Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 128 dated 07.06.2019
Krishan Chand Bhargav s/o Late Pt. Jai Bhagwan Bhargav
r/o H.No. 838, Saraswati Vihar, MG Road, Gurugram,
Haryana …Complainant
Versus
Hindustan Buildwell Pvt. Ltd.
2-E/4, Jhandewalan Extension New Delhi ...Opposite Party
Senior Citizen Case
Date of filing 07.06.2019
Date of Order: 20.11.2023
Quorum: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Inder Jeet Singh, President
ORDER
1.1. (Introduction to consumer dispute of parties) - The complaint was filed against OP for allegations of deficiency of services and unfair trade practice. The complainant is seeking refund of amount Rs. 1,45,000/- being half (50%) of the non-retuned amount of booking which was deposited with OP in respect of residential plot measuring 200 sq. yards in the project of OP but OP cancelled it.
The complainant seeks from OP (a) refund of the balance amount of Rs. 1,45,000/-, with interest of 10% p.a. on total amount of Rs2,90,000/- from the date of each payment tendered till its realization and (b) to pay compensation of Rs. 75,000 / - towards harassment and mental agony caused to the complainant besides costs and other appropriate relief
1.2. The OP admits to the extent that the complainant had applied for plot of land in the project of OP against payment of Rs.2,90,000/- but cancellation of plot was proper. The complaint is without cause of action. The complainant was defaulter since he failed to pay the amount despite repeated letters and reminders to pay balance amount, to take possession and get the plot registered, however, for want of payment of due amount, the allotment of plot was cancelled. In terms of MOU, the complainant was returned 50% of the deposited amount, which he had accepted. The cheque issued was also encashed by him and nothing was left to be recoverable by complainant. There was no deficiency of services. The complaint is liable to be dismissed.
2.1. (Case of complainant) - On 16.04.2007 the complainant registered/booked a plot measuring 200 sq. yards at the rate of Rs. 1495/- per square yard (for total price of Rs. 2,99,000/-) with the OP, since they were developing/building a township project namely "New York City" on main Mumbai-Nasik Highway. At the time of booking, OP had represented to the complainant that the project will have all the civic amenities, good connectivity to the Metropolitan cities, apart from a helipad will also be built there. The complainant had deposited initial booking amount of Rs.50,000/- against receipt of 16.04.2007. The complainant was issued letter dated 30.4.2007 indicating the total cost of plot booked and then another letter dated 27.6.2007 was also issued for 'bhoomi poojan'. The complainant was asked for certain compliance of furnishing record like photographs, PAN etc., which were complied with besides regular payment were also made. The OP also issued letter dated 4.6.2008 with Memorandum of Understanding (MOU) for allotment of plot. However, the MOU was not signed by complainant, therefore, it is not binding.
2.2. In terms of MOU, the OP promised to deliver possession of fully developed plot to the complainant by 31.12.2009 and it was further agreed by the OP that in case OP fails to hand over the possession of the plot with all basic amenities on that date, then OP would refund the total amount with interest. Since complainant was paying the installments, the OP confirms receipt of the second installment as well as total receipt of amount of Rs.1,50,000/- duly acknowledged in letter dated 15.09.2008 against booked plot. The OP wrote letter dated 15.05.2009 to the complainant that it has obtained all the clearances and NOCs from different authorities and further informed by letter dated 01.01.2011 about change of land use. The OP also acknowledges in letter dated 01.07.2013 of receipt of total amount of Rs. 2,55,000/- from the complainant. Thereafter, on 12.03.2014, the complainant also paid balance amount of Rs.35,000/- against receipt to OP. To say, the complainant paid an amount of Rs. 2,90,000/- to OP out of Rs. 2,99,000/-.
2.3. However there had been no development at the site of project and as such, the complainant wrote letter dated 14.09.2017 to the OP reiterating such facts that there were no basic amenities at site as promised by OP. Complainant also informed OP about his latest/changed by sending letter dated 14.09.2017.
2.4 On 16.11.2018, the complainant had received letter dated 01.09.2018 from the OP of cancellation of booking of plot, without any detail but with refund of Rs.1,45,000/- being 50% of the total deposited amount of Rs. 2,90,000/-, splitting into two halves as Rs. 72,500/- for the complainant and Rs.72,500/- for his daughter, being named nominee. The OP had usurped and retained the amount of Rs. 2,90,000/- of complainant for more than 10 years and took it under misrepresentation that too without development at site. The complainant was constrained to receive the refund amount under protest. He served a legal notice dated 05.12.2018 upon the OP for refund of balance amount with interest, however, OP gave its vague and frivolous reply dated 12.12.2018.
