Haryana

Sonipat

CC/341/2016

Sanjay Bhatia - Complainant(s)

Versus

M/s Mera Baba Real Estate Pvt. Ltd. - Opp.Party(s)

Ashish Garg

27 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

 

                Complaint No.341 of 2016

Instituted on: 01.09.2016                                                     

Date of order: 27.01.2017.

 

 

Sanjay Bhatia resident of M-1/64, 64, Sector 16, Rohini, Delhi.

 

…Complainant.          Versus

1.M/s Mera Baba Real Estate Pvt. Ltd., Site Office GT road, Divine City, Ganaur, district Sonepat

Also at:  C-165, Pushpanjali, Pitampura, New Delhi

Also at:551, Tower B, Aggarwal Cyber Plaza, Netaji Subhash Place, Pitampura, New Delhi.

                                                                                                ..Respondent no.1.

2.Shri Harish Kumar Luthara Director & Authorized Representative, M/s Mera Baba Real Estate Pvt. Ltd., C-165, Pushpanjali, Pitampura, New Delhi

Also at: 551, Tower B, Aggarwal Cyber Plaza, Netaji Subhash Place, Pitampura, New Delhi.

                                                                                                …Respondent no.2.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. R.S. Garg, Adv. & Ashish Garg, Adv. for

complainant.

           Sh. AK Gupta, Adv. for respondents alongwith

Shri Gaurav Gupta Legal Manager.

 

Before-    Nagender Singh-President.

          Prabha Wati-Member.

           J.L. Gupta-Member.

 

O R D E R

 

         Complainant has filed the present complaint against the respondents alleging therein that on the assurances and commitment made by the sales executive of the respondent no.1, the complainant booked a residential plot for his own use & occupation of himself and his family members in Ganaur Residential Township Project namely Divine City and paid the booking amount of Rs.3,30,000/- and Rs.1,62,000/- in lieu of registration of the said plot and the company has issued the receipt bearing no.DCG 001271 dated 31.3.2006. the complainant also booked one more plot vide receipt no.DCG/000820 dated 30.6.2006 for residential purposes and not for any commercial purposes. After 9 years of the booking, the company has not made any offer of allotment of the plot to the complainant and from reliable source, the complainant came to know that the company has not purchased the requisite land upon which, they are claiming to develop and start the project and they have also not got any approval from the concerned authority.  The respondents have collected the booking amount by making false representation, assurance and promises with malafide intention.   The complainant several times has requested the respondents to refund the booking/registration amount as the company has failed to make the offer of allotment to him as they are not having licence regarding the aforesaid project at the time of booking. In February, 2016, the complainant came to know that the company have no land and they refused to refund the booking amount alongwith interest. The complainant has served the respondents with legal notice dated 22.7.2016, but despite this, the respondents have failed to refund the booking amount and that amounts to a grave deficiency in service on the part of the respondents. So, he has come to this Forum and has filed the present complaint.

        The complainant has tendered the affidavit Ex.CW1/A and has placed on record the documents Ex.C1 to C5.

