Punjab

Ludhiana

CC/14/628

Dinesh Mahajan - Complainant(s)

Versus

M/s Ireo Water front Pvt.Ltd - Opp.Party(s)

Charanjit Singh adv

16 Jun 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:628 dated 09.09.2014.                                                         Date of decision: 16.06.2022.

 

1. Dinesh Mahajan S/o. Mr. Narinder Nath, Mahajan, Resident of House No.32-B, Raghunath Enclave, Ludhiana.
2. Naina Mahajan W/o. Mr. Dinesh Mahajan S/o. Mr. Narinder Nath, Mahajan, Resident of House No.32-B, Raghunath Enclave, Ludhiana                                                                                 ..…Complainants

                                                Versus

M/s. Ireo Waterfront Pvt. Ltd. (formerly known as VAR Realtors Pvt. Ltd.), S.C.O. 16-17, 3^rd Floor, Fortune Chamber, Opp. Ludhiana Stock Exchange, Feroze Gandhi Market, Ferozepur Road, Ludhiana through its Managing Director.                                                                                                                                                                                          …..Opposite parties 

          Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Sunil Goel, Advocate.

For OP                           :         None.

 

ORDER

 

PER K.K. KAREER, PRESIDENT

 

1.                Shorn of unnecessary details, the case of the complainants is that they agreed to purchase a plot type K-00B181 measuring 200.93 sq. yards from the OP and in this regard, a regular plot buyer agreement was entered into between the parties in February 2012. The complainants made payment of first installment of Rs.3,13,000/- on 14.05.2011. The complainants further paid second installment of Rs.2,00,000/- on 24.10.2011 and also made balance payment of Rs.1,70,162/- on 08.11.2011. The complainants paid the third installment of Rs.3,41,581/- on 16.02.2012. In all, the complainants paid a sum of Rs.10,24,743/-. Thereafter, the complainants received a letter dated 19.09.2013 from the OP whereby they were called upon to pay the fourth installment of Rs.6,84,900.45 due on account of commencement of development work. However, when the complainants went to the site to see the progress of work, they were shocked to find that no work was in progress at the site and even the plots had not been demarcated. Complainant No.1 wrote letter dated 24.09.2013 but the OP did not give any reply to the letter dated 24.09.2013. Thereafter, the OP sent another letter dated 20.10.2013 and kept insisting on the payment of Rs.6,84,900/-. The complainants wrote letters dated 25.10.2013 and 16.01.2014 which were delivered in the office of the OP whereby it was called upon it to cancel the unreasonable demand of the fourth installment as no work at the site has started as per clause 7.1 of the agreement. However, the OP remained adamant.

2.                It is further alleged that the schedule of payment given in Annexure-II attached with the agreement was also vague and arbitrary. It has specifically been mentioned in clause 7.1 of the agreement that the payments would be made within the completion of stages of development, but the stages were not specified. The OP vide letter dated 01.05.2014 sent a final notice for the next installment and called upon the complainants to remit a sum of Rs.14,86,002.90 including interest latest by 30.05.2014 failing which the allotment of plot would be cancelled. The complainants went to the office of the OP and following discussion, the officials of the OP assured the complainants that they would soon start the work of development at the site and would not also cancel the allotment of the plot. However, thereafter, the OP issued a cancellation letter dated 08.07.2014 whereby the allotment of the plot was cancelled and the amount of Rs.10,15,486.79 out of amount of Rs.10,24,743/- deposited by the complainant was forfeited and remaining amount of Rs.9256/- was not refunded. The OP had no right to cancel the allotment of the plot illegally and arbitrarily. The OP has wrongly relied upon clause-B of the plot buyer agreement. The act and conduct of the OP in cancelling the plot on the basis of the agreement I not only illegal but also against the provisions of Punjab Apartment and Property Regulation Act, 1995. This amounts to deficiency of service on the part of the OP. In the end, it has been requested that the OP be directed to refund the amount of Rs.10,24,743/- along with interest @24% per annum with compensation of Rs.5,00,000/-.

