Delhi

StateCommission

A/371/2015

VARDHMAN PROPERTIES LTD. - Complainant(s)

Versus

SH. MAYANK VATS - Opp.Party(s)

22 Jan 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 22.01.2019

Date of Decision : 28.01.2019

First Appeal No.371/2015

In the matter of:

 

            Vardhman Properties Ltd.,

            G-9 DDA Building,

            Nehru Place, New Dehi-110019.                                                      ………Appellant

                  

Versus

 

Shri Mayank Vats,

S/o. Shri S.R. Sharma,

R/o. 740B, Palam Village,

•  

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1. Aggrieved by order dated 14.07.15 passed by District Forum in CC No.673/09 allowing the complaint and directing the OP to refund the amount alongwith interest @9% per annum from 01.05.08 till refund and Rs.3,000/- as compensation, Rs.3,000/- towards litigation expenses, OP has preferred the present appeal.
2. The facts giving rise to filing of the complaint were that respondent herein/ complainant before the District Forum was a Dentist by profession, he booked one unit having super area of 218 sq. ft. and covered area of 130 sq. ft., for his clinic @9,000/- per sq. ft. in Vardhman Central Mall, LSC Plot, Nehru Vihar, Delhi launched by appellant. Appellant offered unit no.F.230B to the respondent at the first floor of the project. Application no.15037 containing terms and conditions was filed up and appellant received Rs.1,96,200/- on 25.02.08. The appellant was to execute an agreement which was subject to confirmation by the Board of Directors and the application  contains a clause that Board of Directors reserved their rights to reject the application without assigning any reason and in that event the amount was to be refunded.
3. According to respondent the appellant never conveyed approval of Board of Directors. The appellant demanded further sum of Rs.1,96,200/- which was paid vide receipt dated 25.04.08. The appellant neither started the project nor gave any information in that regard, nor executed any agreement. The respondent sent letter dated 14.01.09 demanding back the amount deposited by him alongwith interest. The appellant sent reply dated 21.01.09 stating that they had intimated stage of construction and called upon the respondent to sign the agreement. That reply was duly responded by respondent vide letter dated 11.02.09. Ultimately respondent sent legal notice dated 09.06.09 which was replied vide reply dated 18.06.09.
4. The respondents sought directions to refund the amount of Rs.3,92,400/- with interest @12% per annum plus Rs.1 lakh towards compensation.
5. The appellant filed a WS pleading that complaint was not maintainable as complainant was seeking damages for alledged breach of contract and not for any deficiency of goods and services. The complainant was not a consumer. The appellant vide letter dated 25.03.08 intimated to the respondent that allotment in his favour have been confirmed by the Board of Directors. Complainant was called upon to visit office of the OP alongwith certain documents so that agreement could be executed. Alongwith said letter the OP enclosed a letter of payment of next instalment. Complainant failed to make the payment and OP vide another letter dated 23.04.08 demanded amount of two installments. Thereafter the complainant paid only one instalment of Rs.1,96,200/- vide receipt dated 25.04.08. The complainant was called upon to sign the agreement which he did not come forward, vide letters dated 22.05.08, 23.06.08, 25.07.08, 28.08.08, 03.10.08, 25.11.08 and 24.12.08.
6. The complainant filed rejoinder and his own affidavit in evidence. According to him he had not received letter dated 25.03.08. After going through the material on record and hearing the arguments the Ld. District Forum passed the impugned order.
7. During arguments in appeal, counsel for appellant stressed that basic question to be decided is whether respondents received letter dated 25.03.08 confirming approval by Board of Directors and demanding payment, or not. He submitted that though the respondent has tried to deny the receipt of said letter copy of which is at page 68 and 69 of bunch of appeal. If that is believed, it is not clear as to how the respondent made the payment vide receipt date 25.04.08. He submitted that respondent can pretend that he deposited the said amount in pursuance of demand letter dated 23.04.08 copy of which is at page 70 of bunch of appeal. But he clarified that said argument is not feasible because letter dated 23.04.18 was despatched on 28.04.08 as per postal receipt affixed on the top of the same letter. In other words the respondent made the payment even before despatch of said letter. That could have been possible only in compliance of letter dated 25.03.08. Thus the plea of the respondent that he did not receive letter dated 25.03.08 is not tenable. To this extent counsel for appellant seems to be correct.