2.       The respondents appeared and filed their joint written statement submitting therein that the complainant himself is a defaulter and he himself has made to make the payment of booked plot. The complainant   vide registration form has booked for allotment of a plot of 350 sq. yards at the basic sale price of Rs.6600/- per sq. yards excluding EDC, IDC and other Govt. dues or demands which may be raised or demanded by the Govt. or any other local authorities against the aforesaid plot.   The LOI was issued on 8.6.2007 by DTCP Haryana, Chandigarh and the letter dated 25.6.2007 was sent to the complainant for making payment of 20% of basic price of plot i.e. Rs.3,30,000/-, but the complainant has failed to make the payment and thereafter letters dated 3.1.2008, 4.3.2008, 23.6.2008, 23.12.2008, 2.4.2009 and 9.5.2009 were sent to the complainant requesting him to make the payment of second installment, but of no use. Before proceeding to invoke the forfeiture clause, final reminder dated 19.10.2010 was sent to the complainant requesting him to make the payment of the outstanding installment.  Vide letter dated 19.10.2010 the complainant was specifically informed that in case of non payment of the outstanding installment, the booking shall stand cancelled and the amount deposited by him shall be forfeited to the extent of 20% of the total price of the plot.  Due to failure of the complainant, the amount deposited by the complainant was forfeited and nothing is due or payable to the complainant towards the forfeited amount of Rs.3,30,000/- and the intimation in this regard was given to the complainant on 7.3.2011.  After getting the LOI dated 8.6.2007, the respondents started developing works with full force.  The respondents had allotted the plots to various customers in the year 2008 who had deposited their installments in time.    The respondents had also handed over the possession of the plots to its customers in 2009 itself and even sale deed were also executed for all those persons who had paid the installments in time.  Had the complainant been ready and willing to perform part of his contract, then he would have also deposited the installments and the plot would have been allotted and possession would have been handed over to him about four years back.  The complainant was having no intention to purchase the plot as he had booked the plot only for commercial purpose for its sale in open market.  The complaint is time barred.  The booking of the complainant was cancelled on 7.3.2011 and the complaint has been filed in the month of 9/2016.  The other allegations of the complainant that he got booked the residential plot against receipt no.DCG 001271 dated 31.03.2006.  The complainant was aware about every progress of the project.  In the year 2007 onwards there was slump in the real estate market and due to this the complainant opted not to deposited the installments.  Now he has filed the present complaint to have gains by illegal means.  The complainant himself has failed to deposit the installments as per agreed terms and rendered himself liable for cancellation of booking.   The respondents have purchased the land for the project much prior to booking  by the complainant. The sale deed for the land has been executed in favour of many other customers as detailed in para no.8 of the reply.  The respondents never cheated the complainant in any manner and they never induced the complainant and never collected the booking amount by illegal means or on false promise or assurance basis.  The booking amount was forfeited due to non payment of installments by the complainant.   There is no deficiency in service of any kind on the part of the respondents and the complainant is not entitled for any relief & compensation as he has booked the plot only for commercial purpose.  The respondents are not liable to refund the booking amount alongwith interest or compensation and thus, prayed for the dismissal of the present complaint.

         The respondents in their evidence has tendered the affidavit Ex.RW1/X and has placed on record the documents Ex.RW1/1 to Ex.RW1/6 and Ex.RW1/8 to Ex.RW1/16 and Ex.RW1/A.

3.       We have heard both the learned counsel for the parties at length and have also gone through the entire relevant record available on the case file very carefully. We have perused the rejoinder filed by the ld. Counsel for the complainant very carefully.

4.       Ld. Counsel for the complainant has submitted that on the assurances and commitment made by the sales executive of the respondent no.1, the complainant booked a residential plot for his own use & occupation of himself and his family members in Ganaur Residential Township Project namely Divine City and paid the booking amount of Rs.3,30,000/- and Rs.1,62,000/- in lieu of registration of the said plot and the company has issued the receipt bearing no.DCG 001271 dated 31.3.2006. the complainant also booked one more plot vide receipt no.DCG/000820 dated 30.6.2006 for residential purposes and not for any commercial purposes. After 9 years of the booking, the company has not made any offer of allotment of the plot to the complainant and from reliable source, the complainant came to know that the company has not purchased the requisite land upon which, they are claiming to develop and start the project and they have also not got any approval from the concerned authority.  The respondents have collected the booking amount by making false representation, assurance and promises with malafide intention.   The complainant several times has requested the respondents to refund the booking/registration amount as the company has failed to make the offer of allotment to him as they are not having licence regarding the aforesaid project at the time of booking. In February, 2016, the complainant came to know that the company have no land and they refused to refund the booking amount alongwith interest. The complainant has served the respondents with legal notice dated 22.7.2016, but despite this, the respondents have failed to refund the booking amount and that amounts to a grave deficiency in service on the part of the respondents.

         Ld. Counsel for the complainant has relied upon the case law titled as Kavit Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers, CPJ 2016(1) (NC) Page 31 (decided on 12.2.2015) wherein the Hon’ble National Commission has held that Booking of three flats-Commercial purpose-contentions flats booked to have all family members stay together with their respective independence-Accepted-No evidence led by opposite parties to rebut averment made by the complainant-if complainant wanted her family members to stay in her vicinity, it cannot be said that flats were purchased for speculative purpose or for making profit by selling them later-commercial purpose is a question of fact to be decided in fact of each case-It is not value of goods that matters but purpose for which the goods brought are put to-bookings of three flats are not for commercial purpose-Complainant is consumer.

