Delhi

East Delhi

cc/675/2012

harmesh kr. - Complainant(s)

Versus

ferrious infra. - Opp.Party(s)

09 Oct 2019

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO. 675/12 

Shri Harmesh Kumar

S/o Shri Mukand Lal

R/o 90B, Pocket-C

Shivam Enclave, Delhi                                                ….Complainants

 

Vs.

 

M/s. Ferrous Infrastructure (P) Ltd.

Regd. Off.: R-13, Greater Kailash-I

New Delhi – 110 048                                                        ….Opponent

 

Date of Institution: 17.08.2012

Judgment Reserved for : 09.10.2019

Judgment Passed on : 16.10.2019

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Shri Sukhdev Singh (President)

 

 

JUDGEMENT

This complainant has been filed by Shri Harmesh Kumar against     M/s. Ferrous Infrastructure Pvt. Ltd. (OP) under Section 12(a) of the Consumer Protection Act 1986 with allegations of unfair trade practice and deficiency in service.    

2.        The facts in brief are that the complainant booked a residential flat in “Ferrous City” vide registration no. TFI-0546.  He was allotted flat no. 1001 at Tower-F, 10^th Floor, Ferrous City, Sector-89, Faridabad in super area of 1194 sq.ft. @ Rs. 1400/- per sq. ft. for a total sum of Rs. 16,71,600/-.

          

It was stated that he paid the initial booking amount of Rs. 2,50,000/- vide receipt no. 5649.  He made the following payments:

Dated	Receipt number	Cheque no./cash	Amount (in Rs.)
12.05.2006	5649	294482 & 294492	2,50,000/-
28.03.2008	3153	Cash	2,58,000/-
10.04.2008	3273	990597 & 237046	2,50,000/-
10.06.2008	10271	Cash	1,00,000/-
11.06.2008	10291	352029	85,238/-
16.09.2008	11502	cash	2,26,860/-
		Total	11,70,098/-

 

           It was stated that OP had taken a huge amount from the complainant without having construction work.  When OP failed to give possession of the booked flat within the stipulated period of three years, the complainant stopped making further instalments/payments.  He made the payment of     Rs. 11,70,098/- out of total amount of Rs. 16,71,600/-.  The complainant was shocked when he received the letter of dated 19.08.2010 for cancellation of allotment in arbitrary manner.  The complainant requested to OP to issue the new demand letter or in alternate refund the deposited amount of               Rs. 11,70,098/- with interest @ 18% p.a.  He visited the office of OP several times, but no satisfactory reply was received.

           It was further stated that the complainant was still willing to make the balance payment, but OP imposed heavy penalties and interest upon the complainant. 

           The complainant sent a legal notice dated 08.08.2012 to OP, which was neither replied nor complied.  Hence, the complainant has prayed for directions to OP to wave of all illegal penalties and interest upon the complainant and restore allotment of flat no. F-1001, 10^th Floor, ferrous City, Sector-89, Faridabad; to pay Rs. 1,00,000/- as compensation for mental agony and harassment  and litigation charges OR to refund the deposited amount of Rs. 11,70,098/- alognwith interest @18% p.a. from 16.09.2008 till date. 

3.       In the reply filed on behalf of OP, they have taken the plea that complainant was not a consumer as he intended to invest money in their future project to earn huge benefit; the complaint consists of the allegations of fraud and fabrications which need regular trial by the Civil Court; the complainant himself was at fault as he stopped making payment arbitrarily and deliberately despite reminders and this forum was not having  territorial jurisdiction as their registered office have been at Mehrauli/ Ghitorni, New Delhi.  

They have also stated that the complainant approached Ms. Triveni Ferrous Infrastructure Pvt. Ltd. in March-April, 2006 for having the flat in their project; however, no flat was available in any of their project for allotment.  He submitted the application In April, 2006 for seeking provisional registration of a flat in their future projects.  He paid an amount of Rs. 2,50,000/- with the application.  It was stated in the application that if the company was not in a position to offer any allotment within 12 months, the application of the complainant will stand rejected at the option of Ms. Triveni Ferrous Infrastructure Pvt. Ltd. and the money will be refunded with interest @10% p.a. after receiving 30 days’ notice from the complainant. 

