State Consumer Disputes Redressal Commission
Sunil Kumar Aneja vs Taneja Developers And Infrastructure ... on 26 September, 2019
IN THE STATE COMMISSION: DELHI (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Hearing:26.09.2019 Date of decision:01.10.2019 Complaint No.1505/2018 IN THE MATTER OF Mr. Sunil Kumar Aneja R/o B-41/F-1, Dilshad Garden, Delhi-110095 ....Complainant VERSUS Taneja Developers & Infrastructure Panipat Ltd. Regd. Office: 9, Kasturba Gandhi Marg, New Delhi-110001 ....Opposite Party HON'BLE SH. ANIL SRIVASTAVA, MEMBER 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Present: Sh. T.A. Fransis, Counsel for the complainant Ms. Vidhi Aggarwal, Counsel for the OP alongwith AR of the company, Sh. A Vijayan ANIL SRIVASTAVA, MEMBER Page 1 of 5 JUDGEMENT
1. This complaint has been filed by one Sh. Sunil Kumar Aneja, resident of Delhi, before this Commission, for short complainant, under Section 17 of the Consumer Protection Act 1986, the Act, against Taneja Developers and Infrastructure Panipat Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of OPs, the possession of plot booked by him having not been handed over, despite the payment as required and as agreed to having been made and praying for the relief as under:-
a. Handover possession of the plot on the complainant paying the balance amount after deletion of the demanded interest levied on EDC to the tune of Rs. 1,72,827/- and deletion of the demanded amount of Rs. 50,000/- on account of so called cancellation of the revocation. b. Direct the no alteration in the agreed sale price of Rs. 6250 to Rs. 9,000/- per sq. yds, be made. c. Rs. 25,000/- as litigation expenses alongwith such other directions as this Hon'ble Forum deems fit and appropriate in the facts and circumstances of the case.
OR In the alternative a. Refund of Rs. 8,12,500/- paid by the complainant to the OP alongwith interest @ 18% p.a. for the period of deposit of to handover possession of the developed plot.
b. Rs. 50,000/- on account of mental agony caused. c. Rs. 25,000/- as litigation expenses alongwith such other directions as this Hon'ble Forum deems fit and appropriate in the facts and circumstances of the case.
2. Facts of the case necessary for the adjudication of the complaint are these.
3. The complainant had booked a residential plot of 250 sq. yds bearing no. E-235 in the OP township project "TDI CITY' Panipat, Haryana for which at the time of allotment, the complainant paid an amount of Rs. 5,00,000/- besides the booking amount of Rs. 3,12,500/- to Page 2 of 5 the OP. The OP had promised to hand over the possession of the developed plot within 2 years i.e. July 2010.
4. The complainant has thereafter paid a total amount of Rs. 8,12,500/- to the OP in the following manner:-
S.No. Cheque Dated Amount Drawn
no. on
1 292661 14.02.20 3,12,500/- HDFC
06 Bank,
Vivek
Vihar,
Delhi
2 333485 15.07.20 5,00,000/- ICICI
08 Bank,
Preet
Vihar,
Delhi
5. The complainant on receipt of the demand for total payment of Rs. 5,10,680/- dated 19.12.2009 from the OP sought the clarification of the amounts in respect of the External Development Charges(EDC) as also the interest component on the said EDC. No clarification was furnished, and on the contrary another inflated demand notice dated 13.11.2010 was sent to the complainant with the EDC plus interest.
6. All the efforts made by the complainant to get the clarification on the subject of EDC having failed despite a legal notice having been issued, this complaint has been filed for redressal of his grievances. OPs were noticed and in response thereto they have filed reply resisting the complaint both on technical ground as also on merit. Their technical objection is that the complainant being investor is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act 1986 which means he is not entitled to raise a consumer dispute. However no evidence has been led to substantiate this argument. On merit the averment of the OP resisting the complaint is that they have made the payment to the concerned authority towards EDC and thus entitled to raise their demand in this behalf from the complainant. Moreover the complainant agreed to make the payment in this behalf once the OPs have made the payment to the concerned authority. The complainant is therefore estopped from raising this point as their demand is in terms of the agreement.
Page 3 of 57. Both parties have filed evidence by way of affidavit in support of their pleadings. Written arguments are also on record.
8. Short question for adjudication in this complaint is whether the complainant is entitled for the possession of the plot without making payment as demanded by the OPs or in the alternate whether the OPs not having clarified the point raised, are under an obligation to refund the amount as sought for.
9. This matter was listed before this Commission for final hearing on 26.09.2019 when the counsel from both sides appeared and advanced their arguments, the complainant for the possession of the plot as booked without subjecting him to pay additional demand as raised by the OP or, in the alternate, for the refund of the amount with interest and the OPs for the dismissal of the complaint as no deficiency as alleged is established on their part.
10. The ld. Counsel for the complainant argued that the EDC per sq. yd. was payable on pro rata basis as and when the said amount is paid to the concerned authorities. It has been further submitted that the complainant had taken up the matter with the OPs for the deletion of the EDC interest or else the complainant would press for the refund with 18% interest. On the other hand it was argued that the payment towards EDC has already been made to the concerned authorities and that having been done the complainant was under an obligation to pay the requisite amount and that not having been done the complainant is a defaulter. As regards refund of the amount the ld. Counsel for the OP states that only the principal amount is refundable in the facts and circumstances and not the interest as claimed as the complainant cannot take the advantage of his own wrong.
11. The Hon'ble NCDRC in the matter of Randhir Singh vs. Omaxe Chandigarh Extension Developers (P) Ltd. in FA-06/2004 decided on 27.11.2014 as reported in MANU/CF/0773/2014 is pleased to observe that when the appellant themselves were the defaulters, as is the case here inasmuch payment towards EDCs though payable was not paid despite reminders, they are not entitled for any interest, in the event refund is sought for.
12. The ld. Counsel for the complainant on the other hand relying on the judgment of the Hon'ble NCDRC in CC-232/2014 in the matter of Puneet Malhotra vs. Parasvnath Developers Ltd. and in CC-210/2016 in the matter of Sh. Hari Gokhale and anr vs. Marvel Omega Builders Pvt. Ltd., has pressed for the refund of the amount with interest. But the Page 4 of 5 authority in these cases would not be applicable in the given cases since the complainant is also at fault inasmuch payment legitimately to be done remained unpaid.
13. In the facts and circumstances of the cases when the complainant is at fault the ends of justice would be met if a direction is issued to the OPs to refund the principal amount with no interest. Infact the ld. Counsel for the OPs while arguing on the question of refund has made a statement that they would refund the principal amount, if ordered but with no interest.
14. Ordered accordingly. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required.
15. File be consigned to records.
(Anil Srivastava) Member sl Page 5 of 5