Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.335/2019
1. Pramod Kumar Taparia, S/o Sh. Tara Chand Taparia
Resident of House No. J-3/120, Kalka Ji, New Delhi - 110019.
2. Smt. Sunita Taparia W/o Sh. Pramod Kumar Taparia,
Resident of House No. J-3/120, Kalka Ji, New Delhi - 110019. …Complainants
Versus
OP1. M/s. Hindustan Buildwell Private Limited
Regd Office at 2E/4, Jhandewalan Exten. Karol Bagh,
New Delhi - 110053. Email: info@hindustanbuildwell.com
OP2 . Mr. Ajay Chhabra,
Director - M/s. Hindustan Buildwell Pvt. Ltd.
2E/4, Jhandewalan Extension, Karol Bagh, N. Delhi - 110056 ...Opposite Parties
Date of filing 19.12.2019
Date of Order: 23.06.2023
Coram: Shri Inder Jeet Singh, Presiden
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1.1. (Introduction to consumer dispute of parties) - The complaint was filed against OP1 and OP2 for allegations of deficiency of services and unfair trade practice. The complainant no.1 is seeking return of half of the non-refunded amount consideration deposited in seller- buyer agreement (Memorandum of Understanding) in the month of November/December 2015, although there are antecedents of previous transactions between the parties till the final phase of this memorandum of understanding arrived.
1.2. As per allegations in the complaint, this is a classic case of consumer dispute in itself that the complainants booked two plots in the ‘Our Town Project’ of OP1 in 2005/2006, consequently the complainant no. 1 was allotted plot no. 261 and the complainant no. 2 was given plot no. 262 of 334.76 square yards each against deposit of registration money etc. The possession could not be delivered to them. Thus, later-on in lieu of plot no. 261, the OPs allotted the complainant no. 1 two plots bearing no. B-329 and B-330 in ‘New York City’ by assigning costumer code no. 7410 and 7411. The complainant no. 2 was also allotted two plots bearing no. B-331 and B-332 (in lieu of plot no. 262), in ‘New York City’ by assigning costumer code no. 7412 and 7413 its possession was to be delivered on 31.12.2007. The previous paid amount were adjusted for such allotments.
Whereas, on 01.08.2013 the OP1 unilaterally allotted the complainant no. 1 another plot no. 22D in ‘New York City’ (against total price of Rs. 7,99,689/-) in lieu of plot no. B-329 having customer code no. 7410. The complainant no. 1 had no option but to concede as well as the entire amount paid in respect of previous allotments, which was around Rs. 8,00,000/-, stand paid towards plot no. 22D and no balance amount was left to be paid.
Thence, the OPs made uncalled demands from the complainant no. 1 in respect of plot no. 22D in ‘New York City’, under the name of balance amount as well as maintenance and security charges at the rate of 1% per square feet per month, whereas there was no balance amount left as entire amount of price of plot was paid, thus demands were against agreement or memorandum of understanding, the amount was raised arbitrarily and illegally. Thence, OPs cancelled the allotment of plot no. 22D ‘New York City’ by offering 50% of the paid amount and a sum of Rs. 3,99,801/- was returned, which complainant no.1 had received under protest and remaining amount of Rs. 3,99,880/- is recoverable.
The complainant seeks direction against OPs (i) for refund of the balance amount of Rs. 3,99,880/-, with interest a, 10% p.a. from the date of acknowledgement of the same i.e 17.11.2015 till its realization; or (ii).award interest at the rate of 10% per annum on the amount of total payment of Rs. 7,99,681/- deposited with the OPs by the complainants; and (iii). to direct the OPs to pay compensation of Rs. 2,00,000 / - towards mental harassment and agony caused to the complainants, due to the illegal, unlawful and unfair trade practices of OPs and (iv) costs of litigations of Rs.50,000/-.
1.3. The OP1 and OP2 opposed the complaint vehemently by putting their own case. The complainant no.1 and the complainant no.2 had applied for plots of land, they were provisionally allotted plots in ‘ Our Town Project’ however, later they desired plots in other project and on their request complainant no. 1 was allotted plot no. B-329 and B-330; complainant no.2 was allotted plot no. B-331 and B-332. The allotment was provisional and customer's code nos. 7410, 7411, 7412 and 7413 respectively were also assigned against each plot. Later-on, complainant no. 1 requested to cancel of his plot no. B-330 and at his request the said plot was cancelled, 86% of the amount was refunded, which was credited to the account of plot no. B-329 (having customer code no. 7410), that too at his request. Similarly, on the request of complainant no.2 her two plot nos. B-331 and B-332 (having customer code no. 7412 and 7413) were cancelled and on cancellation of both the plots, amount of 86% was allowed and at her request it was credited to the account of her husband in respect of plot no. B-329 (having customer code no. 7410). Consequently, the complainant no. 2 was left with no right in both the plots no. B-331 and B-332 and complainant no. 1 was left with no right in plot no. B-330. To say, the complainant no. 1 was left with plot no. B-329 (having customer code no.7410) and it was a provisional allotment as per memorandum of understanding and other terms and conditions.
Again, the complainant no. 1 requested OP1 for a plot of larger size in lieu of cancelling allotment of plot no. B-329, therefore, at the request of complainant no. 1 another plot of 22D of ‘New York City’, having area of 535 sq. yards was allotted to the complainant no.1 on 01.08.2013 for which MOU was also recorded and the amount of cancelled plot no. B-329 was adjusted/transferred for plot no. 22-D. When the complainant no. 1 was asked to pay the amount outstanding as well as other dues of security and maintenance, EDC/ IDC etc., the complainant no. 1 failed to pay the amount despite letters and reminders, consequently for non-payment of due amount, the allotment of plot no. 22D was cancelled, in terms of clause no. 13 of the sale- purchase agreement (builder–buyer agreement)/MOU, the complainant no.1 was returned 50% of the deposited amount, which he had accepted and acknowledged in writing, the cheque issued was also encashed by him and nothing was left to be recoverable by complainant. The OPs request for dismissal of complaint.
