Haryana

Panchkula

CC/68/2017

GURDEEP SINGH - Complainant(s)

Versus

MANAGER ANSAL HOUSING & CONSTRUCTIONS LTD. - Opp.Party(s)

B.S DHALIWAL

08 Feb 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.        

                                                       

Consumer Complaint No	:	68 of 2017
Date of Institution	:	24.3.2017
Date of Decision	:	08.02.2018

               

Gurdeep Singh S/o Sh. Birinder Pal Singh House No.1418, Sector-21, Panchkula (Haryana).

                                                                           ….Complainant

Versus

1. Manager Ansal Housing and Constructions Ltd. SCO No.34, Sawastik Vihar, MDC Sector 5, Panchkula (Haryana).

 

2. Sh. Deepak Ansal, Managing Director Ansal Housing and Constructions Ltd. 2^nd Floor GNG Tower, Building No.10, Sector 44 near HUDA City Centre Metro Station, Gurgaon (Haryana).

                                                                        ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:              Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.Jagmohan Singh, Member.

 

For the Parties:   Mr. B.S.Dhaliwal, Advocate for complainant. 

                        Mr. Vaibhav Narang, Advocate for OPs.

ORDER

(Anita Kapoor, Member)

 

1.     The complainant, who did not own a residential house/property and was interested in a small size plot, was approached by the marketing official of OPs with a proposal for the allotment of a 200 sq. yard plot to him in case he made his contribution for the scheme which the OPs were into for establishing a colony. The complainant paid different amounts of money to the OPs from time to time. However, after sometime thereof, the OPs told him that the land purchased/identified fell short of the requirement for building a colony. But assured him that efforts would be made to procure the deficit land adequate enough for building a colony and that the complainant would not be a looser in any case. The complainant was also assured that if the project aforementioned did not take off, the complainant shall be offered plot alternatively in the projects the OPs had at Gurgaon or at other places. For cementing that assurance of allotment of alternative plot, the OPs also forwarded to him literature pertaining to those other projects. However, the complainant was not possessed of adequate money to purchase a plot in those very costly projects. Thereafter, the OPs pleaded for time due to the recession in the market but promised to pay up interest on the amount paid by the complainant.

                The OPs, did not, however, honoured their undertaking and, instead, diverted the funds paid by the complainant to other projects.

2.     It was on the above averments that the complainant filed this complaint for the refund of the amount already paid (Rs.8,19,375/-) with compound interest @ 15% per annum, alongwith the compensation for mental agony as also the costs of litigation.

3.     The OPs challenge the very locus-standi of the complainant to file this complaint on an averment that he was not a consumer within the ambit of the Consumer Protection Act and that he was, in fact, a contributed for the project and he would have liked to sell the plots to prospective buyers to earn profit. Reliance, in support of the averment was placed upon the terms and conditions of the MOU executed between the parties. While averring that it was the default on the part of the complainant to pay up the agreed payments which led to the inability on their part to purchase the land and launch its project in Panchkula extension.

4.     Affidavit (Annexure C-C) alongwith documentation (Annexure C-1 to Annexure C-13 and Annexure C-13A to Annexure C-16) were tendered into evidence by the complainant; while affidavit (Annexure R-A) and documentation (Annexure R1) was tendered into evidence on behalf of the OPs.

5.     We have heard the learned Counsel for the parties and have perused the record.

6.     The presentation on behalf of the OPs challenged the very locus standi of the complainant to file this complaint on an averment that he was not a consumer within the ambit of the Consumer Protection Act. The maintainability of the complaint was challenged on that very premise but by adding that the transaction was contractual in nature and the complainant cannot be heard to make a grievance thereof in a complaint before the Forum.

7.     While appreciating the contents of the MOU, we cannot ignore from consideration the contents thereof in entirety and also the contents of documentation (Annexure C-2 to Annexure C-8), all (Annexure C-2 to Annexure C-8) of which purport to be receipts issued by the OPs in favour of the complainant as an “Advance for a Unit in PE01”. The purported contents of the MOU notwithstanding, the receipts give a clear cue to the nature of the transaction between the parties herein.

8.     Having noticed that, we may also indicate that Clause-6 of the MOU provided for an agreement “that process of allotment of Plot/Unit shall start only after proper sanction/permissions/licenses granted by the competent authorities” and that “the terms & conditions of the allotment of the reserved plot  shall be  identical as applicable to  the other  Buyers or Purchasers

 in the future project”. It was further agreed in the MOU that the complainant herein would undertake to “execute the Standard Plot/Unit Buyer’s Agreement or the Standard Allotment Letter, as shall be executed by the other allottees or purchasers in the residential colony”.

                A conjunctive perusal of the MOU (Annexure C-1) and receipts (Annexure C-2 to Annexure C-8) leave no manner of doubt that the transaction pertained to a pure and simple allotment of a flat by the OPs to the complainant. By no stretch of interpretation can the complainant be described to be a contributor/financier of the project. There is nothing un-common to find that an identical buyer would be recorded to be entitled to a priority allotment, be it in terms of location etc. Any advance payment of identical nature cannot deny to the complainant the locus as a consumer. 

9.     We can also record that there is nothing uncommon for the builders of the level of OPs to have a legal team to draft the documentation which (documentation) would be invariably voluminous in character and an applicant for a plot would neither be inclined nor allowed to go through the contents thereof in entirety. In fact, a non lawman would not be able to appreciate the legal connotation of the phraseology used therein. Though an apparent flush look at the documentation might look alluring from the point of view of the OPs, the mirage would disappear on a conjunctive perusal of the MOU and Annexure C-2 to Annexure C-8.

10.    It may also be noticed that the complainant made a precise averment in the course of Para-7 of the complaint that the OPs had diverted funds received from him for the purchase of land for other projects. That averment has not been categorically controverted in the corresponding para of the written statement.

11.    It also cannot be lost sight of that the MOU (Clause-7) contained an agreement that in case the project is abandoned or not undertaken due to any unwanted or statutory objections, the complainant herein would be entitled to “get refund of the amount deposited/contributed with a simple interest @ 10% p.a. payable from the date of this agreement or from the date of encashment of cheques as may be applicable”.

                In view of that agreement, the OPs cannot make a grievance of the claim made by the complainant for the refund of that amount within simple interest @10% per annum, as extracted above.

12.    In the light of forgoing discussion, we would allow this complaint and order that:

(a)    The OPs shall refund an amount of Rs.8,19,375/- with interest at the agreed rate of 10% p.a from the date of receipt of each item of amount till the payment thereof comes about;

(b)    The OPs shall pay an amount of Rs.50,000/- as compensation for the mental agony caused to the complainant;

(c)    The OPs shall pay an amount of Rs.10,000/- as the cost of litigation. 

13.    The OPs shall comply with this order within a period of one month from the date its communication to them comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint.

Announced

08.02.2018        JAGMOHAN SINGH    ANITA KAPOOR      DHARAM PAL

                        MEMBER                 MEMBER              PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

                                                ANITA KAPOOR  

                                                MEMBER