Before the District Consumer Disputes Redressal Forum, Amritsar.
Complaint No.468-14
Date of institution : 26.8.2014
Date of decision : 27.7.2015
Krishan Kumar son of Shri Chabil Dass, resident of 51, Village Badopal, Tehsil and District Fatehabad ( Haryana ).
..............Complainant
Versus
Venus County Developers Private Limited, SCO 123, FF, District Shopping Centre, Ranjit Avenue, Amritsar through its Managing Director/Director/Principal Officer.
...............Opposite party
Complaint under section 11 & 12 of the Consumer Protection Act
Present : For the complainant : Sh.Gaurav Kapoor , Advocate
For the opposite party : Sh.S.M.Vermani Advocate
QUORUM : Sh.Bhupinder Singh, President, Sh.Anoop Sharma, Member and Ms.Kulwant Kaur Bajwa, Member
Order Dictated by :
Sh.Bhupinder Singh, President
Present complaint has been filed by Sh.Krishan Kumar under the provisions of Consumer Protection Act alleging therein that the complainant had entered into agreements with the opposite party for purchase of two plots in Alpha International City, Amritsar i.e.plot No.B-18 measuring 400 sq.yards and plot No.A-43 measuring 500 sq.yards and out of the said two plots, plot No.A-43 measuring 500 sq.yards stood transferred to some other person and disputes in regard to plot No.A-43 is over and now the dispute relates to plot No.B-18 only. Complainant further
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alleges that an allotment letter No.VCDPL/ASR/A/CA/B-18(73)/177 dated 20.10.2011 was issued by the opposite party to the complainant regarding allotment of plot No.B-18 measuring 400 sq.yards and thereafter, a written plot buyer agreement was entered into between the opposite party. As per agreement, complainant was to pay total price of the plot to the tune of Rs.44,80,000/- as per the schedule of payment provided by the opposite party to the complainant. The said total price includes basic price, external development charges, preferential location charges, interest free maintenance security etc.. Complainant further alleges that at the time of entering into agreement, the opposite party assured and allured the complainant that they would provide basic facilities/amenities in the area including development work of roads, water supply, sewerage, electricity as the development work was yet to be started. As per the agreement, the complainant paid Rs.10,50,000/- to the opposite party on 15.7.2011 as booking amount and Rs.7,89,840/- towards first installment and the remaining four installments were to be paid by the complainant to the opposite party as per schedule of payment provided by the opposite party. Thus, in all the complainant paid a sum of Rs.18,39,840/- to the opposite party leaving balance of Rs.26,40,160/-. The complainant further alleges that he had paid a huge amount of Rs.18,39,840/- to the opposite party and the opposite party was in obligation to provide all the amenities/facilities but the opposite party had failed to provide the basic amenities like roads, water supply, sewerage, electricity etc.. The complainant requested the opposite party to refund his entire amount of Rs.18,39,840/-. But the opposite party instead of refunding the entire amount of Rs.18,39,840/- to the complainant, has transferred only Rs.6,54,126/- on 14.9.2013 in the account of the complainant after illegally and unlawfully deducting the
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amount of Rs.11,85,714/- from the total amount of Rs.18,39,840/-. The complainant sent a letter dated 19.9.2013 to the opposite party that he is accepting the said amount of Rs.654126/- under protest and that the opposite party has failed to provide the basic amenities, the opposite party has no right to deduct any amount from the amount deposited by the complainant and further requested to pay the remaining amount of Rs.11,85,714/- to him. The complainant visited the office of the opposite party several times and requested the opposite party to pay the remaining amount of Rs.11,85,714/- but the opposite party did not pay any heed to the request of the complainant. While alleging deficiency of service, the complainant has filed the present complaint seeking directions to the opposite party to pay the remaining amount of Rs.11,85,714/- to the complainant alongwith interest at the rate of 18% p.a.from 14.9.2013 till payment. He also demanded compensation of Rs.5 lacs alongwith litigation expenses of Rs.50000/-.
