DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.224/13
Smt. Chintu Kumari
W/o Shri Pramod Kumar
R/o Flat No. B-2, 177C/1
Prince Aptt. Ward No. 02
Mehrouli
New Delhi-110030. .…Complainant
VERSUS
Shri Manish Gupta
Proprietor, M/s V.G. Estate
1A Forest Kabem M.G. Road
Ghitorni
New Delhi-110030.
Shri Sachin Gupta
Proprietor, M/s V.G. Estate
1A Forest Kabem M.G. Road
Ghitorni
New Delhi-110030.
Mukesh Sharma
Proprietor, M/s V.G. Estate
R/o H.No.1080
Ground Floor
Near Gurudwara
Ward No.01, Meahrouli
New Delhi-110030. ….Opposite Parties
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Date of Institution: 16.04.2013
Date of Order : 15.05.2023
Member: Shri U.K.Tyagi
Complainant has made request for passing an award directing Mukesh Gupta and Sachin Gupta of M/s V.G. Estate and Mukesh Sharma being property broker presented himself as partner of above company (hereinafter referred to as OP-1 to OP-3) (i) to refund the amount of Rs. 7,00,000/- with interest @ 18% p.a. till its realization ; (ii) to pay Rs. 2,00,000/- towards punitive damages for gross negligence, mental agony etc ; (iii) to pay Rs. 50,000/- towards compensation for breach of agreement ; (iv) to allow cost of legal proceedings to the tune of Rs. 45,000/- etc.
Brief facts of the case are as under:-
The Complainant has maintained that the OPs had approached him for purchasing a flat in the multistoried building viz. “Vaidyansh Residency” situated at Ghitorni, New Delhi. The Complainant alongwith her husband visited the office of OPs. The OPs presented that the said firm was a reputed firm and engaged in development, construction, sale & purchase of immovable property. OP-1 further stated that they have entered into collaboration agreement with Sh. Girish Lohia for construction of ‘Vaidyance Residency’ upon the land measuring 300 Sq. Yards in Khasra No. 298/1 situated in Lal Dora revenue estate of Ghitorni. As per collaboration agreement, the OPs were competent to sell some portion of said Residency. The Complainant booked two bedroom flat on 2nd floor of the proposed Residency. The Complainant and OPs made “Agreement to Sell” duly notarized on 07.09.2012. The sale consideration for the said flat would be Rs. 25,50,000/- and out of which Rs. 2,55,000/- to be paid as earnest money & rest of amount to be paid as under as stated by the complainant:-
- Rs. 7,50,000/- on or before 06.08.12
- Rs. 70,0000/- on or before 28.08.12
- Balance Rs. 8,45,000/- will be funded through bank. OPs shall procure the loan facility & shall be their responsibility.
The apartment shall be handed over in 4 months. Sale deed shall be executed shortly thereafter. As per above agreement, the Complainant paid Rs. 1,55,000/- as cash & Rs. 1 lac vide two cheques No. 104425/104426 of Rs. 50,000/- each on 31.07.12.
- On 06.08.12 paid the amount of Rs. 7,45,000/-
- On 06.09.12 paid the amount of Rs. 6,00,000/-
One lac cash+ 5 lacs through two cheques of Rs. 2,50,000/- each vide cheque No. 338877 of SBI & 135151 of SBI-Ansari Nagar. The receipt of above amount & photocopy of bank statement are attached as Annexure-2 & 3. The Complainant contacted the OP for arranging the bank loan for balance amount of Rs. 8,45,000/- as agreed upon. When it seemed to Complainant that OPs were unable to arrange loan and requested to cancel the agreement. Upon his request, the OPs cancelled the agreement and they would make the payment by 02.11.2012 to the complainant.
The Complainant visited the OPs for collection of the amount on 02.11.12, 12.11.12 and 08.12.12. On 15.12.12, the OPs gave the post -
dated cheques of Rs. 16 lac as under :-
Date | Cheque No. | Bank | Amount |
20/12/12 | 123399 | O.B.C Bank Vasant Kunj | 6,00,000 |
27/12/12 | 123398 | O.B.C Bank Vasant Kunj | 6,00,000 |
02/01/13 | 138763 | OBC Bank New Delhi | 3,00,000 |
02/01/13 | 672706 | SBI, New Delhi | 1,00,000 |
On the schedule dates, the Complainant presented above mentioned four cheques but only two of Rs. 3 lac & Rs. One Lakh were got honoured and w.r.t. remaining two cheques, the bank told that the signatures were not tallied. As such, the OP deceived the Complainant. The OP further gave Rs. 2 lakh in cash and gave cheque No. 90646 dated 12.12.2013 of Rs. 5 lakhs and assured to give remaining amount soon. On 11.02.13, the Complainant presented the cheque which was got dishonoured. Again the OPs gave 3 lac in cash. On 18.02.13, the Complainant visited the office for the payment of remaining amount of Rs. 7 lac. As such, the OP are responsible to make the said payment of Rs. 7 lac. No further resolution was provided by OPs. Hence, the complaint.