                 On the other hand, ld. counsel for the respondents and Shri Gaurav Gupta Legal Manager has submitted on behalf of the respondents that the complainant has filed the present complaint with the allegations that the complainant is the permanent resident of  Delhi.  In the year 2006-07 the respondents advertised widely through electronic media, Newspaper and other means of communication about the future launch of their residential township project  at Ganaur. The respondents have represented that they had the requisite land, all sanctions, LOI, License, approval from concerned authority and had made out the lay out plan. The respondents assured and committed that offer of allotment will be made very soon.   The complainant booked residential plot of 350 square yards and paid booking amount of Rs.4,62,000/-.  The complainant also booked one more plot of 250 sq. yd. with the respondents receipt No. DCG/000820 dated 30.6.2006 besides the plot vide registration receipt no.DCG/001271. As per the complainant, he visited company office many times and the respondents assured the development work is in full swing. The complainant after 9 years of booking came to know from reliable sources that the respondents have not purchased the requisite land and also not got any approval from concerned authority. Thereafter the complainant requested for refund of the booking amount but the respondents avoided the complainant on one pretext or the other. The other allegation of the complainant is that the respondents have cheated the complainant.  In February 2016 the complainant came to know that the respondents have no land to develop the township. The respondents have cheated and duped the complainant with malafide intention. The project of the respondents has failed and cancelled. The Complainant has prayed for refund of booking amount along with interest.  

     Ld. Counsel for the respondents has opposed the

complaint and has submitted that the complainant had booked the plot vide registration form which was agreed and signed by the complainant along with payment terms.     The LOI was issued on 8.6.2007. The complainant has failed to pay the amount despite the letter dated 25.6.2007, 3.1.2008, 4.3.2008, 23.06.2008, 23.12.2008, 2.4.2009, 9.5.2009, 19.10.2010 (letter dated 19.10.2010 Ex.RW1/10 through registered post vide postal receipt Ex.RW1/11).   The respondents cancelled the booking and forfeited the  amount as per agreed terms and sent the intimation to the complainant  vide letter dated 7.3.2011 Ex.RW1/12 through registered post vide postal receipt Ex.RW1/13..  Due to non-payment of installments by the complainant, the respondents suffered huge financial losses and they had to sell of the plot at reduce prices. The complainant had not paid the installment due to slump in real estate prices.  The respondents have  allotted the plots and handed over the possession and also executed the conveyance deed to all those persons who has paid installments and the project has not been cancelled.

          It is also submitted that the complainant is not the consumer.      The complaint is barred by the Limitation.  In rejoinder the complainant has taken the following additional pleas :

i)that the letters dated 25.6.2007, 3.1.2008, 4.3.2008, 23.06.2008, 23.12.2008, 2.4.2009, 9.05.2009, 19.10.2010 & 7.03.2011 are forged and fabricated documents and the postal receipts are also false and fabricated postal receipts.

ii)that the allotment letters were created later on to mislead the Hon’ble Forum.

iii)that the complainant has not signed the booking form.

 

     On the above submissions of the learned counsel

for the complainant and ld. Counsel for the respondents, the main points arises for consideration before this Forum are :-

1. Whether the complainant is a consumer despite booking two plots with the respondents?
2. Whether the complaint is not maintainable?
3. Whether the complaint is barred by time and whether the amount forfeited by the respondent is wrong or justified?
4. Whether the  respondents do not have any land for the project and whether the project of the respondents has been cancelled?
5. Whether the complainant is entitled to the relief claimed or not?

 

     First of all, we take up the point :-

 

Whether the complainant is a consumer despite booking two plots with the respondents?

 

It is an admitted fact that the complainant has booked two plots with respondents. In the complaint, the complainant has alleged that the second plot was booked for his family member. It is submitted that this allegation of the complainant is totally false and has been alleged with the sole motive to file the present false complaint. It is submitted that the complainant has no where disclosed the name and numbers of his family members for whom the plot was allegedly booked. Even the plot was not booked in the name  of the alleged family members. The plots were infact booked by the complainant for commercial purpose.

