Rajasthan

StateCommission

A/425/2016

M/S Majestic Properties Pvt. Ltd. - Complainant(s)

Versus

Ramesh Khandelwal - Opp.Party(s)

Anurag Kumar

15 Dec 2016

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 425/2016

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Ramesh Khandelwal

 

FIRST APPEAL NO: 642/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Dinesh

 

FIRST APPEAL NO: 128/2016

 

Dinesh

Vs.

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

 

 

2

 

FIRST APPEAL NO:643/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Nirmal Kumar

 

FIRST APPEAL NO: 1066/2015

 

Nirmal Kumar

Vs.

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

 

 

FIRST APPEAL NO: 644/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

S.S.Gangwar

 

 

3

 

FIRST APPEAL NO: 645/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Rinku Bagla

 

FIRST APPEAL NO: 1080/2015

 

Rinku Bagla

Vs.

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

 

FIRST APPEAL NO: 646/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Sachin

 

 

 

4

 

FIRST APPEAL NO: 647/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Puneet

 

 

FIRST APPEAL NO: 648/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Rajesh Sharma

 

FIRST APPEAL NO: 632/2015

 

Rajesh Sharma

Vs.

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

 

 

5

 

FIRST APPEAL NO: 649/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Kanta

 

FIRST APPEAL NO: 650/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Munna Lal

 

FIRST APPEAL NO: 631/2015

 

Munna Lal

Vs.

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

 

 

 

6

 

FIRST APPEAL NO: 651/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Smt. Shalini

 

FIRST APPEAL NO:1067/2015

 

Smt.Shalini

Vs.

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

 

 

FIRST APPEAL NO: 652/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Manju Gupta

 

 

7

 

FIRST APPEAL NO: 653/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Rohit Kumar

 

FIRST APPEAL NO: 654/2015

 

Majestic Properties Pvt. Ltd., 1/18 B Asaf Ali Road, New Delhi & ors.

Vs.

Narendra Kumar

 

Date of order 15.12.2016

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Hon'ble Mrs. Meena Mehta -Member

 

Mr.Ashok Mehta counsel for Majestic Properties Pvt.Ltd.

Mr.D.M.Mathur counsel for respondent in Appeal No. 425/2016

8

 

Mr.Najeen A.Khan counsel for respondent in Appeal No.642/2015 & 128/2016

Mr.Ankit Jaiswal counsel for respondent in Appeal No. 647/2015 and 649/2015

Mr.Jitendra Mitruka counsel for respondent in Appeal Nos. 643/2015 to 648/2015, Appeal No. 1080/2015, Appeal No. 631 & 632/2015, Appeals No. 651 to 654/2015 and Appeal no.1067/2015

 

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

All these appeals have been filed against the similar orders hence, are decided by this common order.

 

The facts and documents were taken from Appeal No. 650/2015 Majestic Properties Pvt. Ltd. Vs. Munna Lal Kumawat.

 

Appeal No. 128/2016, Appeal No. 1066/2015, Appeal No. 1080/2015, Appeal No. 632/2015, Appeal No. 650/2015 and Appeal No. 1067/2015 are filed with delay but as the

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matter has been heard finally on the merits, it is in the fitness of the things to condone the delay and applications u/s 5 of the Limitation Act are stand accepted.

 

The contention of the promoter builder is that order of the Forum below is perverse, suffers from infirmity and should be vacated.

 

Detailed contention is that he launched a project in the name of Melange Jewels City. Prior to this in the year 2006 he started advance registration for his future project and non-applicants consumers were registered vide relevant documents. Initially an amount of Rs. 2,50,000/- were paid for registration and when in the year 2008 the housing scheme was launched the registrants were invited for allotment. Thereafter all the consumers who were in dispute have chosen their Flat and Tower and in February 2008 the consumers were allotted a specific flat. Allotment were opted in Construction Linked Plan but the consumers have not paid the amount in time. They were the defaulters and inspite of repeated notice when money has not been paid their allotments were cancelled and as per agreement earnest money was forfeited which was within the domain of the appellant. The further contention of

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the appellant is that they have not made any mis-representation. In the year 2006 only advance registration have been done and allotments were made only in the year 2008 on approval of the plan. Before the Hon'ble High Court they have only undertaken to refund the money to the registrants and as the respondents are the allottees, the contention given by the appellants before the High Court could not bound them as regard to present allottees. Hence, order of the Forum below should have been set aside.