2. On notice, opposite party appeared and filed written version in which it was submitted that the complainant approached the opposite party with an application form dated 15.7.2011 for allotment of plot No.B-18 in Alpha International City, Amritsar duly signed by him and after accepting the terms and conditions, the complainant paid an amount of Rs.10,50,000/- ( Rs.8,50,000/- + Rs.2,00,000/- ) to the opposite party. Thereafter, the opposite party issued allotment letter bearing No. VCDPL/ASR/A/CA/B-18(73)/177 dated 26.7.2011 with a request to come to the office of the opposite party on 31.7.2011 to complete the documents and formalities. Thereafter, the opposite party issued letter No. VCDPL/ASR/A/CA/B-18(73)/1137 dated 20.10.2011 regarding confirmation of plot No.B-18 measuring 400 Sq.yards in Alpha International City, Amritsar as per the
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terms and conditions laid down in the application form. The complainant paid a sum of Rs.7,89,840/- on 31.10.2011 to the opposite party and thereafter, no payment is made by the complainant inspite of a number of reminders/notices etc. So, in view of the default committed by the complainant, the agreement stood rescinded, cancelled and terminated and the opposite party requested the complainant to collect the amount of Rs.654126/- after forfeiting amount of Rs.11,85,714/- as per terms and conditions of the plot buyer's agreement and on his failure to collect the amount of Rs.6,54,126/-, same was transferred to his account. As alleged by the complainant, he has purchased two plots from the opposite party i.e.plot No.B-18 measuring 400 sq.yards and plot No.A-43 measuring 500 sq.yards and out of the said two plots, plot No.A-43 measuring 500 sq.yards stood transferred to some other person and disputes in regard to plot No.A-43 is over and now the dispute relates to plot No.B-18 only. So, it is clear that the complainant is dealing in speculations and on his failure to find any suitable buyer of plot No.B-18, the present false, frivolous and malafide complaint has been filed. While denying and controverting other allegations, the opposite party has prayed for the dismissal of the complaint.
3. Complainant tendered his duly sworn affidavit ex.CW1/A, affidavit of Subash Kumar ex.CW2/A, receipt issued by the opposite party for Rs.2 lacs dated 15.7.2011 ex.C-1, receipt issued by the opposite party for Rs.850000/- dated 15.7.2011 ex.C-2, receipt issued by the opposite party for Rs.789840/- dated 31.10.2011 ex.C-3, application form for allotment of plot dt.15.7.2011 ex.C-4, letter of confirmation of plot dt.20.11.2011 ex.C-5, letter for request of execution of plot buyer agreement dt.5.1.2012 ex.C-6, letter confirming executed plot buyer agreement dt.23.4.2012 ex.C-7, plot buyer agreement dated 7.3.2012 ex.C-8, schedule of payment of plot of
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Rs.4488000/- dated 7.3.2012 ex.C-9, copy of bank statement dated 10.8.2013 ex.C-10, sales customer Krishan Kumar ledger account dated 6.2.2014 ex.C-11, Alpha Life Brochure for 2/2014 ex.C-12, copy of letter written by the complainant to the opposite party dated 19.9.2013 ex.C-13, agreement for sale of plot No.A-43 dated 6.2.2014 ex.C-14, copy of cheque dated 25.3.2014 for Rs.1017600/- ex.C-15, bank statement of the complainant dated 23.1.2014 ex.C-16, photographs of Alpha International City, Amritsar ex.C-17 to C-22.
4. Opposite parties tendered affidavit of Sh.Rajesh Arora, Director ex.OP1, copy of application form for allotment of plot ex.OP2, copy of letter dated 26.7.2011 ex.OP3, postal receipt ex.OP4, letter dated 20.10.2011 ex.OP5, receipt dated 31.10.2012 ex.OP6, letter dated 8.12.2011 ex.OP7, postal receipt ex.OP8, courier receipt ex.OP9, notice dated 5.1.2012 ex.OP10, postal receipt ex.OP11, notice dated 1.3.2012 ex.OP12, postal receipt ex.OP13, agreement dated 7.3.2012 ex.OP14, letter dated 23.4.2012 ex.OP15, postal receipt ex.OP16, termination notice ex.OP17, postal receipt ex.OP18, copy of AD receipt ex.OP19, letter dated 26.8.2013 ex.OP20.