3.1 (Case of OP)- The written statement of OP is admixture of admitted facts and disputed facts. The OP admits of booking of the plot by complainant in the project of OP, its area of the plot, the rate of plot (per square yard) and receipt of the total amount of Rs. 2,90,000/- from complainant. The OP also gives details of amount received with cheque numbers, its date and amount (in paragraph no. 5 of written statement).
3.2. However OP denies allegations of deficiency in service. The complaint is without cause of action and is liable to be rejected. OP enumerates details of letters of asking and informing the complainant to complete requisite formalities and also about clearance/ NOCs from various authorities, change of land use into residential from the competent statutory authority. OP by its letter dated 20.02.2013 also asked the complainant to pay outstanding installment in order to retain the booking intact. Further another letter dated 01.07.2013 was also written to complainant, asking him lastly to pay balance outstanding amount of Rs.40,020.83p, and get the plot registered by 31.7.2013. Since there was no response, thus another similar letter dated 25.01.2014 was also written to complainant, again asking him lastly to pay balance outstanding amount of Rs.40,020.83p and get the plot registered by 28.02.2014. Thence, the complainant deposited Rs.35,000/- by cheque on 12.03.2014. The OP was asking the complainant by further communications from 15.3.2015 onwards till 01.07.2017 and letter dated 01.09.2017 being last and final reminder to pay balance amount and get the plot registered by 15.09.2017, [failing which the booking will be cancelled automatically, the complainant will be refunded 50% of paid amount].
3.3. Since there was no response/compliance by the complainant., thus the OP by its letter dated 01.09.2018, cancelled the booking of plot and made 50% refund, which is. Rs.1,45,000/- by two cheques of Rs. 72,500/- each in terms of clause 9 of MOU. The encashment/clearance of cheques of refund means complainant is agreed to the terms 9 of MOU and he has left with no further claim, interest, right etc. OP has also alleged about late payment of installment by the complainant.
4. (Replication of complainant) - The complainant filed detailed replication, he denies the allegations of the written statement and he also reaffirms the complaint as correct. The complainant also derives reasons from case law that when delay in giving possession is deficiency of services; when possession is not handed over one need not to wait for infinite time and it may ask for refund of amount or purchaser has right to demand refund with interest and compensation. The OP failed to handover the possession as per MOU. The complainant cannot be blamed for any default, since the letters [ 15.3.2017, 25.11.2016, 01.07.2017 and 01.09.2017] being relied upon by the OP are bearing old address of complaint, whereas the complainant had got changed his new address. But the OP had sent letter dated 01.09.2018 of cancellation of booking at latest/changed address of complainant, this clearly shows its mala-fide, otherwise no explanation has been given for not sending the aforementioned letters at latest address despite OP had latest address pursuant to complainant letter dated 04.09.2017. The OP could not ask for any further amount without development of project at site.
5.1. (Evidence)- Complainant Krishan Chand Bhargav filed his detailed affidavit of evidence with the support of documents filed and relied upon by the complainant.
5.2. On the other side OP led its evidence by filing affidavit of Sh. Ajay Chabra, Director of OP with the support of documents filed and relied upon by the OP.
6.1 (Final hearing)- The complainant and the OP have filed their respective compact written arguments, which are blend of pleading & evidence. The parties were also provided opportunity for oral submissions. Shri G. S. Chaturvedi Advocate alongwith Shri Virat Singh Advocate for complainant and Sh. Dilip Pandita, Advocate alongwith Sh. Rajiv Ranjan Advocate for OP presented their submissions; OP1’s Manager Sh. Deepak Sharma was also present during final hearing.
6.2 The complainant has also filed supplementary/additional written arguments. The complainant has referred case law in his written arguments and replication to fortify his contentions, some of them are as follow :-
(a) Pioneer Urban Land and Infrastructure Ltd. vs Govind Raghvan C.A. No. 12238 of 2018 (dod 2.4.2019) - The National Commission allowed the consumer complaint and held that since the last date stipulated for construction had expired about three years before the occupancy certificate was obtained, the respondent- Flat purchaser could not be compelled to take possession at such a belated stage. It was also observed that, "we have no hesitation in holding that the terms of the Apartment Buyer’s Agreement were wholly one sided and unfair to the respondent- Flat purchaser. The Appellant- builder could not seek to bind the respondent with such one-sided contractual terms and accordingly dismissed the Appeal".
