Delhi

StateCommission

A/392/2016

PRAYAG RAJ GUPTA - Complainant(s)

Versus

M/S ANSAL PROPERTIES & INFRASTRUCTURE LTD. - Opp.Party(s)

SUMIT AGARWAL

21 Jan 2020

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments:21.01.2020

Date of Decision : 22.01.2020

FIRST APPEAL NO.392/2016

In the matter of:

 

Shri Prayag Raj Gupta,

S/o. Late Shri Gaja Nand Gupta,

R/o. C-231, Vivek Vihar, Phase-I,

Delhi-110095.                                                                                         …..Appellant

 

Versus

 

M/s. Ansal properties & Infrastructure Ltd.,

Through its Principal Officer/ Manager /

Director / Managing Director,

Having its registered office,

1202-04, 12^th Floor, Antriksh Bhawan,

22 K.G. Marg, New Delhi-110001.

 

Also at:-

Ansal Royal Plaza,

2^nd Floor,

High Court Road, Jodhpur,

Rajasthan.                                                                                        ………Respondent

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. Aggrieved by order dated 08.07.16 passed by District Forum dismissing the complaint, complainant has come forward in the present appeal. He sought refund of Rs.1,88,040/- paid by him. The complainant also sought Rs.1 lakh as compensation for deficiency in service, mental torture, agony and harassment besides Rs.30,000/- as cost of litigation.
2. The undisputed facts are that complainant / appellant  booked plot no.C-0364 Type-G measuring 204.516 sq. yard @2300/- per sq. yard in Ansal Township and Project Ltd. Agreement dated 18.04.06  was also executed. Total sale price was Rs.4,70,387/- payable in installments. He was assured about delivery of the plot within two years. On visit at the site he found that there was no development work. He was told that development work cannot be carried out due to unavoidable circumstances. In July, 2012 he received Rs.93,963/-. He was informed that respondent had cancelled the plot due to non payment of outstanding amount vide letter dated 07.05.07. The appellant pleaded that he had not received the said letter. He sent legal notice dated  28.08.12 which was not replied. Thus he requested for directing the OP to hand over possession on receipt of balance amount. In the alternative he prayed for refund with interest @18% p.a.
3. The respondent/ OP defended the case by filing a WS. It raised objection that the District Forum did not have jurisdiction as appellant was not a consumer and respondent had not rendered any service. The complaint was barred by limitation as complaint has been filed after more than two years from the date of booking in April, 2006. The complainant was defaulter who did not pay the amount despite demand letters/ show cause notice dated 08.03.07, 17.04.07 and 16.08.07 followed by cancellation letter dated  07.05.07 ad 20.06.12. The earnest money was forfeited as per plot buyers agreement dated 18.04.06.
4. Appellant  filed his own affidavit and proved the documents. OP filed affidavit of Shri F.N. Rai, AR who deposed on the line of WS.
5. After going through the material on record and hearing the arguments, district Forum dismissed the complaint on three grounds. One was that sale of plot of land simpliciter was not covered  under Consumer Protection Act as per decision of Hon’ble Supreme Court in Ganesh Lal vs. Shyam. The second ground was that District Forum had no jurisdiction merely on the basis of registered office of OP. The registered office must be coupled with some act of omission/ Commission within the area of registered office. In doing so it relied upon decision of Hon’ble High Court of Delhi in Shristi Udaipur Hotels and Resorts (P) Ltd vs. Huda. The third was that complaint  was filed more than two years after the date of booking and so the complaint was barred by limitation.
6. The respondent was served for  14.03.17, it put in appearance through his counsel Shri Anmol Bharti who filed memo of appearance. Copy of appeal was supplied and it was directed to file reply within eight weeks. It failed to do so on 01.09.17, 02.04.18 and 28.11.18. So it was proceeded exparte.
7. I have gone through the material on record and heard the arguments advanced by counsel for appellant. The counsel for appellant drew my attention towards copy of agreement at pages-32 to 38. Clause 1 (a) at page-33 recites that agreed price covered development of internal  services such as laying of roads, laying of water lines, laying of sewer lines within the peripheral  limits of the colony. Thus it was not a case of sale of plot simpliciter. It was the case in which the OP was to develop the land, ear mark the plot. That is the reason why payment was to be made in instalments and possession was assured to given after two years. Thus the judgement of Ganesh Lal vs. Shyam is not applicable. The argument appears to be correct.
8. The counsel for the appellant submitted that plea of the cancellation and forfeiture taken by the OP/ respondent is baseless. If the OP had cancelled the plot on 07.05.07 it had no occasion to send reminder dated 16.08.07 copy of which is at page-64. By that letter the OP demanded Rs.1,41,230.50.
9. The counsel for appellant further submitted that copy of cancellation notice dated 07.05.07 filed by the OP and available at page-66 shows that it was addressed to some Mr. Pravag Raj Gupta instead of Prayag Raj Gupta. Copy of the  postal receipt affixed at the bottom of the letter does not contain the address at which same was sent. Thus it cannot be believed to have been served upon the complainant.
10. The counsel for the appellant went on to point out that after the alleged cancellation letter dated 07.03.07, respondent accepted payment of Rs.94,200/- vide receipt dated 10.05.07 copy of which is at page-39. Had the respondent cancelled the plot, it should not have accepted the future payment.
11. Moreover it is not the case of the OP/ respondent that it had developed the plot as per promise. So it could not forfeit the amount. It was held in Parsad Homes Pvt. Ltd. Vs. E. Mahender Reddy I (2009) CPJ 136 NC that when builder is at fault, forfeiture of the amount is unfair trade practice and directions to refund with interest was given. OP cannot usurp the amount. Similar view was taken in II (2019) CPJ 122 NC.
12. The third ground for rejection was that complaint was barred by limitation. Appellant had sought possession. In such cases cause of action is continuous. For this reliance can be placed on decision of NC in Satish Pandey III (2015) CPJ 440.
13. Regarding third point of territorial jursidction the counsel for appellant submitted and rightly so that Section 11 Consumer Protection Act confers jurisdiction on the District Forum where the registered office of the OP is situated. Decision relied upon by the District Forum is of a civil suit and is not applicable. I find force in all the three submissions of the counsel for appellant. The appeal is accepted, impugned order is set aside and the respondent is directed to refund Rs.94,077/- forfeited by it, alongwith interest @9% p.a. thereupon from the date of deposit till the date of refund i.e. July, 2012.
14. Copy of the order be sent to both the parties free of cost.
15. One copy of the order be sent to District Forum for information.
16. File be consigned to record room.

 

(O.P. GUPTA)                                                      MEMBER (JUDICIAL)

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