5. We have carefully gone through the pleadings of the parties, arguments advanced by the counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance
of the ld.counsel for both the parties.
6. From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant purchased two plots in Alpha International City, Amritsar i.e. Plot No. B-18 measuring 400 square yards and plot No. A-43 measuring 500 square yards. However, out of the aforesaid two plots, the complainant sold and transferred plot No.
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A-43 measuring 500 square yards to some other person. As such, the dispute relates to plot No.B-18 measuring 400 square yards. The complainant submitted that Opposite Party allotted plot in question i.e. Plot No.B-18 to the complainant vide allotment Letter No.VCDPL/ASR/AICA/B-18(73)/177 dated 20th October, 2011. A written Plot Buyer Agreement was executed between the parties dated 7.3.2012. As per this agreement, the complainant was to pay the total price of Rs.44,80,000/- as per schedule of payment and this amount includes basic price, external development charges, preferential location charges, interest free maintenance, security etc. The complainant paid a sum of Rs.10,50,000/- on 15.7.2011 as earnest money i.e. booking charges and after allotment, the complainant paid first installment of Rs.7,89,840/- as per schedule of payment. In all, the complainant has paid a sum of Rs.18,39,840/- to the Opposite Party. The balance amount of Rs.26,40,160/- was payable in installments as per schedule of payment. The complainant alleges that Opposite Party was under obligation to provide the facilities/ amenities in the area so as to enable the complainant to pay the remaining installments to the Opposite Party, but the Opposite Party failed to carry out development work and has also failed to provide basic amenities of road, water supply, sewerage, electricity, etc. Opposite Party has also not supplied the approved lay out plan of the area to the complainant. So, the complainant requested the Opposite Party to refund his entire amount of Rs.18,39,840/-, but the Opposite Party has transferred only Rs.6,54,126/- in the account of the complainant on 14.9.2013 and illegally deducted an amount of Rs.11,85,714/-. The complainant then sent letter dated 19.9.2013 to the Opposite Party requesting them to pay the remaining amount to the complainant, but the Opposite Party did not pay any heed to the request of
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the complainant. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite party.
7. Whereas the case of the Opposite Party is that the complainant has purchased two plots in his own name from the Opposite Party, as such, booking of two plots can not be said to be for residential purpose, but amounts to investment for commercial purpose, so the complainant is not the consumer of the Opposite Party under the Act. Opposite Party further submitted that the complainant has concealed the material fact from this Fora. The complainant applied for allotment of plot in question bearing No.B-18 measuring 400 square yards vide application/ form dated 15.7.2011 and deposited Rs.10,50,000/- towards booking amount ( earnest money )with the Opposite Party. The Opposite Party issued letter dated 20.10.2011 confirming the allotment of the plot bearing No.B-18 measuring 400 square yards against the application of the complainant. Resultantly, the complainant paid a sum of Rs.7,89,840/- on 31.10.2011 to the Opposite Party. Thereafter, no payment was made by the complainant inspite of number of reminders/ notices. Opposite Party sent letter dated 8.12.2011 Ex.OP7 with subject “payment overdue Rs.5,98,187/- as on 8.12.2011” i.e. reminder No.1 asking the complainant to deposit this amount immediately. Thereafter, the Opposite Party issued another notice dated 5.1.2012 (Ex.OP10) through registered post to the complainant calling him to pay an amount of Rs.6,38,275/- due payable by the complainant within 15 days failing which the Opposite Party shall be constrained to act as per the terms and conditions of the agreement which may result even in cancellation of the said plot allotment and forfeiture of earnest money and interest that is due on installments. Even then the complainant did not deposit the amount. Then, the Opposite Party served another registered AD forfeiture notice
