Punjab

Ludhiana

CC/15/226

Prem Kumar Gupta - Complainant(s)

Versus

Jaypee Infrastructure Ltd - Opp.Party(s)

J.S.Virk Adv.

10 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 226 of 01.04.2015

   Date of Decision            :   10.05.2017

 

Prem Kumar Gupta aged 65 years son of Shri Jagdish Chand Gupta, resident of 190-E, Kitchlu Nagar, Ludhiana, at present resident of 502-F, Shaheed Bhagat Singh Nagar, Pakhowal Road, Ludhiana.

….. Complainant

Versus

 

1.M/s Jaypee Infrastructure Limited c/o M/s Jai Parkash Associates Limited, Sector 128, Noida through its Managing Director.

2.M/s Investors Clinic having its head office at Tapasiya Corp. Heights, Floor No.5, E.F.G.H. Sector 126, Noida-201301(UP).

And Branch Office at 5-A, Surya Kiran Building 92, The Mall, Ludhiana through its Associates Vice-President/Authorized Signatory.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant                      :         Sh.J.S.Virk, Advocate

For OPs                         :         Ex-parte

 

PER G.K DHIR, PRESIDENT

 

1.                          Op1 company deals in real estate and development of township and has network all over India. In the series of sale promotion, Op1 appointed Op2 as authorized representative. Sh.Sushant Thukral of OP2 as such is the representative of OP1. Complainant approached the said representative for getting the corner plot booked in the project named Yamuna Vihar in South City and got the same booked in location at Ludhiana by depositing the initial amount of Rs.4 lac vide demand draft No.002190 dated 12.12.2011 drawn in favour of OP1. Assurance was given to the complainant to allot the corner plot. Complainant was not interested in getting any other plot at all. Through various representations received from the representative of Ops, assurance was given to the complainant to provide him the  corner plot. However, despite various representations and telephonic conversations or emails and letters dated 8.11.2011, 21.11.2011, 22.11.2011 etc, the corner plot has not been allotted to the complainant. So, violation of terms and conditions of the agreement alleged to be committed by Ops. By pleading deficiency in service on part of OPs and after getting the legal notice served through counsel, this complaint filed by claiming that Op1 through letter dated 26.6.2013 conveyed to complainant regarding cancellation of provisional allotment of apartment No.PYVB000297 at Jaypee Greens, Noida (UP) after putting forth the demand of Rs.2,17,435/-. That cancellation alleged to be illegal, null and void and not binding upon the complainant. After putting forth the demand of Rs.2,17,435/-, no opportunity of hearing was ever provided to the complainant and as such, it is claimed that the demand has been put forth in violation of principles of natural justice and even the cancellation done in illegal manner. So, complainant claims that he is entitled for refund of already paid amount of Rs.4 lac along with interest @24% per annum w.e.f.12.12.2011 till actual payment, in case, the corner plot cannot be allotted to him. Request  also made for quashing the cancellation letter dated 26.6.2013 and of putting forth     the demand of Rs.2,17,435/-.

2.                OP1 is ex-parte in this case.

3.                Earlier, Sh.Saajan Kumar, Advocate appeared on behalf of OP2 and filed the written statement to the effect that complaint filed for abusing the process of law and that OP2 is neither involved in the business  activity of OP1 and nor any other project launched by OP1. Besides, it is claimed that this Forum has no jurisdiction to try the present complaint because OP2 was having no office in Ludhiana when the alleged transaction was made. Offer to accept the transaction was made in Noida and as such, no cause of action arose within the jurisdiction of this Forum. Op2 is real estate consultancy company engaged in providing service relating to the property, but it is not limited to residential commercial advisory etc. It was the complainant who approached OP2 for some speculative investment. Complainant was never allured by Mr.Sushant Thukral as alleged in the complaint. It was the complainant who choose to invest in the property in question by submitting cheque of Rs.4 lac to developer i.e. OP1. No assurances ever given by OP2 to the complainant and each and every other allegations of complaint denied. A bare reading of email dated 13.12.2011 shows as if the complainant to be given first preference for the allotment of the corner plot. Nowhere in that email, it is mentioned that assurance for allotment of corner plot was given to the complainant. Allegations of fraud and cheating even denied. Plot was cancelled by OP1 due to non-payment of the statutory dues by the complainant.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents EX.C1 to Ex.C66 and thereafter, his counsel closed the evidence.

5.                Thereafter, when the case was posted for evidence of OP2, none turned up for OP2 on 18.04.2016, 13.05.2016, 18.5.2016 as well as on 20.5.2017 and as such, Op2 was proceeded against ex-parte.

6.                Written arguments not submitted. Oral arguments by counsel for complainant addressed and those were heard. Records gone through minutely. 

