Case No.CC/306/2013

Date of Institution:-11.06.2013

Order Reserved on :-12.04.2024

           Date of Order :- 01.10.2024

IN THE MATTER OF:

Sh. Anupam Kumar Jain

G-15, Parsvanath Platinum Apartments,

SwarnNagari, Sector Tau,

GautamBudha Nagar,

Greater Noida – 201308.

          …..Complainant

VERSUS

MVL Limited

Regd. Office:

Chairman & Managing Director,

MVL Ltd.,

Media House, B-86/1,

Okhla Industrial Area, Phase-II,

New Delhi – 110020.

… Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The brief facts of the case are thatthe complainant is a reputed member of society and was working with Union Bank of India as senior manager.  The complainant took VRS on 30.09.2006.  The complainant has booked 2 BHK standard flat measuring 1350 sq. ft. @Rs.1550 per sq. ft. (all inclusive) and paid Rs.2,09,250/- (Rupees Two Lakh Nine Thousand Two Hundred Fifty). It is submitted by the complainant that the application for provisional registration categorically stated that the ‘Preferential Location Charges’ (PLC) were optional and only those consumers will be charged an additional 10% of PLC who opt for the same. Copy of application for provisional registration of an apartment in upcoming ‘MVL Coral’ Bihwadi, Rajasthan dated 12.08.2006 is annexed as Annexure C-2 and true copy of advance payment receipt bearing no. 229 dated 24.08.2006 is annexed as Annexure C-3.  On 09.10.2006, the complainant has received a reminder for payment of  2^nd Installment from the OP which was due on 13.10.2006 for amount of Rs.3,13,875/-. True copy of letter dated 09.10.2006 is annexed as Annexure C-4.  The complainant has paid 2^nd installment on 28.10.2006 to the OP vide receipt no. 384, copy annexed as Annexure C-5.  On 28.02.2007, the complainant has received a letter dated 28.02.2007 from OP stating that project has all necessary government approvals and construction has commenced and in full swing. The sample flat is slated to be ready by mid March, 2007 and the process of buyers agreement had started. True copy of letter dated 28.02.2007is annexed as Annexure C-6.  The complainant has received a reminder dated 03.03.2007 for payment of Rs.3,44,250/- (which includes Rs.2,09,250/- + Rs.1,35,000/- EDC @ Rs.100/- per sq.ft.) from the OP.  True copy of letter dated 03.03.2007 is annexed as Annexure C-7.  The OP has given assurances to the complainant that the construction of the project site has commenced and is in full swing. The complainant has visited the construction site and he found that no construction as alleged by the OP had ever commenced at the project site. The complainant has enquired from on-duty guard but no satisfactory explanation was given by the on-duty guard.  The complainant has requested to provide buyers agreement to the OP and the OP has stated that now estimated cost of the flat will be around Rs.26,00,000/- which included 10% of the PLC charges. The complainant has submitted that at the time of registration the PLC charges are optional and therefore OP has acted in an arbitrary manner by making PLC charges as mandatory to the detriment of the consumer.  The OP has never informed enhance the cost of flat with PLC charges but at the time of booking of flat the OP has informed the complainant that PLC charges are optional.  The complainant refused to deposit 3^rd installment till receipt of draft copy of buyers agreement.  On 15.07.2007, the OP has sent a letter to the complainant for payment of Rs.3,66,205/-. The complainant has lost the faith in the assurances of the OP because of callous, apathetic and arbitrary action requested the OP to apprise regarding the procedure of cancellation of booking.  The OP has sent a letter dated 15.10.2007 informing the complainant that the Real Estate Division of Media Video Ltd. has been demerged to “MVL Limited”. The OP has requested to the complainant to send all the future payments to ‘MVL Limited’. True copy of letter dated 15.10.2007 is annexed as Annexure C-13. On 21.09.2012, the OP sent a final demand notice of payment to the complainant demanding a sum of Rs.36,71,974/- within 15 days failing which booking of complainant’s flat would be cancelled and the booking will be forfeited. The complainant was surprised to see that the OP sent a letter dated 09.10.2012 cancelling the complainant’s flat in MVL Coral, Bhiwadi.   The OP had ignored the various reminders/letters sent by him.  The complainant sent a letter to the OP regarding arbitrarily cancellation of the flat and forefeet of his money.  The complainant sent a legal notice to the OP on 21.11.2012 for refund of his money but the OP has not replied to the complainant. The complainant has prayed for refund of Rs.5,23,125/- (Rupees Five Lakh Twenty Three Thousand One Hundred Twenty Five) alongwith interest @ 18% p.a. with Rs.8,50,000/- for mental agony and harassment.