 

Per contra the contention of the respondent is that they have paid Rs. 2,50,000/- at the time of registration and at the same time flat was allotted to them. Anx. R-4 is undated and was taken from the consumers in the year 2006 whereas no project was launched by the appellants. Hence, they are guilty of mis-representation . They have paid the money in the year 2006 but flats have not been constructed. The affidavit of Mr.Prashant Sharma, Director of the appellant has categorically stated in November 2011 that still project is incomplete and details have been furnished in the affidavit. Hence, when project has not been completed within the statutory period, they cannot be forced to be the part of the project and the Forum below has rightly allowed their complaints.

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Some of the consumers have also filed appeals for enhancement of compensation as well as for claiming higher rate of interest on the amount ordered.

 

Heard the counsel for the parties perused the impugned judgment as well as original record of the case.

 

The documents submitted clearly speaks that in the year 2006 only advance registrations were done by the appellant for their future projects and at that time no specific flat was allotted to them. In the year 2008 Group Housing Scheme was launched at village Bhankrota, Jaipur and allotments were made. In the case in hand vide Anx. R-4 allotment was made. The contention of the consumer is that it is undated and was taken in the year 2006 but it not seems to be true as Anx. R-5 application form contains the date of 1^st February 2008. Hence, it can be concluded that in the year 2006 only advance registrations were done. In the year 2008 when project was launched specific allotments were made.

 

The contention of the appellant is that as per construction plan money has not been paid and the consumers are defaulters. Hence, in view of the agreed conditions between the parties the

12

 

earnest money was forfeited . There is no dispute about the fact that there is a condition for forfeiture of earnest money but counsel for the respondent consumers have rightly pointed out that till 2012 the projects were not started and even construction upto plinth level was not complete and to support this contention information given by JDA dated 4.5.2012 is placed on record which clearly speaks that the term for permission of construction was not extended beyond December 2010 and till date the appellants have not furnished any information about starting of construction or construction upto plinth level. Hence, the contention of the appellant that they were entitled for forfeiture of earnest money is not seems to be sound.

 

During the proceedings the Director of the appellant company Mr.Prashant Sharma has submitted an affidavit dated 30.11.2011 in which the present position of the project has been mentioned which shows that in some Towers even the construction is at the stage of excavation and project which has been launched in the year 2008 and allotments were made, is not complete till 2012 and then the consumers could not termed as defaulters as when construction has not been started and still not completed, they were not forced to pay the amount

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as per construction plan. The consumers have applied in particular housing scheme and they have only identify his Tower but their allotment and construction plan is linked with whole of the project and admittedly till today the project is not completed.

 

The contention of the appellant is that in case of default by the buyer the company is entitled to forfeit the earnest money paid by the buyer and cancel the contract and reliance has been placed on 1995 Supp. (1) SCC 751 Delhi Development Authority Vs. Grihsthapana Cooperative Group Housing Society, (1996) 4 SCC 249 HUDA Vs. Kewal Krishan Goel, 1969 (3) SCC 522 Hanuman Cotton Mills Vs. Tata Aircraft Ltd., (2008) 8 SCC 265 Skyline Contractors Pvt.Ltd. Vs. State of U.P., III (2010) CPJ 363 (NC) Delhi Development Authority Vs. Geeta Rani, III (2010) CPJ 190 (NC) Sahara India Commercial Corpn. Vs. P.Gajendra Chary, (2010) CPJ 60 (NC) PMS Enterprises Vs. Delhi Development Authority, III (2006) CPJ 380 (NC) Shankarlal Gupta Vs. Avas Ayukt & anrs.

 

There is no dispute about the preposition that if buyer is defaulter the earnest money can be forfeited but here in the present case buyer cannot be said to be defaulter as when

14

 

construction has not been even started and has not reached to a particular level, the consumers cannot be forced to deposit the amount and the appellant himself has relied upon III (2011) CPJ 25 (NC) P.S.Sawhney Vs. Central Government Employees Welfare Housing Organization where in case of cancellation of allotment the State Commission has ordered for refund of earnest money. The appellant has also relied upon (2007) 1 SCC 228 Saurabh Prakash Vs. DLF Universal Ltd. where distinction between security and earnest money has been explained. There is no dispute about the preposition but here in the present case facts clearly shows that construction has not been started and completed within the statutory period.

 

The respondent has relied upon 2016 DNJ (CC) 101 Devikarani Rao Vs. M/s. Emaar MGF Land Ltd. and 2016 DNJ (CC) 133 Alka Agarwal & anr. Vs. Unitech Reliable Projects Pvt.Ltd. Where the entire amount was paid which is not the case here. The consumer has also relied upon the judgment passed by the National Commission in Revision Petition No. 4288 of 2012 Rajbeer Singh Vs. The Manager Emaar MGF Land Ltd. where buyers agreement has not been signed and it was held that the company has no right to forfeit the amount which is also the case here.

