Delhi

StateCommission

CC/206/2015

SANJAY KAPOOR - Complainant(s)

Versus

TDI INFRASTRUCTURE LTD. - Opp.Party(s)

RAHUL RATHORE

30 Nov 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision:30.11.2018

 

 

Complaint Case No.206/2015

 

 

Shri Sanjay Kapoor,

s/o Shri R.D. Kapoor,

R/o 416, Lal Jyoti Apartments,

Rohini, Sector -09,

Delhi.                                                                                       …Complainant

 

Versus

 

TDI Infrastructure Ltd.,

9, Kasturba Gandhi Marg,

New Delhi -110001.                                                    ….Opposite Party

 

CORAM

Justice Veena Birbal, President

 

 

1.   Whether reporters of local newspaper be allowed to see the judgment?

     

2.   To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

 

1. Complainant Sanjay Kapoor is a journalist. His wife was a school teacher till January 2014. They have two children of grown up age.  In order to have their residential premises they had booked plot No.J-243 of 350 sq. yds. in October 2005 in the project of the OP at TDI City in Kundli Sonepat and paid the requisite installment to OP. It is stated that upto 2011, complainant had paid 90% of the price of the plot. In order to have a plot having park facing location within TDI City, complainant sold the aforesaid plot and purchased another plot bearing N.J-171B (hereinafter referred to as the ‘subject plot’) measuring 350 sq. yds.. The subject plot was earlier booked in February, 2006 by one Ms. Kavita Manghani, who had made the payments from time to time to OP and had made total payment of around Rs.42,24,063/- i.e. 90% of the BSP and 100% of the EDC and PLC against the subject plot. It is alleged that OP had also issued an allotment letter dated 23.02.2011 to her.  Complainant had purchased the allotment rights from Ms. Kavita Manghani in August 2011. Subsequently, OP had endorsed the transfer of allotment of the subject plot in favour of the complainant in November 2011 and had also issued a fresh allotment letter in respect of subject plot in the name of the complainant in November, 2011 but it was back dated to 23.02.2011. The original booking receipt of the subject plot  was also endorsed in favour of the complainant by the OP, which shows requisite payments totaling to Rs.42,24,063/- having been paid to the OP. It is alleged that OP’s officials had assured that possession would be given in few months time. Complainant waited endlessly for possession and personally visited the office of OP and sent emails, but the possession of the subject plot was not offered.  It is alleged that in September 2014, the complainant learnt that OP was handing over the possession of the plot and possession of the plot in J-Block had been handed over to some of the allottees. By letters dated 08.09.2014 and 12.11.2014 complainant requested for possession, registration and non-encumbrance certificate and permission to mortgage but op did not give any response to said letters. It is stated that there is unfair trade practice on the part of the OP in not giving possession after taking 90% of the BSP and 100% of the EDC and PLC. Complainant is now no longer interested in the subject plot and as such alleging deficiency in service and unfair trade practice on the part of the OP, the complainant by way of present complaint is seeking direction for refund of the money paid i.e. Rs.42,24,063 alongwith interest @24% from the date of each payment till the date of actual refund, Rs.5,00,000/- towards mental harassment and suffering and Rs.50,000/- towards litigation costs.
2. OP was served with the notice of the complaint. Initially, OP did not file written statement and right of the OP to file written statement was closed vide order dated 26.04.2016. OP had challenged the said order, wherein OP was permitted to file written statement subject to payment of costs of Rs.50,000/-. Thereupon, OP paid the costs to the complainant and filed its written statement in August, 2017.  
3. In the written statement, OP has raised preliminary objections by alleging that the complainant has purchased the subject plot for commercial purpose as such complaint is not maintainable. It is further alleged that complainant is an investor and by buying the subject plot he has invested in the subject plot at the time when the real estate industry was at its peak. Another objection raised by the OP is that as per agreed terms and condition of allotment letter issued by the OP in case of any dispute or controversy arising out with in connection with the allotment letter, the courts at Haryana will have the jurisdiction as such the present complaint is not maintainable before this Commission. Further, objection is raised that the present complaint is time barred as the last payments were made in the year 2010-11 and the cause of action arose in 2011 itself.  
4. On merits, it is admitted that earlier the complainant had booked plot No.J-243 measuring 350 sq. yds. in October 2005 with the OP. It is also admitted that complainant after selling the said plot had purchased the subject plot from Ms. Kavita Manghani in August 2011. It is also admitted that Ms. Kavita Manghani had deposited Rs.42,24,063/- with the OP with respect to subject plot i.e. 90% of the BSP and 100% of the EDC and PLC. It is also admitted by the OP that subject plot allotted to Ms. Kavita Manghani was transferred in the name of the complainant. It is also admitted that allotment rights of Ms. Kavita Manghani have also been transferred in favour of the complainant vide allotment letter dated 23.02.2011.
5. On merits, the stand of the OP is that OP is ready and willing to offer the possession of the subject plot in terms of the allotment letter issued to the complainant subject to deposit of outstanding amount towards basic sale price alongwith interest and other charges as per latest statement of account maintained by the OP. It is also stated that complainant has not paid the entire amount towards sale price as well as statutory charges. Complainant has also delayed in making the payment. It is also stated that OP is not charging any interest towards delayed payment. It is stated that the complainant has filed a frivolous complaint and there is no deficiency in service on the part of the OP and complaint is liable to be dismissed.
6. Complainant has filed rejoinder wherein it is stated that the complainant has run from pillar to post after 2011 in different offices of the OP for seeking possession of the subject plot, however, every time evasive response, excuses and false promises were made and fed up of the false promises of the OP and having suffered at the hands and considering his financial and family condition, the complainant had prayed for refund of the money. It is stated that OP had never offered possession of the subject plot and did not respond to the requests of the complainant and had made false averments in this regard in the written statement. Complainant has reiterated the contents of the complaint case and has controverted the allegations made in the written statement.
7. Both the parties have filed evidence in the form of affidavits.  Complainant has filed his own affidavit wherein he has reiterated the contents of complaint case on oath and has proved on record the copy of receipt dated 03.04.2006 Annexure -1; copy of letter of allotment of the subject plot dated 23.02.2011 in favour of Ms. Kavita Manghani Annexure –2; copy of the ledger dated 05.10.2011 Annexure – 3; copy of allotment letter of the subject plot dated 23.02.2011 in his favour Annexure -4; copy of the revised demand letter dated 14.07.2014 annexure -5; copies of emails Annexure -6 (Colly); copy of email dated 23.03.2013 requesting for possession annexure -7; copy of email dated 02.05.2013 annexure -8; copy of letter dated 12.11.2014 seeking possession of the subject plot annexure -9; copy of letter dated Nil seeking issuance of non-encumbrance certificate, permission to mortgage with respect subject plot annexure -10; copy of the Plot Buyer’s agreement dated 11.05.2007 in respect of plot No.J-243 annexure -11; copy of demand letter dated 14.04.2006 annexure -12; copies of receipt of payment made to OP by Ms. Kavita Manghani Annexure -13; printout of the allocation plan Annexure -14; and photographs showing the subject plot in undeveloped state annexure -15.
8. OP has filed affidavit of Mr. Paras Arora its authorized signatory, wherein contents of written statement are reiterated on oath. He has proved on record copy of Board Resolution whereby Board of Directors of OP on 01.03.2011 has duly authorized him to swear the affidavit Exb. RW-1/1, copy of registration form Exb. RW-1/2 stated to have been filed with the reply, however, no such form is filed either with the reply or with the affidavit.
9. Counsel for the parties are heard and material on record is also perused, including written arguments of the parties.
10. As regard the preliminary objection raised by the OP that complainant is an investor and has purchased the subject plot for commercial purpose for earning profit out of it, nothing is placed on record to substantiate the same. Complainant has relied upon judgment passed by National Commission titled Kavita Ahuja Vs. Shipra Estate Ltd. and another 1(2016) CPJ 31 (NC) wherein it is held that it is not appropriate to classify the purchase of unit as a commercial activity, unless it is shown that buyer is engaged in the business of selling and purchasing of houses/plots on a regular basis with a view to make profit on sale of such houses. The relevant para of judgment is reproduced as under:-

