Punjab

StateCommission

CC/159/2013

Vivek Chhabra & Anr. - Complainant(s)

Versus

M/s Janta Land Promoters Ltd. - Opp.Party(s)

Vipul Jindal & D.D. Sharma

16 Jan 2015

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

Consumer Complaint No.159 of 2013                                                        

Date of institution  :   27.12.2013       

Date of decision     :   16.01.2015

 

1. Vivek Chhabra son of Shri V.P. Chhabra
2. Ms. Neelam Chhabra wife of Shri Amanpreet Chhabra,

Both residents of House No.1464, Sector 44-B, Chandigarh.

…….Complainants

Versus

M/s Janta Land Promoters Ltd. through its Managing Director, SCO Nos.39-42, Sector 82, SAS Nagar, Mohali-140 306.

……..Opposite Party 

Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986.

Quorum:- 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Mr. Jasbir Singh Gill, Member.

Present:-

          For the complainants  : Shri D.D. Sharma, Advocate.

          For the opposite party : Shri Gaurav Jindal, Advocate.       

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

          The complainants, Vivek Chhabra and Ms. Neelam Chhabra, have filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, “the Act”) for issuance of direction to the opposite party to allot the plot at the original agreed price of Rs.12,500/- per square yard and to disclose the full details thereof.  They alleged, in their complaint, that they made an application to the opposite party for the allotment of residential plot measuring 200 square yards in its Mega- II Project, Mohali.  On the assurance given by it for the allotment of the plot, they paid 30% of the total cost of the plot at the rate of Rs.12,500/- per square yard.   On 5.10.2005 they further paid the sum of Rs.7,50,000/-, vide different cheques/demand drafts, against receipt No.2297.  The allotment was not by way of draw of lots and a plot was reserved for them and only the location of the plot was to be decided by draw of lots.  It was agreed that the said rate of Rs.12,500/- per square yard was exclusive of all types of charges but not restricted to development charges.  They were informed by the opposite party that it was in the process of getting necessary demarcation done and the development was likely to be completed within two-three years.  They remained in touch with the opposite party off and on and were later on informed that the approval for the project was pending before the State Government.  In the first week of January 2013, they received Memo dated 1.1.2013 from the opposite party, vide which they were asked to deposit the balance amount within 10 days from the date of issuance of that communication.  Complainant No.1 visited the office of the opposite party and was informed that the approval had been received in the end of 2012 from the Government and, therefore, they were ready to start the project.  To avoid any type of excuse from the opposite party, so as to deny them their rightful entitlement, they immediately paid Rs.17,50,000/-; as 70% of the amount, vide cheque dated 8.1.2013; as the total cost of the plot at the rate of Rs.12,500/- per square yard comes to Rs.25,00,000/- and 30% of the amount had already been paid by them.  They were shocked to receive another communication dated 18.1.2013, vide which a demand of Rs.36,57,260/- was raised and they were asked to deposit another amount of Rs.19,07,260/- within the period of 7 days so as to consider them for allotment.  That communication did not disclose as to how the additional amount was asked for.  The factum of the disclosing of that additional amount to them during their visit to the office of the opposite party was wrongly mentioned in the communication.  In fact, they had never visited its office.  That communication was replied, vide letter dated 23.1.2013, in which all the circumstances were explained and they asked for the calculations and the reasons for demanding the said extra amount of Rs.19,07,260/-.  They had another shock when they received registered letter dated 14.2.2013, vide which the amount deposited by them was refunded along with interest at the rate of 18% per annum on the initial booking amount.  Even in that letter the reasons for the additional demand was not disclosed.  On the receipt of that communication, complainant No.1 visited the office of the opposite party and asked it to allot the plot at the agreed price of Rs.12,500/- per square yard.   At that time, it was conveyed to him by the opposite party that since the land prices had gone up and, therefore, the payment was to be made at the rate of Rs.22,000/- per square yard, along with miscellaneous charges.  They also came to know that an approximate amount of Rs.1,00,000/- was deducted by the opposite party, as TDS, from the interest amount; which is absolutely wrong.  Thereafter they got issued a legal notice to the opposite party through registered post and returned the cheques of the amount so refunded, along with the notice.  No reply to that notice was given by it and they remained under bona fide impression that they were acting in accordance with the original commitment.  On 25.5.2013 an advertisement was given in the newspaper “the Tribune” by the opposite party of the booking of residential plots in Sector 94, Mohali.  In order to keep it aware of their bona fide rights, they got issued a reminder to the said notice on 28.5.2013 thereby calling upon the opposite party to reserve the residential plot of 200 square yards in their names.  On 3.6.2013 complainant No.1 visited its office so as to confirm the status, where he was treated with utmost rude behaviour by the Manager, who openly challenged him to do whatever he could do and that the final allotment shall not be made unless the amount so demanded by them was paid.  All these acts of the opposite party amount to deficiency in service and unfair trade practice.  The right, which had already accrued to them for the allotment of the plot of 200 square yards in Sector 94, Mohali at the rate of Rs.12,500/- per square yard, could not have been taken away by it.  The allotment was secured and it was not a chance allotment.  The draw of lots was meant only for determining the location of the plot.  As the booking amount had already been deposited by them and they never asked for the refund thereof, so the benefit on account of escalation of prices of land was deserved to be given to them.  Once the contractual obligation was created, the opposite party cannot be allowed to back out from the same and they are bound to honour the same in the absence of any default on their part.  After the issuance of the receipt containing the terms and conditions of the allotment, the opposite party is estopped by its own act and conduct from refunding the amounts, so received by it.

