Delhi

North East

CC/65/2014

Sh. J.K Kaul - Complainant(s)

Versus

Rajesh Buildcon, Infrastructure - Opp.Party(s)

09 Jan 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. 65/14

 

In the matter of:

 

	J K Kaul S/o S N Kaul R/o 15B Bharat Apartment 31 I. P. Extension Patparganj Delhi-110092	Complainant
	Versus
	M/s Rajesh Buildcon & Infrastracture Pvt. Ltd. Through its Managing Director Mr. Rajesh Gupta Having its Regd office at 4781/23 Ansari Road Darya Ganj New Delhi-110002   Also at: 2/33 Ansari Road Darya Ganj New Delhi-110002	Opposite Party

 

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

28.02.2014 08.01.2019 09.01.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated facts relevant for the disposal of the present complaint are that the complainant being lured by various advertisement/ propaganda and big hoardings / advertisements put up by the OP with respect to its upcoming project ‘Vedic City Haridwar’, had booked a 100 sq yd residential plot for personal use on 20.12.2006 on payment of Rs. 55,350/- in cash as booking amount duly acknowledged by the OP vide receipt no. RBI/DVC/100/602 dated 27.12.2006. Thereafter, complainant paid Rs. 1,10,700/- in cash to OP on 27.02.2007 towards first installment, Rs. 67,574/- vide cheque no. 521793 on 18.02.2008 and 20 EMIs @ Rs. 7,057/- each totaling Rs. 1,41,140/-. Therefore the complainant had paid a total sum of Rs. 3,74,764/- to OP between 2006 to 2008. The OP had promised to give possession to the complainant within 18 months of booking failing which the complainant was asked to exercise an Option I or Option II of the Option Form of OP out of which the complainant availed of Option I of receiving interest @ 9% p.a. until possession though none was paid. In February 2008 OP executed Plot Buyers Agreement with the complainant wherein OP agreed to handover possession within 20 months. However when the complainant visited the site in January 2010, he saw no development there and after repeated follow ups with OP, OP issued letter dated 24.10.2011 to the complainant assuring to give possession of plot within next 3 months of the said letter i.e. January 2012 onwards meaning thereby that till January 2012 admittedly there was no possession given by OP. The complainant ultimately demanded refund of his deposited amount from OP in December 2012 but since the OP did not refund the same the complainant got issued a legal notice dated 07.01.2014 to the OP and also lodged criminal complaint with EOW Delhi Police on 07.02.2014. Lastly, the complainant alleging deficiency of service and unfair trade practice on the part of OP was constrained to file the present complaint against the OP praying for issuance of direction for refund of Rs. 3,74,764/- alongwith interest @ 18% p.a. from the date of payment till realization in addition to Rs. 50,000/- as compensation for punitive damages and loss of opportunity and Rs. 33,000/- as litigation expenses.

Complainant has attached copy of receipt dated 27.12.2006 of deposit of Rs. 55,350/- as booking amount of the said plot, copy of letter dated 12.10.2007 from OP to the complainant for exercising option by way of option form, copy of letter dated 24.10.2011 from OP to the complainant, copy of accounts statement from OP to the complainant dated 24.07.2012, copy of legal notice dated 07.01.2014 from complainant to OP and copy of police complaint dated 07.02.2014 by complainant against OP lodged with EOW Delhi police.