2.1. (Case of complainants) – The complainants are consumers, since OP1 is a company incorporated and OP2 is its Director; OP1 is in the business of developing residential plots and commercial projects; both the parties are executants and signatories of builder-buyer agreement dated 17.11.2015 [it is relevant to mention that the OPs also refers this agreement/MOU but stating that it is of 09.12.2015 and not of 17.11.2015. Whereas the complainants have filed photocopy of Notarized/attested agreement of 09.12.2015 (having notarized entry no. 82/15) and it was written on non-judicial stamp paper of 17.11.2015, this appears to be the reason for mentioning date of agreement as 17.11.2015. On the other side OPs have filed true copy of the same agreement, which appears to be of copy of extra/other set prepared, which is not bearing entry no. 82/2015 but attested by Notary public on 09.12.2015].
2.2. The complainants were willing to purchase plot of land for construction of house in the financial capital of India, Mumbai to be used for residence by them and by their son. The OP2 allured, induced, represented, assured and promised the complainants on behalf of OP1 that the complainants may pay Rs.51,000/- at the launch of OPs' Project ‘Our Town’ in Sector-Q at Khardi, Taluka Shahpura, District-Thane, Maharashtra [briefly 'Our Town' or "Our Town Project"] for a plot measuring 334.76 sq yards and by believing them the complainants no. 1 and 2 paid advance amount of Rs. 51,000/- each by cheques on 16.12.2006 and they were allotted plots no.261 and 262 each measuring 334.76 sq. yards [at pages no.16 and 23 of paper book], for a total consideration of Rs.7,05,004/-. The cheques were encashed by the OPs. The MOU and allotment letters were also issued but the possession was to be delivered on 31.12.2007.
2.3. The OPs failed to deliver possession the plots in the project ‘Our Town’ despite lapse of 18 months. Then, the OPs induced the complainants to transfer their paid amount for plots in their another project ‘New York City’ situated near Mumbai Nasik Highway [briefly New York City], that too for residential purposes. The complainants were made provisional allotment on 04.06.2008 of plot nos. 329, 330, 331 and 332 each measuring 287.04 sq. yards in B-Block of new project ‘New York City’ for a total consideration of Rs. 17,16,198/-, by issuing letters as well as MOU; the possession was to be delivered on 31.12.2009. It was first time when customer code nos. 7410, 7411, 7412 and 7413 respectively were also assigned against each plot.
However, the OPs started asking to pay amounts and on each occasion the complainants represented that OPs themselves are not adhering to the plan, development work is not progressing apart from schedule for possession of plots; thus complainants were not willing to pay the amount, however, OPs assured on each occasion that work shall progress soon and it will be completed in the time manner.
2.4. However, till the year 2012, the OPs had already taken payments of Rs.8,00,000/- from both the complainants against receipts (which are at pages 56 to 80 of paper book). The complainants had protested each time by complaining to the OPs that since their development work is not progressing as per timelines of agreed plan for handing over the possession of allotted plots latest by year 2008, there was no justification for asking more payments. However, in its response OPs issued letters, being a threat, to cancel the bookings and forfeit the amounts paid by the complainants, one of such response is letter dated 10.01.2012 (at page No. 81 to 82), thus the tactics adopted by the OPs was to extort money from the complainants. It is not only unfair trade practice but also wrongful gain at the costs of complainants without their own compliances. Neither the complainants received any updates from OPs on the work progress of the project
"New York City" nor about even tentative possession by the OPs for the last seven years. The OPs have caused wrongful loss to complainants by making misrepresenting about their projects, time and again. Then after numerous representations by the complainants and after lapse of over seven years, the OPs issued a letter dated 01.08.2013 unilaterally (at page 83), that the complainants no.1 is being allotted a plot no. 22-D in place of earlier provisionally allotted plot no. B-329.
Whereas, the complainants were continuously asking for allotment of plots but on 17.11.2015, when OP2 agreed to settle the amount already paid by the complainants for fresh allotment of a plot no. 22-D, measuring 535.80 so. yards at "New York City' (briefly plot no. 22-D) against the total cost of Rs.7,99,681/-, which was already received by the OPs from the complainants. Therefore, the OPs by acknowledging the total receipt of payment of Rs.7,99,681/- from the complainants, once again induced the complainants to enter into yet another agreement dated 17.11.2015 (at page No. 84 to 122) in lieu of earlier plots. It was specifically recorded in the sale-purchase agreement that no amount is left against the complainant, since entire consideration amount was Rs.7,99,681/- and it stand paid and accordingly the balance amount was Re.00.00(zero), which was specifically mentioned in that sale purchase agreement/MOU dt.17.11.2015/09.12.2015.
2.5 Thus, despite acknowledging the receipt of entire consideration amount of Rs.7,99,681/- as the full and final payment against plot no. 22-D as well as nothing was left but OPs issued letters dated 25.11.2016 & 01.07.2017, clandestinely showing that there is balance amount as Rs.79.50p against plot no.22-D and also showing an item "EDC/IDC/Security Maintenance Expenses/ N.A. Tax as "When demanded" (their copies are at pages No. 123 to 130). Then, OPs with mala-fide and dishonest intention to extort more money from the complainant no.1 issued another letter dated 01.08.2017 (at page 131) asking the complainant no.1 to pay Rs.2,46,052/- on account of the cost of the plot and maintenance & security charges on or before 15.08.2017; further in case of non-payment of the said amount of Rs.2,46,052/-, the plot booking, allotment & builder-buyer agreement dated 17.11.2015 would stand terminated and the complainant no.1 would only be paid 50% of the total amount deposited by him. Whereas, neither the complainant no.1 was informed, by OPs, of such charge, nor he agreed to pay such charges. He felt cheated by the OPs as even after the retaining their hard earned money for over 12 years, the OPs abruptly cancelled the booking of the complainant no.1 by another letter dated 10.01.2018 (at page 132) on account of non-payment of some charges, which were never disclosed to him by the OPs at the time of booking. The acts and deeds are of deficiency in service and also unfair trade practice on their part.
