| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI UdyogSadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.477/2012 MR. RAKESH SHARMA S/O LT. I.P. SHARMA R/O 984, SECTOR-4, URBAN ESTATE, GURGAON, - …..COMPLAINANT
Vs. - PIYUSH COLONISER LTD.
REGD. – CUM-CORPORATE OFFICE:- A-16/B-1, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE, MAIN MATHURA ROAD, NEW DELHI- 110044 - MR. ANIL KUMAR GOYAL
CHAIRMAN, PIYUSH GROUP, REGD. –CUM-CORPORATE OFFICE:- A-16/B-1, MOHAN CO-OPERATIVE INDUSTRIAL ESTATE, MAIN MATHURA ROAD, NEW DELHI-110044 …..RESPONDENTS Date of Institution-16.10.2012 Date of Order-15.09.2023 O R D E R RITU GARODIA-MEMBER - The complaint pertains to deficiency in service on part of OP in cancellation of a plot/flat.
- The complainant applied for a plot at Piyush City Bhiwadi at Rs.4,590/- per sq. yd. by depositing an amount of Rs.4,12,500/-. A receipt dated 01.02.2008 was issued by OP. The complainant made a further payment of Rs.77,500/- and received a receipt dated 12.02.2008.
- It is further submitted that complainant visited OPs office on 14.11.2008, 13.09.2010, 14.09.2010 and 16.09.2010 in connection of the said project in which he was allotted plot B-46. The complainant received a cancellation letter dated 10.12.2010. He went to the OPs office and enquired about the same. It is submitted that in spite of cancellation letter OP assured him that plot would be handed over soon.
- The complainant received OP letter dated 01.06.2011 in which two conditions have been stipulated to transfer the deposited amount with interest @11% p.a. in new project or to get the deposited amount refunded with interest @11% p.a.
- The complainant repeatedly requested the OP to hand over the assured plot/flat but to no avail. He also served a legal notice dated 30.01.2012. Complainant further alleges that as the market value appreciated, the OP is not handing over the assured property.
- Complainant prays for handing over the physical possession of the plot, compensation of Rs.3,00,000/- and litigation cost amounting to Rs.50,000/-.
- OP in its reply stated that complainant is a property dealer and has invested in many properties. OP alleges that the complainant has invested in two properties of the OP project and has made bookings in other project of other companies.
- OP is relying on the legal notice dated 30.01.2012 sent by complainant stating that the complainant has got inducted other buyers in OPs various project. OP has relied on another legal notice dated 30.12.2012 sent by the complainant wherein it is stated that OP has cancelled the confirmed allotment to encash the increase market value of the plot/flat. This legal notice is not filed.
- OP alleges that a buyer’s agreement was executed but the booking was cancelled due to non-payment. Vide letter dated 09.05.2009 OP submits that complainant was given time to make payment even after cancellation as special gesture as he was a dealer. OP further alleges that complainant was confused and has mixed up details of this booking with other bookings. OP clarifies that letter for refund of booking amount was not issued in the present booking but was issued for other bookings.
- OP alleges that complainant, a property dealer, has contacted OP to secure some bookings in his name so that he can sell those units later with the applicable premium and benefits. OP refused to do the same and complainant purchased bookings from the market i.e. from one Debashish Majumdar. OP has denied receiving Rs.4,12,000/- from the complainant. The OP has not denied accepting Rs.77,500/- or the receipt issued. OP has denied allotting plot/flat bearing no.B-46 to the complainant vide letter and allotment letter dated 06.09.2010. Nevertheless, OP states that the said booking was cancelled due to non-payment of instalments.
- OP has also submitted that the complaint is without jurisdiction as the property is situated in Bhiwari and all the dealings were done in Bhiwari.
- Complainant in his rejoinder has denied that he is a property dealer. He has emphasized that the property was booked in his individual capacity for his own requirement. The complainant reiterates that OP cancelled allotment without any cause or reason.
- The complainant clarifies that the booking amount was accepted by OP in the office of the respondent which is within the jurisdiction of this Commission.
- Complainant has filed his evidence and exhibited the following documents:
- Receipt bearing no.PCL/BL/PL/6447 is exhibited as Ex.CW1/1.
- Receipt bearing no.16516 is exhibited as Ex.CW1/2.
- Copy of letter dated 01.10.2011 is exhibited as Ex.CW1/3.