2. Notice was issued to the OP on 28.02.2014. OP entered appearance and filed written statement on 02.06.2014. OP in its written statement took the preliminary objection of complaint being time barred since vide Plot Buyers Agreement entered into on 23.02.2008, the tentative period for completion of project was two years with clause extending the period of delivery of possession for further 6 months and the cause of action had arisen on 23.02.2008 whereas the present complaint was filed on 14.02.2014 i.e. after                3 years 6 months from the date when cause of action accrued and therefore was time bared since the expected date of completion and completion for handing over possession and adding 6 months grace period thereto was 23.08.2010 but the complaint was filed on 14.02.2014 and therefore hit by Section 24-A of CPA. The OP took the defence that the complainant himself chose to surrender the plot and did not come forth to get the sale deed executed and therefore non performance or deficiency of service were not attributable upon the OP and since the complainant had decided to abandon the proposed ownership of the said plot which was governed by agreement dated 23.02.2008, the OP was well within its right under clause 10 of the said agreement in the event of cancellation / termination to forfeit the earnest money. The OP further contended that it had allotted the plot in
   Cluster-IV, B-173 to the complainant and had given benefit of interest by asking the complainant to pay Rs. 7,057/- as EMI instead of Rs. 8,303 from March 2008, to September 2014 and therefore he was required to deposit only Rs. 30,674/- but the complainant himself did not execute the sale deed or approached OP till January 2014 despite OP’s letter dated 24.10.2011 to the complainant to deposit the stamp duty amount and complete formalities. The OP further urged that the option form executed by complainant on 06.12.2007 ceased to exist as soon as Plot Buyer Agreement dated 23.02.2008 was executed and signed by the parties. The OP denied the complainant having demanded refund of the deposited amount in December 2012, and alleged that the legal notice was prompted by greed and complaint with EOW as pressure tactics. Lastly, the OP urged no cause of action has arisen by way of correspondence/meeting to extend period of limitation under Section 24-A of CPA and therefore prayed for dismissal of the present complaint.
3. Rejoinder to the written statement was filed by the complainant in rebuttal to the defence taken by OP in which the complainant submitted that it was the duty of OP to complete and handover the possession by August 2010 failing which the OP was bound to refund the money with interest which in this case accrued from 07.01.2014 when the complainant finally acquired knowledge that OP was not in position to deliver the possession of the said plot and had therefore issued legal notice and filed complaint  before EOW, Delhi Police. The complainant further stated that as per law, till the demand of refund is made by OP, limitation does not stand against him and complainant has an option to claim possession or refund depending on the status of the project and delay caused till such time the money is lying with the OP which it cannot swallow under the garb of illogical and illegal defence. The complainant further submitted that the OP failed to refund the deposit amount even after issuance of legal notice giving further rise to cause of action against OP. The complainant vehemently denied the allegation of OP of complainant having surrendered the plot or abandoned the proposed ownership of plot or failed to come forward to sale deed executed and submitted that Clause 10 of the Plot Buyers Agreement cannot come to rescue of OP since itself had defaulted in completion of project and refunding the amount with interest to complainant. The complainant further denied OP having allotted plot in Cluster IV , B-173 in favour of the complainant in the said project and submitted that there was no proper plotting/ demarcation despite the OP having received Rs. 3,74,764/- from the complainant way back in the year 2006-08 nor were there any livable/ habitable condition on the project site for more than 7-8 years clearly making out a case of deficiency of service on the part of OP accruing right in favour of the complainant to seek refund of the amount which the OP neither returned nor granted possession  contrary to promise to give possession by April 2010 (as per Plot Buyer Agreement). Lastly, the complainant raised an objection that since the OP new that they were defaulter, why no notice of cancellation of plot or offer of possession of plot was ever issued by OP. The complainant denied having received any interest @ 9% p.a. from OP vide a plot buyer agreement or any concessional rate of EMI offered by OP for prime location charges.
4.  Evidence by way of affidavit was filed by the complainant exhibiting the documents relied upon by him as exhibit C-1 to C-6 reiterating his grievance against the OP.
5.  Evidence by way of affidavit was filed by the OP through its director exhibiting the registration certificate and other project related documents sanction approval from government of Uttrakhand, Deharadun as exhibit RW1/ 1 to RW1 / 4. In addition, the OP filed copy of Plot Buyer Agreement dated 23.02.2008.
6. Written arguments were filed by the complainant in brief synopsis of grievance made out in the present complaint against the OP for non-possession of the promised plot in its residential project “Diamond Vedic City Haridwar” and non-refund of Rs. 3,74,764/- deposited by complainant with OP towards the said plot giving rise to the present complaint.
7. OP filed written synopsis in reiteration of its defence of non refund of the deposit money due to abandoning of the proposed ownership and request for cancellation of registration made by the complainant himself after signing the plot buyer agreement in even of which the OP was well within rights to forfeit the said amount under Clause 10 of the said agreement and that the complaint was time barred since it was filed in 2014 after a lapse of 3 years and 6 months from the expected date of handing over of possession by OP and placed reliance on compilation of case law of Hon’ble National Commission on limitation.
8. Despite express direction to OP vide order date 23.07.2018 to ensure presence of its counsel to address oral argument on next date of hearing the OP failed to comply with the said order and no proper representation were made and adjournment was sought by an intern/proxy on flimsy ground and was therefore not entertained and the matter was reserved for orders.
