Mr. Puran Chand filed a consumer case on 08 Dec 2021 against M/s Alpha G Corp Development Private Limited in the Karnal Consumer Court. The case no is CC/777/2019 and the judgment uploaded on 10 Dec 2021.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.
Complaint No. 777 of 2019
Date of instt.22.11.2019
Date of Decision 08.12.2021
1. Mr. Puran Chand son of Late Babla Ram
2. Sunita wife of Puran Chand
Both residents of village Umarpur, P.O. Pathera, Tehsil Indri, District Karnal.
…….Complainants.
Versus
1. M/s Alpha G: Corp Development Private Limited, Golf View Corporate Towers, Wing-A, Golf Course Road, Sector-42, Gurgaon through its Director.
2. M/s Alpha G: corp Development Private Limited village Baldi, Sector-28A & 29, Karnal through its authorized signatory.
…..Opposite Parties.
Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.
Before Sh. Jaswant Singh……President.
Sh. Vineet Kaushik…….Member
Argued by: Shri Naveen Khetarpal counsel for complainants.
Shri Vishal Chawla, representative on behalf of opposite parties.
(Jaswant Singh President)
ORDER:
The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that looking at the advertisement of the OPs no.1 and 2, the complainants approached to the OP no.2 with a view to invest his hard earned money, where Sales Executive of the OPs no.1 and 2 allured the complainants by saying the investment in this project and offering the plots at a very meager price. On believing the version of the OPs no.1 and 2, complainants agreed to purchase plot in the project of the OPs no.1 and 2 and accordingly applied for the same for registration/allotment of residential plot to the company, and the complainants were allotted plot no.943/29 of having area of approx.360 sq. yards. The Floor’s Buyer Agreement was also executed between the OPs no.1 and 2 and the complainants on 29.01.2015. At the time of booking of the aforesaid flat, the complainants had paid an amount of Rs.9,05,024/- as booking amount in two installments vide cheque no.97884 dated 11.10.2014 for Rs.4,52,512/- and cheque no.330498 dated 15.01.2015 for Rs.4,52,512/-. Thereafter, Puran Chand i.e. complainant no.1 suddenly fell ill somatoform disorder disease in the year 2015 and the complainant no.1 till date is under treatment from Dr. P.D. Garg, M.D.Psychiatry, Government Medical College Amritsar from September, 2016 and the complainant no.1 due to the aforesaid illness could not deposit further amount with the OPs no.1 and 2 and finally when the complainants unable to pay the remaining amount to the OPs no.1 and 2, moved an application under the subject surrender/cancellation of plot no.943/29 before the concerned official of the OP no.2, vide letter dated 16.11.2016, 10.07.2017, 07.05.2018, 28.05.2018 and 11.06.2018 but the OPs no.1 and 2 did not respond on the request of the complainants and inspite of knowledge regarding the long/chronic illness of the complainants, OPs no.1 and 2 failed to refund the aforesaid amount to the complainants inspite of several oral as well as written requests. OPs no.1 and 2 are bound to repay/return the security amount deposited by the complainants’ alongwith the interest prevailed in the market. OPs no.1 and 2 in order to grab the booking/security amount deposited by the complainants, is not responding on the request of the complainant. Then complainants sent a legal notice to OPs in this regard but it also did not yield any result. In this way there was deficiency in service on the part of the OPs. Hence complainants filed the present complaint.