2.      The complaint was contested by the opposite party.  In the written reply filed by it, it admitted that the complainants applied for the allotment of plot measuring 200 square yards in Mega-II Project and accordingly deposited Rs.7,50,000/-, as 30% of the total amount, which was to be calculated at the rate of Rs.12,500/- per square yard.  It also admitted that due to delay of approval from the State Government, the Project got delayed and that letter dated 1.1.2013 was written by it to the complainants asking for the deposit of the balance amount within 10 days.  It also admitted the factum of writing other letters to the complainants and the refunding of the amount so received by it, along with interest at the rate of 18% on the amount, which was initially paid at the time of booking.  While denying the other allegations made in the complaint, it pleaded that the rate at which the booking of the plot was done in Mega-II Project (Sectors 93 and 94, SAS Nagar) was at the rate which was previously approved for Mega-I Project (Sectors 90 and 91, SAS Nagar) and it was told to the complainants as that Project was pending approval before the State Government and so the balance amount would be told to him as and when it would be determined in due course of time for that Mega-II Project.  The allotment was a chance allotment.  The complainants made only an offer for the allotment and no contract ever came into existence between them.  The said amount of Rs.7,50,000/- was deposited by the complainants only for the booking of the plot, as is clear from the contents of the receipt.  As per the admission of the complainants themselves, the rate of Rs.12,500/- per square yard was inclusive of all types of charges but not restrictive to development charges.  In fact, on account of want of approval from the State Government, Mega-II Project could not be started.  The permission for the CLU was never granted by the Government despite the fact that it supplied all the relevant documents for the giving of that permission.  After letter dated 1.1.2013 was sent to the complainants, they visited its office on 8.1.2013 and they were duly apprised of the fact of non-start of Mega-II Project due to non-approval of the State Government and, as such, their application for booking of plot in that Project could not be considered and that it was ready to return the amount so deposited by them, along with interest at the rate of 18% per annum.  They were also apprised of the fact that approval of another Project at Sector 94, Mohali, was received by the end of 2012 and if they did not want their money back, then their earlier application can be considered for booking of plot in that Sector and that they will have to pay the balance money with interest of 15% per annum; as the price of the plot in that Sector was to be higher on account of imposition of the charges like External Development Charges, CLU and Licence fee.  In fact, letter for demanding those charges had been issued by the Town and Country Planning.  However, the complainants never deposited the enhanced amount, as asked from them.  The detail of the balance amount was duly explained to them when they visited its office.  The TDS was deducted from the refund as per the prevailing taxation norms in the country.  They are still ready to hand back the above said cheques to the complainants and they can collect the same from its office at any time.  The notices sent by the complainants were duly replied.  There was no such deficiency in service or unfair trade practice on its part.  In fact, the complainants have suppressed the material facts from this Commission.  They are not consumers as defined in Section 2(1)(d) of the Act, as no allotment letter was issued to them and they can only be termed as prospective investors.  It prayed for the dismissal of the complaint with costs, as envisaged in Section 26 of the Act.      

3.      In support of the allegations made in the complaint, the complainants proved on record the affidavit of Vivek Chhabra, complainant No.1, Ex.CA and the documents Ex.C-1 to Ex.C-14.  On the other hand, the opposite party proved on record the affidavit of H.B. Garg, General Manager Ex.OP/A and the documents Ex.OP/1 to Ex.OP/4.

4.      We have carefully gone through the averments of the parties, the evidence produced by them in support of their respective averments and have also heard learned counsel on their behalf.