“In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and/or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which he is engaged. it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures, etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house(s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house(s).”

 

11. No evidence is placed on record by OP that complainant is engaged in the business of selling and purchase of houses/plots. Complainant has categorically stated that he has booked the subject plot for residential purpose.      In the present case OP has made bald allegations without specifying as to how the complainant has purchased the subject plot for commercial purpose or that he is an investor. The allegations made are vague. Accordingly, the same stand rejected.
12. As regard the objection that the complaint is time barring, we find that the complaint is not time barring as is alleged. The complainant has been requesting the OP since September 2012 for delivery of possession. He had correspondence with the OP for 2-3 years continuously and when OP did not deliver the possession complainant approached this Commission for cancellation of plot and for refund of amount alongwith interest. Complaint is filed on 26.03.2015. He had been waiting for the possession and when he did not get the possession after waiting for about 09 years, present complaint is filed. OP has failed to show how the complaint is time barred. The objection raised in this regard is also rejected.
13. Other preliminary objection is that this  Commission has no territorial jurisdiction to deal with the matter and OP has relied upon relevant clause of jurisdiction provided in terms and conditions of the allotment letter, which is as under:

 

“Jurisdiction:  In case of any disputes or controversy arising out of or in connection with the letter of allotment, courts at Haryana will have the jurisdiction.”