9. We have thoughtfully considered the arguments advanced by the counsel of the complainant and have given our anxious consideration to the documentary evidence placed on record by both the sides. It is not in dispute that the complainant had booked a 100 sq. yd. plot with OP in its project Diamond Vedic City Haridwar and had paid a sum of Rs. 3,74,764/-, duly acknowledged by OP vide its account statement dated 24.07.2012 issued to the complainant marked as exhibit as C-4. On keen scrutiny of Plot Buyer Agreement dated 23.02.2008 as per Clause 4.9 dealing with period of handing over of possession, the OP had proposed to handover the possession of plot within the period of 20 months from signing of the same i.e. October 2009 and further entitlement of grace period of another 6 months (180 days) i.e. April 2010. However, contrary to the said timeline, the OP vide its letter dated 24.10.2011 to the complainant submitted that it shall start giving possession of plots within next 3 months of the said letter i.e. January 2012 onwards thereby making it evident and leaving no scope for ambiguity that the OP failed to adhere to the time period for possession as per the Plot Buyer Agreement and further that there was admittedly no possession given to the complainant till January-February 2012. Therefore, the defence taken by the OP of the complaint being barred by limitation cannot not be entertained since the complainant has filed the present complaint within 2 years of the proposed / promised date of possession as assured by the OP vide its own letter date 24.10.2011 which it miserably failed to honour and therefore cannot be allowed to take advantage of its own wrong and unfair trade practice under the garb of limitation. In so far as the defence taken by the OP for forfeiting the deposit amount Rs. 3,74,764/- under the garb of Clause 10 of plot buyer agreement on ground of complainant having chosen to surrender the plot and abandoned the proposed ownership of the same is concerned, on careful reading of Clause 10, out of the total sale price of the plot, only 25% of the same was to be considered as earnest money liable to be forfeited by OP in the event the complainant failed to fulfill his obligations of the terms and conditions of the agreement. Further the clause stipulated that in case the complainant failed to perform or observe stipulation contained in the said agreement, OP shall terminate the agreement and forfeit the said 25% of the total cost of plot. Now applying the said clause to the present facts of the case, firstly the OP has failed to place on record any correspondence/letter/communication whatsoever from the complainant wherein he had communicated his intention to surrender the said plot or abandoning the proposed ownership of the project to justify its stand of forfeiting the deposit amount. Secondly, even for the sake of assumption, if  the complainant had asked for cancellation of allotment, the cap on amount to be forfeited was 25% of the sale price which was the earned money which in the present case was approximately Rs. 1,00,000/- since the sale price of the plot was Rs. 4,05,900/- against which the complainant had paid more than 90% of the sale consideration price and as per the OP’s on account statement dated 24.07.2012 only Rs. 35,000/- was required to be paid by the complainant at the time of registry. Therefore, this clause clearly cannot come to the rescue of the OP and the forfeiture of the said amount is sheer malafide act and unfair trade practice on the part of OP. This issue is also therefore decided against the OPs. The judgment relied upon by the OP alongwith written statement are therefore not relevant to the facts of the present case and more pertinently in view of the gross misconduct of OP.
10. The Hon’ble National Commission in Splendor Landbase Ltd. Vs Mamta Arora III (2018) CPJ 277 (NC) held in a case where the construction work was never commenced and refund of deposited amount was sought, in light of principle lay down by itself in Emaar MGF Land Ltd. Vs Amit Puri II (2015) CPJ 568 NC passed on 30.03.2015, that non delivery of an allotted plot after receipt of full consideration amount thereof, tantamount to deficiency in rendering service as also unfair trade practice and the complainant was entirely justified in praying for refund of price deposited with interest and the builder was bound to refund the amount. The Hon’ble National Commission also observed that the conduct of the petitioner in not refunding the amount when the construction of the subject tower has not even commenced, leaves much to be desired. Further the Hon’ble National Commission in Seema Anand Vs Unitech Ltd.  III (2018) CPJ 305 (NC) directed the OP to refund the deposit amount since it failed to take any steps for completing construction and deliver possession despite receiving substantial amount and failed to show any cogent circumstances/reason for its inability to do so.
11.  In so far as the aspect of limitation is concerned, the Hon’ble National Commission in the recent judgment of Saroj Kharbanda Vs BigJo’s Estates Ltd. II (2018) CPJ 146 (NC) held that period of limitation under Section 24A of CPA starts only, after seller flatly refuses to give possession of property as has been held by the Hon’ble NC in its earlier judgment of Satish Kumar Pandey Vs M/s. Unitech Ltd. III (2013) CPJ 440 (NC). The  Hon’ble  Supreme Court in Meerut Development Authority v. M K Gupta IV (2012) CPJ 12 has held that in such a case buyer has a recurrent cause for filing a complaint for non delivery of possession of plot. In the present case, there is no such refusal by OP to give possession to the complainant placed on record since evidently there was no construction on the project site admittedly till January 2012, which therefore accorded the complainant continuing cause of action against the OP. The Hon’ble National Commission in Saroj Kharbanda case (Supra) observed that it is a well established principle that even if the complainant had failed to deposit further amount with the 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 Complainant and returned the amount deposited with them, after making certain deductions in accordance with terms and conditions of the agreement. In the present case however, the OP had already received 90% of the sale consideration amount from the complainant and unlawfully forfeited the entire amount exemplary of unfair trade practice and perverse to its own Plot Buyer Agreement.
12.  After appreciating the documentary evidence placed on record and the settled proposition of law in such cases already discussed exhaustively in the forgoing paras, we find the OP guilty of gross deficiency of service and indulgent in unfair trade practice qua the complainant on two grounds of withholding/unlawfully forfeiting  his money illegally for last more than 12 years and having failed to deliver possession of the plot in question in contravention to the terms and condition of its own plot buyer agreement entered with the complainant in 2008 whereby it had promised to give possession inclusive of extension period by April 2010 and further failed to give possession despite its subsequent letter dated 24.10.2011 whereby it had assured the complainant to give possession January 2012 onwards however no construction ever commenced on the project site what to talk of possession.
13.  We therefore allow the present complaint on merits against the OP and direct the OP to refund the sum of Rs. 3,74,764/- alongwith interest @ 9% p.a. from the date of institution of the complaint till realization to the complainant. We further direct the OP to pay a sum of Rs. 20,000/- as compensation for damages and loss of opportunity and Rs. 10,000/- towards cost of litigation to the complainant.
14.  Let the order be complied within 30 days by OP from the date of receipt of this order.       
15.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
16.   File be consigned to record room.
17.   Announced on  09.01.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member