By realizing the mala-fide and bad intentions of the OPs and also considering antecedents, the complainant no.1 readily agreed to receive Rs.3,99,801/- being 50%, under protest, of deposited amount and he sent a letter dated 15.01.2018 to the OPs. On 16.01.2018, OPs asked him, in response, to submit original receipts, allotment letters, affidavits etc. to get half of the amount deposited, accordingly the complainant no.1 furnished such record but under protest (their copies are at page 133-135 & 136-138). After receipt of Rs.3,99,801/-, being half the deposited amount, the complainant no. 1 sent a letter 02.02.2018 by surfacing the wrong and illegal tactics adopted by the OPs and complainant no.1 asked and demanded from OPs the remaining non-refunded half amount with interest of 24% per annum. OPs replied it on 26.02.2018 (being at pages 139-140). The complainants were not only induced to part with their hard earned income by false promises and assurances of timely development and handling over of the possession of the aforesaid booked plots but also was constrained to book another plot at a much higher rate and in this manner the OPs caused wrongful loss to the complainants.
2.6 The complainants, through their counsel, sent a legal demand notice dated 06.03.2019 on 08.03.2019 to OPs, calling upon them to refund his hard earned money together with interest and compensation. However, despite receipt of notice on 13.3.2019, neither they complied it nor replied it. The complainants are entitled for amount deposited by him with interest and compensation since (i) OPs miserably failed to either develop the area around the plot as promised by them or to offer the possession of the said plot to the Complainants; (ii) OPs illegally retained the hard earned money of the complainants despite representations and (iii) OPs' continuous false representations regarding the status of work and unprofessional conduct in dealing with complainants. The complainants were lured by OPs to part with their hard earned income by false promises and assurances of timely development and handing over of the possession of the aforesaid booked plot. Apart from the financial losses, there are illegal, unlawful and unfair trade practices by the OPs, it has also caused great mental harassment and physical agony to the complainants, for which OPs liable to pay compensation of Rs.2,00,000/- on this account.
3.1 (Case of OPs) - The OP1 and OP2 filed their joint written statement under the signature of OP2, being Director of OP1 also. The complainant no.1 was allotted two plots bearing no.261 and 263 in Our Town Project, each plot was measuring 334.76 sq. yards @ Rs.1170/- against total costs of Rs.3,52,502/- and Rs.3,91,669/-. In substance, OPs do not dispute paragraph 2.2 above of case of complainants.
3.2.1. But OPs deny other allegations of the complaint and OPs also naarate their own case and explanation to the allegations of complaint. The complaint is opposed vehemently that it is barred by limitation period, the complaint is filed beyond the period prescribed in law. The OP2, being Director of company, has been joined in the complaint un-necessary, the complaint suffers from mis-joinder of OP2. The complainants no.1 failed to comply the letters and demand notice issued despite outstanding price of plot/balance consideration amount as well as other valid recoverable dues from him, which are within terms of sale-purchase agreement (builder-buyer agreement)/MOU. The complaint is mala fide, it is abuse of process of law and complainants came before the Commission by suppressing material facts.
3.3.1 In fact, the complainant no. 1 approached OP1 for allotment of two plots of land by way of application dated 14.12.2006 for registration, the complainants paid the amount by way of two cheques which were encashed on presentation.
Thereafter, in the month of September, 2007, complainants no.1 approached the OPs and expressed his desire to cancel both the allotted plots in "Our Town" and its booking amount of Rs.2,02,000/- be transferred to OP1's other project "New York City" and two plots each measuring about 300 sq. yards be allotted to them in the new project/”New York City". Thus, after cancellation the plots in "Our Town" at the request of the complainants no.1, two plots having customer code No.7410 & 7411 each measuring 300 sq. yds., in "New York City", near Mumbai Nasik Highway, District Thane Maharashtra @ 1420/- per sq. yds. were provisionally allotted to the complainant no.1 and the total cost of each plot came to Rs.4,48,452/-and the amount paid by the complainant no.1 in "Our Town" project was transferred and adjusted in the account of complainant no.1 against two plots bearing customer code No.7410 & 7411 each measuring 300 sq. yads., in "New York City". OP1 vide its letter dated 01.12.2007 informed the complainant no.1 to pay the first installment of Rs.75,000/- each by 11.12.2007 against both the plots bearing customer code nos. 7410 & 7411.
Accordingly, OP1 allotted provisionally two plot nos. B-329 & B-330 [under customer code no. 7410 & 7411] measuring 287.04 each in "New York City" @ 1420/- per
sq. yards to the complainant no.1 and the total cost of
each plot came to Rs.4,29,094.45/- including PLC amount
of Rs.21,452.65. The complainant No. 1 was informed by letter dated 01.07.2013 (which is at page 172 of paper book of OPs) that total amount received
till 01.07.2013 is Rs.2,21,000/- against each plot and
the complainant no.1 was called to deposit the pending
dues in the sum of Rs.1,43,692.03 by 31.07.2013 in the
account of each plot. The complainant no.1 was also
informed that the balance amount of Rs. 64,357.42/- in
each plot shall be demanded on its due date.
However, in the month of July, 2013, the complainant no.1 made a request to the OP1 (page no.142) to
cancel plot No. B-330 bearing customer code No, 7411 and refund amount of the same be deposited in the account for his other plot No. B-329 having code No.7410. Accordingly at the request of the complainant no.1, the OP1 made refund the 86% in lieu of total amount received against plot no. B-330 having code no. 7411 amounting to Rs.1,91,534 and the same was transferred to the account of complainant no.1 for plot no.B-329 having customer code no.7410. The complainant no.1 also furnished undertaking that nothing remains due and payable by the OPs to him in respect of booking no. 7411.
3.3.2 Similarly the complainant no.2 also approached the OP1 for allotment of two plots of land in the project of the OP1 vide application dated 14.12.2006 and 26.12.2006. She paid a sum of Rs.51,000/- each as registration fee of both the plots registered as registration No.5249 and 5288 through two cheques bearing nos. 136477 & 136480 dated 14.12.2006 and 26.12.2006 both drawn on The Federal Bank Limited, S- 571, Greater Kailash, New Delhi to OP1 towards advance registration money, subject to acceptance of the offer by OP1. The OP1 accepted the offer and it was informed to complainant no.2 by its letter dated 10.01.2007 that she is allotted two plot bearing No.262 and 264 Sector-Q, in the project "Our Town" Khardi, Taluka Shahpura, District-Thane-Maharashtra measuring 334.76 sq. yds. @ 1170/- per sq. yards, for a total cost of Rs.3,52,502/-and Rs.3,91,669/- respectively. She was required to pay first installment of Rs.50,000/- against both the plots on 15.02.2007 and the said installment of Rs.50,000/- was paid by her two cheques.