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dated 1.3.2012 (Ex.OP12) with subject “cancellation notice against Plot No.B-18” requesting the complainant that he was asked to deposit Rs.14,42,236/- alongwith interest for delayed payment by 20.3.2012, failing which the allotment of plot of the complainant shall stand cancelled and the amount shall be forfeited and the complainant shall have no right or lien on the said property and the company shall be free to deal with said plot in any manner at its sole discretion. All these letters/ notices were sent to the complainant through registered post, postal receipts of which are Ex.C8, Ex.C11 and Ex.C13 respectively. But even then, the complainant neither deposited any amount nor put forward any explanation. Resultantly, the process of termination/ forfeiture was initiated and ultimately, the allotment of the plot in question to the complainant was terminated and termination letter dated 15.9.2012 (Ex.OP17) was sent to the complainant through registered post, postal receipt of which is Ex.OP19 in which all the details of the forfeiture of the amount paid by the complainant have been mentioned as per agreement Ex.C8 between the parties. As per agreement Ex.C8, the booking amount is liable to be forfeited and interest due on delayed amount which amounts to Rs.2,02,314/- was also deducted. As such, a sum of Rs.11,85,714/- was deducted from the amount paid by the complainant and balance amount of Rs.6,54,126/- was refunded to the complainant as per terms and conditions of the Plot Buyer Agreement Ex.C8. This amount was remitted in the account of the complainant. Ld.counsel for the opposite party submitted that there is no deficiency of service on the part of the opposite party towards the complainant.
8. From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant purchased two plots in Alpha International City, Amritsar i.e. Plot No. B-18 measuring
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400 square yards and plot No. A-43 measuring 500 square yards. However, out of the aforesaid two plots, the complainant sold and transferred plot No. A-43 measuring 500 square yards to some other person. As such, the dispute relates to plot No.B-18 measuring 400 square yards. The complainant submitted that Opposite Party allotted plot in question i.e. Plot No.B-18 to the complainant vide allotment Letter No.VCDPL/ASR/AICA/B-18(73)/177 dated 20th October, 2011. A written Plot Buyer Agreement was executed between the parties dated 7.3.2012. As per this agreement, the complainant was to pay the total price of Rs.44,80,000/- as per schedule of payment and this amount includes basic price, external development charges, preferential location charges, interest free maintenance, security etc. The complainant paid a sum of Rs.10,50,000/- on 15.7.2011 as earnest money i.e. booking charges and after allotment, the complainant paid first installment of Rs.7,89,840/- as per schedule of payment. In all, the complainant has paid a sum of Rs.18,39,840/- to the Opposite Party. The balance amount of Rs.26,40,160/- was payable in installments as per schedule of payment. The complainant alleges that Opposite Party was under obligation to provide the facilities/ amenities in the area so as to enable the complainant to pay the remaining installments to the Opposite Party, but the Opposite Party failed to carry out development work and has also failed to provide basic amenities of roads, water supply, sewerage, electricity, etc. Opposite Party has also not supplied the approved lay out plan of the area to the complainant. So, the complainant requested the Opposite Party to refund his entire amount of Rs.18,39,840/-, but the Opposite Party has transferred only Rs.6,54,126/- in the account of the complainant on 14.9.2013 and illegally deducted an amount of Rs.11,85,714/-. The complainant then sent letter dated 19.9.2013 to the
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Opposite Party requesting them to pay the remaining amount to the complainant, but the Opposite Party did not pay any heed to the request of the complainant. Ld.counsel for the complainant submitted that all this amounts to deficiency of service on the part of the opposite party.
