Delhi

North East

CC/397/2014

Om Prakash - Complainant(s)

Versus

Swastik Properties - Opp.Party(s)

04 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 397/14

 

In the matter of:

 

	Shri Om Prakash H.No. 1/11314-B, ST-3, Subhash Park Extn., Delhi 110032	Complainant
	Versus
1         2       3	Shri Anuj Kanodia M/s. Swastik Properties 1/10677, Subhash Park, Gali No. 4, Naveen Shahdara, Delhi 110032   M/s. Sameer Builtech Pvt. Ltd. 68/2, Govind Park, Jagat Puri, Delhi 110051   Shri Sameer Gupta S/o Late Sh. Ashok Gupta 68/2, Govind Park, Jagat Puri, Delhi 110051	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

01.10.2014 25.05.2018 04.06.2018

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member:-

 

ORDER

1. Complainant has submitted in present complaint that he is an uneducated poor person working as a motor mechanic for livelihood and married with two children staying in a congested one room set with his parents and brother and was looking for buying a house when a field officer of OPs approached him and called him at the address / office of OP1, the OPs here being in business of setting and developing residential plots, floors, flats etc and relationship of business partner to each other, where the OPs assured the complainant to allot a fully constructed 2^nd floor residential house @ Rs.17,00,000/- bearing no. 1/1 Shastri  Gali at Khasra No. 556/308, Babarpur, Shahdara, Delhi 110032 measuring 47 sq. yards, without roof and terrace rights having two wheeler parking, with common staircase to go on top floor and with maintenance of water tank etc. (hereinafter referred to as said house). The OPs assured the complainant that the said house was  free from all encumbrances lien, mortgage etc and well developed, well ventilated and would be provided with all basic amenities. On the basis of representation made by the OPs and relying on the same, the complainant booked the said house and entered into an Agreement to Sell dated 10.03.2013 with respect thereto with the OPs and paid a sum of Rs. 2,50,000/- in cash as advance / booking amount to the OPs and the balance amount of Rs. 14,50,000/- was to be paid in installment on promise by OPs to handover the peaceful and vacant physical possession of the said house by 01.06.2013 by executing sale deed / GPA in favour of complainant. The complainant has submitted that he further paid Rs. 3,50,000/- on 15.03.2013, Rs. 3,50,000/- on 22.03.2013, Rs. 2,50,000/- on 01.04.2013, Rs. 2,50,000/- on 06.04.2013 all in cash to OP which was duly acknowledged by OP3 on the back page of the stamp paper of Agreement to Sell. However, despite having made payments of the said amounts, when the complainant visited the site of said house in May 2013, he was shocked to see that nothing had been done on the said floor by the OPs in the name of furnishing and basic amenities for which he repeatedly asked the OPs to adhere to their promises of completion of work and handing over possession of the said house on 1.6.2013 but all in vain. Therefore, realizing the misrepresentation, negligence and unfair trade practice of the OPs by purporting sale of residential 2^nd floor without having clear title, the complainant started demanding refund of his Rs. 14.50 lacs  paid to the OPs towards the purchase of the said house but the OPs kept dilly dallying the refund on various pretext thereby depriving the complainant of his hard earned money. The complainant served a legal notice dated 15.09.2014 to the OPs alleging deficiency in service and claiming refund and relief therein but to no avail. Lastly, the complainant was constrained to file the present complaint, alleging deficiency in service and prayed before this Forum for issuance of directions to the OPs for refund of Rs. 14,50,000/- alongwith interest @ 24% per annum pendente lite and future alongwith Rs. 2,00,000/- as compensation for harassment and Rs. 55,000/- towards litigation cost. The complainant has attached the copy of business cards of OP1, OP2 and OP3, copy of agreement to sell dated 10.03.2014 entered into between OP3 and complainant and copy of legal notice dated 15.09.2014 with postal receipt.
2. Notices were issued to OPs. OP1 failed to appear despite service and was proceeded against ex parte vide order dated 16.04.2015 on which date OP2 and OP3 filed their written statement in which they took the preliminary objection that the breach of agreement dated 10.03.2013 has been committed by the complainant and the present complaint doesn’t come under Consumer Protection Act as the dispute therein is of civil nature which is why the case filed by complainant under section 200 Cr. PC r/w section 156(3) Cr.PC before Hon’ble Court of Shri Ankur Jain, M.M. Karkardooma Courts with respect to the said Agreement to Sell was dismissed vide order dated 11.11.2013 and Revision Petition against the said order filed by the complainant before Hon’ble Court of Mr. T.S. Kashyap, Ld. ASJ, Karkardooma Court was also dismissed vide order dated 22.04.2014. The OP2 & OP3 denied that their field officer approached the complainant with respect to allotment/ sale of said house and submitted instead that OP1 is a contractor and constructed the buildings on the basis of contract agreement executed between owner of property and itself. In this regard, a contract agreement dated 27.06.2012 was entered into between  Shri Mathan Singh and OP1 to construct the building on the premises in question i.e. Khasra No. 556/308, Babarpur, Shahdara, Delhi 110032 measuring 47 sq. yards which was owned by Shri Mathan Singh and it was agreed between them