Thereafter, in September, 2007 she approached the OPs and expressed her desire to get both the plots cancelled already allotted to her in the project "Our Town" and requested that the booking amount in the sum of Rs.2,02,000/- already paid for two plots in "Our Town" project of OP1be transferred to other project of OP1 by the name of "New York City" and two plots each measuring about 300 Sq. Yds. be allotted to her in the new project "New York City". Thus, after cancellation of her plots in "Our Town", she was provisionally allotted at her request, two plots having customer code No.7412 & 7413 each measuring 300 sq. 'yds., in "New York City" project @ 1420/- per sq. yds. the total cost of each plot came to Rs.4,48,452/- and the amount paid by the complainant no.2 in "Our Town" project was transferred and adjusted in the her account for two plots bearing customer code No.7412 & 7413. She was also informed by OP1 vide its letter dated 01.12.2007 to pay the first installment of Rs.75,000/- each by 11.12.2007 against both plots.
Hence, OP1 gave provisional plot no. as B-331 & B-332 measuring 287.04 in "New York City" against the customer code no. 7412 & 7413, @ 1420/- per
sq. yards to the complainant no.2 and the total cost of
each plot came to Rs.4,29,094.45/- including PLC amount
of Rs.21,452.65p. The complainant no.2 was informed by letter dated 01.07.2013 (at page 96 of paper book of OPs) that total amount received
till 01.07.2013 is Rs.2,21,000/- against each plot and
the complainant no.2 was called to deposit the pending
dues in the sum of Rs. 1,43,692.03 by 31.07.2013 in the
account of each plot. The complainants no.2 was also
informed that the balance amount of Rs. 64,357.42/- in
each plot shall be demanded on its due date.
Thereafter in the month of July, 2013, she made a request to OP1 to cancel both the plot nos. B-331 & B-332 having customer code No, 7412 and 7413 and refund amount be deposited in her husband's plot No. B-329 bearing customer code No.7410. Accordingly at her request, OP1 refunded the 86% of the total amount received against plot No. B-331 & B-332 having customer code No, 7412 & 7413 amounting to Rs.3,83,068/- and the same was transferred to the account of complainant no.1 for plot no.B-329 having customer code No.7410. Moreover, she also gave undertaking that nothing remains due and payable by the OPs to her in respect of booking No. 7412 & 7413.
3.4. Thence, after transfer of the amount of three plots in the account of plot No.B-329 having customer code No.7410, the complainant no.1 had approached OP1 with request to have a bigger size plot. Accordingly OP1 vide its letter dated 01.08.2013 (at page 175) informed the complainant no.1 that in supersession of provisional allotment letter of plot No. B-329, another plot No. 22-D, measuring 535.80 sq. yards has been allotted to him at a total cost of Rs.7,99, 682/- and revised MOU was sent to him for his perusal and signatures.
3.5 But the complainant no.1 did not adhere to the payment schedule and never paid the installments in time, as such OP1 through letter dated 15.03.2015 (page 192-193) informed the complainant no.1 to deposit the due amount of Rs. 4,54,729/- by 15.05.2015, to take possession of the plot and start construction on the said plot. The complainant no.1 was also informed to get his final allotment cum Builder Buyer Agreement, but the complainant no.1 did not pay any heed to the letter dated 15.03.2015. On 25.11.2016, the OP1 again asked complainant no.1 to deposit balance amount along-with registration charges & get the plot registered by 31.01.2017 but of no response. Then OP1 again on 01.07.2017 asked the complainant no.1 to deposit balance amount and get the plot registered by 31.07.2017 but the complainants no.1 did not pay any heed to the request of OP1. On 01.08.2017, OPs informed the complainant no.1 to deposit balance amount of Rs.2,46,011/- by 15.08.2017 and get the plot registered but the complainant no.1 again did not pay any heed to the request of OP1. Since there was no response, thus finally OP1 by its letter dated 10.01.2018 cancelled the plot of the complainant no.1 and refunded 50% of the deposited amount as per terms 13 of the MOU vide cheque no. 202601 dated 10.01.2018 for Rs.3,99,801/- in the name of P.K. Taparia but complainants by his letter dated 15.01.2018 agreed to accept Rs.3,99.801/- towards full and final settlement amount against total amount of Rs.7,99,602/- and further requested that fresh cheque be issued by name "Pramod Kumar Taparia" in place of earlier cheque issued as "P.K.Taparia" Thus, new cheque bearing No.826404 dated 10.01.2018 for Rs.3,99,801/- drawn on Punjab National Bank, Paharganj, New Delhi was prepared and handed over to the complainant no.1, who acknowledged it on 18.01.2018, he also furnished affidavit in the shape of NOC and also signed the receipt dated 18.01.2018. Moreover, on the back of the original cheque it was clearly mentioned that encashment of this cheque will mean that he has agreed to this term & have no further claim, whatsoever.
4. (Replication of complainants) – The complainants filed rejoinder, it replies each and every paragraph of written statement of OP1 and OP2. The complainants deny all the allegations of the written statement as well as the complainants reaffirm their complaint as correct with documents filed with it.
5.1. (Evidence)- Complainant no.1 Sh. Pramod Kumar Taparia filed his detailed affidavit of evidence, not only it refers the documents filed with the complaint but also highlights many sentences in bold letters to emphasize them. Complainant no. 2 Smt. Sunita Taparia, also filed her detailed affidavit, which is on the lines of complaint, it is also on the pattern of affidavit of complainant no. 1.
5.2. On the other side, Sh. Ajay Chabra, OP2 filed detailed affidavit of evidence for both the OP1 and OP2, it is replica of the written statement; however, a few additional documents were also annexed with the affidavit, which were not filed earlier with written statement nor there was any formal permission sought for their filing with affidavit.
6. (Final hearing)- The complainants as well as OPs filed their respective detailed written arguments, it is replica of their respective cases. The parties were given opportunity to make oral submissions, thus, Sh. Vivek Verma, Advocate for complainants and Sh. Dilip Pandita, Advocate for OP with Sh. Rajiv Ranjan Advocate made their submissions, OP1’s Manager Sh. Deepak Sharma was also present during the final hearing.