9. Whereas the case of the Opposite Party is that the complainant has purchased two plots in his own name from the Opposite Party, as such, booking of two plots can not be said to be for residential purpose, but amounts to investment for commercial purpose, so the complainant is not the consumer of the Opposite Party under the Act. Opposite Party further submitted that the complainant has concealed the material fact from this Fora. The complainant applied for allotment of plot in question bearing No.B-18 measuring 400 square yards vide application/ form dated 15.7.2011 and deposited Rs.10,50,000/- towards booking amount with the Opposite Party. The Opposite Party issued letter dated 20.10.2011 confirming the allotment of the plot bearing No.B-18 measuring 400 square yards against the application of the complainant. Resultantly, the complainant paid a sum of Rs.7,89,840/- on 31.10.2011 to the Opposite Party. Thereafter, no payment was made by the complainant inspite of number of reminders/ notices. Opposite Party sent letter dated 8.12.2011 (Ex.OP7) with subject payment overdue Rs.5,98,187/- as on 8.12.2011 i.e. reminder No.1 asking the complainant to deposit this amount immediately. Thereafter, the Opposite Party issued another notice dated 5.1.2012 (Ex.OP10) through registered post to the complainant calling him to pay an amount of Rs.6,38,275/- due payable by the complainant within 15 days failing which the Opposite Party shall be constrained to act as per the terms and conditions of the agreement which may result even in cancellation of the said plot and forfeiture of earnest money and interest that is due on
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installments. Even then the complainant did not deposit the amount. Then, the Opposite Party served another registered AD forfeiture notice dated 1.3.2012 (Ex.Op12) with subject cancellation notice against Plot No.B-18 requesting the complainant that he was asked to deposit Rs.14,42,236/- alongwith interest for delayed payment by 20.3.2012, failing which the plot of the complainant shall stand cancelled and the amount shall be forfeited and the complainant shall have no right or lien on the said property and the company shall be free to deal with said plot in any manner at its sole discretion. All these letters/ notices were sent to the complainant through registered post, postal receipts of which are Ex.C8, Ex.C11 and Ex.C13 respectively. But even then, the complainant neither deposited any amount nor put forward any explanation. Resultantly, the process of termination/ forfeiture was initiated and ultimately, the allotment of the plot in question to the complainant was terminated and termination letter dated 15.9.2012 (Ex.OP17) was sent to the complainant through registered post, postal receipt of which is Ex.OP19 in which all the details of the forfeiture of the amount paid by the complainant has been mentioned as per agreement Ex.C8 between the parties. As per agreement Ex.C8, the booking amount is liable to be forfeited and interest due on delayed amount which amounts to Rs.2,02,314/- was also deducted. As such, a sum of Rs.11,85,714/- was deducted from the amount paid by the complainant and balance amount of Rs.6,54,126/- was refunded to the complainant as per terms and conditions of the Plot Buyer Agreement Ex.C8. This amount was remitted in the account of the complainant. Ld.counsel for the opposite party submitted that there is no deficiency of service on the part of the Opposite Party.
10. From the entire above discussion, we have come to the conclusion that complainant purchased two plots in his own name from the
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opposite party in Alpha International City, Amritsar i.e.plot No.B-18 measuring 400 sq.yards and plot No.A-43 measuring 500 sq.yards. However, out the aforesaid two plots, complainant had already stood transferred plot No.A-43 measuring 500 sq.yards to some other person.
