Delhi

StateCommission

FA/86/2014

T.D.I. LTD. - Complainant(s)

Versus

VIMLA DEVI - Opp.Party(s)

28 Apr 2016

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision: 28.04.2016

 

 

First Appeal No.86/2014

(Arising out of the order dated 18.11.2013 passed in Complaint Case No.1586/2009 by the District Consumer Redressal Forum (New Delhi)

 

In the matter of:

 

M/s. TDI Infrastructure Pvt. Ltd.,

Through its authorized representative,

9, Kasturba Gandhi Marg,

New Delhi -110001

                           ....Appellant

 

Versus

 

Smt. Vimla Devi,

C/o Shri N.C. Bansal,

8A/8, W.E.A. Karol Bagh,

Old Rohtak Road, Pusa Lane,

New Delhi

 

ALSO AT:

C/o Rajendra Prasad Mittal,

Advocate,

52, Kaveri Kunj, Phase-II,

Kamla Nagar, District Agra(UP)

….….....Respondent

 

 

CORAM

Justice Veena Birbal, President.

Ms. Salma Noor, Member.

 

 

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. This is an appeal under Section 15 of the Consumer Protection Act 1986 (in short “the Act”) wherein challenge is made to order dated 18.11.2013 passed in C.C. No.1586/2009 by the Consumer Disputes Redressal Forum-VI, New Delhi, (in short “the District Forum”), whereby the complaint case filed by the respondent/complainant has been allowed and appellant/OP has been directed to return the deposit of Rs.4 lakhs, with interest @9% from the date of deposit till payment and to pay Rs.50,000/- for deficiency and litigation expenses.
2. Briefly, the facts relevant for disposal of the appeal are that the respondent herein i.e. the complainant before the District Forum had filed a complaint under Section 12 of the Act alleging therein that he had booked a 3 bedroom flat with the appellant/OP in their Group Housing Project at Kundli, sonipat, vide application dated 17.03.2006 and had paid a sum of Rs.4 lacs vide cheque No.051871 dated 17.03.2006 drawn on Syndicate Bank, Pitampura Branch, New Delhi against receipt No.37754 dated 17.03.2006.
3. It was alleged that as per the Application Form, appellant/OP was to make offer of provisional allotment for residential plot in the aforesaid Group Housing Project within six months  of encashment of application money. It was alleged that without making any provisional allotment of the flat, the appellant/OP sent a letter dated 09.03.2007 demanding Rs.3 lacs from the respondent/complainant. It was alleged that the respondent/complainant was not supposed to make payment as no provisional allotment within the terms of Advance Registration Form was given to him. The respondent/complainant waited for response from the side of the appellant/OP and also wrote letter on 25.08.2008 and thereafter a reminder on 18.09.2008 through his counsel enquiring the development of the said project.   However, nothing was informed by the appellant/OP. Thereafter, the respondent/complainant sent another reminder dated 15.10.2008 through his lawyer, but of no result. It was alleged that the appellant/OP usurped hard earned money of the respondent/complainant for their wrongful gain. The respondent/complainant had alleged deficiency in service on the part of the appellant/OP.
4. It was alleged that by making false promises for providing the flat, money had been taken which was an unfair trade practice and accordingly, the respondent/complainant had filed a complaint before the Ld. District Forum for refund of the aforesaid amount alongwith interest @18% and also for grant of compensation towards loss suffered by the respondent/complainant.
5. The complaint was opposed by the appellant/OP before the Ld. District Forum whereby booking of the flat in the aforesaid project of the appellant/OP was admitted. It was also admitted that at the time of booking Rs.4 lacs were received from the respondent/complainant. It was alleged that alongwith booking form there was a schedule of the payment and respondent/complainant did not discharge her obligation as per the agreed schedule. It was further alleged that vide correspondence dated 30.10.2006 and 09.03.2007 the respondent/complainant was offered a provisional allotment of residential flat in discharge of its obligation in term of Advance Registration Form, which was governing the obligation on the part of appellant/O for offer of allotment. It was also alleged that the respondent/complainant was requested to remit the amount of Rs.3 lacs as per terms of payment, but the same was not sent. Left with no option the booking was cancelled by appellant/PO vide letter dated 20.09.2008.
6. Replication was filed by the respondent/complainant denying the allegations of the appellant/OP. The respondent/complainant had reiterated her stand taken in the complaint.
7. Both the parties led evidence in the form of affidavits before the Ld. District Forum. After hearing counsel for the parties, the Ld. District Forum vide impugned order referred above held that the appellant/OP without making any provisional allotment of any specific flat number, location for identify, issued the demand letter of Rs.3 lacs and cancellation was therefore illegal. It was held that the appellant/OP was indulged in unfair trade practice and the respondent/complainant was justified in not meeting the demand of the appellant/OP and relied upon the judgment of the National Commission in Prasad Homes Private Limited v. E. Mahender Reddy & Ors. [1(2009) CPJ 136 (NC) and ordered for refund of the amount as stated above.
8. Aggrieved with the aforesaid order, the present appeal has been filed.
9. Ld. Counsel for the appellant/OP has contended that District Forum has committed an error in passing the impugned order in as much as the offer of allotment in terms of Advance Registration Forum was made to the respondent/complainant vide letter dated 30.10.2006 by the appellant/OP and the respondent/complainant was asked to make further payment in accordance with schedule of payment. It is contended that thereafter another identical correspondence dated 09.03.2007 was also sent. It is contended that there was fault on the part of the respondent/complainant in not making the payment as such the appellant/OP was left with no option but to cancel the allotment. It is contended that the District Forum has not examined the matter in an appropriate manner and has not considered the material on record as such the impugned order is liable to be set aside.
10. On the other hand, counsel for the respondent/complainant has argued to the contrary and submitted that well reasoned order has been passed after considering the material on record and there is no error in the impugned order.
11. We have heard the submissions made by the counsel of both the parties.
12. It is admitted position that the respondent/complainant had booked a flat with the appellant vide Advance Registration Form dated 17.03.2006. The relevant clause of aforesaid Form is clause (a), which is reproduced as under:

