Haryana

StateCommission

A/820/2015

MERA BABA REAL ESTATE PVT.LTD. - Complainant(s)

Versus

S.L.GUPTA - Opp.Party(s)

A.K.GUPTA

14 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      820 of 2015

Date of Institution:      28.09.2015

Date of Decision :       14.12.2015

1.     M/s Mera Baba Real Estate Private Limited, Corporate Office at 551, Aggarwal Cyber Plaza, Tower-B, Netaji Subhash Place, Pitampura, New Delhi-110034, through its authorized representative Shri Gaurav Gupta.

2.     Harish Kumar Luthra, Director & Authorized Representative of M/s Mera Baba Real Estate Private Limited, 551, Aggarwal Cyber Plaza, Tower-B, Netaji Subhash Place, Pitampura, New Delhi-110034.

                                      Appellants/Opposite Parties

Versus

 

S.L. Gupta s/o Sh. Gopi Ram Gupta, Resident of AP-59, Shalimar Bagh, Delhi.

                                      Respondent/Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri Ashwani Kumar Gupta, Advocate for appellants.

                             Shri Gaurav Gupta, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal of opposite parties is directed against the order dated 13^th August, 2015, passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’) in Complaint No.281 of 2014.

2.      M/s Mera Baba Real Estate Private Limited (hereinafter referred to as ‘the builder’)-Opposite Party No.1, floated a scheme for allotment of plots of various sizes in a residential colony at Ganaur Township Project namely ‘Divine City’. The complainant booked a 250 Sq.yards plot and deposited Rs.3,30,000/- on March 31^st, 2006. The balance price of the plot was payable after the allotment in instalments. The plots were to be allotted within twelve months of the registration, failing which the builder was liable to pay interest. The builder failing to start development of the project even after expiry of six years, the complainant sought refund of the deposited amount alongwith interest but of no avail.  In fact the builder had no licence to set up colony as was mandatory under The Haryana Development and Regulation of Urban Areas Act, 1975 (hereinafter referred to as ‘the Act, 1975’). Hence, the complainant filed complaint under Section 12 of the Consumer Protection Act, 1986.

3.      The opposite parties/builder, contested complaint by filing reply. It was admitted that the complainant had booked the plot of 250 square yards on 31.03.2006 at the rate of Rs.6600/- per square yard excluding External Development Charges (EDC), Infrastructure Development Charges (IDC) and other Government dues. Letter of Intent (LOI) was issued by Director, Town & Country Planning (DTCP), Government of Haryana, on June 8^th, 2007. Letter dated 25.06.2007 (Exhibit RW1/3) was sent to the complainant for making 20% payment of the basic price and 50% of the tentative EDC. However, the complainant failed to deposit the above said amount and for that reason the amount deposited was forfeited. The complainant had booked four plots for commercial purpose and there being slump in the market, the complainant was not willing to retain the plot. Denying the allegations of the complainant, it was prayed that the complaint be dismissed.

4.      On appraisal of the pleadings and the evidence of the parties, the District Forum allowed complaint directing the opposite parties/builder to refund the deposited amount to the complainant alongwith interest @ 9% per annum from the date of deposit till its realisation, Rs.5,000/- compensation for mental agony/harassment etcetera and Rs.5,000/- litigation expenses.

5.      Learned counsel for the appellants/builder has raised two fold arguments. Firstly that it was commercial transaction and therefore the complainant was not consumer. Secondly, that the complaint was barred by time. It was urged that the booking was cancelled and the amount was forfeited vide letter dated 19.10.2010 (Exhibit RW1/10) while the complaint was filed on 20.10.2014. Therefore, the complaint was barred by time.

6.      The complainant in para No.6 of the complaint has specifically mentioned that he booked a residential plot for his own use and his family members and in reply this fact has not been denied by the appellants/builder.  Para 6 of the complaint and corresponding para of reply read as under:-

          Para 6 of complaint:

“That on the aforesaid assurance and commitment made by the sales executive of the OP No.1 i.e. M/s Mera Baba Real Estate Pvt. Ltd, complainant  got booked residential plot for own and his family members use/residence, in their GANNAUR Residential township project namely DIVINE CITY and also paid booking amount of Rs.3,33,000/- in lieu of registration of the aforesaid plot. Further company has issued the registration receipt bearing No.DCG 0001408 dated 31-03-2006, same is annexed herewith as Annexure-A”.

Para 6 of reply:

“Paras No.5 and 6 are wrong and denied. It is denied that the Op No.1 advertised in any manner for the alleged launching of their residential township project viz.DIVINE CITY and that the sales executives approached the complainant and made the alleged representations as mentioned in the para under reply. Each and every allegation mentioned in the paras under reply is wrong and denied. It is denied on the basis of alleged assurances and commitments, the complainant got booked residential plot against receipt No.DCG 0001408 dt.31-3-2006.

The true facts are that complainant is the brother-in-law (JIJA) of the erstwhile director of the opposite party viz Shri Mohan and is on very good terms with Shri Mohan and his other brothers. As such the complainant was well aware about every progress of the project. But due to family relations with the director, the complainant had taken for granted not to deposit the instalments and adopted wait and watch policy to take decision with the market condition. It is submitted that in 2007 onwards there was slump in real estate market as such the complainant opted not to deposit the instalments. Now since Shri Mohan had left the company, so the present complaint has been filed as other options had not worked favourably with the complainant”.