7.                Ex.C1 and Ex.C2 are the documents produced on record to show that OP2 is representative of OP1 and that is why name of OP2 mentioned on these brochures. Estimated price of the plot of area of 209.30 Sq.yards mentioned in Ex.C3 and copy of payment plan in that respect produced on record as Ex.C4. It was in pursuance of this that Rs.4 lac was paid by the complainant to Ops through demand draft, photo copy of which is available underneath  Ex.C4.    This amount paid by the complainant by issuing demand draft in favour of OP1 after getting confirmation through letters Ex.C5 and Ex.C6. Amount of Rs.4 lac through demand draft was sent to representative Sh.Sushant Thukral through forwarding letter Ex.C7 and copy of demand draft issued in favour of OP1 is produced on record as Ex.C8. So, payment of amount of Rs.4 lac for getting a corner plot booked certainly is established by this documentary evidence and it was thereafter that provisional allotment letter was issued as revealed by contents of Ex.C10.

8.                Ex.C11 dated 23.4.2013, the cancellation letter issued by OPs because the complainant failed to pay the remaining price amount. Copy of reply sent by the complainant to the issued cancellation notice of provisional allotment letter is produced on record as Ex.C12 along with postal receipt Ex.C13. Rather, through Ex.C12, the complainant claimed that he is ready to purchase the corner plot by paying the prescribed amount within the prescribed period. So, it is obvious that dispute regarding non-payment of balance amount started w.e.f.23.4.2013, when letter Ex.C11 was issued. Though total payable amount is mentioned in Ex.C3 and Ex.C4, but payment of Rs.4 lac for booking of the corner plot alone was done. Through email correspondence Ex.C14, assurance was given to the complainant for allotting the corner plot on first preference basis. Through Ex.C15 to Ex.C20 and Ex.C24 to Ex.C30 as well as Ex.C32 and Ex.C35 to Ex.C38 and Ex.C58 to Ex.C62, complainant insisted for getting the corner plot alone by claiming that owing to non allotment of the corner plot, mischief committed by the company i.e. OPs. Even if this dispute was raised, but despite that after issue of cancellation notice, 10% of the total unit cost was forfeited by OPs qua which communication Ex.C31 dated 3.4.2013 was sent by OPs to the complainant. As per provisional allotment letter Ex.C41, plot bearing No.PYVB000297 in Yamuna Vihar at Jaypee Greens Sports City East, Gautam Budh Nagar with approximate area of 175 sq. meters was allotted to the complainant for consideration of Rs.61,74,350/-. Same facts also reflected in cancellation notice Ex.C45 and receipt of Rs.4 lac issued by Ops. Same even evidenced by statement of accounts Ex.C48 and Ex.C50. Cancellation of the provisional allotment conveyed to the complainant through Ex.C49 dated 26.6.2013 at Ludhiana. Net recoverable amount from the complainant shown as Rs.2,17,435/- in Ex.C50 and factum of sending of cancellation notice conveyed to the complainant even evidenced by Ex.C55. So, it is obvious that dispute between the complainant and OPs started since from April 2013, when Ops after issue of cancellation notice, opted to forfeit the paid amount. Such forfeiture could have taken place only after showing that corner plot as allotted to the complainant available with them, but which has not been shown and as such, the complainant is entitled for the refund of the paid amount of Rs.4 lac. Such forfeiture by unilateral termination of the contract could have been by agitating matter before Civil Court, which is not done and as such, the complainant may have suffered mental tension. However, role of the complainant not up to the mark because he has not shown his capacity to pay the balance amount and as such, while ordering the refund of the paid amount of                Rs.4 lac,  litigation expenses amount alone should be allowed in favour of        the complainant and against Ops.

9.                 Op2 is an agent of OP1 and amount of Rs.4 lac received by OP1 through demand draft in his favour and as such, OP1 being principal alone should be held liable for refund of received amount of Rs.4 lac, but with stipulation that payment must be paid within the specified period, failing which, the complainant entitled for the interest from today onwards till payment. 

10.              Therefore, as a sequel of the above discussion, complaint allowed ex-parte in terms that OP1 will refund the received amount of Rs.4 lac within 30 days from the date of receipt of copy of this order. In case, payment not made within this period, then complainant will be entitled to interest @8% per annum from today onwards till payment. Litigation expenses of Rs.5000/-(Rupees five thousand only) more allowed in favour of complainant and against OP1 only. No interest will accrue on the amount of litigation expenses. No order as to compensation is passed. Complaint against OP2 is dismissed. Compliance qua direction of payment of litigation expenses be made within 30 days from the date of receipt of copy of this order. Copies of order be supplied to parties free of costs as per rules.

11.                        File be indexed and consigned to record room.

 

 

 (Param Jit Singh Bewli)                                   (G.K.Dhir)

 Member                                                             President

Announced in Open Forum

Dated:10.05.2017

Gurpreet Sharma.