 

“a) That the offer of provisional allotment for residential flat(s) in Group Housing Project(s) in future Scheme(s) shall be made to me/us within six months of encashment of application money.”

 

 

13. It is also admitted position that Rs.4 lac was paid by the respondent/complainant to the appellant/OP while booking the flat. As per aforesaid clause, the provisional allotment of the residential flat in the Group Housing Project at TDI City, Kundli Sonipat was to be made within a period of six from encashment of application money.
14. Ld. Counsel for the appellant/OP has relied upon letter dated 30.10.2006 to contend that the offer of provisional allotment was made to the respondent/complainant. In the replication to the written statement of appellant/OP, the respondent/complainant has specifically denied having received any such letter. There is also an affidavit of the respondent/complainant to this effect.
15. We have repeatedly asked the Ld. counsel for the appellant/OP to show any proof or the mode by which the said letter was allegedly sent to the respondent/complainant. Nothing has been placed on record to show in what manner the aforesaid letter was sent to the respondent/complainant. In these circumstances, it can’t be said that the aforesaid letter was sent to the respondent/complainant. Accordingly, the aforesaid letter can’t be taken into consideration.
16. Further, counsel for the appellant/OP has relied upon another letter dated 09.03.2007. It is contended that the aforesaid letter can be said to be a provisional allotment letter in favour of respondent/complainant. Ld. counsel for the respondent/complainant has admitted having received this letter. However, it is stand of the respondent/complainant that aforesaid letter is not an allotment letter and is only a demand letter raising demand of Rs.3 lacs. It is contended that without provisional allotment no further demand could have been made by the appellant/OP.
17. We have perused the letter dated 09.03.2007, there is no mention of any flat number in the said letter. By reading the said letter it cannot be said to be a provisional allotment. The contention raised by the appellant/OP has no force. The aforesaid letter cannot in any manner be said to be an offer of provisional allotment. It is only a demand letter.
18. Since the appellant/OP did not comply with the terms and conditions of the Advance Registration Form dated 17.03.2006 as it never made any offer of allotment within the stipulated period or even thereafter to the respondent/complainant, the appellant/OP was not justified in raising the further demand, and thereafter cancellation of booking of flat. It was obligatory on the part of the appellant/OP to have made provisional allotment within the period stipulated in the Advance Registration Form.  The action of the appellant/OP amounts to unfair trade practice and deficiency in service on the part of the appellant/OP. We do not find any reason to interfere with the impugned order.
19. The appeal stands dismissed.
20. Copy of this order be given to the parties and be also sent to the District Forum(New Delhi) for information.

           File be consigned to Record Room.

 

 

 

(Justice Veena Birbal)

•  

 

(Salma Noor)

Member