CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.673/2009
SH. MAYANK VATS
W/O SH. S.R. SHARMA
R/O 740-B, PALAM VILLAGE,
DELHI-110045
…………. COMPLAINANT
Vs.
M/S VARDHMAN PROPERTIES LTD.,
G-9, VARDHMAN TRADE CENTRE,
NEHRU PLACE,
NEW DELHI-110019
…………..RESPONDENT
Date of Order:14.7.2015
O R D E R
A.S. Yadav – President
The case of complainant is that he is dentist by profession and he booked one unit for his clinic having super area of 218 sq. ft. covered area 130 sq. ft. @ Rs.9000/- sq. ft. in the project of OP at Vardhaman Central Mall, LSC Plot, Nehru Vihar, Delhi. OP offered unit No.F-230B to the complainant on the first floor of the aforesaid project. OP did not execute any agreement rather sought an application bearing No.15037 from the complainant containing their own terms and conditions and received a sum of Rs.1,96,200/-.
It is stated that as per terms and conditions mentioned in the said application, OP was to execute an agreement which was subject to the confirmation by the Board of Directors and the said application also contained that Board of Directors reserves their right to reject the application without assigning any reason and in that event the amount was to be refunded. OP never conveyed the approval of the Board of Directors. On the contrary demanded further sum of Rs.1,96,200/- which was paid vide receipt dated 25.4.2008. Thus in all complainant paid a sum of Rs.392400/- to OP.
It is further stated in the complaint that OP neither started the project nor gave any information in this regard, nor executed any agreement, nor intimated the confirmation of Board of Directors and still went on demanding further amount. It is further submitted that confirmation by Board of Directors can only be by Resolution of Board of Directors but no Resolution has been forwarded to the complainant till date nor any agreement has come into existence. In these circumstance complainant sent a letter dated 14.1.09 to OP demanding back the amount deposited alongwith interest. OP instead of returning the amount replied the said letter vide his letter dated 21.1.09 stating therein that they have intimated stage of construction and also called upon the complainant to sign the agreement. The said letter has been duly replied by complainant vide reply dated 11.2.09. Ultimately complainant sent a legal notice dated 09.6.096 demanding the refund of the amount but instead of refunding the amount OP has sent a reply dated 18.6.09.
Complainant has prayed that OP be directed to refund the amount of Rs.392400/- alongwith interest @ 12% plus Rs.1 lakh towards compensation.
OP in the WS took the plea that the present complaint is not maintainable as complainant is seeking damages for the alleged breach of contract and not for any deficiency in goods or service and complainant is not a consumer under Consumer Protection Act. It is further stated that the application form containing the stipulated terms of allotment was signed by the complainant and filled by complainant and furnished to OP. The complainant otherwise was fully aware of standard terms and condition of allotment as they were displayed at the back of application form and were otherwise known to the complainant. It is further stated that vide letter dated 25.3.08 OP intimated to complainant that allotment in his favour had been confirmed by Board of Directors of OP and accordingly the complainant was called upon to visit the Office of OP alongwith certain documents so that agreement etc. could be executed between the complainant and OP. OP alongwith their intimation dated 25.3.08 also enclosed a letter of payment of next instalment . Complaint failed to make the payment and accordingly OP in their letter dated 23.4.08 demanded from the complainant amount of two instalments i.e. a sum of Rs.392400/-. The complainant thereafter paid only a sum of Rs.196200/- vide receipt dated 25.4.08. Thereafter the complainant did not pay the amount due. It is stated that complainant has been called upon number of times vide various letters on 22.5.08, 23.6.8, 25.7.08, 28.8.08, 03.10.08, 25.11.08 and 24.12.08 to sign the agreement but the complaint did come forward to sign the agreement. There is no deficiency in service on the part of OP rather complainant has breached terms and conditions of agreement and is not entitled for the refund of the amount.
In the rejoinder complainant has denied that he failed to sign allotment application and stated that OP be directed to produce the allotment application and the complainant was not apprised of terms and conditions of allotment. It is further stated that the letter dated 25.3.08 was never sent by the OP. Till date complainant has not received the letter dated 25.3.08. The averments in the written submissions were denied.
We have heard Ld. Counsel for parties and carefully perused the record.
Ld. Counsel of OP has stated that complainant is not a “consumer” within the meaning of section 2(1)(d) of the Consumer Protection Act as space in question has been booked by the complainant for commercial purpose. Counsel for complainant has placed on record the copy of the order of the Hon’ble National Commission in case of M/s Vardhman Properties Ltd. Vs Som Dutt Sharma, Revision Petition No.3754/2014 decided on 09.12.14.