3.                The complaint has been resisted by the OP. In the written statement filed on behalf of the OP, it has been, inter alia, pleaded that there is an arbitration clause in the buyer agreement and, therefore, the complaint is not maintainable. Moreover, the complainants are not consumers. According to the OP, the entire money payable under the agreement relates to advance payment of sale consideration for contingent sale and transfer of the plot and the external development charge jointly can be construed as sale consideration. The OP has further pleaded that the complainants are guilty of concealing the material facts and have also failed to adhere to the payment schedule regarding the payment of first three installments which were time linked installments and the complainant had no occasion to delay the payment of the same. On merits, it has been pleaded that the complainants were made acquainted with the terms and conditions of the agreement at the time of making an application for the purchase of the plot. The complainants having signed the agreement were bound by the terms and conditions incorporated therein. The demands of payment of installments were raised strictly as per the agreed payment plan mentioned in the agreement and the complainants could not escape the liability to pay the installment. The OP has further pleaded that the first three installments were also not paid by the complainants in time. The OP had entered into letter of intent on 02.07.2013 with M/s. Starcon Infra Project (I) Pvt. Ltd. for the development of the site comprised in internal phase 3A of the project where the plot of the complainants was situated and accordingly, the work order dated 04.07.2013 was issued to the contractor who commenced the development work at the site on 16.07.2013 and raised the first bill dated 09.10.2013. It is clear that the development work had commenced before the demand notice dated 19.09.2013. The OP has further pleaded that the plots were not demarcated immediately and the contractor had to undertake various other activities before the plots are actually demarcated at site. According to the OP, letter dated 24.09.2013 is a forged one and no such letter was ever received by the OP. In fact, the complainants had no funds to pay the installments. The complainants had visited the site number of times and were fully satisfied with the development work and they were requested by the OP to pay the installments but they sought more time to make the payment. The OP has further pleaded that clause No.7.1 was clear and unambiguous. A sum of Rs.13,69,800.90 was payable beside the delayed payment interest. The complainants agreed to make the payment of consideration price of installments and it was nowhere agreed that the payment is towards payment of development charges only. The demand dated 08.02.2014 included the arrears of unpaid 4^th installment of Rs.6,83,162/- and a sum of Rs.13,69,800.90 was demanded from the complainant on 08.02.2014 which was payable by 07.03.2014. The failure of the complainants in making payment of the installments invited another reminder dated 11.03.2014 but despite that the complainants did not make any payment. Thereafter, the final notice dated 01.05.2014 was issued and the failure on the part o the complainants to pay the due installments led to the cancellation of the allotment. The rest of the averments made in the complaint have been denied as wrong and in the end, a prayer for dismissal of the complaint has been made.

4.                In evidence, the complainant No.1 submitted his affidavit as Ex. CA along with documents Ex. C1 to Ex. C19 and closed the evidence.

5.                On the other hand, the counsel for the OP tendered affidavit Ex. RA of Sh. Amrick Singh Ghambhir, authorized signatory of the OP along with documents Ex. R1 to Ex. R11 and closed the evidence.

6.                It is pertinent to mention that in this case none has been appearing on behalf of the OP for quite some time. We have, however, heard the counsel for the complainants and proceed to decide the case on merits.

7.                It is not disputed that the complainants entered into agreement to buy a plot from the OP and paid a total amount of Rs.10,24,743/- towards the first three installments of the plot in question. As per clause 7.1 of the agreement Ex. C1, in case of development linked installments, the company i.e. OP was required to send notice for the due installment on or before the completion of respective stage of development, as mentioned in Annexure-II attached with the agreement Ex. C1. An installment of Rs.6,83,162/-  was payable on commencement of development at site. According to the complainants, the installments were not paid as no development work either commenced or was partially completed at the site. Therefore, on account of non-payment of the installments, the allotment of the plot could not be cancelled nor the OP had any right to forfeit the payments made by the complainants. In this regard, it is pertinent to refer to notice Ex. R6 dated 20.10.2013 whereby the payment of Rs.6,84,900.45 was raised. However, it is not anywhere mentioned in the notice that the development at the site had commenced. Thereafter, another reminder Ex. R6 was sent to the complainants but again it was not mentioned therein as to whether any development had commenced at the site or had been partially completed. The same is the case with the final notice Ex. R6 dated 02.12.2013.Thereafter, another reminder dated 15.01.2014 was issued. Even in the said notice, there is no mention of any development work having commenced partially completed at the site. Only in the notice Ex. R7 dated 08.02.2014, there is a mention that the installment on partial completion of work at site was due but again there is no detail as to what extent the work at the site had been partially completed. Even in notice dated 11.03.2014, 01.04.2014 and 01.05.2014, the OP has been asking for the payment of money but without any proof of commencement or completion of work at the site. In addition to this, no evidence worth the name has been brought on record to prove that the work at the site had been partially completed when the notices were issued. In these circumstances, in our considered view, the forfeiture of the amount of Rs.10,24,743/-  paid by the complainant cannot be said to be justified. In the given circumstances, it would be just and proper if the OP is directed to refund this amount to the complainant along with interest @7%  per annum from the date of filing of the complaint till date of actual payment along with composite cost of Rs.20,000/-.

8.                As a result of the above discussion, the complaint is allowed with a direction to the OP to refund the amount of Rs.10,24,743/- to the complainants along with interest @7%  per annum from the date of filing of the complaint till date of actual payment within 30 days from the date of receipt of copy of order. The OP shall further pay composite cost of Rs.20,000/- (Rupees Twenty Thousand only) to the complainants. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

9.                Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:16.06.2022.

Gobind Ram.

Dinesh Mahajan Vs Ireo Waterfront                                CC/14/628

Present:       Sh. Sunil Goel, Advocate for the complainant.

                   None for the OP.

                  

                   None turned up for the OP today also. None has been appearing in this case on behalf of the OP since 13.01.2022.

                   Arguments on behalf of the counsel for the complainant heard. Vide separate detailed order of today, the complaint is allowed with a direction to the OP to refund the amount of Rs.10,24,743/- to the complainants along with interest @7%  per annum from the date of filing of the complaint till date of actual payment within 30 days from the date of receipt of copy of order. The OP shall further pay composite cost of Rs.20,000/- (Rupees Twenty Thousand only) to the complainants. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:16.06.2022.

Gobind Ram.