2. Notice was served upon OPand the OP entered its appearance and filed written statement taking several preliminary objectionsincluding thatthe complaint is not maintainable as the complaint filed by the complainant for recovery of the amount which admittedly paid by the complainant on 24.08.2006 is barred by the limitation as the present complaint for recovery of money has been filed after expiry of 7 years from the payment on 22.05.2013.  The OP has stated in para‘2’ that as the complainant is on immovable property which is located at Bhiwadi and the same does not fall within the territorial jurisdiction of this Forum. Therefore, this Forum does not have territorial jurisdiction to pass an order in respect of the property which admittedly is beyond territorial jurisdiction. Hence, the present complaint is liable to be dismissed.  The OP has also stated in his written statement in para ‘4’ that this forum cannot go beyond the clauses of the contract entered into between the parties, the rights and liabilities of parties are being determined by the agreement and the parties are liable for the consequences, if any, for the breach of the said clauses.  The complainant has failed to make payment of installments in time and cannot take advantage on its own wrong. The OP has stated that the complaint is not maintainable as the present dispute relates to the recovery of money on account of non-fulfillment of the terms and conditions of the contract entered into between the parties and the breach thereof by the complainant therefore it being a civil dispute cannot be tried by this Commission being a civil dispute and the complaint is liable to be dismissed. The present dispute relates to the recovery of money of the complainant by the OP in accordance with the agreement entered into between the parties requires detailed evidence and cannot tried a summary procedure under the provisions of the Consumer Protection Act.  Hence, the complaint is liable to be dismissed.
3. In response to the written statement, the complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
4. Both the parties have filed affidavit of evidence as well as written arguments in support of their respective case.
5. On 12.04.2024, we have heard the arguments from son of the complainant, who submitted that the case may be decided on the basis of material on record.  The OP was given liberty to address oral argument within next 15 working days. Hence, the order reserved.
6. We have carefully considered the material on record and thoroughly perused the documents placed on record.
7. It is the case of the complainant he has booked 2 BHK standard flat measuring 1350 sq. ft. @Rs.1550 per sq. ft. (all inclusive) and paid Rs.2,09,250/- (Rupees Two Lakh Nine Thousand Two Hundred Fifty). It is submitted by the complainant that the application for provisional registration categorically stated that the ‘Preferential Location Charges’ (PLC) were optional and only those consumers will be charged an additional 10% of PLC who opt for the same. On 09.10.2006, the complainant has received a reminder for payment of  2^nd Installment from the OP which was due on 13.10.2006 for amount of Rs.3,13,875/-. The complainant has paid 2^nd installment on 28.10.2006 to the OP vide receipt no. 384.  On 28.02.2007, the complainant has received a letter dated 28.02.2007 from OP stating that project has all necessary government approvals and construction has commenced and in full swing. The sample flat is slated to be ready by mid March, 2007 and the process of buyers agreement had started.  The complainant has received a reminder dated 03.03.2007 for payment of Rs.3,44,250/- (which includes Rs.2,09,250/- + Rs.1,35,000/- EDC @ Rs.100/- per sq.ft.) from the OP.  The OP has given assurances to the complainant that the construction of the project site has commenced and is in full swing. The complainant has visited the construction site and he found that no construction as alleged by the OP had ever commenced at the project site. The complainant has enquired from on-duty guard but no satisfactory explanation was given by the on-duty guard.  