DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.1222/2007
Sh. Vinod Chauhan
S/o Sh. B. S. Chauhan
401, Skyland Housing Society,
Sector-56, Gurgaon
Presently residing at:
K-102, Green Woods Apartments,
Andheri Kurla Road,
Andheri East, Mumbai ….Complainant
Versus
JMD Promoters Ltd.
having its registered office at:
S-212, Panchsheel Park,
New Delhi-110017
Also at:
Corp. Off:- JMD Regent Square,
Main Mehrauli Gurgaon Road,
Gurgaon-122001 ….Opposite Party
Date of Institution : 18.12.2007 Date of Order : 01.11.2017
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Briefly stated the facts of the case are that the complainant on the promises and assurance given by the OP booked a flat No.M-1002 in the proposed “JMD Gardens” Sohna Road, Gurgaon pre-launched by the OP on payment of booking amount as per schedule. The OP did not sign any agreement with the complainant on the said date and he was informed that the agreement would be signed subsequently and he was asked to deposit another installment as part payment. The complainant paid two scheduled installments amounting to Rs.6,21,250/- and was eager to pay the rest amount after getting the possession of the said flat but, however, the OP kept on delaying the scheduled construction as requisite Government permissions and approvals were not obtained and also the land was not transferred in the name of the OP and for the said reasons they did not accept the payments offered by the complainant. It is stated that finally when the project got government clearance no bank was funding the project due to the reasons that the title deed and registration of the plot were not in OP’s name. The same was informed to Mr. Bedi (M.D. / owner of OP) and the owner of “Realistic Realtors”, broker and they told that OP company was in the process of getting the documents in order. This continued for many months and suddenly one day OP deposited the money directly to the complainant’s account alongwith issuing a letter of cancellation as the value of the property had appreciated. Banks started funding JMD project of the OP many months later to the cancellation of the complainant’s booking of the flat which was done intentionally with dishonest intention. During that period, the complainant was transferred to Mumbai but was in regular touch with OP. It was time and again assured by the OP that the balance amount due which was two installments as per the builder at the time of cancellation can be paid once banks clear there project for funding. It is stated that the OP issued a notice dated 01.04.2006 calling upon the complainant to pay Rs.7,75,428.13p within 7 days and consequently the complainant came to Gurgaon from Mumbai and visited the site of the project and discovered that the 3rd phase of construction as stated in the notice was not complete. The complainant pointed out to the OP that though he is ready with the payments but the same shall be remitted as and when the stage for the same comes. It is stated that the OP with dishonest intention vide letter dated 01.04.2006 raised a preposterous demand of Rs.7,52,428.13 but the rate of interest demanded by the OP was patently coercive, unconscionable, unjustified and illegal as the delay was on the account of acts and omissions of the OP and the complainant was not liable to pay any ancillary charges being levied by the OP. It is submitted that the value of the properties by that time had increased considerably and the management of the OP had become dishonest and with such dishonest intentions issued letters dated 15.05.2007 & 30.05.2007 stating that the registration amount stood rejected and had directly deposited a cheque of Rs.6,21,250/- in the complainant’s account. The complainant made it clear that he is not giving up his rights in the said flat and the payment of Rs.6,21,250/- directly deposited by the OP was accepted with protest and without prejudice. It is stated that the complainant is ready and willing to pay the remaining installments/amounts on the assurance/undertaking of the OP that they would hand over the possession. Hence, the complainant has filed the present complaint for issuing the following directions to the OP:-
(i) to accept the payments from the complainant and hand over the possession of the flat No.M-1002 in “JMD Gardens”, Gurgaon to the complainant and/or,
(ii) to pay a sum of Rs.5 lacs to the complainant as compensation for mental trauma, humiliation, pain and anguish at the hands of the OP.
