Delhi

New Delhi

CC/1281/2008

S.N. Verma - Complainant(s)

Versus

M/S. BPTP Ltd. - Opp.Party(s)

22 Sep 2016

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI (DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE, NEW DELHI-110002.

 

Case No.TC/1281/08                                       Dated:

In the matter of:

SHRI S N VARMA

R/o 18-C SECTOR-07

POCKET-01

DWARKA, NEW DELHI

 

              ……..COMPLAINANT

    

VERSUS

M/s BUSINESS PARK TOWN PLANNER

M-II MIDDLE CIRCLE,

Connaught Place

New Delhi-01

 

 

………. OPPOSITE PARTIES

ORDER 

MEMBER: H M VYAS

The complaint bearing No.C-08/141 was filed before the Hon’ble  State Commission by the complainant praying for the award of the following:-

1. Refund of Rs.3,42,500/-.
2. Misc expenses towards visits, follow up, correspondences, telephone calls etc. Rs.50,000/- .
3. Loss of interest/return on Rs.25 lacs.
4. Compensation towards hardships and Mental agony Rs.10,00,000/-.
5. Compensation towards deprivation of enjoyment of the plot and interest @15% beside cost of litigation expenses etc.

The Hon’ble State Commission vide order dt. 23.7.08 transferred the complaint to this Distt. Forum vide order/judgment dated 23.7.08, holding that even if  “the allegations are assumed to correct and approved the amount of compensation cannot exceed Rs.20, lacs for the purposes of the pecuniary jurisdiction”. 

The facts of the case as contained in the complaint are that the complainant booked a plot admeasuring 300 Sq. yds. with OP in Faridabad in Feb.,2006 and paid Rs.6,50,000/-.  The OP then demanded a sum of Rs.5,40,000/- which was paid by the complainant, thereafter the complainant made a payment of Rs.2,70,000/- and then Rs.25,000/- to the OP.  To the surprise of the complainant the OP allotted a plot of 466 Sq.yds. of which the complainant was not able to bear the financial burden and made request for change of plot from 466 sq. yds. to 300 sq.yds. After several reminders to the OP the complainant received reply from the OP.  It is further stated that the plot size was further enhanced unilaterally by the OP from 466 sq.yds to 468 sq.yds. Since the request of complainant to allot a plot of 300 sq.yds. proved futile, and that the OP raised demand and issued notice for a sum of Rs.14,78,595/- for payment failing which, the complainant’s booking would be cancelled and earnest money deposited  by the complainant would be forfeited,  the complainant had no alternative and was unable to meet the demand for payment demanded by OP, the complainant decided to sell of the plot against his will.  At the time of sale/transfer of the plot, the OP charged a sum of Rs.3,42,500/- from the complainant as interest  @ 18% p.a. on account of delayed payment from the complainant. It is alleged that the said charge was not only exorbitant but also illegal and arbitrary in the circumstances that plot of the booked size was not allotted to the complainant and OP unliterary allotted bigger plot. He has stated that in the complaint Para 12 that OP charged interest in cash the entire interest amount of Rs.3,42,500/-.  The OP was not justified in revising the size of plot twice against the request to allot the plot of 300 sq.yds.  The prayer as aforementioned has been made by complainant alleging that the OP was deficient in action and deprived complainant from enjoyment of the plot by allotting a plot of bigger size.

The WS/Version has been filed by OP opposing the complaint with many preliminary objections.  It is mentioned that the complaint is bad for misjoinder of parties as the 3^rd party who purchased the said plot from the complainant has not been impleaded; the 3^rd party i.e purchaser of the plot had given an undertaking and affidavit to OP with the knowledge of the complainant to the effect that in case of loss or damages caused to the OP due to transfer by complainant then the Buyer shall indemnify the OP.  The OP has alleged that the complainant has misrepresented about the change of size of the plot as the same is permissible under the agreement (clause (e); and that the complainant has not approached the Forum with clean hands.  It has further been stated by the OP that after selling the plot to 3^rd party the complainant is left with no right or interest in the said property or agreement. The complainant categorically admitted the transfer under the terms as is evident from several documents executed and submitted by the complainant including the letter dated 29.4.08 written by the complainant requesting the OP to substitute the name of 3^rd party in his place and complainant categorically admitted that “after substitution of the names of the said nominee, I/we, shall have nothing to do with said agreement nor we will have any lien/right on the said property.  In the WS the OP has admitted a cheque dt. 4.5.06 for a sum of Rs.5,40,000/- which bounced and later the complainant tender another cheque dt.20.5.06 in lieu of earlier bounced; cheque dt.8.8.06 for payment of Rs.27,000/- (para 4 of brief facts of the case in WS). After the Plot bearing No.H-1/40 was allotted the complainant made a payment of Rs.2,09,700/- vide letter dt.14.11.06 towards preferential location charges (PLC) and thereafter no amount was paid by the complainant.  The OP sent a reminder dt. 8.6.07 for a sum of Rs.14,78,595/- and interest @ 18% for payment followed by reminder/final opportunity through letter dt.12.1.08. Thereafter the complainant  on 29.4.08 sold the said plot to one Shri Goarav Jain through Agreement to Sell.  As per the said Agreement to Sell executed between Shri Goarv Jain and the complainant it was agreed by the complainant that the complainant would clear all the dues till the date of said Agreement to Sell.  Thereafter the complainant was left with no interest in the said property or the agreement.  The OP while resisting the complaint prayed to dismiss the complaint with cost.