that  OP1 shall construct four floors over the said property alongwith parking including one room inside the parking area of said property and upper ground floor and top floor with roof rights with remain with the owner of the property i.e. Mathan Singh and first and second floor will remain with OP1 i.e. the builder and the owner of the property authorized OP1 to sell his share of the floors to any person without any objection and it was on the basis of this contract agreement dated 27.06.2012 that  the OP1 entered into the agreement to sell dated 10.03.2013 with complainant with respect to the 2^nd floor of said property with agreement that sale deed of the said property shall be executed in favour of complainant by the OP1 on 01.06.2013 on receipt of the balance amount. However, the OP2 and OP3 submitted that on the said date i.e. 01.06.2013, the complainant did not approach the Sub Registrar Office for execution of sale deed of the said house and therefore, as per clause 5 of the Agreement to Sell, the earnest money paid by the complainant to OPs was forfeited by the OP1 and as per clause 6 of said agreement, the OP1 was entitled to sell the said property to any other person without any objection of complainant. The OPs summarily denied other allegations leveled by complainant in his complaint pertaining to non construction/ non completion of construction of the said house and  denied any negligence or unfair trade practice on their part entitling complainant to refund of Rs. 14,50,000/- with interest on grounds that breach of agreement to sell was committed by the complainant by not reaching at Sub Registrar Office on 1.6.2013 for execution of sale deed and therefore, the OPs were well within their rights to not only forfeit the earnest money of Rs. 14,50,000/- received by them from the complainant but also sell the said property. On such grounds the OPs prayed for dismissal of present complaint. The OPs have attached the copy of contract agreement dated 27.06.2012, copy of order dated 22.04.2014 in Criminal Revision 185/2013 passed by Hon’ble ASJ, Shri T.S. Kashyap, KKD Courts.
3. Rejoinder and evidence by affidavit was filed by complainant reiterating his grievance in present complaint and has exhibited copy of the agreement-cum-receipts of payment against the said property and copy of legal notice dated 15.09.2014 with postal receipts  therewith.
4. The right to file evidence of OP2 & OP3 was closed by this forum vide order dated 19.11.2015 after giving several opportunities, against which order OP2 & OP3 had preferred Revision Petition No. 115/2015 before Hon’ble SCDRC and Hon’ble SCDRC vide order dated 16.02.2016, granted opportunity to OP2 & OP3 to file their evidence on 02.5.2016 before this Forum subject to cost of Rs. 5,000/- to the complainant which the OP2 & OP3 complied with and their evidence was taken on record in which the OP3 the deponent reiterated the defence taken by the OPs in their written statement and exhibited copy of order dated 22.04.2014 passed by Hon’ble Court of Shri T.S. Kashyap, Ld. ASJ, KKD Courts, Delhi dismissing the R.P. preferred by the complainant and copy of Agreement to Sell dated 10.03.2013.
5. Written arguments were filed by the OPs  reiterating their defence of non maintainability of complaint on grounds of dispute being of civil nature in which the complainant committed breach of agreement to sell entered into between complainant and OPs on 10.03.2013 and justifying their forfeiture of earnest money as per clause 5 of the said agreement while acknowledging the receipt of Rs. 14,50,000/- paid by complainant to OPs towards sale consideration of the said house booked by complainant with OPs.
6. Written arguments were filed by complainant reproducing the factual matrix as delineated by complainant. The complainant placed reliance on Judgment of Hon’ble SCDRC, Delhi in Likhma Ram Budaniya Vs Central Himalayan Land Development Company Limited passed in CC No. 333/2009 on 27.01.2015 in which Hon’ble SCDRC in case of non-allotment / non-possession of plot by OP despite receiving five times the price of the plot as undervalued in sale deed had directed the OP to refund the said amount with interest and other damages to the complainant. The complainant further placed reliance on judgment of Hon’ble NCDRC in case of Emaar MGF Land Limited and Anr V/s Dilshad Gill III  (2015) CPJ 329 (NC) in which Hon’ble NCDRC held the appellant deficient in service as it failed to offer the possession to complainant within stipulated time period prescribed under “Apartment-Buyer Agreement” and imposed punitive damages of Rs. 1,00,000/- on it to be deposited with Consumer Legal Aid account. The complainant also placed reliance of the judgment of N.Y. Kachawalla Vs. The Orbit Corporation Limited III 2014 CPJ 567 N.C. in which Hon’ble NCDRC holding OP guilty of deficiency of service in inability to give premises in dispute, had directed it to refund the money deposited by the complainant with it with interest as per law laid down by Hon’ble Apex Court in K.A. Nagamani Vs. Karnataka Housing Board in Civil Appeal Nos. 6730-31 of 2012 decided on 19.09.2012. Lastly, the complainant placed reliance upon the judgment of Hon’ble NCDRC in four connected cases of Swarn Talwar and ors. V/s Unitech and ors. in which the grievance of the complainants having booked flats with OP more than 8 years ago and not given possession thereof despite having paid about 95% of the cost of the flat of the OP was the subject matter of the complaints for which the refund was sought. The Hon’ble National Commission had observed that the OP was grossly deficient in rendering services to complainant despite receipt of 95% of the cost of the flat and had directed the OPs to refund the amount to complainant alongwith interest @18% from the date of deposit till payment.