7.      In view of the above, the contention of the appellants/builder that booking of plot was for commercial transaction and it being a commercial transaction, the complainant did not fall within the ambit of consumer, is against facts and law on record. Though the appellants have relied upon judgment rendered by Union Territory State Commission, Chandigarh, in Rajesh Rana vs. U.K. Homes Pvt. Ltd and & anr, II(2005) CPJ 115 (UT Chd.) but the same is not applicable as the same is on the point where the applicant had booked more than one plot for commercial purpose, which is not in the case in hand.

8.      The appellants do not dispute that in their upcoming project, the complainant booked a residential plot. Booking form has been placed on the file as Exhibit RW1/1. The complainant deposited Rs.3,30,000/- on 31.03.2006. As per own admission of the appellants/builder, they received the letter of intent, dated 8.6.2007 (Exhibit RW1/2) from DTCP, Haryana, Chandigarh. Even vide this letter the appellants were only asked to produce certain documents and only thereafter licence was to be issued. Thus, as a matter of fact, the appellants had not been issued licence even by that date. It is an admitted fact that without issuance of licence by the Government under the Act, 1975 stated above, the appellants/builder could not take any steps nor could accept any deposit for the purpose of carrying on colonization activities. Therefore, the action of the appellants/builder of accepting the deposit on account of booking of plots, was in breach of law.

9. The booking form Exhibit RW1/1 contains terms and conditions. Clause 1, 2 and 5 of the said booking form (Exhibit RW1/1) reads as under:-

“1.     That you will offer me/us a residential plot in your forthcoming township, which you may promote, shall be made to me/us within six month of my application.

2.      That the project being at the conceptual stage, it is understood by me/us that amount paid by me/us is in the nature if an advance only and when the concept takes a concrete shape the offer of allotment will be issued and a contract will come into force, thereafter.

3.      xxx

4.      xxx

5.      In case the company is not able to allot a residential plot by twelve months from the date of application made herein, then I/we would have the option to withdraw the money by giving one-month notice. Any delay in refund of that money shall bear a simple interest of 9% per annum for the period of delay beyond twelve months.”

10.    Under this, the appellants/builder was obliged to offer residential plot within six months of the application. Under Clause 5 mentioned above, in the event of builder not being able to offer allotment within stipulated period, they were liable to refund the registration amount with simple interest at the rate of 9 percent. Thus, the builder became liable to refund the amount with interest as per agreement at the rate of 9 percent per annum. This application was filed on 31.03.2006 and thus the appellants/builder was obliged to allot the plot by 30.09.2006.

11.    No evidence has been led by the appellants to show that they were issued licence till that date as is evident from letter bearing Memo No. 5DP-2007/15488 dated 08.06.2007 (Exhibit RW1/2). The appellants/builder lays stress upon letters Exhibit RW1/10 dated 19.10.2010 and reminder Exhibit RW1/12 dated 5.3.2011 regarding cancellation of booking respectively. Both the parties have admitted that the amount paid by the complainant was towards registration amount and was in the nature of advance payment. It was not an earnest money. Thus the said advance/registration amount cannot be forfeited. It being not an earnest money, the appellants/builder had no right to forfeit the same.

12.    It being not earnest money the amount deposited was in the nature of advance deposit, could not be forfeited as this amount was in the nature of trust with the appellants/builder and there is no limitation for the trust. The limitation for the trust would only accrue when notice is issued to perform the trust in terms of demand. Certainly the demand was made by the complainant when he issued notice of the demand and by filing the instant complaint.  That besides unless the amount is refunded, it is a continuing cause of action.

13.    The appellants do not deny that under the Act, 1975, every developer is mandatorily required to have licence before developing residential colony. It is not a disputed fact that the appellants/builder started booking in March, 2006 while his licence was not granted till June, 2007, as is evident from letter bearing Memo No. 5DP-2007/15488 dated 08.06.2007 (Exhibit RW1/2) whereby the appellants were required to fulfill certain requirements mentioned therein. Thus, certainly, the appellants/builder could not have started development of residential colony before the issuance of licence.

14.    The appellants/builder failed to produce any cogent and convincing evidence to show that it was the complainant who did not abide by the terms and conditions of paying the instalments. No proof of dispatch of the alleged letters/reminders has been placed on the file. The booking was done in March, 2006 and as per the agreement, the requirement of allotment was within six months and the appellants/builder had no licence till June, 2007 and therefore issuing letter on March 5^th, 2011 (Exhibit RW1/12), did not contain any sense, when the complainant had already asked for refund of the amount. Therefore when the builder itself was not in a position to carry out any plotting and inviting booking and collecting huge amount was certainly an act of unfair trade practice. Therefore, the builder could not derive any benefit.

15.    As a sequel to the aforesaid discussion, the appellants/builder have been proved deficient in service and involved in unfair trade practice. Thus, no case for interference in the impugned order is made out. Hence, the appeal fails and is hereby dismissed.

16.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 14.12.2015

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL