| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA (PUNJAB) CC No. 350 of 21-07-2011 Decided on : 27-02-2012
Jagdev Singh aged about 55 years S/o Atma Singh Navdeep Heyer S/o Jagdev Singh both residents of 206, Home Land Enclave, Bathinda.
... Complainants
Versus OMAXE Build Home Private Ltd., Regd Office 12, Local Shopping Centre, Kalkajee, New Delhi through its MD/CMD/Chairman/General Manager/President Branch Manager/Authorized Signatory OMAXE build Home Private Ltd., Goniana Road, Bathinda. ..... Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM Smt. Vikramjit Kaur Soni, President Sh. Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member
For the Complainant : Sh. Ashok Gupta, counsel for the complainant For the Opposite parties : Sh. Ajay Singla, counsel for opposite parties.
O R D E R
VIKRAMJIT KAUR SONI, PRESIDENT The instant complaint has been filed by the complainants under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). Briefly stated the case of the complainants is that opposite party No. 1 floated a housing scheme named OMAXE City Amargarh Goniana Road, Bathinda. The complainants contacted opposite party No. 2 who was Incharge of opposite party No. 1 and applied for a plot of 200 Sq. Yds for the price of Rs. 11,84,670/- out of which the complainants deposited Rs. 2,52,000/- vide receipt No. 340656 on 02-01-2009 i.e. 20% of the total amount. The opposite parties allotted a plot No. 254 to the complainants. The opposite parties promised with the complainants that he would be given a life style plot and the possession would be given shortly. The opposite parties are demanding the payments at their own but not as per schedule shown at the time of booking. Sh. Manish Kumar threatened the complainants to make full payment of plot illegally and against law otherwise plot would be cancelled whereas schedule of installments was to be followed. The complainants alleged that there is no development in the OMAXE City as there are no roads, electricity, Sewerage and water etc., which are the basic amenities. The opposite parties are bound to develop the land as per agreement and commitment. The opposite parties are forcing the complainants and other to make the balance payment without providing/handing over the physical possession of the plot. The cost of construction has increased 2-3 times in three years and the complainants have to spend extra money for constructing the house. The opposite parties, to save their skin tried to get the signatures of the complainants on blank paper to show delivery of physical possession, but the complainants refused to sign the blank documents. The complainants fulfilled his part of agreement but the possession of the plot is not given till date. The opposite parties demanded full amount before giving any possession whereas the complainants were to make the payment through installments as per agreement/payment schedule. The complainants requested the opposite parties that they have already made 20% payment as per commitment and is still ready to make the balance payment in installments, but they turned down the requests and directed to deposit the total balance amount with interest. The complainants alleged that they repeatedly visited the opposite parties and requested them to handover the physical possession of developed plot No. 254 and get the installment as per schedule without interest, but to no effect. Hence, the complainants have filed the present complaint seeking directions to the opposite parties to handover the physical possession of the plot in question and pay them compensation and cost. The opposite parties filed their joint written reply and admitted that the complainants had filed application for allotment of plot of 200 Sq. Yards for Rs. 11,84,670/- and as per terms and conditions, they were required to deposit 20% of the total amount equivalent to Rs. 2,52,000/- with the Company. The complainant deposited a sum of Rs. 2,52,000/- vide receipt No. 340656 dated 2-1-2009. The complainants had offered down payment plan vide their application and plot No. 254 was provisionally allotted to the complainants measuring 200 Sq. Yards as per the tentative lay out plans. As per the allotment letter, the complainants were required to make payment of Rs. 8,59,330/- as next installment by 27-1-2009. It has been pleaded that the provisional allotment of plot was made subject to terms of allotment and clearance of cheque deposited or to be deposited towards payment of basic price. The complainant did not pay the outstanding amount despite repeated requests. After allotment, the opposite parties vide letter dated 15-1-2009 requested the complainants to adhere to the terms and conditions and to make payment of due installment as per schedule. Thereafter the complainants were issued letters dated 27-3-2009, 14-5-2009, 6-11-2009, 16-1-2010, 23-2-2010 and 10-3-2010 but despite this, the complainant did not deposit the remaining installments and interest thereon. The opposite parties also