging India Real Estate (P) Limited Branch Office, SCO-10, Ground Floor, Bharat Nagar Market, Near Bibiwala Chowk, Bathinda, through its Branch Manager Emerging India Real Estates (P) Ltd., having its Corporate Office SCO 47-47, First Floor, Sector 9-D, Near Matka Chowk, Madhya Marg, Chandigarh, through its Managing Director/Chairman
........Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986.
Quorum : Sh. M.P.Singh Pahwa President Smt. Sukhwinder Kaur Member Sh. Jarnail Singh Member Present : For the Complainants : Sh. Ashok Bharti, Advocate For the opposite party : Sh. J.P.S. Brar, Advocate. O R D E R M. P. Singh Pahwa This complaint has been filed by Hardeep Singh and Sunita Rani, complainants against Emerging India Real Estate (P) Ltd., and others, (opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act'). Briefly stated, the case of the complainants is that they are residents of House No. 15436, Street No. 1, Hazura Kapura Colony, Bathinda. The opposite parties have got published and distributed the pamphlets regarding establishment of a well approved colony with all basic amenities including schools, parks, hospitals, temple etc., and also to provide sewerage, water pipes, road of cements as per MC norms. They induced the general public at large to book the plots of different sizes in the said colony to be established by the opposite parties under the name of 'Greater Bathinda' located at Bhucho Kalan, Tehsil and District Bathinda. It is alleged that the sales representative of the opposite parties induced the complainants to book a plot in the aforesaid colony of the opposite parties. Being induced by the tall claims made by the opposite parties, the complainants also intended to purchase plot in the colony. The complainants are husband and wife. They jointly booked a plot measuring 200 Sq. Yards with the opposite parties @ 9000/- per Sq. Yard. The opposite parties asked the complainants to deposit Rs. 2,00,000/- instead of total of Rs. 18,00,000/- as booking amount of the plot in question. Accordingly, the complainants deposited the amount of Rs. 2,00,000/- in cash on 26-2-2013 and Rs. 1,00,000/- on 28-2-2013 with the opposite parties. The complainants have also paid Rs. 2,40,000/- through Cheque dated 30-5-2013. The opposite party No. 1 issued receipt in favour of complainants. The opposite parties assured the complainants to give possession of plot in the name of complainants in the first week of June, 2013 or in near future in a function which will be arranged by the opposite parties, after few days from the date of application. The remaining amount was to be paid in installments. It is alleged that opposite parties did not give possession of plot in the name of complainants till date, although a long period has already elapsed since the date of application. The complainants visited the office of the opposite party No. 1 time and again and inquired about the date of delivery of possession, but the opposite parties kept on putting the matter off under one or the other pretext. It was also revealed to the complainants that opposite parties had not yet been granted any permission/letter of intent by the competent authority/Bathinda Development Authority to develop any such colony on the date of booking of the plot. The letter of intent has been issued much later i.e. on 19-6-2013. As such, the opposite parties were having no right to obtain application from the general public for booking of the plots in the colony, alleged to be developed by the opposite parties, nor there was any question of allotment of the plot to the complainants in February, 2013 as assured by the opposite parties at the time of deposit of Rs. 2,40,000/-. It has also come to the knowledge of the complainants that competent authority has sanctioned 16.6 acre scheme instead of 57 acres to be developed by the opposite parties as published. As such, the opposite parties have committed unfair trade practice, fraud and cheating with the complainants. The complainants have requested the opposite parties to refund their deposited amount of Rs. 5,40,000/- with interest @ 18% p.a. from the date of deposit till date of refund, but to no effect. On this backdrop of facts, the complainants have alleged deficiency in service and unfair trade practice on the part of the opposite parties. They have prayed for issuing directions to the opposite parties to refund Rs. 5,40,000/- deposited by the complainant alongwith interest @ 18% p.a. from the date of deposit till refund and pay Rs. 2.00 Lacs as compensation and Rs. 11,000/- as cost of litigation. Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written version. In written version the opposite parties raised legal objections that complaint has been filed by the complainants only to injure the goodwill and reputation of the opposite parties. Even otherwise the complaint is false, frivolous and vexatious to the knowledge of the complainants. As such, the opposite parties are entitled to special cost from the complainant u/s 26 of the 'Act'. That intricate questions of law and facts are involved which require voluminous documents and evidence for determination. It is not possible in summary procedure. The appropriate remedy, if any, lies only in the civil court. That the complainants have concealed material facts and documents from this Forum as well as from the opposite parties. Therefore, the complainants are not entitled to any relief. It is further pleaded that complainants have concealed the fact that an allotment letter dated 8-11-2013 for the allotment of plot bearing No. GB/198 has already been sent to the complainants but the complainants have refused to accept the said allotment letter. Now they are illegally and forcibly pressurizing the opposite parties to refund the deposited amount, so deposited at the time of applying the plot of Rs. 1,00,000/- and thereafter Rs. 2,00,000/- and Rs. 2,40,000/- as per terms and conditions of the opposite parties. The complainants have failed to pay the remaining installments to the opposite parties on due dates. As such, the complainants have got no legal right to get refund of the same. The complainants are bound to take possession of the plot after paying the balance amount alongwith interest, as per terms and conditions duly mentioned in the application form between the parties. The opposite parties are ready and willing to deliver possession of the plot in question to the complainants on payment of balance amount alongwith agreed rate of interest. That the complainants are not consumer of the opposite parties. That they have no locus standi or cause of action to file the complaint and complaint is not maintainable before this Forum as the complainants have levelled serious allegations of fraud and cheating. On merits, the opposite parties have controverted all the material averments of the complainants. It is asserted that opposite parties are having licence No. LD20/4/018 dated 8-5-2013 duly approved by Bathinda Development Authority and the authority has approved the colony. It is admitted that complainants have jointly booked the plot measuring 200 Sq. Yards @ Rs. 9,000/- per Sq. Yards with the opposite parties. Other averments regarding inducement and tall claims are categorically denied. It is further mentioned that complainant got booked the plot at their own free will with disposing mind. The making of payment by the complainants is not disputed. It is denied that the opposite parties assured the complainants that they will deliver the possession in the first week of June, 2013. Rather as per terms and conditions, the opposite parties have to allot the plot to their customers within 18 months from the date of booking. It is admitted that complainants have to make payment in question in quarterly installments as per terms and conditions. However, it is further stated that complainants failed to make the entire price of the plot. They used to pressurize the opposite parties to refund the amount illegally and arbitrarily for which they have got no right. It is also asserted that opposite parties obtained the permission for change of land from the government i.e. Department of Town & Country Planning, Punjab vide letter dated 25-9-2012. Hence, the opposite parties legally obtained the applications from the general public for the booking of the plots. It is denied that opposite parties have committed any fraud or cheating with the complainants illegally or fraudulently . It is denied that there is deficiency in service or unfair trade practice. After controverting all other avements, the opposite parties prayed for dismissal of complaint. Both the parties were afforded opportunity to produce evidence. In support of their claim, complainant have tendered into evidence affidavits of Hardeep Singh, complainant No. 1 dated 9-5-2014 and 11-8-2014 (Ex. C-1 & Ex. C-8), photocopy of expression of interest (Ex. C-2), photocopy of cheque receipt (Ex. C-3), photocopy of payment receipt (Ex. C-4), photocopy of cheque (Ex. C-5), photocopy of payment plan (Ex. C-6), photocopy of memo (Ex. C-7), photocopies of letters (Ex. C-9 & Ex. C-10) and photocopy of Form 'A' (Ex. C-11) In order to rebut this evidence, opposite parties have tendered into evidence affidavit of Ankush Arora, Zonal Head dated 10-9-2014 (Ex. OP-1/1), photocopy of power of attorney (Ex. OP-1/2). Photocopy of application form (Ex. OP-1/3), photocopy of allotment letter (Ex. OP-1/4), Photocopy of payment schedule (Ex. OP-1/5), photocopy of memo No. 1720 (Ex. OP-1/6), photocopy of licence to develop colony (Ex. OP-1/7), photocopy of letter dated 5-7-2013 (Ex. OP-1/8) and photocopy of memo dated 19-6-2013 (Ex. OP-1/9. We have heard learned counsel for the parties and gone through the record. Learned counsel for complainants has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainants that averments of the complainants are duly corroborated by the affidavits of complainant Hardeep Singh. As per complainants, the opposite parties have received Rs. 5,40,000/- from them. This fact is not disputed by the opposite parties. Moreover, receipts Ex. C-3 to Ex. C-5 prove the payment of amount. It is the case of the complainants that the opposite parties