It has further been stated that at the same time, one Mr. Atul Gera approached Ms. Triveni Ferrous Infrastructure Pvt. Ltd. and submitted two such applications.  In the month of December 2006, Ms. Triveni Ferrous Infrastructure Pvt. Ltd. informed the complainant as well as Mr. Atul Gera that the company was not launching any new project and their application stands cancelled and the money would be refunded back.  Both the complainant and Mr. Atul Gera requested that they did not wish their money back and they may be provided allotment in any other project that may be available.  They were again intimated that they were not in a position to allot in any other project; however, there was an upcoming project in another company being Ms. Ferrous Infrastructure Pvt. Ltd. , i.e. the OP company which would soon launch their project and if the complainant and Mr. Atul Gera desirous to have allotment, they could have the provisional registration.

They sent the intimation to the complainant and Mr. Atul Gera on 29.01.2007 stating that they have received licence for their project in Sector-89, Faridabad and were intimated that at the time of shift of their application, the second installment advance registration was payable.  On 02.03.2008, followed by letter dated 15.03.2008, allotment of flat no.F-1001 in project Ferrous City in Sector-89, Faridabad was offered to the complainant.  At the same time, Mr. Atul Gera approached OP requesting that he was unable to continue with the application forms and requested that one of his application form be cancelled and money be refunded and other application be transferred in favour of the complainant.     

In view of request of Mr. Atul Gera, one application form was duly cancelled and the money was refunded to him.  Second application was transferred in favour of the complainant on 28.03.2008 and the amount of  Rs. 2,50,000/- was adjusted in favour of the account of the complainant.  The Buyer Agreement for the said flat was also sent to the complainant alongwith letter of dated 15.03.2008 after which the allotment becomes binding and final upon the OP. 

It was further stated that as per the construction link plan which was opted by the complainant, demand letter followed by reminders sent to the complainant.  After initial payments, the complainant started delaying in making payment towards its dues.  After several reminders, on 02.11.2009, a letter was sent to the complainant giving him final opportunity to sign and return the Buyer Agreement on or before 20.11.2009, but no response was received by OP.

It was also stated that due to delayed payment, interest also had accrued to the account of the complainant which on the date of cancellation had come to Rs. 10,19,116 (Rs. 2,78,647/- interest and Rs. 7,40,469/- as principal amount).  As OP did not get response from the complainant, they finally issued letter of dated 19.08.2010 intimating the complainant that on account of non-payment of dues as well as late payment charges, the provisional allotment in favour of the complainant was cancelled and instructed him to return all original documents and collect the balance money after certain formalities.  On the date of cancellation, the executed Buyers Agreement was not sent by the complainant to OP due to which the provisional allotment had never been confirmed and binding upon OP.  It was stated that the complaint was time barred.  Other facts have also been denied.    

4.        Complainant have filed rejoinder to the WS of OP, wherein he has controverted the pleas taken in the WS and reasserted his pleas.

5.        In support of its case, the complainant have examined himself.  He has deposed on affidavit.  He has narrated the facts which have been  stated in the complaint.  He has also got exhibited copy of payment receipts      (Ex.CW-1/A colly), copy of legal notice and its postal receipts (Ex.CW-1/B & 1/C) and copy of complaint (Ex.CW-1/D).

           In defence, OP have examined Shri Arun Raghav, Authorized Representative of OP, who have also deposed on affidavit.   He has also narrated the facts which have been stated in the WS.  He has got exhibited copy of Board Resolution dated 30.06.2014 (Ex. OP/1), copies of application form submitted by the complainant and Mr. Atul Gera (Ex. OP/2 colly), copy of letter dated 29.01.2007 and 15.03.2008 (Ex. OP/3 colly), copy of request for cancellation of one application and assignment of the second application of Mr. Atul Gera in favour of the complainant (Ex. OP/4), Performa copy of the Buyer Agreement of OP (Ex. OP/5), copy of demand letters and reminders sent by OP (Ex. OP/6), copy of reminder letter dated 02.11.2009 (Ex. OP/7), copy of chart reflecting payment schedule (Ex. OP/8), copy of letter dated 19.08.2010 (Ex. OP/9), copy of ledger statement of dated 19.08.2010 (Ex. OP/10) and photocopy of the project (Ex. OP/11).

 

 

6.        We have heard Ld. Counsel for the complainant and have perused the material placed on record.  None has appeared on behalf of M/s. Ferrous Infrastructure Pvt. Ltd. (OP) to argue, however, their written arguments filed are taken care of.  The first point raised on behalf of M/s. Ferrous Infrastructure Pvt. Ltd. (OP) has been in respect of territorial jurisdiction. 