5.      It has been submitted by the learned counsel for the complainants that from the evidence produced by the complainants, it stands proved that the opposite party agreed to allot the plot to them at the rate of Rs.12,500/- per square yard and it was only after the assurance was given to that effect that they deposited Rs.7,50,000/-, as 30% of the total amount and that fact was duly incorporated in the receipt; which forms part of the Application Ex.C1.  Vide letter dated 1.1.2013, the opposite party asked the complainants to deposit the balance amount within 10 days and that amount (Rs.17,50,000/-) was deposited within that period.  In view of the terms agreed upon by the opposite party, it was not entitled to ask for enhanced amount and still, vide letter dated 18.1.2013 Ex.C4, they asked to deposit the balance amount of Rs.19,07,260/- within 7 days and it failed to provide the calculations for that amount, though the letter dated 23.1.2013 Ex.C-5 was duly sent to them.  Once the opposite party agreed to allot the plot at the rate of Rs.12,500/- per square yard, it could not have enhanced that rate and was bound to allot the plot after the total cost of the plot was deposited by the complainants.  The non-allotment of the plot not only amounts to deficiency in service but also amounts to adoption of unfair trade practice by it.  He further submitted that the complainants fall under the definition of ‘consumer’ as the plot was bound to be allotted to them and it was not a case of chance allotment of the plot.  He prayed that the direction be issued to the opposite party to allot the plot of 200 square yards at the rate of Rs.12,500/- per square yard and to disclose the complete particulars of that plot.

6.      On the other hand, it has been submitted by the learned counsel for the opposite party that from the documents proved on the record by both the sides, it stands proved that the plot was got booked by the complainants in Mega-II Project by depositing Rs.7,50,000/- and thereafter they deposited the balance amount of Rs.17,50,000/-.  However, that Project was not approved by the State Government and the permission for CLU was refused, vide letter dated 5.12.2012 Ex.OP/2.  Thereafter the complainants were asked to deposit the balance amount of Rs.19,07,260/- so as to consider their request for the allotment of plot in Mega-I Project, in which the cost of the plot was much more than the cost of the price of the plot in Mega-II Project.  The complainant failed to deposit that amount and accordingly the amount already deposited by them was refunded, along with interest at the rate of 18% per annum.  The complainants never became entitled to the allotment of the plot on account of the non-deposit of the enhanced amount.  He further submitted that it was case of only booking of plot, which was never allotted to the complainants and, as such, they do not fall under the definition of ‘consumer’ as defined in the Act.  The complaint is liable to be dismissed on that score alone.

7.      Before deciding the complaint on merits, in view of the submissions made by the learned counsel for the opposite party, it is to be determined whether the complainants fall under the definition of ‘consumer’ or not?   It is the admitted case of the parties that the plot was got booked by the complainants and the allotment was never made in their favour.  Even, vide letters dated 1.1.2013 Ex.C-2 and 18.1.2013 Ex.C-4, no allotment was to be made automatically in their favour on the payment of the balance amount and their application was only to be considered for the allotment of the plot.

8.      The same question in similar set of circumstances already stands decided by this Commission in Consumer Complaint No.67 of 2009 decided on 19.2.2013 (Mehar Singh and another v. Janta Land Promoters Limited).  In that case also, the complainants had applied for the allotment of the plot and had deposited various amounts towards the allotment.  However, their booking was cancelled by the opposite party, which was challenged before this Commission.  The opposite party took up the plea that the complainants were not consumers under the Act, as the plot in question was never allotted to them and the same was cancelled before the allotment of the same.  While deciding that question, by relying upon the judgment of the Hon’ble National Commission rendered in Revision Petition No.1583 of 2005 decided on 23.11.2009 (THE PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY AND ANOTHER v. KRISHAN PAL CHANDER) and the judgment of this Commission itself passed in Consumer Complaint No.2 of 2010 decided on 27.5.2011 (Rajender Singh v. Taneja Development and Infrastructure Ltd. and another), it was held that the complainant had only applied for allotment of plot and he was only prospective investor and till the allotment of the plot he had not become a consumer.  In Krishan Pal Chander’s case (supra) the Hon’ble National Commission had relied upon the judgment of the Hon’ble Supreme Court reported in (1994) 4 SCC 225 (Morgan Stanley Mutual Fund v. Kartick Das).   In that judgment, it was held that it is only after allotment that the rights may arise as per the contract but certainly not before allotment and at that stage the complainant was only a prospective investor and that no prospective investor could fall under the definition of ‘consumer’.

9.      In view of the above proposition of law so laid down by the Hon’ble Supreme Court, Hon’ble National Commission and this Commission itself, it is to be held that the complainants were only prospective investors and they do not fall under the definition of ‘consumer’.  Therefore, this complaint filed by them is not maintainable before the Foras under the Act and is dismissed accordingly, without prejudice to their rights to approach the appropriate Forum/Court for the redressal of their grievances.  

10.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                                                                                         (JUSTICE GURDEV SINGH)

                                                                                                                                                          PRESIDENT

                                                                                                                                            (JASBIR SINGH GILL)

January 16, 2015                                                                                                                                  MEMBER

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