The record is voluminous in the form of pleadings, documents as well as final submissions; therefore, the submissions are not repeated here as the same will be discussed appropriately, otherwise relevant features of the case of party has already been introduced.
7.1 (Findings)- The contentions of both the sides are considered, keeping in view the documentary record, which is major part of evidence, and the other narration of the parties. It is not out of context to mention, that both the parties are referring material documents but they are putting up different circumstances, therefore, the documents which they themselves are reflecting the circumstances will be referred and reproduced in the discussion. Secondly, by taking the circumstances in chronological way, both the parties have narrated the circumstances from the 2006 onwards, in order to mention their grievances or to show the conduct of each other, however, the controversy of consumer dispute rests upon the refund of the amount on the basis of MOU of November/December 2015, therefore, in the discussion that will be the core issue point to determine the controversy. Before dealing with that dispute, the OPs have also raised some other legal issues, the same are being taken firstly.
7.2.1. According to OPs, the complaint is barred by prescribed period of limitation whereas according to complainants, the complaint is within the prescribed period.
However, the both the parties have not mentioned the detail from which period the OPs have computed the limitation period but complainants in their oral arguments have relied upon the letter dated 10.01.2018 (at page 132 of complainants’ paper-book) when the plot was cancelled by the OPs. On perusal of the record, this complaint was filed on 19.12.2019 and as per section 24A of the Consumer Protection Act, 1986 the limitation prescribed is two years from the date on which cause of action has been arisen. The plot was cancelled on 10.01.2018 and thereafter complainants had given letter dated 15.01.2018 seeking refund of remaining amount of Rs.3,99,801/- from OPs. By computing the period of 2 years from 10.01.2018, the complaint filed on 19.12.2019 is within the prescribed period of 2 years. The issue of limitation is accordingly disposed off in favour of complainants and against the OPs.
7.2.2. The OP2 opposed the complaint that it is Director of the OP1, therefore, he should not have been joined as a party in the complaint. Whereas, complainants have reservations that throughout in the transactions, OP2 had induced and lured the complainants to buy plots in their project as well as the possession will be delivered in time, there was inducement and assurances by the OP2 even in the new projects asked to opt and lastly it was forced on them vis a vis complainants believed them, they parted with the hard earned income on his assurances.
The record is perused. In the array of parties, OP1 is named as M/s Hindustan Buildwell Private Limited, as a legal entity and OP2 is named as Mr. Ajay Chhabra, Director, M/s Hindustan Buildwell Private Limited. Generally, on the joining of legal entity through its Director or Principal Officer or Secretary, no needs remain to implead separately its Director or Principal Officer or Secretary. However, OP1 is exclusively joined as OP1 and there are allegations against OP2 too, consequently the complaint is not bad in law for joining of OP2 as a party to the complaint. This issue is decided against the OP2 .
7.2.3. The OPs have contended, (at the stage of final hearing) that principle of estoppel applies against the complainants, since complainant no. 1 has received the amount under acknowledgment after cancellation of plot and he had also given in writing that no claim is left against OPs, he cannot go back from this acknowledgment and undertaking. Whereas, the complainants have opposed this plea that the amount was received under protest as well as the plot was not cancelled at the request of complainant no. 1 but it was forced cancellation by the OPs by making illegal and arbitrary demands, which were never part of memorandum of understanding/ agreement.
This issue of estoppel has bearing on other relevant issue and facts in issue, thus it can be conveniently answered after determination of other factors and then it will be taken in continuity.
7.3. It is already discussed that this case involves documentary record and in fact the issues raised can be determined on the basis of documentary evidence, which are of contemporary period. Therefore, the relevant letters of 01.08.2013, 01.08.2017, 10.01.2018 and extracts from sale purchase agreement/ builder-buyer agreement are being reproduced hereunder:-
***
Letter dated 01.08.2013 ( at page 83 of complainants paper book and at page 175 of OPs paper book, henceforth the record will be mentioned like C-pg 83=OP-pg 175)
"Hindustan Buildwell Dot. Ltd.
Corporate Office : 2E/4, Jhandewalan Ext.. New Delhi-110055 Tel.
: 011-23556666, 23556667 Fax: 011-23556665
E-mail: info@hindustanbuildwell.net /hindustanbuildwell@yahoo.com
Website: www.hindustanbuildwell.net
Regd. A.D. /-
Date: 01/08/2013
To,
Mr. P.K. Taparia
s/o Mr. Tara Chand Taparia
R/0- J-3/120, Kalkaji.
New Delhi- 110019
Subject: "New York City" Project, Village Birwadi, Tehsil Shahpur, Thane (Maharashtra).
Reference: Customer Code No.7410
Sir,
In supersession of our Provisional Allotment letter citing Plot No.329-B sent earlier along with M.O.U., we hereby allot you a Plot No.22-D. We are also sending you herewith revised M.O.U. for your perusal and signature.
Thanking You, Yours truly, Lokesh Chopra (Business Manager)"
***
Sale Purchase agreement/MOU [C-84-111/112 =OP 196-209]
Clause 8 : That the Customer(s) has/have booked/purchase one plot as defined in page no. 2 of this agreement at Company's project " New York City" at Vill. Birwadi, Taluka Shahpur, Distt. Thane, Maharashtra. Subject to any variation in the total sale consideration, due to change in EDC & infrastructure Development Charges or any other charges so demanded by the State Government and/or authorities or any other government department, the amount as apportioned by the Company shall be final and binding on the Customers). In case of any delayed payment, simple interest @ 6% p.a. w.e.f. 01-01-2011 shall be payable by the Customers. (the bold portion is mention in bold letters in clause 8 itself)
Clause -11. That the timely payment of installments on due dates as mentioned above is the essence of this Contract. The Customers) is/are bound to strictly adhere to the above payment schedule.
If the Customer(s) fail(s) to deposit installments on due dates as per the above schedule, he/she/they will be liable to pay 6% p.a. as interest/ penalty on account of late payment (to be calculated on monthly basis) on the delayed unpaid account.