          In support of his contention, ld.counsel for the respondents has relied upon the case law titled as Kumud Ghai  Vs. TDI (FA No.1457/2014) decided on  2.3.2016 wherein the Hon’ble National Commission has held that

“No evidence has been placed on record to substantiate that other two plot were taken for complainant’s husband’s handicapped sisters and brother Dershan. Had it been taken form them, allotment of these plots should have been in the name of complainant husband, brother and sister and in the absence of allotment in their favour it cannot be presumed that complainant husband purchased plots for his brother and sister-Complainant does not fall within the purview of consumer. The disputed plot is in the name of the complainant and her husband and another one plot is in the name of her husband and when the complainant & her husband have taken tow plots in the same project of the OP, the complainant does not fall within the purview of consumer.  Ld. State Commission has not committed any error in holding that the complainant does not fall within the purview of consumer under the Consumer Protection Act.

          On this point, ld. Counsel for the respondents has also relied upon the case law titled as Mera Baba Real Estate Vs. Vinod Kumar Goyal, order ated 10.3.2016 passed by the Hon’ble National Commission in Revision Petition no.1075 of 2015 and it is held that it is proved that the complainant possessed two plots in OP’s colony, so he does not fall within the purview of consumer as held by this Commission in F.A. No.1219 of 2014 Indrajit Dutt Vs. Samriddhi Developers Pvt. Ltd. and others.

 

         In case titled as Indrajit Dutt Vs. Samriddhi Developers Pvt. Ltd., the Hon’nle National Commission in First Appeal No.1219 of 2014 decided on 5.2.2015 has held that as the complainant has purchased two flats, it cannot be said to be for his residential purposes, but amounts to be investment for commercial purposes and the complainant does not fall within the purview of the consumer.  Ld. State Commission has not committed any error and dismissed the complaint as not maintainable.

          Ld. Counsel for the respondents has also relied upon the case aw titled as Sunil Gupta Vs Today  Homes  &  Infrastructure (Pvt.) Ltd.,  CC  NO.  5 OF 2014 Date of decision 3.2.2014 by National Commission,  Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199 by National Commission and Jagmohan Chabbra and another Vs. DLF Universal Ltd., Civil  Appeal No. 6030-6031 of 2008 in Hon’ble Supreme Court of India against the order in Jagmohan Chabra and another Vs. DLF Universal Ltd., IV (2007) CPJ 199 wherein the Hon’ble Supreme Court upheld the order of National Commission.

          On the other hand, the complainant has relied upon the order dated 14.12.2015 in FA No 520/2015 titled as Mera Baba Real Estate Pvt. Ltd. Vs. SL Gupta decided by Hon’ble State Commission, Panchkula. In Para 7 of the order, the Hon’ble State Commission has considered the objection of booking of plot for commercial transaction.    The complainant has also  relied upon the order dated 1.3.2016 passed by the National Commission in RP no. 389 of 2016 titled as Mera Baba Real Estate Vs.S.L. Gupta. In the said order the National Commission has not decided any issue on merits. The respondents had simply withdrawn the said petition.        

 

  It is submitted that the issue decided in the said

order was not similar as in present case. Further in view of the above stated judgments of the Hon’ble National Commission, Hon’ble Supreme Court of India, the order of the Hon’ble State Commission, Haryana, Panchkula is not the binding precedent. Further, the Hon’ble State Commission, Haryana, Panchkula has not considered any of the aforesaid order of the Hon’ble National Commission and Hon’ble Supreme Court of India on the said issue. In view of settled law of precedents, the order in S.L.Gupta case cannot be a binding precedent in any manner. On this issue, the respondents has relied upon the case law

AIR 2002 S.C. 834 it was held “Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases.”.

AIR 1994 Patna 120 it was held that  “There is no doubt that a co-ordinate Bench is bound by judgment of another co-ordinate Bench of the same Court.

AIR 1989 SC page 38 it was held that even a consent order can be followed as precedent.

          Ld.counsel for the complainant has also argued his case while relying on the case law titled as Mera Baba Real Estate Pvt. Ltd. Vs. SL Gupta passed by the Hon’ble State Commission, Haryana, Panchkula in First Appeal NO.820 of 2015 decided on 14.12.2015.  The respondents filed revision petition no.387 of 2016 before the Hon’ble National Commission which was dismissed as withdrawn on 1.3.2016.