have failed to develop the colony. They were also not issued licence to develop the colony at the time of inviting applications. The opposite parties have failed to develop colony and offer plot within committed time. The complainants have placed on record letter Ex. C-10 in response to information under RTI Act. This letter is in reply to letter dated 13-12-2013 and as per this information also, the case for approval of licence to set up residential colony of the opposite parties was under process. Therefore till 13-12-2013, the opposite parties were not granted any licence. The opposite parties have received Rs. 5,40,000/- from the complainants on 26-2-2013, 27-5-2013 and 4-6-2013 i.e. much before getting licence. The opposite parties have not produced on record any documentary evidence to prove that they have developed the colony as promised to the complainants. The main reliance of the opposite parties is on the letter dated 25-09-2012 (Ex. OP-1/6) vide which the opposite parties were granted permission for change of land use from agriculture to residential (Area 132 Kanal 16 Marla). After obtaining this letter, the opposite parties were to perform number of functions before developing the colony. The opposite parties were to deposit EDC/Licence/Permission Fee. The opposite parties were not to undertake any development work until layout plan, zoning plan and other plans of the entire project are got approved from the Competent Authority. The opposite parties were also to obtain approval/NOC from Competent Authority to fulfill the requirements of notification dated 14-09-2006. The opposite parties were not to make any construction under H.T./L.T. Transmission electric lines passing through the site or get these lines shifted by applying to the concerned authority. There is nothing on record to prove that opposite parties complied with these conditions after obtaining licence for change of land. The main reliance of the opposite parties is on the letter dated 8-11-2013 (Ex. OP-1/4) whereby the opposite parties have allegedly allotted plot to the complainants. Of course as per this letter plot No. GB/198 has been allotted but this allotment is subject to the terms and conditions mentioned in the letter and those terms and conditions were to be binding upon the complainant only after acceptance of this allotment. There is nothing on record to prove that complainants have accepted this letter. There is no document executed by the complainants vide which the opposite parties were entitled to forfeit the amount deposited by the complainants. When the complainants have not accepted the alleged letter of allotment and the opposite parties were not entitled to forfeit the amount deposited by the complainants, therefore the opposite parties were liable to refund the amount received from the complainants. The opposite parties have used this amount and the complainants remained deprived of from the use of this amount for considerable time. Therefore, the complainants are entitled to interest @ 18% p.a. from the date of deposit in addition to compensation and litigation expenses as claimed by them. On the other hand, the learned counsel for the opposite parties has submitted that complainants are not entitled to any relief from this Forum as they have actively concealed the material facts. Of course the complainants have deposited a sum of Rs. 5,40,000/- on different dates but this amount was a part payment for purchase of plot by the complainants. There is nothing to show that the opposite parties were to deliver possession of plot to the complainant within the time as alleged by them. Therefore in such circumstances, the plea of the opposite parties is to be accepted that they were to allot the plot in due course. The opposite parties have placed on record specimen of the copy of Application Form (Ex. OP-1/3). As per this Form, the application was moved for on going project and not for any project fully completed or developed. The Advance Registration Application Form (Ex. OP-1/3) also includes specimen of agreement and as per its condition No. '7', it was categorically mentioned that applicants have made the application with full knowledge that the plans for Building, in which the Residential Plot applied for will be located, are not yet sanctioned by the Competent Authority and that in case, for any reason the same are not sanctioned or cancelled or revoked at any point of time during the construction, the Company shall refund all amounts received. It is not the case of the complainants that plan has been rejected. Therefore the applicants/complainants were fully aware that they have applied in the project which is yet to be developed. Hence, the complainants cannot claim refund of the amount only for some delay in development of project. The complainants were to deposit the amount as per schedule. The opposite parties have also to stick to the schedule. The opposite parties have already allotted plot No. GB/198 vide letter dated 8-11-2013 to the complainants. The Forum can take judicial notice of the fact that prices have not been appreciated