Order dictated by:
Sh.S.S. Panesar, President.
1. Sh.Gulshan Rai has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that opposite party advertised and offered the complainant one plot in their residential project named Shubam Enclave at G.T. Road, Daburji, Amritsar. The complainant was allotted a plot No. 213 in the said residential project by the opposite party, as such the complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant was approached by the executives of the opposite party , who showed very green pastures about the residential project , where there would be lot and lots of facilities be provided to the proposed residents including hi tech security, club, 24 hour power back up, landscaping, gardens, lift, well decorated flat with ultra modern fittings with numerous attachments etc. etc. As such the complainant booked one plot and was allotted plot No. 213 with the opposite party and made payment of Rs. 18 lacs till date to the opposite party. The complainant is ready to make payment of the balance amount as and when demanded by the opposite party. As per the allotment letter, opposite party had to complete the said project and hand over the same to the complainant with all the facilities as promised, but the opposite party till the filing of the present complaint has ot completed the project nor has reached anywhere near completing such project nor has offered to hand over the possession to the complainant even after the completion of said period of the booking of the plot by the complainant. The complainant has made number of visits to the opposite party but the opposite party putting off the matter under one pretext or the other . The complainant has also got issued legal notice through his counsel but no reply was given by the opposite party to the legal notice of the complainant. The act of the opposite party in not handing over the possession of the allotted plot to the complainant is an act of deficiency in service, unfair trade practice and mal practice and is not sustainable in the eyes of law and has caused lot of mental tension, agony and harassment to the complainant for which the complainant is entitled for compensation. The complainant has sought for the following reliefs vide instant complaint :-
- Opposite party be directed to refund Rs. 18,00,000/- alongwith interest thereon from date of payment till realization or in the alternative to hand over the possession of plot No. 213 in Shubam Enclave.
- Compensation to the tune of Rs. 1 lac may also be awarded to the complainant alongwith adequate litigation expenses.
Hence, this complaint.
2. Upon notice opposite party appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter alia that the complaint is not legally maintainable and the complainant wants advantage of its own wrong ; that complaint is liable to be rejected as the complainant has concealed the material facts from this Forum ; that complainant is not a consumer as defined under the Consumer Protection Act ; that complaint is not legally maintainable before this Forum ; that complaint is time barred. On merits, it is submitted that it is the complainant who approached the opposite party for purchase of plot and there was no such offer as alleged in the complaint. However, this Forum has got no jurisdiction to entertain this complaint. No such executive of the opposite party ever approached the complainant. A false story has been concocted by the complainant to impress upon the Forum. At the time of booking of the plot a payment plan was agreed by the complainant that he will pay 25% advance and remaining 75% within a gap of three months that means the entire amount of the sale was to be paid by the complainant within nine months of the payment of advance amount . No such plot was agreed to be delivered as alleged rather it was the complainant, who came forward and requested for the purchase of the plot. There cannot be any lift in a plot. The complainant had failed to make the payment within stipulated period and paid only the amount of Rs. 50000/- on 17.2.2008, Rs.5,50,000/- on 20.2.2008, Rs. 6 lacs on 2.5.2008 and another Rs. 6 lacs on 16.12.2008 and therefore committed a breach of the terms and conditions of the agreement whereas he agreed that he will pay the entire amount on or before 20.8.2008. However, taking sympathy the irregular payment of installments was received with a promise that he will pay the entire amount to the opposite party in January 2009 itself . The complainant is not entitled to any relief on account of the breach committed by him. Complainant got served a legal notice , which was duly replied that the amount has been forfeited as agreed upon the complainant having not paid the amount to the opposite party for 8 years and this false and frivolous complaint has been filed after the expiry of eight years. The complainant has paid only a sum of Rs. 18 lacs and has not paid the balance within the stipulated period and as per clause No.3 the entire amount should forfeited as agreed upon by the complainant at the time of entering into the contract agreement between the parties. It was denied that there was any agreement to complete the project as alleged or with the alleged facilities as alleged by the complainant . The complainant is trying to create a story without any basis . A plot was sold to the complainant and not a flat as alleged by the complainant. The complainant had not fulfilled the contract and has not paid the price within the stipulated period , as a result thereof by invoking clause 3 the advance amount was forfeited and the complainant was duly intimated regarding the same. Remaining facts narrated in the complaint have been denied and a prayer for dismissal of the complaint has been made.
3. In his bid to prove the case Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of agreement Ex.C-2, copy of legal notice and postal receipt Ex.C-3, copy of reply to legal notice Ex.C-4 and closed the evidence on behalf of the complainant
4. To rebut the aforesaid evidence Sh.Anil Sharma on behalf of opposite party tendered into evidence his duly sworn affidavit Ex.OP1, resolution Ex.OP2, copy of pamphlet Ex.OP3, copy of agreement/allotment letter Ex.OP4, copy of payment detail Ex.OP5, copy of sale deed Ex.OP6, copy of sale deed Ex.OP7 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted on behalf of the opposite party.