Further to this, if the Customer(s) fail(s) to pay any installment ill 6 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(s) to the Company on account of booking and installment of the above said plot, would be refunded to the Customer(s) without interest and rest of the amount shall be forfeited against never recoverable expenses incurred by the Company on various developmental and running administrative expense and also the commission paid to the Dealers/ Associates as per the following estimated bifurcation of the total cost of the plot.:
Land Cost - 50%, Dealers' commission - 17% Advertisement expenses 9%, Administrative expenses 16%, Company profit margin 8% (This all figures are on approx basis & on average basis hoverer all such figures in all heads shown above are supported by all records, proof, documents etc.). The Agriculture land was purchased on behalf of the Company, as per applicable land laws of Maharashtra for further conversion from agriculture to non-agriculture (Residential N.A. Plots) status by company. Apart from sale deed cost, payment in cash or cheque has been given to the long life Possession holders Farmers & also Payment in cash for their fruit trees & also payment for 3 Years crop (as per normal practice). This selling rate of the plot to the customer is only the cost of the land (N.A. Plot only) & no development cost has been added EDC/IDC for overall development shall be demanded in future on actual basis after transferring of all plots to the customers & they Start actual using. (underlined supplied to emphasize).
Clause 13 :In case the request for cancellation of plot by the customer at any stage, it is agreed by both the parties that 50% of the total received amount without interest shall be refunded by the Company the customer (i.e. the actual land cost) and the customer shall have no right thereafter.
Clause 14: The company shall handover the possession of the above referred plot to the Customer(s) with the following infrastructure (development) within three years from the date of receiving full payment and registering the allotted plot in favour of the Customers):
(a) Water supply nearest to the plot only.
(b) Electricity supply line (poles) nearest to the plot. However the Customers) shall pay the cost towards installation of Electricity Sub-station, Meter cost and such other related expenses.
(c) Road for accessibility to all plots only.
(d)
All such gardens, school, Hospital, club house & other amenities, other than mentioned above, the land for such purposes have been left & earmarked by the company but to be maintained by the plot owners jointly at their cost & system & company is not at all liable in any case as company is not charging any maintenance cost.
However, if company fails to handover the possession by the above said time due to unavoidable circumstances not in hand of the company shall request for further two years for handing over the possession, but in any case even after lapse of that period, company fails to deliver the possession then company is liable to refund the principle amount so received from the customer.
Clause 26: That the Customer (s) agree/s to pay the total costs and other future charges of unit/plot as per the
payment plan.
***
Letter dated 01.08.2017 [ C pg 131= OP pg224]
"Hindustan Buildwell Dut. Ltd.
Corporate Office : 2EJ4, Jhandewalan Ext., New Delhi-110055
Tel.+ 011-23556666
E-mall:info@hindastanbuildwell.det
Website : www.hindustanbuildwell.net
Speed Post / E-mail
To,
MR. P.K. TAPARIA J-3/120 KALKA JI
NEW DELHI NEW DELHI
PIN- 110019
Contact:- 011-29214651
E-mail:-
Date: 01/08/2017
subject: - N.A. Plot "New York City" project, Village Cirwadi, Tehsil Shahpur, Thane (Maharashtra)
- Payment of Full Dues
- Execute Registration & Possession.
- Start Minimum Construction 25% of Plot Area.
Reference: Customer Code No. 7410 Plot No: - 22 Area (in Sq./ft.) 4823
Dear Customer,
Please refer our various letters since 2007 & the last letter of 01/07/2017. You are requested to initiate following.
.Balance Due as on date. (Cost of Plot) Rs.79/-
Maintenance, Security Charges (@1/- Sq./ft. p.m.). (1"' Jan. 13 to 31" March 17) Rs. 245973 /-
Total Rs. 246052/-
Please pay registration charges also (Not included above that will be calculated at the time of execution) & execute registration, take possession & start minimum construction of Plot (As per Bye Laws of Maharashtra Govt. for N.A. Plots) By 15/08/2017, failing which it is clear that you are not interested and as such your Plot Booking, Allotment & Builder Buyer Agreement stands automatically cancelled & you shall be refunded 50% of the total paid by you.
Current Amount POSITIVELLY (WITHOUT FAIL) Rs. 246052 /- to be deposited by-15.08.2017. May Please contact Mr. Deepak Sharma, Phone No. +91-9953 414 224 for arty query.
Thanking you Yours truly, Sd./-(Ajay Chhabra) Director
Note:- Please update your phone No. & E-mail address with the company".
***
Letter dated 10.01.2018 [C-pg 132 = OP-pg 225]
"Hindustan Buildwell Put. Ltd.
Corporate Office : 2E/4, Jhandewalan Exin., Mew Delhi-110055 Tel.
: +91-9953444224
E-mail: info@hindustanbuildwell.net
Website: www.hindustanbuildwell.net
Speed Post
Ref: - HBPL//Jan-18/7410
To,
Mr. P.K. TAPARIA,
R/o J-3/120
KALKA J, NEW DELHI Pin Code 110019
Phone No.011-29214651
Date: - 10th Jan. 2018
Subject: - Cancellation of your booking & refund thereof.
Ref: - Customer Code 7410
Respected Customer,
Please refer all our letters since your booking in 2007 onwards & thereafter all communications regarding deposit of due payments as per payment plan dated 28-07-2007, thereafter giving relaxation with no interest & penalty etc. and also demand of maintenance, security, EDC/IDC etc., etc., also request for registration of plot in your name after deposit of all balance dues, take possession and construct your plot as per govt. N.A. order's terms.
Finding no response from your end for more than 5 years, we lastly send a letter dated 01-09-2017, vide which you were requested to adhere to all points POSITIVELY.by 15-09-2017 failing which your booking stands cancelled w.e.f. 16-09-2017.
Please note since you have not responded as per our letter dated 01-09-2017, your booking finally stands cancelled & your refund cheque of 50% of your total deposit amount is available in the office which you may contact to Mr. Deepak Sharma@ +91. 9953444224 and collect our cheque during 11.00 A.M. to 5.00 P.M. on any working days (copy of which is produced here below).