          On the other hand, ld. Counsel for the respondents has submitted that the case titled as Mera Baba Real Estate Ltd. Vs. SL Gupta was not finally decided on merits by the Hon’ble National Commission.  Thus, the complainant cannot take the benefit of case titled as Mera Baba Real Estate Ltd. Vs. SL Gupta, because the Hon’ble National Commission has decided the revision petition no.1075 of 2015 titled as Mera Baba Real Estate Pvt. Ltd. Vs. Vinod Kumar Goyal vide order dated 10.3.2016 and the Hon’ble National Commission has dismissed the complaint of the complainant and has set aside the order dated 16.12.2014 passed by the Hon’ble State Commission, Haryana, Panchkula in Appeal NO.109 of 2014.  In the case titled as Mera Baba Real Estate Vs. Vinod Kumar Goyal, the complainant Vinod Kumar Goyal was having two plots, the Hon’ble National Commission has held that the complainant does not fall within the purview of consumer as held by the National Commission in F.A. No.1219 of 2014 titled as Indrajit Dutt Vs. Samriddhi Developers Pvt. Ltd. and others.

          Accordingly, we hereby decide the above point in favour of the respondents and against the complainant.

 

Whether the complaint is not maintainable?

          The respondents have relied upon the registration form and payment terms EX. RW 1/1. The respondents also relied upon the letters dated 25.6.2007, 3.1.2008, 4.3.2008, 23.6.2008, 23.12.2008, 2.4.2009, 9.5.2009, 19.10.2010, and 7.3.2011 and two postal receipts Ex.RW1/11 to RW1/13. The respondents have also relied upon 21 allotment letters which are collectively Exhibited as RW1/15. The Complainant has disputed all these documents as forged and fabricated and manipulated documents. The complainant has also alleged that the EX RW1/1 was not signed by him. The contentions of the complainant leads to only one conclusion that he is  disputing the genuineness of the aforesaid documents. The complainant has also alleged in his complaint that the respondents have cheated the complainant. In order to bring the truth before the Forum the respondents need to lead evidence, to cross-examine the complainant and leads evidence of Handwriting expert etc. All this procedure cannot be done in this forum as the complaint is to be decided in summary manner. However, it is well settled law that in case of allegation of cheating, forgery and fabrications, the complaint is not maintainable in Consumer Forum.

          In support of this contention, ld. Counsel for the respondents has relied upon the case law titled as Smt. Gautam Chandni Vs.  HDFC Bank Ltd. First Appeal NO.468 of 2013 decided on 26.12.2013 by the Hon’ble State Commissoin, UT Chandigarh.  The complainant has leveled allegations of fraud and forgery.  There is merit in the contention of the respondents that the same required detailed investigation and analysis of documents, examination and cross-examination of the witnesses, which is only possible before a civil court.  It is settled law that where there are allegations of forgery, fraud and cheating, adjudication whereof requires elaborate evidence, the same cannot be decided by Consumer Fora, proceedings before which are summary in nature. 

          The Hon’ble State Commission, Chandigarh in case titled as LIC Housing Finance Ltd. Vs Satish Kumar Saini & Ors. (FA No. 73/2012) has held that since serious allegations of fraud, cheating & fabrication of material documents have been leveled by opposite parties no.1&2 against the complainant, which require examination, cross- examination & re-examination of the witnesses, in detail, as also the production of voluminous documentary evidence, and as such, the Consumer Foras cannot decide such complicated and disputed issues, in summary proceedings. Such complicated and disputed issues can only be decided by a Civil Court of competent jurisdiction.

          Accordingly, we hereby decide the above point in favour of the respondents and against the complainant.

 

Whether the Complaint is barred by time and whether the amount forfeited by the respondent is wrong or justified?

 

          Ld. Counsel for the respondents has submitted that the amount deposited by the complainant was an earnest money. Further the booking of the plot was cancelled and the deposited amount was forfeited by the respondents as per agreed terms & intimation to this effect was sent to the complainant vide letter dated 7.3.2011 Ex.RW1/12 through registered post vide postal receipt Ex.RW1/13. As such the cause of action to file the present complaint accrued on 07.03.2011. The complaint was filed in 01.09 2016  and the same is barred by limitation as per provisions of the Consumer Protection Act.