6. On the basis of the evidence on record, ld.counsel for the opposite party has vehemently contended that the complaint filed by the complainant on the basis of the agreement dated 20.2.2008 Ex.C-2 is palpably time barred because the complaint has been filed only on 16.1.2016 i.e. after a gap of 8 years, as such the complaint is not maintainable.
7. Not only that it has been further contended that as per agreement Ex.C-2, complainant was under obligation to make full payment uptil 20.8.2008 as per the payment plan as referred on page No.3 of the agreement dated 20.2.2008 duly signed by the complainant ; failing which as per condition No.3 of the agreement, the allotment can be cancelled and the money deposited over and above the earnest money shall stand forfeited. But despite that the complainant has failed to make the full payment rather he was a defaulter and as per condition of agreement, the allotment was cancelled and the part payment deposited by the complainant stands forfeited and now after a gap of 8 years on the basis of agreement dated 20.2.2008, present complaint is legally not maintainable.
8. Ld.counsel for the opposite party has further contended that malafide conduct of the complainant can be well judged that even the complainant has not mentioned any detail particulars i.e. date, month and year of the execution of the agreement dated 20.2.2008 and making of payment deliberately with malafide intention in the complaint just in order to mislead the Forum. The complainant himself was negligent and defaulter and there was lapse on the part of the complainant himself as he had not paid full payment as per agreement dated 20.2.2008. If there was any grievance to the complainant, as to why he has not assigned any reason as to why complainant kept mum for such a long time . Even if it is taken to be a case of continuous cause of action, one would expect that complaint was filed within a reasonable period of non attending to the deficiencies of the opposite party. Reliance has been placed upon Pardi Industrial Association Vs. Gujarat Industrial Corporation 2007(1) CLT 26 (NC) wherein similar proposition of law has been echoed . It has further been contended by the ld.counsel for the opposite party that the complainant has not approached this Forum with clean hands as various material facts have been concealed from this Forum and a distorted version of the facts has been deliberately presented in order to pressurize and harass the replying opposite party. If we peruse the agreement dated 20.2.2008 Ex.C-2, it becomes quite evidence that there was no clause in the agreement that the alleged facilities like lift and other facilities as alleged in para 2 of the complaint and even no assurances were ever given by the opposite party to the complainant in this respect especially when the complainant had applied for a plot and not for any flat or apartment. Rather it was the complainant who was defaulter and he has not paid the full payment within the stipulated period . Since the complainant has not performed its part of the agreement , as such there was no default or deficiency in service on the part of the opposite party. Even the malafide conduct of the complainant can be well judged that the complainant has not uttered a single word in the complaint in order to prove that if he was not satisfied with the opposite party then why he had not applied for the refund of money partly paid by him to the opposite party within the stipulated period of limitation and the entire complaint is silent about this vital aspect.
9. Evidence adduced by the complainant in support of his case has already been rebutted by the opposite party through evidence adduced on their behalf, as such complainant has failed to prove his case and therefore, the complaint is liable to be dismissed with costs.
10. However, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has complied with the terms and conditions of the agreement to sell in dispute. The complainant was supposed to pay earnest money as well as three installment. The complainant paid an amount of Rs.50000/- on 17.2.2008, Rs. 5,50,000/- on 20.2.2008, Rs. 6 lacs on 2.5.2008 and other amount of Rs. 6 lacs on 16.12.2008. The amount so remitted by the complainant have been accepted by the opposite party without any objection. The complainant was supposed to pay the balance amount of the sale consideration only when the possession of the plot in dispute was delivered to him and a valid registered sale deed was executed by the opposite party in his favour. It is none of the case of the opposite party that at any point of time, the complainant was delivered possession of the plot in dispute or requisite sale deed was executed in his favour by the opposite party. In such a situation, it cannot be stated that the complainant was either a defaulter or that he was not ready or willing to make payment of the remaining 25% of the sale consideration. Payment plan (b) is applicable as depicted in para 5 of the agreement in dispute is reproduced for ready reference:-
Payment Plan “B”
At the time of Advance 25%
Within Three months 25%
Within Three Months 25%
Within Three Months 25%
At the time of possession (alongwith other charges).
It is the case of the opposite party that part payment made by the complainant has been forfeited . But, however, no notice to that effect was issued for the complainant for the reasons best known to them. Rather the complainant got served a legal notice copy whereof is Ex.C-3 on record to which reply Ex.C-4 was filed by the opposite party. But, however, it is nowhere stated that the complainant has made any default in the payment program, which shows that cause of action in favour of the complainant was of continuous nature. Question of payment of remaining 25% of the sale deed has not arisen and the complaint filed by the complainant is perfectly within limitation. Since the opposite party is not ready and willing either to deliver the possession of the plot in dispute to the complainant or execute valid registered sale deed in his favour, therefore, the complainant is entitled to refund of the amount to the tune of Rs. 18 lacs alongwith interest @ 9%p.a. from the date of filing of the complaint until full and final recovery. Cost of litigation expenses are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of this order ; failing which, complainant shall be entitled to get the order executed through the indulgence of this Forum. . Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 06.09.2016
/R/