2. Notice of the complaint was given to the OPs, who appeared and filed written version raising preliminary objections with regard to maintainability; jurisdiction; cause of action; limitation and concealment of true and material facts. On merits, it is pleaded that complainants were allotted the plot no.943, admeasuring initial tentative area of 360 sq. yards situated in Sector-29, Phase-2 of licensed plotted Township Alpha International City Karnal at a total sale consideration of Rs.70,84,440/-, which as per “Time-Linked Payment Plan” opted by the complainants in their Allotment Application Form, was to be paid strictly in accordance with pre-decided fixed Schedule of Payment as contractual obligation of the complainants. It is further pleaded that complainants had opted the plot in issue with specific plot no.943 in Sector 29, being a Corner Plot therefore additionally attracting Preferential Location Charges in accordance with the agreed terms of the Allotment, opting to pay the total sale consideration of the plot in question as per “Time-Linked Payment Plan.” It is further pleaded that the complainants breached the allotment conditions as well as terms and condition of the plot Buyer Agreement dated 29.01.2015 that the complainants had entered into with the OP company an did not make any payment after the initial payment of Rs.9,05,024/- despite several demand invoices being raised for payment of the due installments, repeated with reminders, and notices, but the complainant did not pay any heed to it and withheld lawful payment of the OPs developer company that otherwise was agreed to be paid by the complainant in accordance with the agreement Payment Plan as enshrined in the Plot Buyer’s Agreement. It s further pleaded that a summary schedule of Time Linked Installments that had fallen due, the meager amount of Rs.9,05,024/- paid against that the total demands, demand invoices, reminders and notices thereto have been complied. It is further pleaded that as a last resort and without being felt with any other choice, the OPs have constrained to terminate the Plot Buyer’s Agreement vide letter dated 31.05.2018 executed between the complainant and the OPs and the booking amount stood forfeited in terms of the agreed provisions of the plot Buyers Agreement and after such forfeiture nothing remain to be refunded to the complainants, rather the complainants still owes money against said agreed forfeiture amount as the amount paid by the complainants were not sufficient to adjust the total due forfeiture amount. The OPs have reserve its right to seek recovery of balance amount towards forfeiture amount against the complainants. It is further pleaded that the complainants had already offered physical possession of the plot in question vide Offer of Possession Letter dated 04.07.2017 pursuant to Plot Buyers Agreement dated 29.01.2015. Therefore, the above captioned complaint has not been filed within the prescribed statutory period of limitation and is as such barred by limitation and not condonation of delay has been sought by the complainants, therefore, present complaint is not maintainable before this Commission. It is further pleaded that complainant had made speculative investment with the intention to sell the said plot at a higher price. The complainant with a view to earn profit out of its investment booked the said plot in 2011 when the real estate market was up and was yielding good returns. However, as the real estate market started showing a dip; the complainant stopped paying any amounts and is now seeking a refund of his investment from the OP. Undisputedly, the investment in relation to allotment/purchase of the plot by the complainant was for commercial purpose. Hence, it is asserted that since the complainant bought the plot for commercial gain, he does not qualify as ‘consumer.’ It is further pleaded that there is no pleading nor there is any evidence to demonstrate the complainants wanted to purchase the said plot exclusively for the purpose of their personal use and livelihood and by means of self-employment. It is further pleaded that the agreement specifically provides for cancellation thereof on the part of the allottee as well as the company, under specific circumstances/situations mentioned therein. As such, the cancellation of the agreement can only be done in accordance with the terms of the agreement. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.
3. Parties then led their respective evidence.
4. Complainants tendered into evidence his affidavit Ex.CW1/A, receipt dated 18.06.2015 Ex.C1, receipt dated 19.06.2014 Ex.C2, treatment record Ex.C3, office order Ex.C4 and Ex.C5, agreement Ex.C6, letters dated 16.11.2016, 10.07.2017, 07.05.2018, 28.05.2018 and 11.06.2018 with regard to surrender/cancellation of plot no.943/29 as Ex.C7 to Ex.C11, legal notice Ex.C12, postal receipt Ex.C13 and closed the evidence on 31.03.2021 by suffering separate statement.
5. On the other hand, OPs tendered into evidence affidavit of Vijay Kumar authorized representative of OP Ex.OP1/A, certificate of incorporation Ex.OP1, copy of application no.AICK 1096 Ex.OP2, copy of the allotment letter Ex.OP3, application for grant of part completion certificate Ex.OP4, Environment clearance Ex.OP5, Part Completion Certificate Ex.OP6, Demand Letter Ex.OP7, Plot Buyers Agreement Ex.OP8, Reminder dated 07.01.2015 Ex.OP9, reminder dated 07.02.2015 Ex.OP10, demand letter Ex.OP11, reminders Ex.OP12 to Ex.OP15, notice-I Ex.OP16, demand letter Ex.OP17, Notices Ex.OP18 and Ex.OP19, special notices Ex.OP20 to Ex.OP22, demand letters Ex.OP23 to Ex.OP25, letter of offer of physical possession Ex.OP26, Notice of Termination Ex.OP27, Termination letter Ex.OP28, letter of surrender/cancellation Ex.OP29 and Board Resolution Ex.30 and closed the evidence on 01.07.2021 by suffering separate statement.