          In support of this contention,  ld. Counsel for the respondents has relied upon the case law titled as AIR 1970 SC 1955 it was held that earnest money is the price of purchase price when the transaction goes forward. It is forfeited when the transaction goes through, by reason of fault or by failure of vendee.

 In case law titled as Videocon Properties Ltd. Vs. Dr. Bhalchandra Laboratories & ors. (Appeal Civil No. 10135 of 2003) it was held that the earnest money or deposit also, thus, serves two purposes of being part payment of the purchase money and security for the performance of the contract by the party concern, who paid it.

 

           In case 2010 CPJ 27 (SC) it was held that the consumer forum do not have the jurisdiction to entertain the compliant if the same is not filed within 2 years from the date on which the cause of action has arisen.

          In case 2008 Vol. 3 CPJ 174 (NC) the Hon’ble National commission has held that the complaint was barred by time as the same was filed after 2 years from the date of knowledge of dispute.

          In case law titled as Niloba Ghnashyam Naik Versus Lodha Pranik Developers Pvt. Ltd. decided on 1.5.2014 by the Hon’ble National Commission, it is mentioned in the order that  “the complainants were told in black and white that their earnest money was forfeited as per terms and conditions on 6.9.2011.  Consequently, at best the cause of action had arisen on 6.9.2011. The case was not filed within two years.  It is well settled that the correspondence, representations and legal notice do not extend the time of limitation.  The Consumer Protection Act 1986 attracts the litigants a lot because only a nominal court fee is payable for filing a complaint.  The litigants are aversed to file the cases before the civil court and rightly so.

          Further National Commission upheld the terms of the application form regarding forfeiture and in case titled as Dolphin Offshore Enterprises versus United Insurance Company Ltd. Revision Petition NO.4256 OF 2012 (NC)it was held that the cause of action  arose when the claim was repudiated by the OP and the information was sent through letter. This decision was upheld by the Hon’ble Supreme Court in SLP No. 9307 of 2013.

         Further the Hon’ble National Commission vide order dated 9.10.2013 passed in Revision Petition No.2023 of 2013 titled as Ansal Prop. & Infrastructure Ltd. Vs. Indu Dhir has held that As per clause 3 of the allotment letter, if payments are not received by the OP within the stipulated period, the OP at is discretion had a right to cancel the allotment and in that event, earnest money i.e. 20% of the allotment price of the shop was liable to be forfeited.  OP by letter dated 25.7.2012 has cancelled booking made in favour of the complainant and forfeited 20% of the basic price.   The purchaser/respondent was under an obligation to make payment of the installments and to get possession of the shop, but he has failed to make payment and his allotment was cancelled as per terms of the allotment letter.

          In case law titled as M/s Sahara India Commercial Versus C. Madhu Babu (RP No. 624 OF 2007 decided in March, 2011) by National Commission,  it was held  that when there is a written agreement between the parties, it is well settled that the Consumer Fora have to consider the relief in the light of such agreement and it is not open to them to add or subtract any of the conditions or words thereof while doing so. Forfeiture of the deposited amount was upheld.

 

          The complainant has relied  upon the order dated 14.12.2015 passed in FA No. 820 of 2015 titled as Mera Baba Real Estate Vs. S.L. Gupta by the State Commission, Panchkula and says that amount deposited could not be forfeited as the same was in the nature of trust. It is submitted that there are no pleading to this effect; there is no documentary evidence to support the plea of trust; the said argument is contrary to the agreed terms vide Ex. RW1/1 i.e. Registration Form; the Hon’ble State Commission has not considered the above stated judgments and the same is not the binding precedent.

