Delhi

North East

CC/186/2014

Dinesh Kr. Singhal - Complainant(s)

Versus

Piyush Colonisers Ltd. - Opp.Party(s)

25 Jul 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 186/14

 

In the matter of:

 

	Dinesh Kumar Singal S/o Sh. Raghunath Sahai R/o 295, Sector-15 Faridabad.	Complainant
	Versus
	M/s Piyush Colonisers Ltd Through its Managing Director A -16/B-1, 1st Floor MCIE Main Mathura Road New Delhi-110044.	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION :

19.05.2014 24.07.2019 25.07.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, facts giving rise to the present complaint are that the complainant was approached by OP in May 2006 which had come up with big hoardings / advertisement for their upcoming High Rise Project Piyush City at Bhiwadi (said project) when complainant was looking for a residential accommodation. The complainant, lured by representation, brochures and propaganda made by OP with respect to the said project, booked a flat with OP in May 2006 on payment of Rs. 2,30,000/- vide cheque no. 582470 dated 24.05.2006 drawn on ICICI Bank alongwith the application form and OP issued acknowledgment receipt no. 003617 for the same dated 06.06.2006 in complainant’s favour. Complainant was assured that the project was duly approved for financing by Banks and FIs for loan purposes but when the complainant applied for loan, he was apprised that the said project was not sanctioned / approved for which he made regular follow-ups with OP to provide him the details of the project approval, license etc but no reply came forth from OP’s end and till the filing of the complaint in May 2014 i.e. after 8 years no documents viz project plan, details title clearance report have been provided by OP showing its dishonest intent. Complainant has further submitted that instead of providing the sought for information, the OP kept sending demand letters dated 17.10.2007, 19.11.2007, 25.08.2007, 29.12.2011 demanding Rs. 3,98,035/- and lastly cancellation letter dated 27.02.2012 cancelling the investment and forfeiting 15% of the sale consideration amount, value of the flat as per letter dated 22.08.2007 issued by OP to the complainant was 1196 Sq.ft. @ of Rs. 1290/- per sq.ft amounting to 15,42,840/-. The complainant issued a legal notice through counsel on OP on 29.10.2013 and lodged a complaint with EOW against OP on 05.06.2013 and lastly alleging deficiency of service against OP causing undue harassment and agony and monetary loss to the complainant, was compelled to file the present complaint against the OP praying for issuance of directions against the OP to provide the complainant with approved project details / plans / documents / details of title clearance to obtain home loan or in the alternate to refund Rs. 2,30,000/- alongwith interest @ 18% p.a. from the date of payment till realization alongwith Rs. 2,00,000/- as compensation / damages for loss of opportunity and punitive damages / escalation charges and Rs. 33,000/- as litigation expenses.     

Complainant has attached copy of receipt no. 003617 dated 06.06.2006 issued by OP to the complainant acknowledging receipt of Rs. 2,30,000/- towards the said project, copy of reminder letters dated 17.10.2007, 19.11.2007, 28.08.2008 and 29.12.2011 from OP to the complainant demanding payment due for the project, copy of cancellation and forfeiture notice dated 27.02.2012 by OP to the complainant, copy of legal notice dated 29.10.2013 by complainant to the OP and copy of Criminal complaint dated 05.06.2013 by complainant against OP lodged with EOW Delhi.

2. Notice was issued to the OP on 30.05.2014 which entered appearance and filed written statement and took the preliminary objection of non-maintainability of the present complaint by averring that the dispute pertains to the property at Bhiwadi and therefore jurisdiction lies at Bhiwadi. OP took the defence that the complainant failed to adhere to the payment schedule in respect of the booking made by him in the said project and did not pay heed to various reminders for demand vide letters dated 14.08.2007, 17.10.2007, 19.11.2007, 25.08.2008 and 29.12.2011 and when no payment came forth from the complainant, the OP was forced to send letter of cancellation and forfeiture dated 27.02.2012 to the complainant but despite such letters, complainant did not come forward to make the payment and instead filed the present complaint making false and baseless allegation against the OP without any cause of action. OP denied having given any assurance or promise to the complainant and stated that the complainant acted contrary to the terms and conditions agreed upon for the payment of dues despite various demand letters consequent to which the OP cancelled his allotment and forfeited the booking amount. OP submitted that it was complainant’s responsibility to arrange for funds to pay installments and denied any correspondence exchanged between them. Lastly, OP urged that the complaint was barred by limitation and prayed for dismissal for the same disputing any deficiency in service or false assurance or failure to perform or fulfill its obligation/ commitment towards the complainant.
3. Rejoinder and evidence by way of affidavit was filed on behalf of the complainant wherein the complainant rebutted the defence taken by the OP to the effect that the written statement was unaccompanied with authorization of AR and that OP did not even have the statutory license/clearance and sanctioned building plans for the said project in contravention of HUDA Act, 1973. He further urged that the complainant was within limitation as the complainant continued demanding settlement of his account and refund till 2013 and also that this Forum has territorial jurisdiction to entertain the same since the registered office of OP is at Delhi where the payment was made and Delhi being one District as held by Hon'ble SCDRC in judgments prevailing/passed at that time. The complainant exhibited the payment receipts, letters by OP, legal notice by complainant’s counsel and copy of EOW police complaint as exhibit CW1/1 to CW1/4.
4. Evidence by way of affidavit was filed by OP sworn by its AR reiterating the defence taken in the written statement. OP stated that there was no allurement or involvement by any of its officials or representative in complainant booking in the said project which booking was done through his dealer / agent Om Associates and denied having received any legal notice dated 29.10.2013.
5. Written arguments were filed by complainant and OP in reiteration/ re assertion of their respective grievance / defence. OP filed judgment compilation of case laws of Hon'ble Supreme Court and Hon'ble National Commission in support of his defence of ground taken for dismissal of complaint –limitation, limited liability and forfeiture of earnest money in view of default by complainant to perform terms and conditions of agreement and limited liability. Complainant placed reliance of judgment of Hon'ble NCDRC in Rajkumar Rathore Vs Piyush Infrastructure II (2019) CPJ 338 (NC) wherein Hon'ble NCDRC held that complainant cannot be made to wait indefinitely for possession when there is absolutely no response of OP and complainant is entitled for refund with interest as per current market situation.
6. We have heard the arguments addressed by both counsels for complainant as well as OP and have examined the record before us. However, OP did not comply with order dated 16.01.2019 passed by this Forum whereby cost was imposed on it for unnecessary delay in the matter of oral arguments for its continued absence which was never complied with by OP.

The demand letters raised by OP on complainant between the period 2007 to 2011 are completely silent on any progress or construction on the site of project. The cancellation / forfeiture notice dated 27.02.2012 by OP to the complainant refers to ‘terms and conditions of the understanding’ with the complainant and notice of cancellation of ‘investment’ as per the ‘cancellation process of the company’ but nowhere in the entire pleadings filed by the complainant is there any reference / record of any such terms and conditions or cancellation process defined/specified by way of any written agreement between the parties. The OP did not even enter into any Agreement to Sell with the complainant what to talk of any allotment letter with respect to the project in question. Even the booking form was taken away by OP from the complainant after having got the same filled at the time of booking. In the written statement filed by OP, the defence of cancelling the booking and forfeiting the amount is made on the ground ofnon-payment of dues despite several letters as per terms and conditions but the same were nowhere put into writing. The judgments relied upon by OP in favour of its right to forfeit in case of default by the allottee cannot come to his defence since in all the judgments, there were express Plot Buyer Agreement entered into between parties laying down terms and conditions of allotment which were conspicuously absent in the present case. The flimsy objection of territorial jurisdiction is not entertainable / not maintainable. In this regard though, bare perusal of Memo of parties clearly and unequivocally establishes that OP did not have corporate / registered / branch office within the territorial jurisdiction of this Forum and as such the condition stipulated in Section 11 sub clause 2 (a) or (b) or (c) of CPA were not fulfilled, however the OP did not strongly oppose or question/dispute the jurisdiction of this Forum and therefore in accordance with proviso 11 (2)(b), it was deemed acquiescence on part of the OP with respect to jurisdiction of this forum and therefore as per section 11 sub clause 2 sub clause (b) this Forum granted permission to the complainant for being heard on the said complaint. In such cases, the advisable course of action is seeking permission of the District Forum right at the time of institution of complaint. Clause b of sub Section (2) of section 11 has not provided any criteria or guideline on basis of which the complainant can ensure that the district Forum would, in all probability grants such permission; this therefore is a matter within discretion of District Forum. Thus the objection taken by the OP for non-maintainability is dismissed in this light.

The objection of limitation is also not sustainable in light of the settled law by Hon'ble Supreme Court in Meerut Development Authority Vs M.K. Gupta IV (2012) CPJ 12 wherein the Hon'ble Supreme Court held that in such cases the cause of action is continuous and the buyer has a recurrent cause for filing a complaint for non delivery of possession of plot or refund of price paid there against as has also been relied upon by Hon'ble National Commission in Saroj Kharbanda Vs Bigjo’s Estates Ltd II (2018) CPJ 146 (NC) in which the Hon'ble National Commission also held that that it is a well establish principle that even if the complainant had failed to deposit further amount with OP builder, the latter had no right to forfeit the amount deposited with them. At best they could have cancelled the allotment made in favour of the complainant and returned the amount deposited with them, after making certain deductions in accordance with the terms and conditions of the agreement.

7. In the present case however, the OP raised unfair demands of money from complainant without apprising him about the status of their project and with no written agreement whatsoever entered between them and therefore we are not convinced with the plea taken by OP that the complainant did not come forward to make payments and filed the present complaint because no man of reasonable prudence would mindlessly pay huge amounts to builder without getting any iota of knowledge about the status of the project that he has invested in and in the present case, the complainant was kept in dark for good five years from 2006 to 2012 and was being sent demand letters one after the other by OP without any Agreement to Sell or any Allotment Letter which in our considered view is unfair trade practice under Section 2 (1) (r) of CPA.

Based on the discussion above and after due appreciation and analysis of the facts and material placed on record before us, we find OP guilty of deficiency of service and unfair trade practice in having unlawfully and unjustifiably raising demands for a project which never took off, failing to enter into any written agreement with the complainant, keeping him in dark with respect to the progress of the project with no Allotment Letter and arbitrarily cancelling the investment and forfeiting the deposited amount of Rs. 2,30,000/-.

8. We therefore allow the present complaint and direct the OP to refund Rs. 2,30,000/- alongwith interest @ 9% p.a. from the date of filing of the complaint till realization to the complainant. We further direct the OP to pay compensation of Rs. 15,000/- on account of damages to the complainant and Rs. 10,000/- as litigation charges to the complainant. Let the order be complied with by OP within 30 days from the date of receipt of copy of this order.
9.  Let a copy of this order be sent to each party free of cost as per   regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  25.07.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member