6. We have heard the learned counsel for the complainant and representative of OPs and perused the case file carefully and have also gone through the evidence led by the parties.
7. Learned counsel for complainants argued that complainants agreed to purchase plot in the project of OPs and accordingly, they applied for the same for registration/allotment of residential plot to the company, thereupon, complainants were allotted a plot No.943/29, having area approx. 360 square yards. An agreement in this regard was also executed between the parties. Complainants made payment of Rs.9,05,024/- as booking amount in two installments upto 15.01.2015. Thereafter, complainant No.1 suddenly fell ill i.e. somatoform disorder disease, in the year 2015 and complainant No.1 was undergoing treatment from Amritsar and due to the aforesaid reason, he could not deposit further amount with the OPs complainant No.1 requested for surrender/ cancellation of aforesaid plot vide letters dated 16.11.2016, 10.07.2017, 07.05.2018, 28.05.2018 and 11.06.2018 but OPs did not respond to the requests and despite the knowledge of chronic illness of complainant No.1, the OPs failed to refund the aforesaid amount inspite of several oral as well as written requests and in order to grab the booking amount, the OPs did not respond to the requests of the complainant No.1. The complainants also got served a legal notice to OPs through their counsel, but despite that no reply was filed by the OPs. He further argued that in the entire written version, the OPs did not disclose about the request letters given by the complainants to the OPs with regard to cancellation of agreement and for refunding of amount. They even disclosed that in the year 2019 the complainant requested for refunding of amount when the plot buyer’s agreement was terminated. However, this fact is an afterthought and has created a story in order to save their skin and to grab the booking amount, rather the true fact is that since the year 2016 when the complainant No.1 fell ill, the complainants are continuously requesting the OPs for refunding of booking amount as well as for cancellation of plot buyers agreement. All the request letters were given to OPs by hand in their office but they intentionally refused for issuing any acknowledgment in this regard and orally stated that their request shall be considered soon as the matter has already been sent to the higher authority and in this way, they prolonging the matter. Finally, when the OPs did not consider the request of the complainants, they issued legal notice to the OPs, despite that they did not consider the request of the complainant. He further argued that the as per the version of OPs they sent several reminders and finally a termination notice to the complainants but the complainants never received any reminder as well as notice of termination from the side of OPs. If the OPs sent reminders as well as notice of termination, in that eventuality, they should have also placed on record any receiving in this regard. In this way, the OPs are deficiency in service and prayed for allowing the complaint. Learned counsel of complainant has placed reliance on the case laws titled as M/s Pyaridevi Chabiraj Steel Pvt. Ltd. Versus National Insurance Company Ltd. and 3 Ors. in Consumer Case no.833 of 2020 decided on 28.08.2020; Pioneer Urban Land & Infrastructure Ltd. Versus Govindan Raghavan in Civil Appeal no.12238 of 2018 and Pioneer Urban Land & Infrastructure Ltd. Versus Geetu Gidwani Verma & Anr. in Civil Appeal no.1677 of 2019 decided on 02.04.2019.