wrote letter dated 17-3-2010 to the complainants and brought it to the notice of complainants about levy of service tax on activity of construction and property for prospective buyer by budget for the year 2010-2011. Since the complainants inspite of repeated requests of opposite parties did not deposit the balance amount alongwith interest etc., the company was left with no alternative but to cancel allotment of plot and accordingly the opposite parties vide letter dated 21-7-2010 informed the complainants about cancellation of plot in question. The opposite parties have pleaded that the payments have been demanded as per application and basic terms and conditions of allotment and the complainants vide their application had themselves opted down payment plan i.e. why lump sum amount was demanded from the complainants. The first payment was made on 2-1-2009, but thereafter no payment was made by the complainants despited repeated reminders. As per terms, the complainants were to deliver possession of the plot only after clearance of dues. So no possession could have been delivered to the complainants without receipt of balance payment. The opposite parties have pleaded that there is lot of development and construction of houses etc., in the Omaxe City and amenities like roads, water and sewer have been provided. Electric poles have been installed, wires have been laid on the poles, but the electricity connection for supply of electricity is yet to be sanctioned by the PSPCL department. The complainants were never forced to pay the amount but the company has got every right to demand payments as per agreement. Parties have led their evidence in support of their respective pleadings. Arguments heard. Record alongwith written submissions submitted by the parties perused. These are undisputed facts between the parties that complainants had applied for allotment of plot of 200 Sq. Yards vide application form Ex. R-1. The complainants paid an amount of Rs. 2,52,000/- being the booking amount on 2-01-2009 to the opposite parties vide receipt Ex. R-3. The opposite parties on 15th January, 2009, provisionally allotted plot No. 254 measuring 200 Sq. Yds to the complainants vide letter Ex. C-5. The learned counsel for the complainants submitted that the complainants applied for a plot of 200 Sq. Yds for the price of Rs. 11,84,670/- out of which the complainants deposited Rs. 2,52,000/- i.e. 20% of the total amount. The opposite parties demanding the payments at their own but not as per schedule of payment shown at the time of booking of the plot. The complainants requested the opposite parties to handover the physical possession of the plot so that he may be able to construct the house on the plot. The opposite parties did not make any development in the scheme OMAXE City Goniana Road, Bathinda, till date as there are no roads, electric light, sewer, water etc., which are the basic amenities. On the other hand, the learned counsel for the opposite parties submitted that as per terms and conditions the complainants were required to deposit 20% of the total amount equivalent to 2,52,000/- with the company, which they deposited. The complainants had offered down payment plan vide their application. Plot No. 254 was provisionally allotted to the complainants measuring 200 Sq. Yds. and as per allotment letter, the complainants were required to make payment of Rs. 8,59,330/- as next installment by 27-01-2009. The complainants were issued repeated reminders requesting them to adhere to the terms and conditions and make payment of due installment as per schedule, but they did not deposit the remaining installments and interest thereon. Since the complainants inspite of repeated requests did not deposit the balance amount with interest, the opposite parties cancelled the allotment and informed the complainant regarding cancellation vide letter dated 21-07-2010. The complainants have violated basic terms and conditions and their undertaking of making payment. Sh. Varun Ghai, Asstt. Manager (Legal) of the opposite parties in his affidavit Ex. R-13 has deposed :- “...6....The first payment was made on 2-1-2009 but thereafter no payment was made by the complainants inspite of repeated reminders. So opposite parties had got every right to cancel allotment of plot as per terms and conditions.” “....It is important to mention here that as per terms and conditions possession of the plot was to be delivered to the complainants only after clearance of dues. Since dues were not cleared, so no possession could have been delivered to the complainants without receipt of balance payment.” “7. That there is a lot of development and construction of houses etc., in the Omaxe City and amenities like roads, water and sewer has been provided. Electric poles have been installed, wires have been laid on the poles. However, electricity connection for supply of electricity is yet to be sanctioned by the PSPCL department. The opposite parties never forced the complainants to make payment. The