 

14. On the other hand, ld. counsel for the complainant has argued that restriction of a jurisdiction to a particular court need not be given any importance in the circumstances of the case. Ld. counsel has relied upon Radiant Infosystem Pvt. Ltd. & Others Vs D. Adhilakshmi & Anr I(2013) CPJ 169 (NC). In the aforesaid case as per clauses 15 and 16 of the Agreement in case of dispute between the parties, the place of jurisdiction agreed was Hyderabad only. The question of jurisdiction was raised before the National Commission. The National Commission observed that complainant had suffered loss and injury due to deficiency in service committed by OP at the respective centres only as such the cause of action had arisen at places which fell within the local limits of concerned District Forums. It was held that the concerned District Forum i.e. District Forum at Vijaywada had jurisdiction to deal with the matter. The relevant part of judgment is as under:

 

“8.   ………. In the case in hand going by the terms and conditions of the agreement and that the franchisee were to run the centres at their respective villages/places and that the 64 services talked in the agreement were to be provided at the said centres and that the complainants had suffered loss and injury due to the deficiency in service committed by the opposite party at the said centres, there is no escape from the conclusion that the cause of action in these cases had arisen at the places which fell within the local limits of the concerned District Forums. If the complainants were to be called upon to approach the State headquarters the very purpose of establishing the District Consumer Forums at the District level, would be lost. The very object of establishing the District Forum in each District of the State/Country was to take justice to the doorsteps of the consumer.

 

 

 

15. In arriving at aforesaid conclusion, National Commission has relied upon judgment of Honble Supreme Court in the case of Ethiopian Airlines v. Ganesh Narain Saboo, IV (2011) CPJ 43 (SC) VII (2011) SLT 371, where it has been held that the restriction of jurisdiction to a particular Court need not be given any importance in the circumstances of the cases.
16. The judgment of the National Commission referred above is fully applicable to the facts of present case. Even the judgment of National Commission in the case of Cosmos Infra Engineering India Ltd. v. Sameer Saksena I(2013) CPJ 31 (NC) also supports the stand of complainant. In the present case the allotment letter in favour of the earlier purchaser Mrs. Kavita Manghani has been issued from Delhi. The aforesaid allotment letter is endorsed in favour of complainant at Delhi. The receipts of the payments by OP are also issued from Delhi as such part of cause of action has arisen at Delhi. Even, the OP has its registered office at Delhi. In these circumstances, the objection raised by the OP that this Commission has no territorial jurisdiction to deal with the matter is rejected.
17. On merits it is admitted that earlier the complainant had booked plot No.J-243 measuring 350 sq. yds. in October 2005 with the OP. It is also admitted position that complainant after selling the said plot had purchased the subject plot from Ms. Kavita Manghani in August 2011 who had booked the plot in February, 2006 . It is also admitted position that Ms. Kavita Manghani had deposited Rs.42,24,063/- with the OP with respect to subject plot i.e. 90% of the BSP and 100% of the EDC and PLC till the year 2011. It is also admitted by the OP that subject plot allotted to Ms. Kavita Manghani had been transferred in the name of the complainant. It is also admitted position that allotment rights of Ms. Kavita Manghani have also been transferred in favour of the complainant vide allotment letter dated 23.02.2011.
18. OP has alleged that the complainant has not made timely payments. Nothing has been placed on record in this regard by OP. No documents have been shown that any demand letter was raised upon the complainant after 2011, when the allotment letter containing terms and conditions was endorsed in favour of the complainant. There is nothing on record to show that OP had made any demand upon the complainant after receiving 90% of the BSP and 100% of the EDC and PLC. It is not understandable as to why a person who has already made 90% of the basic price and full payment of EDC and PLC will not make payment of balance 10% amount. After 2011, OP is silent about offering the possession of the subject plot to the complainant. Complainant has placed on record various letters/emails i.e. Annexure 6 (Colly) to Annexure 10 demanding possession from the OP but the OP has failed to offer the possession. Now after filing of complaint i.e. passing of 09 years from the date of booking OP is ready to offer the possession of the subject plot. Complainant is now not interested in taking possession of the subject plot as much time had lapsed. Complainant wants to have refund of money with interest and compensation. The reasoning given by the OP for not offering possession at earlier occasion is also not made out in any manner. As per settled law when the OP has failed to deliver the possession within the reasonable time, the discretion is with the complainant whether he wants subject plot or refund of money. Reliance is placed on the judgment of Emaar MGF Land Ltd. & Ors. v. Amit Puri II (2015) CPJ 568 NC, wherein National Commission has held that if developers fails to deliver possession of allotted plot/flat within stipulated time, for any reason, save and except a force majeure condition agreed to between the parties, an allottee can’t be compelled to accept alternate site/plot and he would be within his right to seek refund of amount deposited with the builder against the allotment.
19. The deficiency in service on the part of the OP is clearly established. There is also unfair trade practice on the part of OP. OP is enjoying hard earned money of complainant since 2006 and does not want to refund the money despite their being unfair trade practice on its part. I, therefore, hold that the OP has committed deficiency in service and has indulged in unfair trade practice.
20. In view of above discussion, the present complaint is allowed and OP is directed to refund the entire amount of Rs.42,24,063/- to the complainants alongwith interest @ 10% per annum from the date of receipt of each payment till realization.  There is no separate order for compensation as interest has been awarded in the form of compensation.
21. A copy of this order as per the statutory requirement be forwarded to the parties free of charge. 

              File be consigned to Record Room.

 

 

 

(Justice Veena Birbal)

President