7. In the present case, it is not in dispute that Agreement to Sell dated 10.03.2013 was entered into between complainant and OP with respect to sell of 2^nd floor of said property for a total sale consideration of Rs. 17,00,000/- and that sell deed of said property was to be executed by OP1 in favour of complainant on 01.06.2013. It is also admitted that the complainant had paid a sum of                       Rs. 14,50,000/- to OPs towards sale consideration against the said house. Grievance of the complainant is that despite having received a major portion of sale consideration by April 2013, the OPs failed to handover the possession of the said house to complainant by 01.06.2013 despite undertaking to hand over the same by the said date as per agreement to sell and had instead forfeited the said amount thereby depriving the complainant not only his hard earned money but also of his dream of his residential accommodation, therefore, giving rise to present complaint. The defence raised of OP the breach of agreement to sell to complainant is uncorroborated, unsubstantiated and bald allegation. It is highly preposterous and improbable that the complainant despite having paid more than 85% of the sell consideration would not have approached the Sub-Registrar Office for execution of sale deed of said property on the scheduled date of sale deed which the OP has alleged to justified forfeiture of earnest money as per clause 5 of Agreement to Sell. The earnest money paid towards any property sale consideration is generally 10% and not 85% of the total sale consideration and therefore, forfeiture per se was illegal and unfounded/ unjustified. The OPs themselves have violated the material conditions with regard to handing over the possession and brazenly forfeited the major amount of sale consideration and therefore, does not lie in their mouth to allege breach of contract committed by the complainant who was fully justified in not making the balance payment when the OPs failed to complete the construction of the said house and hand over possession of the said house within the agreed period. The OPs clearly enjoyed a substantial amount of money received by them from the complainant from March 2013 to April 2013 without honoring their commitment of handing over the possession of said house and on the contrary calling complainant a defaulter which agreement does not hold any water.
8. We, therefore, are of the considered opinion that the OPs have failed to abide by the contractual obligation to hand over the possession to the complainant despite receiving 85% of sale consideration and the complainant was a consumer to the effect / extend of availing services of OP under section 2(o) of CPA and the dispute therefore is within the ambit of Consumer Protection Act.
9. At the advanced stage of proceedings, the OPs had offered settlement to the complainant before this Forum vide submission made by them recorded in order dated 22.12.2016. However, the complainant apprised the Forum on 13.07.2017 that OP2 & OP3 were only offering settlement amount of Rs. 7,00,000/- i.e. less than 50% of the deposited amount which the OP2 & OP3 later had verbally raised / increased to Rs. 12,00,000/- outside this Forum to the complainant on 24.01.2018 but despite court notice to them to appear and confirm the said offer, the OP2 & OP3 failed to appear and comply with the order of this Forum showing utter disregard and non-seriousness of intent to honour their commitment towards the complainant. Therefore, this Forum had closed the opportunity to address arguments by OPs and reserved the complaint for orders on 25.05.2018. We opine that defending their stand made under the garb of dismissal of criminal complaint of the complainant by KKD Courts doesn’t come to the rescue of OPs in any manner to vindicate their stand of forfeiture of deposit of complainant’s hard earned money under the guise of clause 5 of Agreement to Sale dated 10.03.2015 since the same has been done with a malafide intend to escape getting hit by the default clause 4 of said agreement in which the OP was liable to pay double the earnest money to the complainant in case of failure to fulfill its duties in accordance with agreement to sale and delivery of possession which also entitled the complainant to go to the Court of law for specific performance against the OPs.
10. We, therefore, after hearing arguments of the complainant and thoroughly scrutinizing / analyzing the documentary evidence placed on record by both sides and judgments cited by the complainant hold the OPs guilty of deficiency of service and unfair trade practice and direct all the OPs jointly or severally as business partner to each other and therefore, vicariously liable for deeds of each other to refund a sum of Rs. 14,50,000/- to the complainant alongwith interest @9% per annum from the date of filing of present complaint till realization. We further direct the OPs jointly or severally to pay a sum of Rs. 20,000/- on account of mental harassment and Rs. 10,000/- towards cost of litigation to the complainant. Let the order be complied with within 30 days of receipt of certified copies of this order.
11.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12.   File be consigned to record room.
13.   Announced on 04.06.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member