          We find no force in the contentions raised by the ld. Counsel for the complainant that the respondents have no right to forfeit the amount of the complainant.  We have perused the Registration Form Ex.RW1/1 which is duly signed by the complainant and it is mentioned therein that “If I (the present complainant) fails to make the payment as per the payment terms annexed with this form, the company (respondents) shall have the right to cancel my/our registration/allotment and forfeit the amount deposited by me/us to the extent of 20% of the total price of the plot and I/we shall be left with the right to claim only refund of the balance amount without any interest.  Further in the registration form, it is mentioned that the project being at the conceptual stage, it is understood by me/us that the amount paid by me/us is in the nature of a advance only and when the concept takes a concrete shape, the allotment/offer will be issued and a contract will come into force thereafter. Everything was in the knowledge of the complainant and at this stage, the complainant cannot resile from the terms of the registration form as it is duly signed by the complainant.  The above said terms & conditions are binding on the complainant.  The complainant cannot take the benefit of his own wrongs, because he has deposited only booking amount and except the booking amount, the complainant has not deposited any other amount with the respondents.  The respondents to prove their bonafide intention has placed on record so many letter of allotment dated 6.6.2008 in the name of Balbir Singh, 10.6.2008 in the name of Amita Arora, 25.6.2008 in the name of Neelam Sharma, 4.6.2008 in the name of Onkar Aggarwal, 11.6.2008 in the name of Manoj Sharma, 6.11.2008 in the name of Anita Sagar, 5.6.2008 in the name of Ajay Kumar Tyagi, 25.6.2008 in the name of Krishna Kumari, 3.6.2008 in the name of Harish Wadhwa, 28.8.2008 in the name of Manju Sabharwal, 7.6.2008 in the name of Sneh Lata, 7.6.2008 in the name of Sanjay Kumar Gangwani, 7.6.2008 in the name of Anuradha Gangwani, 21.10.2009 in the name of Anil Kumar Vyas, 8.9.2008 in the name of Sneh Chawla, 6.6.2008 in the name of Sunita Bansal and 4.6.2008 in the name of Anil Bhatia.  The respondents have also placed on record the copies of sale deed/conveyance deed Divine City in the name of several other persons.

          Accordingly, we hereby decide the above point in favour of the respondents and against the complainant.

 

Whether the respondents do not have any land for the project and whether the project of the respondents has been cancelled?

 

It is submitted that in the reply to the complaint, in Para 9 the respondents have specifically mentioned the details of the 27 sale deeds regarding the land in question. The said fact has not been specifically denied in re-joinder by the complainant and the same itself amounts to admission. Further the LOI filed by the complainant itself shows that the respondents are the owner of the land along with other entities/ persons. Further the sale deed executed RW1/ 16 specifically contains the stipulation that the respondents have also purchased the land on which the project in question was developed. The complainant has not disputed any of these facts and simply leveled the allegation without any basis and to seek sympathy from this Hon’ble Forum.

          Accordingly, we hereby decide the above point in favour of the respondents and against the complainant.

 

 

Whether the complainant is entitled to the relief claimed?

It is submitted that the whole case of the complainant is on the basis of allegation that no allotment has been done by the respondents till today and the respondents have cheated the complainant and there is no land with the respondents and the project of the complainant has failed and cancelled.

          In this regard it is submitted by the respondents that they diligently complete the project. It is submitted that the complainant has booked the plot only for the commercial purposes to sell in the market. However, due to fall in land prices, the complainant failed and neglected to pay further installments and committed breach of the agreed terms of the payment schedule and violated the terms of the booking forms.  The complainant failed to pay the amount despite the demand letters dated 25.6.2007, 3.1.2008, 4.3.2008, 23.6.2008, 23.12.2008, 2.4.2009, 9.5.2009, 19.10.2010. Accordingly under compelling circumstances the respondents have cancelled the booking in March, 2011 and forfeited the amount as per agreed terms and send the intimation to the complainant vide letter dated 7.3.2011 through registered post vide postal receipt Ex.RW1/13.   Not only this the respondents sold the plots to some other buyer at reduced prices vide Ex.RW1/17, thus suffered a loss of about 10 lacs in terms of basic sales price, interest & maintenance for the plots of 250 square yards. Further the respondents had allotted the plots who paid the future installments. Some of the letter of allotments are Ex.RW1/15 and even the sale deeds were executed in 2009. Some of the Sale deeds are Ex.RW1/16. So, it does not lie in the mouth of the complainant to allege that the respondents are deficient in their services. Had the complainant paid the future installments, the complainant would have also got the allotment and the possession of the plot with sale deed upto year 2009 itself. The complainant himself is responsible for breaking the contract and forcing the respondents to cancel the booking. The complaint is based on false and vague plea. The complainant had not written even a single letter to respondents seeking allotment  or to know the status of the project which itself shows the intention of the complainant  and proves the complainant false. All allegations regarding alleged representations are without any basis and even otherwise needs to be cross examine by the respondents on the said issue. The case law relied upon by the Complainant titled as Ghaziabad development Authority Versus Balbir Singh is not applicable to the facts of the present case as the project of the respondents is very much alive and is going on.