8. Per-contra, representative of OPs submitted that complainants were allotted plot No.943 admeasuring initial tentative area of 360 square yards as per offer of possession letter, situated in Sector-29, Phase-2, licensed plotted Township Alpha International City, Karnal, for total sale consideration of Rs.70,84,440/- as per “Time Linked Payment Plan” opted by the complainants in their allotment application form, was to be paid strictly in accordance with pre-decided fixed Schedule of Payment as contractual obligation of the complainants. The complainants breached the allotment conditions as well as terms and conditions of the plot buyer agreement dated 29.01.2015 by not making payment after initial payment of Rs.9,05,024/- despite several demand invoices being raised for payment of due installments, repeated with reminders, and notices dated 07.01.2015, 07.02.2015, 21.02.2015, 27.03.2015, 23.04.2015, 25.05.2015, 06.07.2015, 03.08.2015, 21.08.2015, 14.09.2015, 05.10.2015, 06.11.2015, 05.12.2015, 08.01.2016, 29.02.2016, 30.08.2016 and 28.02.2017. He further submitted that despite that, the OPs offered the physical possession of plot to the complainants vide letter dated 04.07.2017 but complainants showed no interest in taking the physical possession of plot and chose to yet again ignoring the reminders/ communication of OPs. Therefore, the OPs was constrained to issue a notice of termination vide letter dated 19.09.2017. Finally, the OPs terminated the plot buyers agreement dated 29.01.2015 vide termination letter dated 31.05.2018 and booking amount paid, stood forfeited in terms of the agreement. Thereafter, on 04.06.2019, complainant illegally demanded the refund of booking amount which was forfeited in terms of termination letter dated 31.05.2018. He further submitted that complainants had never raised the issue of deteriorating health of complainant No.1 and lack of finance, neither when the OPs have raised demand for payment nor when the OPs had offered physical possession of plot, hence, it is crystal clear that this is an afterthought to give a colour to the illegal demands of complainants. He further submitted that the complainants have deliberately chosen to approach this Commission as a mechanism to abuse to process of law and bypass the prescribed system for resolution of legal disputes. He further submitted that the complainants had purchased the plots in order to earn profit from the real estate market, however, because of slump in economy and real estate industry in particular, the complainants did not seems to get expected high returns on their investment in the plot in issue, therefore, in gross breach of its contractual obligation to make payments of various time linked payment towards sale consideration. He further submitted that the present complaint is not maintainable before this Commission due to want of pecuniary jurisdiction as agreement total sale consideration of plot is Rs.70,84,440/- which is beyond the sanctioned statutory pecuniary jurisdiction of this Commission. He further submitted that complainant had already offered physical possession of plot vide letter dated 04.07.2017, therefore, the present complaint has not been filed within the prescribed statutory period of limitation and is as such barred by limitation. He further submitted that present complaint does not disclose any cause of action and the complaint is completely silent as to when the cause of action accrued in favour of complainants and against the OPs. He further submitted that the present complaint is not maintainable before this Commission in view of bar contained in clause 25 of the Plot Buyer’s Agreement dated 29.01.2015. He further submitted that complainant had made speculative investment with the intention to sell the said plot at a higher price. Since, the complainant booked the said plot in order to earn profit out of its investment, he does not qualify as “consumer”. Hence, the present complaint being not maintainable is liable to be dismissed. Representative of OPs has placed reliance on the case laws titled as Food Corporation of India Versus Surana Commercial Co. and others (2003) 8 SSC; New India Assurance Company Limited Versus Genus Power Infrastructure Limited (2015) 2 SCC; Delhi Development Authority and another Versus Joint Action Committee, Allottee of SFS Flats and others (2008) 2 SCC; Tamil Nadu Electricity Board and Ors. Versus N. Raju Reddiar and Ors. in civil appeal no.7496 of 1996 decided on 24.04.1996; Bharathi Knitting Co. Versus DHL Worldwide Express Courier Division of Airfreight Ltd. in civil appeal no.9057 of 1996 decided on 09.05.1996 and K. Sagar Versus A. Bal Reddy and Ors. in civil appeal no.1498 of 2005 deided on 11.06.2008 of Hon’ble Supreme Court; DLF Southern Towns Pvt. Ltd. Vs. T.P.Balachandra Panicker in Revision Petition no.1974 of 2014 decided on 07.01.2015; Prateek Realtors Pvt. Ltd. Versus Vivek Kumar Gupta & Anr. in first appeal no.584 of 2018; Shri Rishabh Enterprises Vs. Smt. Neetu Datta in Revision Petition no.4264 of 2007 decided on 21.05.2012 of Hon’ble National Commission and Rachhpal Singh Versus State of Punjab and others in SWP no.17061 of 2015 decided on 01.12.2016 of Hon’ble High Court of Punjab and Haryana, Chandigarh.
