JUSTICE V.K.JAIN (ORAL)

The complainants/respondents booked residential plots with the petitioner company in a project, namely, ‘TDI City’, which the petitioner company is developing in Kundli in Haryana. Allotment letters were issued to the complainants pursuant to the bookings made by them. The price of each plot was agreed at about 17 lakhs. The complainants were also required to pay External Development Charges in addition to the price of the plot. The said External Development Charges had not been ascertained by the time the allotments were made to the complainants. The allotment letters came to be issued to the complainants on 7.1.2006. The payment plan was incorporated in Schedule-1 annexed to the application whereby the bookings were made. The payment plan filed by the complainants is at variance with the payment plan filed by the petitioner company.  Neither the payment plan filed by the complainants is signed on behalf of the petitioner company nor is the payment plan filed by the petitioner signed by the complainants. However, as per both the payment plans referred hereinabove, 60% of the payment was to be made at the timed of booking.

2.      The case of the complainants is that since the payment plan annexed by the petitioner company to the allotment letters was different from the payment plan which they had agreed to, they wrote several letters to the petitioner to correct the payment plan, enable them to make payment accordingly, but no response to the said letters was forthcoming from the petitioner company.

3.      Vide letters dated 29.7.2010, the petitioner company informed the complainants that the plots were ready for possession and the complainants were requested to make payment as per the Statement of Account annexed to the said letter within 15 days. No reply to the said letter was given by the complainants nor did they make any payment in terms of the demand raised by the petitioner company. After sending reminder to the complainants, the allotments were cancelled vide letter dated 11.12.2010 on the ground that the complainants had not cleared the outstanding dues.

4.      On cancellation of the allotments, the complainants wrote letters dated 24.12.2010 to the petitioner seeking waiver of the interest on the ground that the petitioner had not sent the correct payment plan to them. The cancellation having not been revoked, the complainants approached the concerned District Forum by way of separate consumer complaints seeking possession of the allotted plots on payment only of the External Development Charges which the petitioner had earlier demanded from the complainants with interest and which the complainants had failed to pay. They disputed liability to pay any interest on the External Development Charges.

5.      The complaints were resisted by the petitioner company which took a preliminary objection that the District Forum did not have pecuniary jurisdiction to entertain the consumer complaints. On merits, the allotment made to the complainants as well as the payment received from them was admitted. It was, however, alleged that the complainants having defaulted in making payment of the balance sale consideration and External Development Charges, the allotments had rightly been cancelled.

6.      The District Forum vide its order dated 13.2.2013 directed the complainants to deposit the External Development Charges and also directed the petitioner to hand over the physical possession of the plots subject to the complainants paying the balance payment alongwith interest @ 9% p.a. from the due date till the date of payment.

7.      Being aggrieved from the order passed by the District Forum, the petitioner company approached the concerned State Commission  by way of separate appeals. The State Commission  having dismissed the appeals, the petitioner company is before this Commission. The order passed by the District Forum was not challenged by the complainants.

8.      The first submission of the learned counsel for the petitioner company is that the complainants are members of the same family, Shri Sukhmal Jain  being the father of Shri Dinesh Jain. She also submits that Shri Rajesh Jain brother of Mr. Dinesh Jain had also booked two plots in this very project and thus the family had booked six plots with the petitioner company in the same very project, two plots each having been booked by Shri Sukhmal Jain, Dinesh Jain and Rajesh Jain. She also submits that booking of as many as six plots by the members of the same family by itself would indicate that the bookings were made for speculative purposes and not for the purpose of constructing houses on the plots booked by them since the members of the same family were not likely to construct six different houses. Reliance is placed upon the decision of this Commission in Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. & Connected Matters CC No.137 of 2010, CC No.145 of 2010 and CC No. 146 of 2010, decided on 12.02.2015

9.      On a perusal of the written version, I find that no such plea was taken by the petitioner before the District Forum. In the absence of pleadings to this effect, the submission made by the learned counsel for the petitioner cannot be entertained though the said contention was raised before the Forum in the written arguments filed before the District Forum. However, the fact remains that this plea was not taken either in the written version or in the evidence filed before the District Forum. Had such a plea been taken in the written version, the complainants would have got an opportunity to explain as to why the family members had booked as many as six plots in the same project. It is not as if a family can never require six plots in the same project. In a given case, the family may be large enough to require six houses for the residence of its members. Unless an opportunity is given to the complainants to explain the bookings made by them, it would be difficult to hold that they were not consumers with the meaning of Section 2(1)(d) of the C.P. Act.