8. The only effect of all receipt of letter dated 25.03.08 supra is that complainant can not heard to say that approval of Board of Directors to confirm the booking was not given to him. But that does not denude the complainant of his rights.
9. The counsel for the appellant relied upon decision of National commission in R.P. No.3754/14 titled as Vardhman Properties Ltd. vs. Somdutt Sharma decided on 09.12.14. It was held in para-6 of the said order that application for allotment showed that complainant had booked a commercial space and there was no evidence on record that the complainant was covered under explanation carved out by explanation under Section 2(1)(d) Consumer Protection Act. That is why the complaint was dismissed. This decision was followed by Chattisgarh State Commission in appeal no.FA-14/06 titled as Mohd. Momid Khan vs. Magma Leasing Ltd. decided on 03.01.14. Hon’ble Supreme Court took a similar view in M/s. Cheema Engg. Services vs. Rajan Singh decided on 01.11.96. It was held therein that the burden to prove that the complainant was using machine for self employment was on the complainant.
10. On the other hand the counsel for respondent submitted that respondent has dully proved that he booked unit for his own clinic, by filing his own affidavit. There could be no other evidence to prove the said fact. He appears to be correct.
11. Moreover the counsel for respondent relied upon decision of Hon’ble Supreme Court in Sanjay Kumar Joshi vs. Municipal Board Laxman Garh 2014 (12) Scale-45. In that case the complainant had purchased plot in public auction for commercial purpose. He deposited 25% of the sale consideration as bid amount. Later on he sought refund of the amount which was allowed by District Forum  and State Commission. In revision National commission set aside the orders of State Commission and District Forum by holding that the complainant had purchased commercial plot for commercial purpose. Allowing the appeal, Hon’ble Supreme Court held that forfeiture of security deposit amount and 25% deposit towards sale consideration is unsustainable,  in law. It was held that act of forfeiting 25% of sale consideration and Rs.25,000/- towards security was wholly unjust and amounts to unlawful enrichment in favour of the OP.
12. Counsel for  respondent also relied upon decision of National Commission in Poonam Chambers  vs. Alnpex India (P) Ltd. II (2013) CPJ 254. It was held in said case that mere by termination of working contact, it cannot be interred that there was no relationship of consumer & service provider.
13. Allowing the appellant would amount to enriching the appellant which is not permissible.
14. Counsel for appellant relied up on decision in Subhag Naryana Mathew vs. Pragya Aggarwal 2007 (8) AD Delhi 386 to make out that simply because complainant pleaded that he did not receive the confirmation letter or that there was no concluded contract can not be accepted. It is not necessary to enter into the said controversy because I have already held above that letter dated 25.03.08 was received by the complainant/ respondent herein.
15. Reliance on terms and condition no.4 at page 67 of the bunch of appeal providing for forfeiture of 25% of total cost is unfounded. Similarly the same clause providing that buyer will not be entitled to any 0interest on installment/ payment made by the builder at any stage under any circumstance is against the public policy. A person can not use the money of another for a long period of 10 years and say that he is not liable to pay interest thereupon.
16. Reliance on decision in Sourabh Prakash vs. DLF  Universal ltd. (2007) 1 SCC 228 to make out that developer has right to forfeit the earnest amount is unfounded. There is a difference between earnest money and the part payment of the sale price. In the instant case there is nothing to show that the amount paid by respondent was earnest money. For the same reason reliance on Aswani Kapoor vs. Union of India 73 (1995) DLT 843 is of no help to the appellant.
17. As a result of the above discussion I find that appeal has no merit. The same is dismissed.
18. Copy of the order be sent to both the parties free of cost.
19. File be consigned to record room.

 

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)