The complainant filed the rejoinder reiterating along the contents of complaint.  Both the parties have filed evidence by way of affidavit. The complainant has filed and relied upon the documents below:-

1. Application form for booking of the plot (Ex-C-1).
2. Copy of receipt dated 24.5.06 of an amount or Rs.5,40,000/- (Ex-C-2)
3. Copy of receipt dated 1.9.06 of Rs.2,70,000/- (Ex-C-3)
4. Copy of receipt dated 1.9.06; of payment  of Rs.25,000/-  (Ex-C-4)
5. Letter dt.3.11.06  (Ex-C-5) seeking extension of time for payment.
6. Copies of emails at  (Ex-C-6 colly)
7. Demand Letter dt 8.6.7  (Ex-C-7)
8. Demand Letter dt. 17.4.8  (Ex-C-8) final opportunity.
9. Acknowledgement of Provisional Registration  (Ex-C-9)
10. Letter dt 29.4.408  (Ex-C-10) for refund of interest
11. Letter dated 24.4.08 from OP (Ex-C-11)
12. Copies of customer ledger  (Ex-C-12)
13. Letter dated 7.4.06 from OP (Ex-C-13)
14. Letter dated 7.10.06 from OP (Ex-C-14) indicating size of plot 350 sq.yds. approx.
15. Letter dated 14.11.06 (Ex-C-15)
16. Letter dated 24.07.06 from OP (Ex-C-16)
17. Letter dated 03.11.2006 (Ex-C-17)
18. Letter dated 12.5.06 from OP (Ex-C-18)
19. Letter dated 07.06.2007 (Ex-C-19)
20. Letter dated 13.06.07 (Ex-C-20)
21. Letter dated 18.07.07 (Ex-C-21)
22. OP’s letter dated 12.1.08(Ex-C-22)

 

 The OP has filed its evidence and relied upon the following documents:-

1. Authority Letter dt. (Ex-OP-1)
2. An application for registration (Ex-OP-2)
3. Registration receipt dt.24.5.06 (Ex-OP-3) also filed by complainant (Ex-C-II)
4. Copy of allocation Card (Ex-OP-4)
5. Copy of allocation for allotment (Ex-OP-5)
6. Letter dt. 8.6.7 (Ex-OP-6) filed by complainant (Ex-C-7)
7. Letter dt. 12.1.08 (Ex-OP-7) filed by complainant (Ex-C-22)
8. Copy of Agreement to Sell dt.17.04.08 between complainant  and Shri Gorav Jain (Ex-OP-8)
9. Letter dt. 29.4.08 (Ex-OP-9)
10. Indemnity-cum-undertaking dt.26.4.08 (Ex-OP-10) executed by the complainant in favour of the OP.
11. Affidavit of complainant dt 26.4.08 (Ex-OP-11) and Indemnity-cum-Undertaking by the Buyer Shri Gorav Jain(Ex-OP-12).

 

Both the parties have filed WA beside evidence by way of affidavit.

 

We have carefully considered the material placed before us and the pleadings, evidence and the argument written and oral addressed by both the parties, and relevant legal provisions. The undisputed facts are that the complainant booked a plot with OP and made certain payments which have been admitted by the OP.  Thereafter the complainant had sold the said booked plot in favour of one Shri Gaurav Jain against a consideration as per the “Agreement to Sell” dt.17.4.2008 filed by the OP. The complaint is filed on the premise of interest component to the tune of Rs.3,42,500/- paid by the complainant to the OP as interest, however the complainant has not disputed the sale of the said plot and rather admits the same even in the complaint itself, replication and also in the evidence.

 

        We are of the considered view that a complaint can only be made by a “consumer” under the provisions of Consumer Protection Act, 1986”.  The OP has raised the issue of maintainability in its WS/Version alleging that as the complainant is not consumer and the unit was sold by complainant through Agreement of Sale executed between the complainant and one Shri Gaurav Jain who has not been arrayed as OP by the complainant in the present complaint therefore, the complaint is bad for non-joinder of parties.

 

The Hon’ble National Commission in the matter Honda Cars India Ltd. Vs. Jatinder Singh Madan reported as IV (2013) CPJ 258 (NC) has held that the complainant does not remain a consumer once the vehicle is sold during pendency of the complaint for the purpose of Consumer Protection Act.  In another case reported as Manu/CF/0365/20071(2008)/CPJ/249 titled as Hoshiarpur Improvement Trust Vs. Major Amrit Lal Saini.   The Hon’ble National Commission held in Para 21 of the judgment which reads as below:-

 

        “In the instant case the complainant has sold the booked flat byway of Agreement of Sale dt.17.4.08 and executed documents referred above.   In other words, admittedly the complainant had left with no right, interest; lien in respect of aforesaid flat and also in respect of the Agreement.  It is settled proposition of law that the liabilities in respect of any immovable property move along with property itself once the flat has been transferred by the complainant against the consideration and further that indemnity and undertaking by the complainant stood executed while requesting for substantiation of the name of the purchaser i.e Shri Gorav Jain in place of the complainant to the OP, he ceases to be as consumer”.

 

       It would thus be clear that the complainant ceased to be a consumer under the definition of Consumer under the Consumer Protection Act, Section 2(1) (d) and as such there cannot be any deficiency of service on the part of the OP and/or sustenance of claim in favour of complainant as against the OP in these circumstances.

       In view of foregoing discussions we are, therefore of the considered view and hold that the complainant in the present complaint ceased to be a complainant as also admitted of having   sold the booked flat to Shri Gaurav Jain and as such the complaint is dismissed. No orders as to cost. 

Copy of this order be sent to the parties free of cost by post.  This order be also uploaded on server www.confonet.nic.in.

The file be consigned to Record Room.

Announced in open Forum on 22.09.2016

 

 

(S K SARVARIA)

PRESIDENT

 

                                                (H M VYAS)                                    

                                                                                                         MEMBER