15

 

The contention of the consumer is that he never signed the buyer agreement which has not been rebutted by the appellant. The respondent consumer has rightly relied upon 1 (2009) CPJ 170 (NC) Kunj Vihar Cooperative Housing Society Ltd. Vs. Ranvir Toor & ors. Where the construction has not been made within stipulated period and the National Commission has ordered in favour of the consumer. The respondent has also relied upon IV (2010 ) CPJ 9 (SC) Chandigarh Housig Board Vs. Avtar Singh & ors. Where issue was different unknown to the present controversy. The respondent has rightly relied upon III (2006) CPJ 22 (NC) H.C.Malhotra & ors. Vs. Ansal Buildwell Ltd., II (2012) CPJ 283 (NC) Dwarkadhis Projects Pvt. Ltd. Vs. Sushila Kataria, 1 (2009) CPJ 136 (NC) Prasad Homes Pvt.Ltd. Vs. E.Mahender Reddy & ors. Where possession was never offered and delivered and the National Commission has held that it was unfair trade practice.

 

The contention of the appellant is that this allotment was Construction Linked Plan allotment and when money has not been paid, it was not possible for them to raise the construction. As per payment plan 15% of the basic sale price was to be paid at the time of booking. Thereafter on start of excavation work

16

 

10% of the amount was to be paid but here in the present case the affidavit of Mr.Prashant Sharma clearly speaks that till 2011 excavation work was pending. Hence, by any stretch of imagination the consumers cannot be said to be defaulters and forfeiture of money cannot be held justified.

 

The respondent has come with a case that the public warning was issued by the JDA as regard to the fact that the appellant company is making registration without disclosing the true facts but this contention has no foundation as Anx. 8 public warning is relates to Milanj Housing Projects Pvt.Ltd. Whereas the name and style of the present appellant is Majestic Properties Pvt.Ltd. And the consumer could not show any connection between the two. Hence, the contention of the consumer in this regard cannot be accepted.

 

There is no dispute about the fact that a public notice was issued by the appellant company for refund of registration amount who want to cancel their advance registration but as admittedly in the present case the consumers are not the registrants only but they have allotted the particular flat. Hence, they cannot get the benefit of above publication.

 

17

 

The consumers appellants rightly relied upon the judgment passed in Original Complaint case No. 30/2012 Ratnesh Properties Pvt. Ltd. Vs. Majestic Properties Pvt. Ltd. where the similar contentions complaint is allowed against the appellant builders by the co-ordinate bench of this Commission.

 

In view of the above there is no merit in this appeal and the Forum below has rightly held that the appellants are deficient in service and rightly ordered for refund of the amount alongwith interest.

 

Appeal No. 425/2016 has been filed by the appellant with the same contention but the proceedings of the case is somewhat different in the matter as no defence has been submitted before the District Forum on behalf of the appellant and contention of the counsel for the appellant is that matter may be remanded back and could be decided after giving them opportunity of hearing but as similar contention raised in other appeals have already been entertained by this Commission no fruitful purpose would be served by remanding the matter back to the District Forum and the appeal no. 425/2016 also stands decided by this order.

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The consumers have also come in appeal with the contention that compensation which has been allowed is meagre one. They have paid the money in the year 2006 and now running in 2016 but meagre compensation has been allowed and they have also prayed for higher rate of interest and to support their contention reliance has been placed on 1 (2004) CPJ 31 (NC) Shashi Kiran Rattan & anr. Vs. Swastik Construction, II (2008) CPJ 351 (NC) Kunj Behari Mehta Vs. Ansal Properties & Industries, I (2009) CPJ 217 (NC) Madan Builders Vs. R.K.Saxena, IV (2011) CPJ 411 (NC) A.K.Sharma Vs. Delhi Development Authority, IV (2011) CPJ 493 (NC) U.P.Avas Evam Vikas Parishad Vs. Pradeep Kumar Mathil, (2012) 5 SCC 359 Narne Construction Pvt.Ltd. Vs. Union of India & ors. where on the facts of the matter different interest rates have been allowed.

 

The consumer has also relied upon IV (2011) CPJ 527 (NC) Ghaziabad Development Authority Vs. Neelam Yadav in which the National Commission has held that 8% simple interest is fully justified. Here in the present case the Forum below has ordered 9% interest on the paid amount alongwith compensation and cost of proceedings. This seems to be reasonable and no interference is needed.

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In view of the above all these appeals are liable to be dismissed hence, dismissed.

 

(Meena Mehta) (Nisha Gupta )

Member President

 

 

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