The complainant has requested to provide buyers agreement to the OP and the OP has stated that now estimated cost of the flat will be around Rs.26,00,000/- which included 10% of the PLC charges. The complainant has submitted that at the time of registration the PLC charges are optional and therefore OP has acted in an arbitrary manner by making PLC charges as mandatory to the detriment of the consumer.  The OP has never informed enhance the cost of flat with PLC charges but at the time of booking of flat the OP has informed the complainant that PLC charges are optional.  The complainant refused to deposit 3^rd installment till receipt of draft copy of buyers agreement.  On 15.07.2007, the OP has sent a letter to the complainant for payment of Rs.3,66,205/-. The complainant has lost the faith in the assurances of the OP because of callous, apathetic and arbitrary action requested the OP to apprise regarding the procedure of cancellation of booking.  The OP has sent a letter dated 15.10.2007 informing the complainant that the Real Estate Division of Media Video Ltd. has been demerged to “MVL Limited”. The OP has requested to the complainant to send all the future payments to ‘MVL Limited’. True copy of letter dated 15.10.2007 is annexed as Annexure C-13. On 21.09.2012, the OP sent a final demand notice of payment to the complainant demanding a sum of Rs.36,71,974/- within 15 days failing which booking of complainant’s flat would be cancelled and the booking will be forfeited. The complainant was surprised to see that the OP sent a letter dated 09.10.2012 cancelling the complainant’s flat in MVL Coral, Bhiwadi.   The OP had ignored the various reminders/letters sent by him.  The complainant sent a letter to the OP regarding arbitrarily cancellation of the flat and forefeet of his money.  The complainant sent a legal notice to the OP on 21.11.2012 for refund of his money but the OP has not replied to the complainant.
8. It is the case of the complainant that he has paid a sum of Rs. Rs.5,23,125/- to the OP as per the terms and conditions but despite payment there was no construction work started at the project site by the OP.
9. It is also the case of the complainant that when he did not get the possession of flat, he asked for refund of his deposited money but the same has not been refunded despite repeated requests with the OP.  It is the case of this conduct amounts to deficiency in service and unfair trade practice. The OP has not denied the booking of the flat in their written statement stating that it is a matter of record and need no reply. The OP has not denied the booking of flat in their written statement.  The OP has neither started construction work at the project site in due time nor refunded deposited money to the complainant. The OP was under obligation to handover the possession of flat or refund his booking amount as claimed by complainant. Non-delivery of possession of flat on receipt of money within a reasonable time amounts to deficiency in service and unfair trade practice.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512” is the authority on this point.

10. As far as the plea of Arbitrator clause between the parties is concerned, the same is not relevant as Section 3 and Section 100 CPC do not bar in filing of such complaint, despite having their Arbitration clause between the parties.
11. It is clear from the records that the complainant has booked a flat with the OP and made the payment as per terms and conditions but despite receipt of the payment, the construction work at the project site was not started by the OP and OP has cancelled of booking of the flat and the money was not refunded to the complainant.
12. We are satisfied that this act on part of the OP constitutes deficiency in service and also unfair trade practice.
13. We are satisfied that this act on part of the OP constitutes deficiency in service and also unfair trade practice.
14. Accordingly, we allow the complaint and direct the OP to refund Rs.5,23,125/- (Rupees Five Lakh Twenty Three Thousand One Hundred Twenty Five)to the complainant alongwth an interest @ 6% p.a. from the date of deposited moneyandRs.2,00,000/- (Rupees Two Lakh) as lumpsum for mental agony and litigation charges within 45 days from the date of receipt of the order failing which OP shall be liable to pay entire amount alongwithinterest @ 9% p.a. till realization.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announced in the open Court on 01.10.2024.