On the contrary counsel for complainant has relied upon 11(2013) CPJ 254(NC), 111(2013) CPJ 572 (NC), 11(2012) CPJ 525 (NC).
It is significant to note that complainant has specifically stated in para 2 of the complaint that complainant is a dentist and he has booked space for his clinic. It is nowhere stated in the written submissions that complainant is not a dentist or he has not booked the aforesaid space for running his clinic. Hence it is evident that the complainant being a dentist booked the space for running his clinic and it is implied that the same was for earning of livelihood. In the entire pleadings, OP nowhere stated that it was not for the personal use of the complainant. In the written submission, complainant has specifically stated that he has booked aforesaid space for running his clinic for the purpose of earning his livelihood by means of self employment. Since complainant is a dentist and booked space for running his clinic, complainant is very much a consumer.
Counsel for OP has referred to case of Kollipara Sriramulu Vs T. Aswathanarayana & Ors. (1968) 3 SCR 387, Sobhag Narain Mathur Vs Pragya Agrawal and Ors., 2007 VIII ADC (Delhi) 386, Satish Batra Vs Sudhir Rawal, 2013 III AD(SC) 557, Ashwani Kapoor & Anr. Vs UOI, 73(1998) DLT 843(DB), and Saurabh Prakash Vs DLF Univen & Anr. Ltd. (2007) ISC 228 to urge that if there was breach of agreement on the part of complainant then complainant is not entitled for the refund of the amount given as earnest money. It is further submitted by OP that when the terms and conditions are made clear to the complainant, the formal execution of agreement is of no consequences. Even otherwise it was the complainant who has not turned up to sign the agreement despite number of letters written to him.
It is significant to note that the application for allotment for proposed unit bearing no.15037 is bearing the signature of the complainant and authorised representative of OP. It is nowhere detailed in this letter as to when the instalment are to be paid, when construction is to be completed, when possession is to be delivered. By any stretch of imagination, it cannot be said that the terms of allotment were made clear to the complainant. It is significant to note that in para 2 of written statement on merit OP has stated that complainant otherwise was fully aware of standard terms and condition of allotment as they were displayed at the back of application form and were also otherwise known to the complainant. The back of the application form only contained the generalised terms and conditions and not the specific and relevant terms and conditions regarding the dates for the payment of instalment, stages of the construction on which instalments is to be paid, the date of completion of the project are not at all mentioned in the letter.
The most important thing is that in this application form it was stated that the agreement was to be executed subject to the confirmation by the Board of Directors of the said application and the Board of Directors reserves their right to reject the application.
Complainant has specifically stated that he has never received letter dated 25.3.2008 whereby he has been asked to execute the agreement or that the Board of Directors have approved his case. Once complainant has stated that he has not received the letter dated 25.3.08 in the replication, it was for the OP to place on record the original receipt showing that the letter was sent by speed post. It was further obligatory on the part of OP to place on record the proof of delivery of the letter but OP has not done so.
The agreement was never executed between the parties. It is stated by counsel of OP that it is an admitted fact that the complainant has received a letter dated 23.4.08 whereby he has been asked to pay Rs.392400/- by 10.5.08. Thereafter the complainant has paid a sum of Rs.196200/- vide cheque dated 24.4.08 vide receipt dated 25.4.08. It is submitted by him that it was again stated in this letter if the complainant has not signed the agreement then he can sign the agreement. It is submitted by OP that the complainant cannot take advantage of his own wrong. It is true that the complainant after the receipt of this letter dated 23.4.08 deposited a sum of Rs.196200/-. It is true that the complainant was called upon to sign the agreement vide letter dated 23.4.08. But the fact remains that in order to prove breach of terms and conditions of allotment, the onus was on OP that at the time of signing of application form the terms and conditions of allotment were brought to the notice of complainant. In fact in their application form it was stated that the agreement was to be executed subject to the confirmation by the Board of Directors of the said application. Complainant specifically stated that he has never received letter dated 25.3.08 nor till date the copy of resolution passed by the Board of Directors was conveyed to him.
In fact the complainant has proved deficiency in service on the part of OP and hence OP is bound to refund the amount deposited by the complainant i.e. Rs.392400/- alongwith interest @ 9% p.a. from 01.5.08 till its recovery plus Rs.3,000/- as compensation and Rs.3,000/- towards litigation expenses.
Let the order be complied within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(EHTESHAM-UL-HAQ) (A.S. YADAV)
MEMBER PRESIDENT