11. As regards plot No.B-18, complainant applied for allotment of this plot and he deposited earnest money to the tune of Rs.10,50,000/- on 15.7.2011. Therefore, complainant has raised dispute regarding plot No.B-18 measuring 400 sq.yards in Alpha International City, Amritsar only. Complainant was allotted this plot vide allotment letter No.VCDPL/ASR/AICA/B-18(&#)/177 dated 20.10.2011. Thereafter, the complainant paid a sum of Rs.7,89,840/- on 31.10.2011 to the opposite party immediately after the allotment of plot. Thereafter, balance amount was payable in installments and “plot buyer's agreement” was executed between the parties on 7.3.2012. However, after 31.10.2011, no installment was paid by the complainant to the opposite party. Opposite party sent letter dated 8.12.2011 ex.OP7 with subject “Payment overdue Rs.598187/- as on 8.12.2011,”i.e.reminder No.1 asking the complainant to deposit this amount immediately but the complainant did not deposit this amount with the opposite party. Thereafter, the opposite party issued another notice dated 5.1.2012 ex.OP11 through regd.post to the complainant calling him to pay the overdue amount of Rs.638275/- payable by the complainant within 15 days failing which opposite party shall take action as per terms and conditions of the agreement ex.C-8 which may result even in cancellation of the said plot and forfeiture of the earnest money and interest that is due on installments. Even then, complainant did not deposit the amount. Thereafter, opposite party served another registered A.D. “forfeiture notice” dated 1.3.2012 ex.OP12 with subject “Cancellation Notice against Plot
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No.B-18(73) requesting the complainant that he was asked to deposit the balance due amount of Rs.14,42,736/- alongwith interest for delayed installments by 20.3.2012 failing which plot of the complainant shall stand cancelled and amount shall be forfeited in that eventuality, complainant shall have no lien/right on the said property and company will be free to deal with the said plot in any manner,whatsoever, at its sole discretion. All these letters/notices were sent to the complainant through registered post, postal receipts of which are ex.OP11 & OP13 respectively and the complainant never denied the receipt of these letters/notices. But even then, complainant neither deposited any amount nor could put forward any explanation. Resultantly, process of termination/forfeiture was started by the opposite party and ultimately, allotment of plot in question was terminated and termination letter dated 15.9.2012 ex.OP17 was sent to the complainant through regd.post, postal recept of which is ex.OP19 in which all the details of forfeiture of the amounts paid by the complainant have been mentioned as per agreement executed between the parties ex.C-8. As per agreement, booking amount is liable to be forfeited and interest due on delayed payment of installments which amounts to Rs.202314/- was also liable to be deducted. As such, a sum of Rs.1185714/- was deducted from the amount paid by the complainant and balance amount of Rs.654126/- was refunded to the complainant as per terms and conditions of the plot buyer agreement ex.C-8 and this amount was remitted by the opposite party in the account of the complainant. All this fully proves that opposite party has acted in accordance with terms and conditions of the “plot buyer agreement” ex.C-8 duly executed between the parties under their own signatures. Complainant has failed to perform the terms and conditions of the agreement inspite of repeated reminders issued by the opposite party. So, opposite party was
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justified in cancelling the plot of the complainant and forfeiting the amount of earnest money and interest on delayed payment. Complainant could not put forward any explanation for not complying with the terms and conditions of the agreement ex.C-8 nor deposited the balance amount with the opposite party.
12. At this stage, complainant cannot claim the benefit of amenities because possession of the plot has not yet been given to the complainant. So, it stands fully proved on record that it is the complainant who has violated the terms and conditions of the agreement ex.C-8. As such, he is defaulter. It has been held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case DLF Southern Towns Pvt.Ltd.Versus T.P.Balachandra Panicker 1(2015) CPJ 445 (NC) that where the complainant failed to perform terms and conditions of agreement in spite of repeated reminders given by the opposite party, opposite party was well within its right to forfeit amount of earnest money. Similar are the facts of the present case. As such, we hold that there is no deficiency of service on the part of the opposite party qua the complainant.
13. Apart from this, it is admitted case of the complainant that he purchased two plots from the opposite party in his own name i.e.plot No.B-18 measuring 400 sq.yards and plot No.A-43 measuring 500 sq.yards in Alpha International City, Amritsar and he had already sold and transferred one plot bearing No.A-43 in the name of same other person.
All this shows that complainant had purchased the plot for commercial purpose. It has been held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case Indrajit Dutta Versus Samriddhi Developers & others II(2015 ) CPJ 342 (NC) that where a consumer purchased two flats from the opposite party, it proves that flats were not
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purchased for residential purpose but for commercial purpose. As such, complainant is not a consumer. Similar are the facts of the present case.
14. In view of the above discussion, we hold that there is no merit in this complaint and the same is hereby dismissed with no order as to costs. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
27.7.2015 ( Bhupinder Singh )
President
( Anoop Sharma ) ( Kulwant Kaur Bajwa )
Member Member