9. Admittedly, the complainants have booked a plot in the project of OPs and plot no.943/29 was allotted to them. It is also admitted that initially complainants had paid Rs.9,05,024/- to the OPs as per payment schedule.
10. As per version of complainants, the complainant No.1 was suffering from psychiatry problems (Somatoform disorder) from the month of September 2016 and was undergoing treatment from Dr.P.D. Garg MD, Government Medical College, Amritsar, which is evident from the treatment record placed on file as Ex.C3 to Ex.C5. The complainant requested the OPs vide letter Ex.C7 for surrender/cancellation of plot in question firstly on 16.11.2016 and thereafter, on 10.07.2017, vide letter Ex.C8, then on 07.05.2018 vide letter Ex.C9, then on 28.05.2018 vide letter Ex.C19 and lastly on 11.06.2018 vide letter Ex.C11, explaining the reason that he is facing financial hardship due to his sudden illness but OPs neither replied nor refunded the booking amount to the complainant. Lastly, the complainant served a legal notice dated 18.09.2019, to the OPs which is Ex.C12. The complainant has also placed on record postal receipt as Ex.C13, which shows that legal notice was served upon the OPs but despite receiving the notice, the OPs did not even reply for the same.
11. Despite the requests made by the complainant for cancellation of plot buyer’s agreement and for refunding of booking amount, the OPs issued termination notice dated 19.09.2017 and finally terminated the plot buyer’s agreement and forfeited the booking amount vide letter dated 31.05.2018 and this fact is proved from the Ex.OP27 and Ex.OP28 respectively.
12. The OPs has taken a plea that the complainant has failed to deposit the remaining installments of the plot in question in time as per the payment schedule and terms and conditions of the buyers agreement, thus, the OPs had rightly forfeited the booking amount deposited by the complainant.
13. The complainant due to chronic disease could not pay the remaining installments of the plot in question and requested to refund the booking amount and to cancel the buyers agreement firstly on 16.11.2016 and lastly served a legal notice dated 08.09.2019 to the OPs but OPs denied the factum of receiving of aforesaid letters as well as legal notice. This Commission is convince with the arguments of complainants that the letters for refunding of booking amount as well as for cancellation of plot buyer’s agreement were given to the OPs by hand and they intentionally did not issue any receiving/acknowledgement of the same, and hence, they can easily deny the receiving of the same. The complainant in order to prove the fact that he has issued a legal notice Ex.C12, to the OPs with a request to cancel the plot buyer’s agreement and to refund the booking amount, has placed on file postal receipt Ex.C13, from which it can be evident that legal notice was duly received by the OPs and wherein the complainants have described about all the previous request letters, meaning thereby the OPs had received all the correspondence sent by the complainants and they were intentionally denied the same only in order to forfeit the booking amount deposited by the OPs. Further, the OPs have not even placed on record any receiving of the reminders as well as notice of termination issued to the complainants, hence, it can easily be presumed that they have been prepared lateron only in order to forfeit the booking amount of plot deposited by the complainants.
14. Now question for consideration before us, is that, whether the complainants fall under the definition of ‘consumer’ as per Consumer Protection Act, or not.
15. The OPs have taken a plea that the complainants have purchased the aforesaid plot in order to earn profit, therefore, they do not come under the definition of “consumer” as per Consumer Protection Act, 1986 (now after amendment Consumer Protection Act, 2019). The onus to prove this fact was lie upon the OPs, but OPs failed to prove this fact by leading any cogent and convincing evidence. The complainant no.1 has categorically stated in the complaint as well in his affidavit Ex.CW1/A due to illness he could not deposit the further amount with OP no.1 and he moved an application under the subject surrender/cancellation of plot in question before the concerned official of OP no.2, vide letters dated 16.11.2106,10.07.2017, 07.05.2018 and 11.06.2018. To prove his version complainant placed on record treatment record Ex.C3 to Ex.C5. Furthermore, the dispute in the present complaint is qua refund of the advance money which was deposited by the complainant with the OPs for purchase of a residential plot. The onus to prove the fact regarding the complainants have purchased the plot in question for earning profit was lie upon the OPs but OPs failed to prove this fact by leading cogent and convincing evidence, hence, this plea of OPs has no force. Moreover, if the complainants had purchased the plot for the purpose of investment and for earning money, then they did not surrender the plot in question.