          Accordingly, we hereby decide the above point in favour of the respondents and against the complainant.

 

5.        After hearing both the learned counsel for the parties at length and after going through the entire relevant records available on the case file very carefully and after going through the case law placed on record by both the parties, we are of the view that the complainant has failed to prove any kind of deficiency in service on the part of the respondents.

           The complainant has leveled allegations of fraud and forgery. It is settled law that where there are allegations of forgery, fraud and cheating, adjudication whereof requires elaborate evidence, the same cannot be decided by Consumer Fora, proceedings before which are summary in nature.

         The complainant has purchased the properties for commercial purpose. So, he does not come under the definition of consumer.

         In the case in hand, vide letter dated 19.10.2010 Ex.RW1/10 through registered post vide postal receipt Ex.RW1/11 the complainant was specifically informed that in case of non payment of the outstanding installment, the booking shall stand cancelled and the amount deposited by him shall be forfeited to the extent of 20% of the total price of the plot.  This letter is Ex.RW1/10 and postal receipt is Ex.RW1/11.  Due to failure of the complainant, the amount deposited by the complainant was forfeited and nothing is due or payable to the complainant towards the forfeited amount and the intimation in this regard was given to the complainant on 7.3.2011 vide letter Ex.RW1/12 and its postal receipt is Ex.RW1/13.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

         In our view, when the cancellation of booking letter was sent to the complainant by the respondents vide letter Ex.RW1/12 through registered post Ex.RW1/13, the cause of action has arisen in favour of the complainant on 7.3.2011 itself and the complainant was having a right to file the complaint against the respondents within two years from the date of cause of action i.e. with effect from 7.3.2011 to 7.3.2013, but the present complaint was filed on 1.9.2016 by the complainant and the same is time barred by the provisions of Consumer Protection Act.

         As the complainant has not paid any subsequent installments and committed default in making payments of installments and also committed default of the terms and conditions of the registration form, the respondents had every right to forfeit amount of earnest money deposited by the complainant. Since the complainant has failed to perform terms and conditions of the registration form inspite of repeated reminders, the respondents were well within its right to forfeit amount of earnest money.

 

         The amount of the complainant was rightly forfeited by the respondent.  The observations of this Forum are forfeited by the case law of the Hon’ble National Commission rendered in Revision Petition No.1973 of 2014 decided on 7.1.2015 titled as DLF Southern Towns Ltd. Vs. DIPU C.Seminlal.

          Further the LOI filed by the complainant itself shows that the respondents are the owner of the land along with other entities/ persons. Many sale deeds executed

Ex. RW1/ 16 specifically contains the stipulation that the respondents have also purchased the land on which the project in question was developed. The complainant has not disputed any of these facts and simply leveled the allegation without any basis and to seek sympathy from this Hon’ble Forum.

          Accordingly, it is held that the present complaint of the complainant is not maintainable as the same is time barred as it is filed beyond the limitation period as per provisions of the Consumer Protection Act, the complainant is not the consumer of the respondents as he was having two plots for commercial purposes, the amount of the complainant has rightly been forfeited by the respondents and thus, the complainant is not entitled to get any kind of relief against the respondents by way of present complaint. Further the allegations of fraud and forgery cannot be decided under summary proceedings as for deciding the same, an elaborate & cogent evidence is required, which can only be adduced by the parties before the civil court.  The present complaint is devoid of any merit and thus, we hereby dismiss the same with no order as to costs.

          In the present case on 4.1.2017, the respondents filed an application for dismissal of the complaint and reply to this application was filed by the complainant on 16.1.2017.  Since the main complaint of the complainant has been dismissed, the application filed by the respondents has become infructuous and no separate findings are required to be given on this application.

         Certified copy of this order he provided to both the parties free of cost.

         File be consigned after due compliance.

 

 

(Prabha Wati) (JL Gupta)            (Nagender Singh)           

Member,DCDRF, Member, DCDRF           President, DCDRF

Sonepat.      Sonepat.                Sonepat.

 

Announced 27.01.2017