Haryana

Yamunanagar

CC/149/2012

Vivek Gupta S/o Hari Om Gupta - Complainant(s)

Versus

M/S Ansal Properties & Infrastructure Ltd. - Opp.Party(s)

G.D.Gupta

24 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 149 of 2012

                                                                                    Date of institution: 13.02.2012    

                                                                                    Date of decision: 24.05.2017

Vivek Gupta son of Shri Hari Om Gupta resident of house No.C-4-1865, Civil Lines, Jagadhri, District Yamuna Nagar.

 

                        …Complainant.

                                                            Versus

1. M/s Ansal Properties & Infrastructures Ltd., 115 Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi.
2. M/s Ansal Properties and infrastructures Ltd. (API), Sales Office, SCO No.136, Sector 17, HUDA Jagadhri, District Yamuna Nagar.

                                                                                                                                  …Respondents.

BEFORE:       SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND……………… MEMBER

 

Present:           Shri  G.D. Gupta, Advocate for complainant.

                        Shri Yash Pal Rajehri, Advocate for respondents.

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act. 1986 amended upto date.

2.                     Brief facts of the complaint, as alleged by the complainant, are that respondents (hereinafter referred as OPs) had allotted a plot bearing No.B-1046 measuring 300 sq. meter to Smt. Shuruti Jain wife of Shri Ankur Aggarwal in “Susant City”, Jagadhri on 21.03.2011 and an agreement was duly executed between the parties. After that the above referred plot was subsequently purchased from Smt. Shuruti Jain by the complainant and he had deposited Rs.1.00 (one) lac on 11.03.2011 and again Rs.1.00(one) lac on 01.07.2011 with the OP No.2 but the amount was credited to the account of Smt. Shuruti Jain as the plot in question was yet to be transferred in the name of complainant which was transferred on 01.08.2011 in the name of complainant. It has been further mentioned that as per clause 3.1 of the agreement executed between the parties, the cost of plot was fixed @ 5740.40/- per square meter and that included preferential location charges (PLC). Further in clause 3.2,of the agreement, it has been specifically mentioned that if the plot in question ceases to be preferentially location then the buyer shall be entitled for refund/adjustment of the amount of preferential location charges, thus the total cost of the plot had come to Rs.17,22,240/- including PLC. The said Smt. Shuruti Jain had deposited Rs.89,750/- as part payment on 24.03.2011 after the execution of the agreement.  It has been further mentioned that despite taking of the above mentioned amount, the OP No.1 had not carried out any development work in the locality and were simply demanding more and more money from the complainant under the threat of cancellation of allotment/plot. Accordingly, to avoid any unnecessary bickering the complainant had remitted Rs.1,50,000/- more to the OP No.2 through a cheque dated 19.12.2011. Rather than making earnest efforts to develop the land and to deliver the possession to the allottee and to demand balance payment only thereafter, the OPs are exerting more on extracting more and more money from the complainant by quoting different figures all the time, pertaining to the cost of plot. The complainant having been fed up with the unnecessary communications, got issued a registered Legal notice to the OPs on 03.01.2012  and retort to that received by the complainant as well as his counsel dated 31.01.2012. Further, it has been mentioned that from the facts noted above, it is apparent that the OPs are bound to deliver the possession of the plot in question to the complainant, after developing the area by providing all infrastructures and the complainant undertakes to pay their balance due payment i.e. Rs.17,22,240/- less (-) Rs.4,39,750/- within agreed period. Lastly prayed for directing the OPs to deliver the possession of the plot B-1046 measuring 300 Sq. Meter located in Susant City, Jagadhri at the earliest after developing the area and to adjust the amount of Rs.4,39,750/-  since paid by the complainant plus 18%p.a. interest thereupon from the date of payment till the actual date of delivery of possession and also to pay compensation as well as litigation expenses.

3.                     Upon notice, Ops appeared and filed its written statement taking some preliminary objection such as :- present complaint  is abuse of process of law; complainant has not come to the forum with clean hands; the true facts are that the terms and conditions of the advance registration form was not fulfilled, which was filled and signed by the complainant; The OPs wrote the letter dated 22.12.2011 to the complainant for making the payment as per schedule, otherwise the agreement would stand cancelled but the complainant did not comply with the terms and conditions of the advance registration form; this forum has no jurisdiction to entertain and try the present complaint and on merit it has been mentioned that there was deficiency in service or  unfair trade practice on the part of the OPs. It has been specifically denied that the OPs has not carried out and completed the development work or not provided the amenities, as alleged. As per master plan, every possible work/amenities are in existence at the spot. It has been further mentioned that the complainant has committed breach in compliance of the terms and conditions by not making payment as per payment schedule and rendered him self defaulter. Numbers of call letters and reminders on different dates were sent to the complainant with the request to make payment of the outstanding dues as per payment schedule but the complainant never adhere to act upon those call letters. The complainant instead of complying those call letters and reminders, filed this false and frivolous complaint. The tentative terms and conditions, on which the allotment was made, was also agreed upon by the complainant i.e. conditions No.8 and 9 of the terms and conditions for allotment enunciated in the application form was as under:

Clause 8: -

“The company and the intending allottee(s) hereby agree that the amounts paid with the application for booking and in installments as the case may be, to the extent of 20% of the basic sale price of the unit will collectively constitute the earnest money. This earnest money shall stand forfeited in case of non fulfillment of these terms and conditions and those of allotment letter/agreement as also in the event of failure by the intending allottee(s) to sign the allotment letter/agreement within the time allowed by the company”.