(b) Lucknow Development Authority vs M.K. Gupta 1994 1 SCC 243 it was held that when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for consideration, it is “service” as defined in Section 2 (o) of the Consumer Protection Act 1986. The inordinate delay in handing over the possession of flat clearly amounts to deficiency of service.
(c) Fortune Infrastructure and Anr. vs Tervor D’Lima & Ors. 2018 5 SCC 242 held that the person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.
(d) Arifur Rahman Khan and Ors. Vs. DLF Southern Homes Pvt. Ltd. and Ors.[2020 (3) RCR (Civil) 544, para 24]. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression ‘service’ in Section 2(I) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction…………”
6.3 It does not required to reproduce all record of pleadings, documents as well as final submissions, since material and relevant facts, features and figures have already been detailed in the case of parties. The contentions of parties will be considered appropriately.
7.1 (Findings)- The rival contentions of the parties are considered analytically and considered them keeping in view the material on record, provisions of law and case law presented. By taking into account totality of circumstances, the following conclusions are drawn -
(i). It is undisputed fact that the complainant had booked a plot of land in the project of OP against booking amount of Rs.50,000/-. The total amount paid was Rs.2,90,000/-. The OP also confirms receipt of such amounts in its letter dated 25.11.016.
(ii). The complainant also refers MOU but he pleads of its not binding for want of his signature vis a vis he also refers terms of the MOU for the purpose of possession and other development of the projects. The OP also relies upon the MOU and its clauses. The MOU bears signature on behalf of OP, since it was sent to complainant with covering letter dated 04.06.2008 while confirming provisional allotment of plot and complainant was asked to return MOU with his signature.
(iii) Thus, the relevant clauses of MOU are reproduced -
Clause -8. That the timely payment of installments as per demand letter, a is the essence of this Contract (however the company will send demand letter giving at-least 20 days or depositing the installment). The Customers) is bound to strictly adhere to the above payment schedule. If the Customer fails to deposit installments on due dates as per the above schedule, he/she/they will be liable to pay 18% p.a. as interest on account of late payment (to be calculated on monthly basis). Further to this, if the Customer fail to pay any installment till 3 months of its due date, his/her/their booking is liable to be cancelled and in that case only 50% of the total payment made by the Customer to the Company on account of booking & installment of the above said plot, would be refunded to the Customer and rest of the amount be forfeited against expenses incurred by the Company on various account and also the commission paid to the Dealers/ Associates etc, etc. However, the company reserves its right in its discretion to set aside the cancellation subject to payment of simple interest, which shall not be less than 18% per annum on the amount of delayed payment.
Clause 10: The company would handover the possession of the plot to the Customer with the following infrastructure (development) by 31.12.2009:
(a) Water supply line would be provided by the company nearest to the plot . However, individual connection to be taken by the customer at his/her own cost,
(b) Electricity supply line (poles) would be provided by the company nearest to the plot. However, individual connection to be taken by the customer at his/her own cost,
(c) Metal Road accessibility to all plots would be provided by the company at its own costs.
Clause 11: That, if company fails to handover the possession with all basic amenities as mentioned above due to various unavoidable and controllable circumstances by 31.12.2009 the company would refund the total amount paid by customer along-with the simple bank interest.
(iv). As per MOU the OP has to deliver the possession of developed plot with all amenities till 31.12.2009, subject to other rider of extended period as well as legal consequences, if possession is not handed over. Similarly, the complainant was to pay the amount/installment as per MOU, which is also subject to consequences of non-payment of amount.
(v). The OP failed to handover the possession of booked plot of land to the complainant on scheduled date of 31.12.2009. The OP has been writing, even in letter dated 01.07.2013, that OP company is constantly in the process of development. To say, even after 3-1/2 years of scheduled date, the development was in process. Without the basic amenities and development it is not feasible to live, the developed plot was not ready to deliver to the complainant.
(v) The complainant had been paying the installments and OP had acknowledged their receipts from time to time vide letters 28.7.2007 dated 20.2.2013, 1.7.2013, 25.1.2014, 15,3,2015 and 25.11.2016.