It has been stated in the written arguments that the complainant have filed the complaint in this forum taking the plea that Delhi has been one district.  Secondly, the plea has been taken in respect of pecuniary jurisdiction stating that the pecuniary jurisdiction of the flat has been more than Rs. 20,00,000/-.  Thirdly, it has been stated that there has been no builder buyer agreement and if there has been any contract, the liabilities of the parties have to be determined by a civil court.

On the other hand, Ld. Counsel for the complainant have stated that this forum was having jurisdiction.  He has taken the plea that Delhi has been one district.  With regard to the pecuniary jurisdiction, it has been stated that they have admitted the sale price of the flat as Rs. 18,80,710/-.  With regard to the third point, he has argued that this forum was having jurisdiction to entertain the complaint and it does not require determination by a civil court.

To appreciate the arguments of Ld. Counsel for the parties, a look has to be made to the testimony of complainant and OP and the documents plced on record.  The first and foremost point which requires determination has been in respect of territorial and pecuniary jurisdiction.  The argument which has been advanced on behalf of complainant in respect of territorial jurisdiction has been that Delhi has been one district.  However, this argument does not hold good as the judgement on which Ld. Counsel for complainant have placed reliance have been over ruled.  On the contrary, the argument which has been advanced on behalf of M/s. Ferrous Infrastructure Pvt. Ltd. (OP) that Delhi was not one district is well founded.  The law as stands today has been that Delhi was not one district.  However, the fact that complainant have filed the complaint in the year 2012, it would not be just to dismiss the complaint on this ground as the competency of the forum was not in question.

Coming to the second leg of argument that this forum was not having pecuniary jurisdiction, for this, a look has to be made to the documents which have been placed on record.  If a look is made to customer ledger of M/s. Ferrous Infrastructure Pvt. Ltd. (OP), it is noticed that basic price in the said ledger has been shown as Rs. 16,71,600/-.  This basic price has also been admitted in the testimony of Shri Arun Raghav, AR of M/s. Ferrous Infrastructure Pvt. Ltd. (OP).  He has put the additional charges making the total cost of the flat as Rs. 25,22,108/-.  It is the basic price which has to be taken for the purpose of determining the jurisdiction.  When this is the basic price stated in the ledger of OP, their plea that this forum was not having pecuniary jurisdiction does not hold good.

Coming to the third argument that no builder buyer agreement have been executed by the parties and the terms of agreement/contract have to be scrutinized by the civil court to ascertain their liabilities, this argument also does not hold good as the complaint does not involve any complicated question of facts which require determination by the civil court.

When all the three arguments put on behalf of M/s. Ferrous Infrastructure Pvt. Ltd. (OP) do not stand, it has to be seen as to whether the case of the complainant has been made out for any deficiency on their part.  If the testimony of the complainant is looked into, it is noticed that they have paid an amount of Rs. 11,70,098/- for the flat which was to be delivered by M/s. Ferrous Infrastructure Pvt. Ltd. (OP).  When M/s. Ferrous Infrastructure Pvt. Ltd. (OP) have not delivered the flat within the stipulated period, certainly, it amounts to deficiency on their part.  By having waited for a long period for possession of the flat inspite of having made the payment, the complainant have suffered mental pain and suffering for which he has also to be compensated. 

During the course of arguments, counsel for complainant have stated that they were not interested in possession of the flat, but they have made a request for refund of the amount paid by them.  From the evidence on record, it is evident that the complainant have paid an amount of Rs. 11,70,098/-.  When they have paid an amount of Rs. 11,70,098/- and M/s. Ferrous Infrastructure Pvt. Ltd. (OP) have not handed over the possession of the flat within the stipulated period, complainant is entitled for refund of this amount alongwith compensation on account of mental pain and suffering.

In view of the above, we order that M/s. Ferrous Infrastructure Pvt. Ltd. (OP) shall refund the deposited amount of Rs. 11,70,098/- to the complainant alongwith 9% interest from the date of filing the complaint i.e. 17.08.2012 till realization.  We further award compensation of Rs. 30,000/- towards mental pain and suffering which includes the cost of litigation.  This order be complied within a period of 60 days.  If the order is not complied within the stipulated period, the compensation amount of Rs. 30,000/- shall also carry interest @ 9% from the date of receipt of order.

Copy of the order be supplied to the parties as per rules.

File be consigned to Record Room.

 

 

(HARPREET KAUR CHARYA)                                       (SUKHDEV SINGH)

Member                                                                     President