16. The OPs have taken another plea that as per plot Buyers Agreement, this Commission has no territorial as well as pecuniary jurisdiction to try and entertain the present complaint. The plot in question was purchased by the complainant at Karnal, payment was also made at Karnal and the plot in question is also situated at Karnal, hence, this Commission has territorial jurisdiction to try and entertain the present complaint. With regard to pecuniary jurisdiction, the complainants had deposited Rs.9,05,024/- and prayed for refunding of booking amount i.e. Rs.9,05,024/- alongwith interest. As per the latest observation of Hon’ble National Commission in case titled as M/s Pyaridevi Chabiraj Steels Pvt. Ltd.’ case (supra) in which Hon’ble National Commission has held that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of the goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased/taken. Therefore, we are of the view that the provision of Section 58 (1)(a)(i) of the Act of 2019 are very clear and does not call for any two interpretations.
In the said case the value of consideration paid by the complainant is only Rs.4,43,562/-(Rupees four lac forty three thousand five hundred and sixty two only), which is not above Rs.10,00,000/-(Rupees Ten crore), the National Commission has no jurisdiction to entertain the present complaint and it is accordingly dismissed as not maintainable.
In the present complaint, the complainant has claimed only Rs.9,05,024/-. Thus, in view of above referred case this Commission has pecuniary jurisdiction to entertain and decide the present complaint. Thus, the plea taken by the OPs has no force.
17. The other plea taken by the OPs is that the present complaint has been filed by the complainant is barred by limitation. In this regard, buyer’s agreement Ex.OP1/8 executed between the parties on 29.01.2015 and complainant deposited the booking amount in the year 2015 and complainant continuously requested the OPs to cancel the buyer’s agreement and to refund the booking amount on from 16.11.2016 till 08.09.2019 and present complaint was filed before this Commission on 22.11.2019 which is well within limitation. Hence, the plea taken by the OPs has no force.
18. Now the main question for consideration before us is that whether the complainant is entitled for refund of booking amount or not?
19. In this regard, we are of the considered view that from the treatment record Ex.C3 to Ex.C5, it is proved that the complainant No.1 was/is suffering from chronic disease and was undergo treatment, due to this he could not pay the remaining installments of the plot in question and requested for refunding of booking amount from the OPs. This fact is also evident from the letters Ex.C7 to Ex.C11 and legal notice Ex.C12 but OPs have taken the plea that as per terms and conditions of the agreement they forfeited the booking amount on 31.05.2018 of the plot in question without considering the health and financial condition of complainant No.1, despite that complainants had requested for refunding of booking amount from 16.11.2016. As per the judgment titled as Pioneer Urban Land & Infrastructure Ltd. Versus Govindan Raghavan in civil appeal no.12238 of 2018 and Pioneer Urban Land & Infrastructure Ltd. Versus Geetu Gidwani Verma & Anr. in Civil appeal no.1677 of 2019 decided on 02.04.2019 Hon’ble Supreme Court held that the clauses of the Agreement were one-sided. In the present case also, the clauses of the plot buyer’s agreement are one sided and only in favour of the OPs as without considering the request of complainants for refunding the booking amount, they forfeited the booking amount.
20. Keeping in view the ratio of the law laid down in the abovesaid authorities and the facts and circumstances of the present complaint, we are of the considered view that the act of the OPs amounts to deficiency in service and unfair trade practice.
21. The case laws relied upon by OPs, are not applicable to the facts of the present complaint.
22. In view of the above discussion, we allow the present complaint and direct the OPs to pay Rs.9,05,024/-to the complainants with interest @ 9% per annum from the date of its respective deposits till the date of realization. We further direct the OPs to pay Rs.25,000/- as compensation for rendering the deficient services and Rs.11,000/- as litigation expenses. This order shall be complied with within 45 days from the date of receipt of copy of this order failing which the abovesaid amount will carry interest @ 12% per annum till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
Dated:08.12.2021
President,
District Consumer Disputes
Redressal Commission, Karnal.
(Vineet Kaushik)
Member
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