Thanking you, For Hindustan Buildwell Pvt. Ltd. Sdl-(Ajay Chhabra) Director"
***
7.4. It is relevant to mention that by plain reading of entire case of the parties as well as the MoU/sale purchase agreement, it has also been named as 'builder-buyer agreement'. However, by simple observation, what appears is that OPs are in fact developer of the plots project or in other words, they are perusing the project for establishing project as colonizer or developers. Whereas in the eventuality of builder-buyer relationship, the builder is required to make certain constructions on a particular unit or on a plot of land, to convert land into housing dwelling units. Nowhere in the pleading or documents there is mentioning of such functions of OP1 as of builder to develop/construct the plot of land into housing dwelling unit. What emerged is that the OP1 was to develop the infrastructure in the colony and then after such developed infrastructure, the OPs were required to hand over the possession of 'developed plot' to the buyer, so that basic amenities (of water, electricity, road, sewer) are available and developed plot can be constructed and then house can be used as residence; it does not need further elaboration as clause no. 14 has already been reproduced in sub-paragraph no. 7.3. Moreover, as per clause 14, the OP1 was required to handover the possession of developed plot with infrastructure within 3 years, however, on receipt of payments from the customer/ complainant no. 1.
7.5. It is an established fact that in the previous transaction of ‘Our Town’ as well as with regard to previous plots no. B-329, B-330, B-331 and B-332, there were separate MoUs and payments schedule besides a clause that possession to be given to the complainants December, 2007 or in other project in December 2009. Whereas the possession was not delivered to complainants in either of the projects; but further event took place of allotment of plot no. D-22 to complainant no.1.
7.6. There is rival plea as on the one side, complainant no.1 claims that plot no. D-22 was allotted by the OP1 unilaterally but OPs have reservation that D-22 was allotted on the specific request of complainant no. 1. The answer of this issue is in the contents letter dated 01.08.2013, (letter has already been reproduced in sub-para no. 7.3 above).
It is manifest from the contents of letter dated 01.08.2013 that the OP1 had exercised its discretion that in suppression of previous allotment of plot no. B-329, which was a provisional allotment, the OP1 allots plot no. 22-D in ‘New York City’ by exercising its discretion. There is no reference or proof of any specific written request of complainants or of complainant no. 1 to allot plot no. 22-D in lieu of previous allotted plot no.B-329. Otherwise, an inference may also be drawn that OPs are knowing very well and have control on their projects as well as availability of plots or reserved plots or otherwise, to be allotted therein. Therefore, letter dated 01.08.2013 establishes that it was OP1 itself had allotted 22-D to complainant no.1. It would not demerit the case of complainant no. 1, in case consent of complainant no. 1 was taken in the form of any declaration or undertaking that the complainants would not make any claim of giving up their previous allotments.
7.7.1. However, a plot no. D-22 in ‘New York City’, stand allotted to complainant no. 1 and to this effect a MoU/sale purchase agreement of 17.11.2015/09.11.2015 was entered into between the parties, duly executed on a non-judicial stamp paper and attested. It contains covenants entered between the parties.
But there are rival stand by the parties as on the one side complainant no. 1 claims and contends that entire consideration amount stands paid, which was about Rs. 8,00,000/-, which was also not disputed by the OPs. The OPs issued the demand letter contrary to the agreement/MoU entered, the balance price and charges demanded were never part of the agreement nor it were explained. There was no development of the project and there is specific clause no.14 for handing over of the developed plot within time but there was no progress took place in respect of developing the plot or project.
On the other side, the OPs contends that the complainant no.1 failed to adhere to the terms and conditions of agreement/MoU, the charges were within the parameters of agreement entered and complainant no.1 was given opportunities to make clear those charges, however, for want of making the charges clear, the next usual step was initiated as per clause 13 of the agreement, it is within the terms and conditions of agreement.
7.7.2. It needs to see and assess the record. So far possession of plot is concerned, clause 14 is abundantly clear in itself that OP1 shall handover the possession of plot of land with the developed infrastructure mentioned therein. So far demand of other amount is concerned, there are two components in letter dated 01.08.2017 (its contents have already been reproduced in sub-paragraph 7.3), which comprises balance due as on date of cost of plot of Rs.79/-. The other components is of maintenance, security charges at the rate of Re. 1/-per sq. feet per month and amount claimed is Rs. 2,45,973/- for period from 01.01.2013 to 31.03.2017.
First, issue of balance due of cost of plot is being taken. The sale purchase agreement/MoU is material for this issue. There is payment schedule mentioned in the agreement (which is at page 87 of complainants’ paper-book and at page 197 of OPs’ paper-book). It mentions area of plot 535.80 sq. yards at the rate of Rs. 1,420/- per sq. yards, having PLC 5%, discount 30% and total cost mentioned is Rs. 7,99,681.50/- and total amount received by OPs is Rs.7,99,681/- and in the last column balance amount shown is 00.00 (zero). It was followed by payment schedule, showing the payments made by complainant in the form of booking amount and then Ist payment to 11th payment and in the next column balance amount is again shown 00.00 (zero). To say, entire amount was received as consideration, therefore, nothing was left to be asked from the complainant no.1 as balance amount of price/cost of plot D-22. However, showing Rs. 79/- as balance amount in letter dated 01.08.2017 is contrary to the agreement dated 17.11.2015/09.12.2015.
Second component is maintenance, security charges at the rate of Rs. 1/- per sq. feet per month. On plain reading of sale purchase agreement/MoU there is no such clause of maintenance & security charges at the rate of Re.1/- per sq. feet per month and during the course of oral argument, it was also enquired as from which document or on what basis this rate has been taken up, there was no answer or explanation on behalf of OPs. Consequently, demanding huge amount of Rs. 2,45,973/- for period 01.01.2013 to 31.03.2017 is against the covenants entered between the parties. Moreover, sale-purchase agreement/MoU is of 17.11.2015/09.12.2015, but maintenance were claimed from 01.01. 2013 There is no dispute that the possession of plot no. D-22 in ‘New York City’ was not delivered to the complainants no.1. The plot no.D-22 was allotted in November/December 2015 but charges were being claimed from 01.01.2013, without any specific clause in the MOU to this effect.
