ORDER
SH. RAKESH KAPOOR, PRESIDENT
Since both the complaints have been filed on identical facts, they are being disposed of by this common order. The facts in brief are as under:-
In the year 2006, the OP had widely published an advertisement offering to allot plots in its future township project at Hardiwar named “Diamond Vedic City”. The complainants had booked 100 S. yds of plots each and had deposited the booking amount of Rs. 55,350/- each. They had further deposited various sums from time to time totaling to a sum of Rs. 3,26,050/- each which was the entire cost of the plot in question. The grievance of the complainants is that despite deposit of the entire cost of the plots in 2008, the OP had failed to allot or hand over the possession of the plots to them. It is alleged by the complainants that the OP had given false promises and assurances regarding the construction at the site , obtaining NOCs , construction of sample flats, registration of plots vide its letters dated 14.1.2008, 6.4.2010 and 24.10.2011. These assurances were all false which the complainants found out when they visited the site in the year 2013. The complainants found out that site was a barren piece of land; no development had taken place at the site and even construction of sample flat had not been taken up . The complainants had , therefore, sought the refund of the amounts deposited by them. They had also served a legal notice dated 5.3.2014 on the OP which was neither replied to nor complied with. The complainant have , therefore, approached this forum for redressal of their grievances.
The OP has contested the complaint and has filed a written statement . It has denied any deficiency in service on its part and has claimed that the complaints are liable to be dismissed. They have admitted that the complainants had booked 100 Sq. Yds of plots with it and had deposited a sum of Rs. 326050/- each towards the cost of the plots. The OP has ,however ,claimed that the amount deposited was not the entire cost of the plot which was allotted @ Rs. 3690/- per sq. ft. It was claimed that the total consideration of the plot was Rs. 3,69,000/- . It would be beneficial to reproduce paras 12,13 and 14 and 18 of the written statement (Reply on merits) .
12. Denied. It is vehemently refuted and wrong to state that the full and final amount of the plot is Rs.3,26,050/-. The fact remains that the total consideration of the plot was .3,69,000/- @ Rs.3690/- per sq. ft. and not the amount as referred in para under reply.
13. Denied. It is vehemently refuted and wrong to state that the opposite party kept on extending false promises and assurances regarding the construction at site, obtaining NOCs, construction of flats, starting registry of plot through letters referred in para under reply or that when the complainant visited the site in 2013 he was shocked and perplexed that the site is a barren piece of land and no development has taken place in the site or that the construction of sample flats has not taken place.
14. Denied. It is vehemently refuted and wrong to state that the opposite party neither acquired any land to materialized the township nor made any development or that the complainant made several queries on telephone and visited the office but no official of the opposite party alleged responded to the requests of the complainant and did not give satisfactory reply.
18. Denied. It is vehemently refuted and wrong to state that inspite of the letter dated 24.10.2013, the opposite party failed to refund the amount or to allot the plot. As per the record no such letter is available with the opposite party. However, the averments of the letter reveals that the complainant opted to surrender the plot voluntarily and did not pay the balance amount which clearly establish that there is no deficiency in service. The opposite party was is ready_to allot the plot and give the possession to the complainant subject to the balance payment.
The OP has prayed that the complaints be dismissed.
We have heard arguments advanced at the bar and have perused the record.
The only defense taken by the OP in their written statement is that the entire cost of the plot was Rs 369000/- rather than Rs. 326050/- which had been deposited by the complainants. It was stated in the written statement that the complainants had failed to deposit the entire cost of the plots allotted to them. To counter this argument, the learned counsel for the complainants has referred to this receipt for Rs. 129326/- issued in favour of the complainants as a full and final payment towards the cost of the plots in question. A copy of the receipt issued in favour of Balbir Singh is reproduced as under:-
Receipt
Received With Thanks from MR.. BALBIR SINGH S / o w/o D/o MR. LAKHI RAM.
Rs. 129326/- (RUPEES ONE LAC Twenty Nine Thousand Three Hundred and Twenty Six Only
By Cash/Cheque/Draft No: * CASH
Dated: 15/05/08 Drawn on: N.A.
Against future project of the company at HARIDWAR as a Full &. Final payment of 100 Sq.Yds.( Sq.Mts.) Vide Receipt.tio. RBI/DVC./100/08.
A perusal of this receipt leaves no manner of doubt that both the complainants had paid the entire cost of the plots allotted to them. The contention , therefore, that the entire cost of the plots has not been paid is, therefore, rejected. The complainants have alleged in the complaint that the Ops had made misrepresentations to them about the construction at site , construction of sample flats and obtaining of NOCs. They have alleged that they had visited the site in the year 2013 and had found that it was a barren piece of land with absolutely no development having taken place including the construction of the sample flats. Even though , the OP in its written statement has denied the averments made by the complainant, in their complaints about the aforesaid facts, it has failed to place on record any document to refute the above allegations. The complainants on the other hand have filed affidavits wherein they have deposed that they had visited the site on 4.4.2015 and even on the said date there was no development , no infrastructure and no basic amenities at the site. They have placed on record photographs of the site which shows it to be a barren land with no construction activities at all. The OP at its part has led no evidence to refute this evidence. We are, therefore, convinced that the OP has been deficient in rendering service to the complainants. It had collected money from the complainants and had promised to allot plots of land to them. The booking was done in the year 2006, the entire cost of the plots were paid in May 2008 and even in 2015 the project had not made any headway. Before filing the present complaint , the complainants had served with a legal notice upon the Ops. This notice was not complied with and was simply ignored. Courts in a number of cases have hgeld that where serious allegations are leveled in a notice and the noticee does not refute them and simply ignores them , a presumption may be drawn that the allegations leveled in the notice are true. (See Kalu Ram VsSita Ram 1980 RLR (Note 44) and Metro Polis Travels vsSumit Kalra&Another 98 (2002) DLT 573 (DB). The present one is such a case where an inference against the OP needs to be drawn that the averments made in the notice against it were true. The OP has led no evidence whatsoever to refute these averments. It appears to us that the OP having collected different sums from the complainants ha utilized it for some other purpose rather than utilizing it for the purpose for which it had been taken. We , therefore, direct OP as under :-
Case no. 424/2014 Balbir V/s Rajesh Buildcon Pvt. Ltd
- Pay to the complainant a sum of Rs. 326050 along with interest @ 12% p.a. from the date of deposit till payment.
- Pay to the complainant a sum of Rs. 50,000/- as compensation for pain and agony suffered by him.
- Pay to the complainant a sum of Rs. 5,000 as cost of litigation.
Case no. 425/2014 Radha V/s Rajesh Buildcon Pvt. Ltd
- Pay to the complainant a sum of Rs. 326050/- along with interest @ 12% p.a. from the date of deposit till payment.
- Pay to the complainant a sum of Rs. 50,000/- as compensation for pain and agony suffered by her.
- Pay to the complainant a sum of Rs. 5,000 as cost of litigation.
The original order shall be kept in file case no. 424/14 and its copy shall be kept in file case no. 425/14.
The above amount shall be paid by the OPs to the complainant within 30 days from the date of this order failing which OPs shall be liable to pay interest on the entire awarded amount @ 10% per annum from the date of this order till the date of payment. If OP fails to comply with the order within 30 days, the complainant may approach this Forum u/s 27 of the Consumer Protection Act, 1986.
A copy of this order be made available to both the parties free of cost as per law.
Announced on _________________.