- Copy of statement of account is exhibited as Ex.CW1/4.
- Copy of legal notice is exhibited as Ex. CW1/5.
- Copy of postal receipt is exhibited as Ex.CW1/6.
- OP has filed his evidence and by way of affidavit but has neither filed nor exhibited any documents.
- The Commission has gone through the pleadings and documents filed by the parties. The receipt dated 01.02.2006 bearing No. PCL/BH/PL/6447 (2nd transfer) on account of Advance Registration shows that OP has received Rs.4,12,500/- from the complainant. The receipt dated 12.02.2008 bearing No. PCL/BH/PL/6516 (2nd transfer) shows that OP has received Rs.77,500/- from the complainant. No plot/flat number is specified in the receipts.
- The complainant has filed legal notice dated 30.01.2012 wherein he had asked for the delivery of possession of agreed plot/flat.
- OP in its reply has not denied the two receipts for Rs.4,12,500/- and Rs.77,500/-. Though, OP has denied receiving Rs.4,12,500/- from the complainant. Even if the complainant has purchased the booking/ allotment from Mr. Debashish Majumdar, OP has endorsed it by accepting as a second transfer and issuing a receipt.
- OP has stated that complainant has invested in two properties of OP along with booking in other projects. OP has also alleged that complainant is a dealer of properties. Moreover, OP has also imputed that the allotment was cancelled due to non-payment of the instalments as per schedule of payment. However, no details of the two properties booked with OP have been mentioned nor any detail of bookings made by complainant in other projects has been shown. The conclusion that complainant is a dealer is farfetched in the absence of any documents disproving the same. The cancellation letter due to lack of payment as per the payment schedule has not been placed on record.
- The reminder letter dated 01.10.2011 is as follows:-
SUB: YOUR INVESTMENT IN OUR TOWNSHIP PROJECT “PIYUSH CITY” AT BHIWANL RAJASTHAN. ….......................... a) “To get transferred your investment, along with simple interest @11% p.a. on invested amount, to our upcoming and coveted residential project- PIYUSH HORIZON, located at NH-8, Delhi-Jaipur Road, Gurgaon Extension, at Dharuhera (Haryana), near Hero Honda Motorcycles Plant - a well established industrial and residential zone - a copy of the brochure and price list has been annexed with this letter for your ready reference: b) In alternate you can get the refund of the priority preference registration amount along with simple interest @ 11% p.a. from our office at A-16/B-1, Mohan cooperative industrial Estate, Main Mathura Road, New Delhi-110044. You will be required to deposit the original documents issued by the Company along with duly filled surrender kit of the Company." - This letter clearly states that OP is ready to refund the amount paid by the complainant with 11% interest per annum.
- OP has not stated in any of its pleadings that the possession of the said plot/ flat has been handed over to the complainant or the construction/ development is in progress. The complainant has not received any possession till date. The Apex Court in Fortune Infrastructure v/s TevorD’lima (2018) 5 SCC 442 has held a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seeks refund of the amount paid by him along with compensation.
- The receipts issued by OP to complainant give the address of corporate office as A-16/B-1, Mohan Co-operative Indl. Estate, Main Matura Road, New Delhi- 110044.
- It is settled principle of law that OP, a developer providing the services of developing and delivery of plots/flats to consumers, is covered under Consumer Protection Act. OP has its office within the territorial jurisdiction of this Commission and hence, the complaint is maintainable. OP has neither refunded nor handed over the possession despite issuing receipt for Rs.4,90,000/- to the complainant which is a clear case of deficiency in service.
- Therefore, keeping in view all the facts, this Commission is of the view that the complainant has been able to prove that there is deficiency in service on the part of OP. The complainant has prayed for possession of the plot. As the plot was booked in year 2006 and allegedly cancelled in year 2010, it is highly probable that the same plot may not be available to be handed over to the complainant. The reminder letter issued by OP shows that OP is ready to refund the amount with 11% interest per annum. In the interest of justice we order:
- OP would refund Rs. 4.90,000/-(Rs.4,12,500 + Rs.77,500) along with 11% interest p.a. from the date of filing of the complaint till its realization as agreed by OP in letter dated 01.10.2011.
- Compensation of Rs. 30,000/- for mental stress, agony and physical inconveniences along with Rs.10,000/- towards litigation expenses.
- File be consigned to record room.
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