and only due to this reason, the complainants want to take refund of the booking amount which is not permissible. We have carefully gone through the record and have considered the rival contentions. The admitted facts are that the complainants paid a sum of Rs. 5,40,000/- to the opposite parties in order to purchase one plot measuring 200 Sq. Yards in the colony being developed by the opposite parties. The controversy is whether the opposite parties were to deliver the possession upto the particular time and whether the opposite parties were having no right to forfeit the amount paid by the complainants. The opposite parties have not produced any documents entitling them to forfeit the part payment made by the complainants. Of course the opposite parties have placed on record one specimen of the Application Form but no such application submitted by the complainant is on the record. Therefore any terms and conditions mentioned in the specimen application form cannot be held binding upon the complainant unless and until any application is signed and submitted by the complainants. The complainants have placed on record receipts Ex. C-3 to Ex. C-5 to prove the payment of Rs. 5,40,000/- on different dates. There is nothing in these receipts to show that this amount could have been forfeited by the opposite parties in case of any default by the complainant in payment of the remaining amount. The main reliance of the opposite parties, to prove that they were/are having licence to develop colony, is on letter Ex. OP-1/6. As per this letter, the opposite parties were permitted for change of land use measuring 132 Kanal 16 Marla but the permission was subject to various terms and conditions which included that the opposite parties will deposit EDC/Lience/Permission Fee and other charges levied or to be levied by the Housing and Urban Development Department from time to time. The opposite parties were not to undertake development work until layout plan, zoning plan and other plans of the entire project are got approved from the Competent Authority. The opposite parties were also to obtain approval/NOC from Competent Authority to fulfill the requirements of the notification dated 14-09-2006. The opposite parties were also not to make any constructions under H.T./L.T. Transmission electric lines passing through the site. The opposite parties have not produced any evidence to prove that after permission regarding change of land, they complied with all the terms and conditions as mentioned in this permission. Of course the opposite parties have also placed on record letter dated 5-7-2013 (Ex. OP-1/8) to prove that lay out plan for Greater Bathinda colony was approved but the opposite parties have not produced on record copy of lay out plan. Much stress has been laid by the opposite parties upon letter dated 8-11-2013 (Ex. OP-1/4). Of course as per this letter, the plot measuring 200 Sq. Yards was allotted to the complainants, but the allotment was subject to terms and conditions mentioned in the letter. It was made clear to the complainants that by accepting allotment letter, they were deemed to have agreed with the terms and conditions mentioned therein as well as agreed to the payment schedule attached therewith. There is nothing on record to show that complainants have accepted these terms and conditions. Therefore, unless and until these terms and conditions were accepted by the complainants, they cannot be bound by these terms and conditions. There is nothing on record that opposite parties were authorized to forfeit the earnest money received by them from the complainants before issuance of licence to develop the colony. It means the complainants were having option to get the booking cancelled. The complainants have repeatedly claimed that they demanded refund of deposited amount and the opposite parties have failed to refund this amount. The opposite parties in written reply have also admitted that complainants illegally and forcibly pressurizing the opposite parties to refund the deposited amount. This fact further shows that complainants were demanding refund of the amount. As the opposite parties were not having authority to forfeit the amount received from the complainants, therefore, non refund of this amount, amounts to unfair trade practice on their part and the complainants are entitled to refund of deposited amount with interest. Of course, the complainants are claiming interest @ 18% p.a. but the interest claimed is considered on higher side. Keeping in view prevailing interest in the market, the complainants are held entitled to interest @ 12% p.a. In the result, this complaint is partly accepted with cost of Rs.5,000/-. The opposite parties are directed to refund the amount of Rs. 5,40,000/- to the complainants alongwith interest @ 12% p.a. from the date of receipt till the date of payment. The compliance of this order be made within 30 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 29-02-2016 (M.P.Singh Pahwa ) President (Sukhwinder Kaur) Member (Jarnail Singh ) Member
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