Clause 9:-

“The time punctual payment of installments is the essence of this contract, it shall be incumbent on the intending allottees to comply with the terms of payment and other terms and conditions of sale, failing which the intending allottee’s shall have to pay the interest as per agreement on the delayed payments and the company reserves its right to forfeit the earnest money in event of irregular/delayed payment/non fulfillment of terms of payment and the allotment may be cancelled at the discretion of the company. 

Lastly it has been mentioned that development work is in progress and the delivery of possession of the plot is  subject to regularity in remittance of amount by allottee as per schedule and prayed for dismissal of the complaint.

4.                     In support of  his case, learned counsel for the complainant tendered into evidence affidavit of complainant as Annexure C-X, photocopy of plot buyer agreement as Annexure C-1, photocopy of letter dated 01.08.2011 for transfer of plot in the name of complainant as Annexure C-2, photocopy of letter dated 22.12.2011 i.e. reply of the quarries as Annexure C-3, photocopy of legal notice dated 03.01.2012 as Annexure C-4, photocopy of reply dated 31.01.2012 as Annexure C-5 and closed the evidence on behalf of complainant.

5.                     On the other hand, learned counsel for the OPs tendered into evidence affidavit of Shri Parveen Sheoran, Branch Head as Annexure RW/A, photocopy of application form as Annexure R-1, photocopy of plot buyer agreement as Annexure R-2, photocopy of transfer papers of plot as Annexure R-3 and R-4, photocopy of letter dated 01.08.2011 for transfer of plot as Annexure R-5, photocopy of agreement to sell/transfer of rights as Annexure R-6 and closed the evidence on behalf of OPs.  

6.                     We have heard the learned counsel for parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

7.                     The only version of the complainant is that despite making the payment of near about 4,39,750/-, the OPs have failed to deliver the possession of the plot in question and further the OPs have also failed to develop the area by providing all the infrastructures  which constitutes the deficiency in service and unfair trade practice on the part of the OPs. Learned counsel for the complainant argued so many other points i.e. in the plot buyer agreement (Annexure C-1)  under clause 3.1, the rate of plot has been mentioned as 5740.80 per square meter for total area of plot which included preferential location charges whichever applicable whereas total amount has been shown as 17,94,000/-  instead of 17,22,240/-. whereas the OPs has clarified this thing vide letter dated 22.12.2011 (Annexure C-3) that booking rate was misprinted as 5740.80 instead of 5980/- which itself is confirmed by the total basic cost printed in clause No.3.1 of agreement itself i.e. Rs.17,94,000/- . From the other documents placed on file, it is duly evident that rate @ Rs.5740.80 has been printed advertently instead of  @ Rs.5980/- per Sq mt. Further, the arguments advanced by the counsel for the complainant on this issue are beyond the pleadings hence the same having no weight-age in the eyes of law. Learned counsel for the complainant referred the case law titled as George Thomas & Others Versus Ghaziabad Development Authority & Others, 1999(1) CPJ page 18 (NC) and Executive Engineer Versus Rangadhar Malik 1993 ISJ (Banking) 101 Supreme Court of India.

8.                     Whereas on the other hand, learned counsel for the OPs argued at length that a false complaint has been filed just to harass and humiliate the Ops and to save the skin from the payment.  As per terms and conditions and schedule of payment in respect of plot in question, the complainant has not deposited the amount and huge amount is still outstanding against the complainant so the complaint is liable to be dismissed. Learned counsel for the OPs draws our attention towards the payment schedule attached with the Plot Buyer Agreement (Annexure R-2) and argued that the complainant has totally failed to deposit the installment mentioned in this schedule on due date and lastly prayed for dismissal of the complaint.

9.                     After hearing both the parties, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of the OPs as complainant has totally failed to prove that the OPs has not development the area by providing all infrastructures as neither any report of any Local Commissioner has been placed on file nor any affidavit of any independent persons has been placed on file. Even, the complainant did not bother to summon the record of the OPs to prove that no development work was done by the OPs. The complainant has placed on file only plot buyer agreement executed between previous owner Smt. Shuruti Jain and OPs (Annexure C-1) and letter of transfer dated 01.08.2011 (Annexure C-2) and letter of demand of amount dated 22.12.2011 (Annexure C-3) and copy of legal notice, except these documents, nothing has been placed on file to prove the version mentioned in the complaint  and from these documents it is no where proves  that ops has not developed the  area and has not provided any infrastructure. In the absence of any cogent evidence, we are enabling to held that the OPs were negligent or were deficient in providing the service. Even as per version of the complainant, he has deposited only Rs.4,39,750/- out of total cost of plot  amounting to Rs.17,94,000/- meaning thereby that the complainant has not deposited  the amount of installments as per schedule  given in the agreement, then  how he can ask the OPs to deliver the possession of the plot in question.  The case laws referred above by the counsel for the complainant are not disputed but not helpful in the present case

10.                   Resultantly, in the circumstances note above, we are of the considered view that there is no merit in the present complaint and the same is hereby dismissed with no order as to cost. Copies of this order be supplied to the parties concerned as per rules. File be consigned to the record room after due compliance.

Pronounced in open court:24.05.2017.

 

                                                                                            (ASHOK KUMAR GARG)

                                                                                             PRESIDENT

                                                                                             DCDRF, YAMUNANAGAR.

 

 

                  (VEENA RANI SHEOKAND)                 (S.C.SHARMA)

                         MEMBER                                                  MEMBER