OP in the written statement has inter-alia stated that the complainant approached the OP and applied for provisional allotment vide application for a flat having super area of about 1860 sq. ft. for a total consideration of Rs.33,28,125/- in the proposed Multi-Storeyed Group Housing Residential Complex coming up at Sohna Road in Village Islampur, District Gurgaon, Haryana and opted for the plan ‘B’ i.e. Construction Linked Payment Plan wherein the complainant was required to make the payment of 10% of the total consideration at the time of provisional registration and further required to make payment of 10% of the total consideration within 45 days of the provisional registration and further required to make payments as the construction at site progress. It is stated that admittedly the complainant paid Rs.3,30,150/- at the time of registration whereas Rs.2662/- more was required to be paid by the complainant. It is submitted that the complainant had even failed to make payment of further 10% i.e. Rs.3,32,812.50p within 45 days from the date of provisional registration and afterwards had paid only Rs.2,99,100/-. The complainant even failed to make the payment of 3rd installment as agreed at the start of construction of basement inspite of the fact that the OP vide letter dated 16.01.2006 has requested for the same. However, still the provisional registration was not cancelled and the OP waited for payment. The OP at the start of construction of ground floor roof slab further demanded the due payment vide letter dated 01.04.2006 but, however, still the complainant did not make the payment. In these circumstances the OP vide letter dated 15.05.2006 further requested the complainant to make outstanding payment failing which the OP would be forced to take strict action but when no response was received from the side of the complainant the application for provisional allotment was cancelled and the amount deposited by the complainant was refunded. It is submitted that prior to starting of construction and issuance of first demand letter dated 16.01.2006 all the required permissions were obtained. It is denied that rejection/cancellation of the provisional allotment was unjustified by the OP. It is submitted that the OP was having rights to sell the proposed flats at the time of receiving of application for provisional allotment from the complainant. It is submitted that only provisional registration amount was received which could not be termed as booking amount by the complainant. It is denied that 2nd installment was deposited by the complainant as alleged. It is clarified that as per the agreed payment plan the complainant was required to deposit 10% of the total consideration within 45 days from the date of provisional registration which was not deposited by the complainant but the complainant deposited only Rs.2,99,100/- against Rs.3,32,812.50 as per his own wish. It is submitted that as the amount deposited by the complainant has been refunded prior to filing of the complaint, therefore, there is no question of any dishonest intention. It is denied that the complainant accepted the refund under protest as alleged. It is submitted that the OP refunded the amount deposited by the complainant because the application for provisional allotment was rejected and treated as cancelled. OP has prayed for dismissal of the complainant.
Complainant has filed a rejoinder to the written statement of the OP. He has not specifically denied the averments made in the written statement of OP.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Ankit Kumar Srivastava, Manager Marketing has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also gone through the file very carefully.
In Perin Hills Bazun Dittia & Anr. Vs. M/s Emaar Hills Township Pvt. Ltd. & Anr. (Consumer Case No. 355 of 2014, decided by the National Commission on 09.03.2016), it has been inter-alia held that even in case where the builder is unable to complete the construction on account of reasons beyond his control, the purchaser should be entitled to atleast take refund of the principal amount, paid by him to the builder, he not in any manner being responsible for the act which prevents the builder from completing the construction.
In our considered opinion, the said judgment does not at all apply to the facts of the present case. In the present case, the complainant admittedly deposited an amount of Rs. 6,21,250/- towards two installments with the OP. It is also an admitted fact that thereafter the OP vide notice dated 01.04.2006 called upon the complaint to pay Rs.7,75,428.30p. within 30 days but the complainant did not deposit the said payment with the OP. It is also an admitted fact that thereafter vide letter dated 30.05.2007, the OP rejected the registration application of the complainant and deposited a cheque of Rs. 6,21,250/- directly in the account of the complainant and the said cheque was got encashed.
However, according to the complainant, he had accepted this payment without giving up his rights in flat in question and he received the above payment under protest and prejudice to his right. Onus to prove this fact was heavily upon the complainant. However, except making bald averments in the complaint and his affidavit which fact has been denied by the OP, the complainant has not led any oral evidence or documentary evidence which may even suggest that the complainant had accepted the refund of Rs.6,21,250/- without giving up his rights in the said flat under protest and without prejudice to his rights.
It becomes evident that after the project of the OP was approved by the banks and the prices of the properties escalated in the market the complainant changed his mind and asked the OP to allot him a flat. Therefore, with the acceptance of the amount of Rs. 6,21,250/- towards refund the complainant ceased to have legal rights in the flat in question and he also ceased to be a “Consumer” as defined in the Consumer Protection Act. Hence, we do not discuss the judgment relied on by the OP in FA No. 135 of 2013 - M/s JMD Ltd. vs. Mrs. Meenu Aggarwal decided by the National Commission on 07.02.2014.
In view of the above discussion, we hold that there is no deficiency in service which otherwise has not been pleaded in the complaint on the part of OP and, accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 08.11.17