OP in its letter dated 25.11.2016 has admitted that total plot value is Rs. 2,95,020.83/- and it had received amount of Rs. 2,90,000/- but balance amount of Rs. 5,020/- was payable by 31.01.2017 by the complainant. The OP could not prove clause 8 of MOU against complainant.
(v) The complainant has proved a manually written letter dated 04.09.2017, referred as Annexture/C-17 with postal receipt (para 9 of affidavit of evidence) that he had shifted to Gurugram, Harayana, the address mentioned in array of parties, however, despite informing so, the OP's letters bear old address but letter dated 01.09.2018 for cancellation of plot at the latest address. The complainant cannot be faulted for.
(vi) Neither the complainant requested the OP for cancellation of plot nor the complainant can be blamed for non-compliance of letters since letters were bearing old address left by the complainant with intimation to the OP. The clause no.9 of MOU was wrongly invoked by OP, for want of request of complainant to cancel the booking.
Further, the developed plot with basic amenities was not ready for possession nor it was offered on scheduled date of 31.12.2009 since it was under development even in 2013. The Clause 10 of the MOU stand proved against OP. The clause 11 MOU could not be proved by OP in its favour to disprove clause 10.
(vii) The OP also presses that principle of estoppel applies against the complainant, since he received the refund amount in lieu of cancellation of plot, he cannot go back from this acknowledgment. But the complainant opposes that the amount was received under protest as well as the plot was not cancelled at his request but it was cancelled by the OP.
As apparent, it was unilateral acts of the OP to cancel the booking of plot and remitting half of the paid amount around 16.11.2018. Immediately, the complainant protested it by writing legal notice dated 12.12.2018 to pay the balance amount with interest. Thus, the principle of estoppel does not apply nor it would construe that complainant losses legal remedy by encashment of the cheque under protest.
(viii) The complainant has referred many case law, some of them have already been reproduced but they pertain to Builder of apartments, whereas the present case pertains to Developer of colony [or of Colonizer].
7.3. In view of above, the complainant has succeeded in proving by evidence and circumstances that OP failed to develop the project and to deliver the booked plot of land with basic amenities to complainant, although the complainant had paid the amount from time to time. The complainant has also proved that cancellation of booked plot by OP and refund of half of the amount paid, was contrary to MOU and without any fault on the part of complainant. The complainant has succeeded in establishing the case of deficiency of services and unfair trade practices against OP, he has also proved his case for refund of balance amount of Rs. 1,45,000/-, against OP, accordingly complainant is held for refund of this amount against OP.
7.4. The complainant has claimed interest at the rate of 10 % pa on the balance amount of Rs. 1,45,000/- besides on the original amount from the date of each payment. The MOU is a standard form, prepared by the OP. It mentions covenant of interest component, when to be imposed on complainant but it is silent in respect of OP. The complainant had parted with money in booking and further installments. Simultaneously, the OP has been maintaining the project but it could not be developed. Thus, by reconciling the situation of both sides in this complaint, the complainant is held entitled for interest at the rate of 9% pa from the date of complaint till realization of the amount of Rs.1,45,000/-.
7.5. The complainant claims compensation of Rs. 75,000/- on account of mental harassment and agony on the part of OP and costs (not specified). There is no method mentioned by complainant for computing the compensation, therefore, it appears that it was computed as provisional estimate. The booking was made in 2007 but possession of developed plot was not given rather OP cancelled the booking, which ensued harassment and agony to the complainant, thus taking into account the events happened, the complainant deserves compensation, it is quantified as Rs. 25,000/- against OP. Since complainant was to send legal notice and then to file the complaint, the cost is also to be allowed and it is quantified as Rs. 10,000/- in favour of complainant and against OP.
8. Accordingly, the complaint is allowed in favour of complainant and against the OP to pay/refund balance amount of Rs.1,45,000/- along-with simple interest @ 9% pa from the date of complaint till realization of amount; apart from to pay damages of Rs.25,000/- & costs of Rs.10,000/- to complainant.
OP is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the interest rate will be 11% per annum (in place of 9% pa) on amount of Rs. 1,45,000/-.
9. Announced on this 20th November, 2023 [कार्तिक 29, साका 1945]
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Shahina] [Inder Jeet Singh]
Member (Female) President