OP-1 on the other hand filed its reply. He maintained that this Forum/Commission did not have jurisdiction. The present complaint is bad for non-joinder of the parties. No cause of action arose in favour of OP-1. The Complainant has not provided any reason as to why the flat was not purchased. Due to insufficiency of funds, the complainant did not wish to pay instalment on the loan. Agreement to Sell is not a registered document hence, no reliance should be placed on it. It was further contested that as per Agreement para 3(C) and para 5 (II) of “Agreement to Sell”, the 2nd party i.e. Complainant shall secure loan from the bank. It is denied that the OPs had ever agreed to arrange the funds of Rs.8,45,000/- from the Banks for complainant. The OP-1 undertook to assist the Complainant in procuring the loan. As per Agreement, the OPs were ready to give possession of the said flat but Complainant had difficulty in arranging the funds and more interested in refund of the amount paid to OPs. The OP-1 was not bound by the said agreement. It was denied that OP-1 had ever assured to refund the amount on 02.11.2012 as maintained by complainant in its complaint.
OP-2 & 3 have also filed their reply, on the similar lines. It was also denied that Sachin Gupta & Mukesh Sharma (OP-2 & 3) were partners of the V.G. Estate. The OP-2 & 3 further denied the para 4 of the complaint and the OPs-2 & 3 have any concern with the said building. The OPs-2 & 3 have denied para 5 to 32 of the complaint for want of knowledge. They further stated that OPs were never involved with the Complainant and have been falsely implicated in the present case. Therefore, the complaint be dismissed outrightly.
The Complainant filed written submission & evidence in affidavit. Written statements were filed by OP-1 & OP-2 and 3 jointly so are rejoinder for both written statements. The OP-2 & 3 did not file their evidence and written arguments. OP-1 also missed the opportunity to file the written argument. OPs were not present for advancing the oral argument despite many opportunities were provided. Being an old case, it was considered appropriate to hear the oral argument of Complainant and to reserve the case for orders.
This commission has gone into entire material placed on record. As discussed above, the OP-1 i.e. Mukesh Gupta had entered into Agreement to Sell with the Complainant. He had declared himself as proprietor of the said proprietorship concern i.e. M/s V.G. Estate. It is noted that all the OPs have filed their replies. OP-1 in the capacity of proprietor and other two OPs i.e. OP-2 & 3 have shown their ignorance to the entire developments. While going through the documents filed by the Complainant more particularly photocopies of Cheque No. 123399 dated 20.12.12 are in favour of Promod Kumar (husband of Complainant) for Rs. 6,00,000/- and Cheque No. 123398 dated 27.12.12 again in favour of Sh. Promod Kumar. These Cheques have been signed for V.G. Estate by proprietor. The signatures on these Cheques do not tally with signatures of Manish Gupta who declared himself as proprietor of V.G. Estate, The signatures of Manish Gupta are appended on “Agreement to Sell”. The signatures of all the three OPs are also appended on Vakalatnama where signatures of all the three can be seen clearly. The signatures on the Cheques as stated above, seem more similar to the signature of Sh. Sachin Gupta. They have given in written statement and evidence in affidavits confirming to this effect that OP-2 & 3 have nothing to do with the entire developments of sale/purchase of said apartment.
In view of the above discussion, this Commission is convinced to weigh its decision in favour of Complainant and further considered that the averments made by Complainant are reliable to greater extent. From the record available, it is clear that OP-1 & 2 have nexus in entire sale-purchase process of said apartment.
After having considered the facts & circumstances and discussion made above, this Commission is convinced that OP-1 & 2 are responsible and owe the amount as requested by the Complainant. Accordingly, OP-1 & 2 are directed to pay the remaining amount of Rs. 7,00,000/- alongwith interest @ 6% p.a. from the date of institution of this case in this Forum/Commission within 3 months from the receipt of this order failing which the rate of interest shall be levied @ 7% p.a. till its realization severally or jointly.
File be consigned to the record room after giving copy of the order to the parties as per rules.