The findings on this point will remain incomplete without mentioning letter dated 25.11.2016 and 01.07.2017 (pages 123-130) wherein the OPs have introduced/mentioned that they may claim EDC/IDC/security maintenances expenses as and when demanded. Whereas, there is specific clause no. 8 in sale purchase agreement/MoU (at page no. 93 of complainants' paper book and on page no. 200 of paper-book of OPs) that EDC/IDC etc., could be at a time when Government or Authorities demand the same and as per clause 11 (at page no. 97 equal to 202) that EDC/IDC for overall development shall be demanded in future on actual basis after transferring of all plots to the customers and they start actual using. It has not been stated by OPs in any letter that this stage have arrived. But OPs mentions in their cancellation of allotment letter that cancellation of plot no.D-22 is because of non-payment of maintenance, security and EDC/IDC etc. On combined reading of these aspects, is it not the case that the OPs have made demand beyond the scope of sale purchase agreement as well as without any covenants in this regard? The answer is in affirmative, since agreement/MOU does not permit such demand as asked by OPs in their letter dated 01.08.2017.
Moreover, the OPs in their letters dated 01.07.2017 assures the complainant no.1 that OPs will make arrangement for electricity and water to enable the complainants no. 1 to raise construction on these plots after registration of sale deed and possession, however, nowhere in the correspondence of OPs nor iota of fact in their written statement that developed infrastructure [as mentioned in clause 14 of MoU] is ready to be delivered with plot to the complainant no.1, since basically the OPs are developer of the project, which comprises developments of infrastructures and it was also agreed so with complainant no.1.
7.7.3. With regard to cancellation of plot 22-D, there are juxtaposition stand of the complainants no. 1 and OPs, the latter claimed that the complainant no.1 got the plot cancelled and that is why clause 13 was invoked but on the other side, complainant no. 1 contends that the plot was cancelled by the OPs and even amount was taken under protest.
The contents of letter dated 10.01.2018 (page no. 132 = 225) carries answer to this contention. OPs instructed the complainant no.1 that there were correspondence and demands for payment of maintenance, security, EDC/IDC etc. and the complainant no. 1 failed to comply the communication; opportunity was also given to comply the same failing, which the booking will stand cancelled with effect from 16.09.2017 in respect of customer code no. 7410. It was also advised that finally booking stand cancelled and complainants no.1’s 50% refund cheque of Rs.3,99,801/- may be collected during working days. The OPs in their written statement explains that this option was exercised by invoking the clause no. 13.
However, the clause no. 13 (which has already been mentioned in sub-para no. 7.3 above) applies when there is a request by the customer/complainant no.1 that 50% of total receipt amount shall be refunded. But there is no such request by the complainant no.1. Therefore, it is a case of cancellation of booking/ allotment by the OPs, which is clear from letter dated 10.01.2018. The complainant no. 1 had constrained to consent to receive 50% offered amount in his subsequent correspondence to prepare cheque in his full name Pramod Kumar Taparia but it does not mean this request amounts to seeking cancellation of allotment, it was subsequent to cancellation of plot by OPs. In addition, immediately after receipt of that 50% amount the complainant no.1 had written a letter and then legal notice that the amount received was under protest and it was not voluntarily.
7.7.4. By reading the conclusions drawn in paragraphs 7.7.1 to 7.7.3 above, is it not the case that an artificial situation has been created by the OPs to constraint the complainants no.1 to concede to the conditions mentioned in the letter and then exercised the discretion by the OPs to cancel the allotment? (because of no balance cost of Rs. 79/- nor any agreement of maintenance charges at the rate of Re. 1/- per sq. feet per month nor there was request for cancellation of booking on behalf of complainants no. 1). Its answer is also in affirmative because the demands made in the letter are not valid nor every demand made by the OPs could be construed valid demands just because OPs are developers.
7.7.5 In fact, this is OPs, who could not develop the infrastructure and failed to deliver the possession of developed plot with infrastructure to the complainant no.1 but other modalities were devised by them against complainant no.1.
7.7.6. The OPs took it vehemently that principle of estoppel applies against complainant no. 1 that after receipt of 50% amount, he is left with no right and he is estopped to claim the amount. Whereas the plea of OPs is not only contrary to law & facts but also the OPs are bound by covenants in sale purchase agreement/MoU, wherein the balance amount was agreed and mentioned as Rs. 00.00 (zero), after all details and despite it an amount of Rs.79/- was claimed in the letter. It is never the case of OPs that there were any mis-calculations.
Similarly, when there is written agreement, the OPs are bound by terms and conditions of MOU since there is no amount of security and maintenance mentioned at the rate of Rs.1/- per sq. feet per month as well as OPs failed to account for on what basis this formula was arrived at. However, the OPs in a very subtle manner introduced by mentioning three different items as a single merged item in the name of charges as EDC/IDC, security and maintenance charges, which were later on asked by letter dated 01.08.2017 as security and maintenance charges. Simultaneously, the complainant no. 1 being an individual had no option but to concede to the dictate of letter 01.08.2017 but being his right, he protested it immediately by writing letter and then sending legal notice.
7.8.1. The complainants have succeeded to establish the case of deficiency of services and unfair trade practices on the part of OPs, they have also established case of complainants no. 1 for refund of Rs. 3,99,880/-, against OPs; accordingly complainant no. 1 is held for this amount against OPs.
7.8.2. The complainants no.1 has claimed interest at the rate of 10% pa on the original amount of Rs. 7,99,681/-, however, in the legal notice dated 07.03.2019, the complainant no. 1 had claimed interest on amount of Rs. 3,99,880/-. Therefore, by reconciling the circumstances, the complainant no. 1 is held entitled for interest at the rate of 9% pa from the date of complaint till realization of the amount.
7.8.3. The complainant no.1 claims compensation of Rs. 2,00,000/- on account of mental harassment and agony on the part of OPs and cost of Rs. 50,000/-. The complainant no.1 has not shown component of his income or other allied circumstances vis-à-vis taking into account the stock of events took place, the complainant no. 1 deserves compensation, it quantified as Rs. 25,000/- against OPs. The is cost also quantified as Rs. 10,000/- in favour of complainant no. 1 and against OPs.
9. Accordingly, the complaint is allowed in favour of complainant no.1 and against the OP1 and OP2 to pay jointly and/or severally sum of Rs.3,99,880/- 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 no.1.
OP1 and OP2 are 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. 3,99,880/-.
10: Announced on this 23rd June, 2023 [आषाढ़ 2, 1945]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
