DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

Complaint Case No. 332/17

In the matter of:

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

ORDER

1. The present complaint has arisen out of grievance of complainant against the OP when the complainant applied for allotment of a shop bearing no. 22 on ground floor having an area of 262 sq. ft. in a project promoted by OP which was named “Panchsheel Green” at ground floor, situated at 130 meters main road, Greater NOIDA (West), U.P. (NOIDA Extn.) (hereinafter refer to as “the Shop”) as per drawings giving to him @6000/- per square feet for the purpose of earning his livelihood. The OP had assured the complainant that the possession of the said Shop would be delivered to him within a period of 18 months from  date of booking and booking amount of Rs. 1,00,000/- was paid by complainant to OP vide cheque no. 942912 dated 1.11.2010 and thereafter, complainant paid Rs. 92,000/- vide cheque no. 942913 dated 10.12.2010 to OP and Rs. 2,88,000/- were paid vide cheque no. 377740 dated 20.05.2011 to talling Rs. 4,80,000/- to OP. All the above cheques were duly received and encashed by the OP. However, vide letter dated 11.02.2014, to the complainant, the OP informed the complainant of abandonment of the said project in view of the decision of Hon'ble Supreme Court and bye laws by Greater NOIDA denotifying land in Shahberi Village apart from other reasons of revised site plan and layout which as per the complainant had no concern with the purpose of booking of shop made by the complainant. The complainant requested the OP to fulfill their commitment by allotting him a shop or meeting his requirement in some other project of the OP and even wrote a letter dated 25.02.2014 in this regard to them. But the OP, without honoring legal and binding commitment and looking into the request of the consumer, unilaterally sent back the amount deposited by complainant with OP vide letter dated 5.9.2014 by completely ignoring the purpose of livelihood for which complainant had applied for allotment of a shop in their project on the basis of promises made by the OP. The complainant has submitted that he kept on requesting the OP to honour its commitment but to no avail. It has been further submitted by complainant that he was surprised that after some time, an agent from the OP visited him for the sale of a shop in the same project @ Rs. 30,000/- under the name and style of “Panchsheel Greenaria” having the similar developments scheme with the same policy and with similar lay out plan except that earlier plan was for ground and first floor shop and thereafter the current plan was for underground and ground floor shop but having all the characters of earlier complex, and thus adversely affecting original allottee including the complainant, in order to benefit itself by defeating the public interest and policy and exploiting the real allottees/ consumer by offering the shop at a much higher price. The complainant had alleged that the OP by adopting unfair business policies have exploited the original allottees by disregarding the original development schemes and the standard policies launched in the interest of bonafide buyers by abandoning the original scheme launched by them without taking into confidence, the real buyers and as such the OP grossly failed to protect interest of consumers on the false pretext. It has been submitted further that OP are not at all entitled for execution of agreement for new development in place of old plans as stated above and therefore, the complainant had sent notice dated 9.6.2016 addressed to the Director of OP Company but no heed was paid to the same and as such the OP has committed breach of law as prescribed in the Consumer Protection Act and various judgments of Hon’ble Courts, Forum and Commissions. The complainant was therefore constrained to file the present complaint against the OP praying for issuance of directions to allot the shop booked by the complainant @Rs. 6000/- per sq. ft. as booked by the complainant in the newly launched project by the OP  namely “Greenaria” in Panchsheel Greeens, situated at 130 mtrs main road, Greater Noida (West), UP. It has also been prayed further that the OP may please be directed not to sell one shop from unsold shop and reserve one shop for the complainant. In addition to above, it has also been further prayed that the complainant may be compensated for harassment caused to him by the acts of OP in illegally cancelling his allotment and launching a new scheme at the same place by paying an amount of Rs. 12,00,000/- to the complainant for the mental agony suffered by him. The complainant has attached a copy of project of Ground Floor, Lower Ground Floor, a copy of refund of payment letter dated 05.09.2014 from OP to complainant, a copy of request letter from complainant dated 25.02.2014 addressed to OP, letter dated 11.02.2014 from OP to complainant asking him to receive the refund of deposited amount in view of abandonment of project, a copy of reminder letter dated 08.04.2011 from OP to complainant demanding payment due and copy of payment receipts numbers 6348, 6272 & 6271 and previous lay out of plan/ earlier project.
2. Notices were issued to OP on 27.11.2017  for appearance in the Forum on 15.12.2017 and the same was delivered to the OP on 05.12.2017.  However, the OP failed to appear before this Forum and therefore, proceeded against ex parte vide order dated 18.01.2018.
3. Complainant had filed Ex parte evidence by way of affidavit and written arguments in reassertion of his grievance on 12.04.2018 and 24.07.2018 respectively against the OP.
4.  We have heard the oral arguments addressed by the complainant and have also gone through the documentary evidence in support of contentions made by the complainant. The complainant had purchased a shop in a “Commercial Project” of the OP and has failed to established beyond reasonable doubt to the satisfaction of this Forum that the same was for the purpose of self employment / earning livelihood and not for “Commercial use”. Therefore, in our opinion he doesn’t come within the ambit of consumer as per section 2(1)(d)(ii) of Consumer Protection Act 1986 most specifically outlined and enforced vide amendment to the Act with effect from 15.03.2003. Secondly, even if he were a consumer within the definition/ scope of the Act, the OP had  abandoned the project due to Hon’ble Supreme Court decision of denotifying the land in question which directions is passed by Apex Court of the Country and therefore, the OP had not only refunded the deposited amount of Rs. 4,80,000/- to the complainant but had also granted 18% interest thereon from deposit till later of abandonment i.e. 11.02.2014 calculated the tune of Rs. 1,99,747/- thereby refunding a sum of Rs. 6,79,747/- to complainant through cheque no. 172783 for Rs. 4,80,000/- & cheque no. 172784 for Rs. 1,99,747/- vide letter dated 05.09.2014 as a goodwill gesture.

The Forum has taken strong exception to such gross abuse of process of law by complainant in filing vexatious and motivated complaint and therefore, dismiss the same under section 26 of CPA with directions to complainant to deposit a cost of Rs. 2,000/- with CLA in line of judgment passed by Hon’ble National Commission in Diamond Cement V/s Rai Prexim India Pvt. Ltd. I (2003) CPJ (i) (NC) in which the Hon’ble National Commission dismissed the complaint as being commercial one with cost imposed on complainant to be paid to NCDRC Bar Association (Legal Aid) for filing such a vexatious complaint with stern warning to abstain from indulging and frivolous litigation in future.

5. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
6. File be consigned to record room.

(Announced on 05.09.2018)