opposite parties had been simply requesting complainants to make payment vide various letters and the said letters cannot be considered to be pressurizing and forcing complainant. The company has got every right to demand payments as per agreement.” The alleged agreement which has been referred by the opposite parties has not been placed on file. An application Ex. R-1 has been placed on file vide which the complainants applied for allotment of plot. A perusal of Page 2 of this application form reveals that the total cost of plot is Rs. 11,84,670/-. No schedule of payment has been mentioned on this application form. However, against the column of Payment Plan Option a tick has been marked against Down Payment Plant, but no criteria of down payment schedule/plan has been given. Basic Terms and Conditions Ex. R-2 are attached with the application. Clause No. 5 of Ex. R-2 reads as under :- “5. The applicant agrees that the amount paid with the application and in installments as the case may be, to the extent of 20% of sale consideration of the Residential Plot shall collectively constitute the earnest money.” Neither application form nor basic terms and conditions contain any schedule of payment. A perusal of page 2 of application form Ex. R-1 reveals that some of the columns of application form has been filled by the person who has signed the said form after approving the same. A tick has been marked in the column of down payment plan by the same person with same pen who has approved the form. Hence, it cannot be believed that the complainant made any commitment to make the payment of plot under Down Payment Plan. When no schedule of payment has been produced on file by the opposite parties, the complainants cannot be compelled to deposit Rs. 8,33,400/- and interest of Rs. 2,93,174/-. The opposite parties on the one hand submitting that they did not force the complainants to deposit the due amount and on the other hand, they have cancelled the allotment of plot of the complainants vide their letter Ex. R-12. The submission of the opposite parties is that the possession of the plot would be delivered to the complainants after clearance of dues but, as discussed above, the opposite parties have admitted that supply of electricity is yet to be sanctioned by the PSPCL department. The provisional allotment of plot was made on 15th January, 2009. The opposite parties while making provisional allotment vide Ex. R-4 asked the complainants to make payment of Rs. 8,49,330/- by 27th day of January, 2009 whereas till today the supply of electricity has not been sanctioned by the PSPCL department despite lapse of more than three years. Moreover, the opposite parties have failed to place on file the schedule of payment plan agreed between them and the complainants. Hence, there is deficiency in service on the part of the opposite parties in cancelling the allotment of plot of the complainants when they themselves have failed to complete the development/basic amenities. The support can be sought from the law laid down by the Hon'ble National Commission, New Delhi, in the case titled 2011(2) CPC Sahara Prime City Ltd., & Ors. Vs. Divya Rathore wherein it has been held :- “Consumer Protection Act, 1986 – Section 21(b) – Allotment – Unilateral act – Complainant applied for allotment of house under “Sahara City Houses” scheme introduced in 217 cities of India – Allotment made but possession not delivered – Payment of balance installments stopped resulting in cancellation of allotment and forfeiture of earnest money – State Commission allowed complaint giving rise to present revision – Held, unilateral cancellation of allotment is obviously illegal – Petitioner/OP is bound to refund amount of Rs. 8,18,322/- with 9% p.a. interest and cost of Rs. 20,000/- upheld.” In view of what has been discussed above, this complaint is accepted against the opposite parties with Rs. 20,000/- as cost and compensation and the letter dated 21-7-2010 Ex. R-12 vide which the allotment of plot of complainants is cancelled is hereby quashed. The opposite parties are directed to give physical possession of plot No. 254 in question to the complainants after getting sanctioned the electricity supply from PSPCL Deptt.. The opposite parties are also directed to issue allotment letter to the complainant with schedule of payment. The total cost of plot is Rs. 11,84,670/-. The complainants have already paid Rs. 2,52,000/- being earnest money. The balance amount remains as Rs. 9,32,670/- . The opposite parties are directed to charge the said amount in 8 equal half yearly installments of Rs. 1,16,584/- each from the complainants. The compliance of this order be made by the opposite parties with immediate effect after receipt of sanction of electricity supply from PSPCL Deptt. and after completion of other basic amenities, if any. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.
Pronounced
27-02-2012 (Vikramjit Kaur Soni) President (Amarjeet Paul) (Sukhwinder Kaur) Member Member | |