10.    As regards the pecuniary jurisdiction in terms of Section 11 of the C.P. Act, the District Forum had pecuniary jurisdiction to entertain a consumer complaint where the value of the goods  purchased or the services hired or availed as the case might be, did not exceed Rs.20 lakhs. In these matters, the basic price of the plot was less than Rs.20 lakhs in each allotment. Though the External Development Charges were payable in addition to the basic price of the plot, the quantum of the External Development Charges had not been ascertained by the time the allotment was made and that is why the amount of the said charges was not mentioned in the allotment letters. As held  by a three-Members Bench of this Commission dated 7.10.2016 in CC No.97 of 2016 -  Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd.,  the value of the services in such a case would mean the sale consideration agreed to be paid by the buyer to the seller. Since the External Development Charges had not been ascertained by the time the booking was made or even by the time the allotment letters were issued, it cannot be said that the complainants had agreed at the time of booking/allotment, to pay more than Rs.20 lakhs for each plot. The External Development Charges could eventually be less than the charges the petitioner has later claimed from the complainants. Had the EDC been substantially less, the aggregate of the Basic Sale Price and EDC would not have exceeded Rs.20 lacs. What has to be seen is that the definite consideration which the complainants had agreed to pay to the petitioner company at the time the booking / allotment was made in these matters.  Since the External Development Charges had not been ascertained by that time, it would be difficult to say that the complainants had to pay Rs.20 lakh each for each plot at the time the bookings/allotments were made. In any case, if two views in the matters are possible, the view which favours the complainants needs to be taken the provisions of the C.P. Act being primarily for protecting the interest of the consumer. In any case, this Commission, in exercise of its revisional jurisdiction, will not be justified in interfering with the orders passed by the Fora below on this ground, in the facts and circumstances noted hereinabove since no failure of justice is shown to have happened on account of the consumer complaints having been entertained by the District Forum.

11.    Coming to the merits of the matters as noted earlier, two contradictory payment plans have been filed by the parties. The payment plan as noted earlier was Schedule-1 to the applications submitted by the complainants for booking the plots. The original applications were never produced by the petitioner before the District Forum though the petitioner was bound to be in its possession. Moreover, the conduct of the complainants in regularly writing to the petitioner and complaining of the change of the payment plan coupled with complete silence on the part of the petitioner in this regard clearly indicates that the payment plan filed by the complainants was correct and that is why the petitioner did not file the original applications before the District Forum nor did it controvert the letters received from the complainants in this regard.

12.    The booking was made by the complainants in August, 2005. The possession to the complainants was offered for the first time vide letter dated 29.7.2010, almost five years after the booking was made. Though even as per the payment plan relied upon by the complainants, 90% of the sale consideration was to be paid within one year of the allotment and admittedly there was default in making such payment, the complainants having not paid any amount after the initial payment constituting 60% of the basic sale price, the allotment was never cancelled by the petitioner which condoned the said default by offering possession of the allotted plots to the complainants on 29.7.2010. Moreover, the petitioner company never corrected the payment plan which it had annexed to the allotment letters though the said payment was different from the payment plan to which the complainants had agreed. Though the complainants did not make payment in terms of the letter dated 29.7.2010, the plots allotted to them are stated to be still available since this Commission vide its interim order dated 11.12.2013 had stayed the execution of the impugned order subject to the petitioner maintaining status quo in respect of the plots allotted  to the complainants. The District Forum has already directed payment of interest @ 9% p.a. on the balance sale consideration w.e.f. due date till the date of payment. Considering that (1) the petitioner itself had condoned the earlier default on the part of the complainants by offering possession to them as late as 29.7.2010 (2) the petitioner never came forward to correct the payment plan annexed to the allotment letters and (3) the possession came to be offered after as many as five years of the booking, the complainants in my opinion, should not be deprived of the possession of the allotted plots. The petitioner company has nothing to lose by delivering possession of the allotted plots to the complainants since it would be getting appropriate interest on the balance dues w.e.f. the date due date till the date of payment, in terms of the order passed by the District Forum and maintained by the State Commission. It would also be appropriate to note here that no compensation for the delay in offering possession has been awarded to the complainants, though the plots were offered after about five years.

13.    It was submitted by the learned counsel for the petitioner that the Fora below were not justified in refusing interest on the amount of External Development Charges to the petitioner company. I am in agreement with the learned counsel for the petitioner that the complainants having withheld the External Development Charges, they must pay interest on the said charges to the petitioner company, even if there was not specific agreement between the parties to pay interest on those charges. The complainants had agreed to pay the External Development Charges at the time the plots were booked by them. The said charges were not paid by them. Thus the amount of the External Development Charges was withheld and utilized by the complainants for their purposes. There is no good reason as to why they should not pay interest on the amount so withheld by them. The revision petitions are, therefore, disposed of in terms of the following directions:-

(i)      The External Development Charges as demanded by the petitioner company shall be paid to it by the complainants.

(ii)      In addition to the External Development Charges, the complainants shall also pay proportionate interest on the External Development Charges if such an interest was actually paid by the petitioner to the concerned authority. The amount of the proportionate interest shall be conveyed to the complainants within four weeks from today and shall be paid by them within eight weeks thereafter.

(iii)     The complainants shall also pay simple interest on External Development Charges @ 9% p.a. w.e.f. the date on which the said charges were paid by the petitioner to the Government till the date on which the charges are actually paid to the petitioner company.

(iv)    The balance principal amount shall be paid to the petitioner company in terms of the order passed by the Fora below.

(v)     The possession of the allotted plots shall be delivered to the complainants within four weeks of the complainants complying with this order.