State Consumer Disputes Redressal Commission
Sanjay Narula vs Omaxe Chandigarh Extension Developers ... on 4 September, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.46 of 2014
Date of Institution: 04.03.2014.
Date of Decision: 04.09.2015.
Sanjay Narula S/o Sh. Dyal Dass Narula, House no.137 Basanti
Bagh, Sai Road, Baddi, District Nalagarh, Himachal Pardesh.
.....Complainant.
Versus
M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. SCO
no.143-144, Sector 8-C Chandigarh.
....Opposite party
Consumer complaint under Section
17(1)(a) of Consumer Protection Act, 1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri H.S. Guram, Member Present:-
For the complainant : Sh. N.S. Jagdeva, Advocate
For the opposite party : Sh. Munish Gupta, Advocate
................................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Complainant Sanjay Narula has filed the complaint under Section 17(1) (a) of Consumer Protection Act 1986 (in short "the Act") against opposite party (in short 'OP') on the averments that in the month of January 2010, the OP advertised about new city coming up at Mullanpur near Chandigarh extension by it in various daily news papers and consequently complainant applied to OP, through its agent for booking of a plot measuring 200 square yards. Consumer Complaint No.46 of 2014 2 The OP agreed to sell the plot @ Rs.13,300/- per square yard. The complainant prepared the demand draft no.254692 dated 25.01.2010 for Rs.2,66,000/- (10% of total price) drawn on HDFC Bank Baddi, as the total sale price of the said plot was Rs.26,60,000/-. The basic terms and conditions of allotment of plot were supplied by the OP to the complainant. As per clause 24, the terms and conditions shall form part of the buyer's agreement/allotment letter. The complainant opted for interest free installment plan A. As per plan A, the allottee had to deposit 10% of the Basic Sale Price at the time of booking and then 15% of basic price within 30 days, 10% of BSP in next two months, 10% of BSP in next three months and so on. The OP issued printed receipt on 19.03.2010 bearing date 25.01.2010 to the complainant against receipt of Rs.2,66,000/-. The OP had not allotted any plot to the complainant till June 2010 and complainant was intimated on 25.06.2010 through telephone that draw would take place for 200 square yard plots. The complainant was asked to deposit the amount to complete 25% of the earnest money enabling him to participate in the draw of 200 square yard plots. It was a great shock to complainant because he was not prepared for the deposit of huge amount before the actual allotment, as he had to arrange money forthwith on interest from the market and then he deposited the same with the OP. The complainant was neither apprised about any draw of plots initially, nor there existed any condition in the basic Consumer Complaint No.46 of 2014 3 terms and conditions of it. It was merely the source of collection of money by the OP. On 29.06.2010, the complainant deposited a sum of Rs.4,46,550/- through direct transfer with the OP and a proper receipt was issued against it by OP. After deposit of huge amount to complete 25% of earnest money with the OP, it provisionally allotted plot no.668, measuring 205.81 square yards to complainant, vide letter dated 30.06.2010 and complainant deposited additional amount of Rs.20,581/- with the OP, as the said plot was of measuring 205.81 square yards. After great persuasions and number of visits and phone calls, the OP finally on 28.10.2010 signed the buyer's agreement. Technically, the official allotment was made by OP on 28.10.2010 to the complainant. The OP retained a huge amount of the complainant and used it in their projects from January 2010 to September 2010 and allotment was made by the OP on 28.10.2010. After confirmation of the deal, the buyer's agreement was signed by both the parties on 28.10.2010 by accepting its terms and conditions. On 02.11.2010, the complainant applied to State Bank of India RAPC Branch Sector 17 Chandigarh for sanction of loan for this purpose and all the necessary documents were completed by the complainant on 12.11.2010 and Bank took time in processing the loan case. Thereafter, the bank official visited the residence and factory of complainant at Baddi and shifted the loan of complainant to State Bank of India Baddi Branch, Baddi. On 15.12.2010, the Bank issued him the loan sanction letter for Consumer Complaint No.46 of 2014 4 Rs.19,50,000/-. After receiving the said loan sanction letter, the complainant approached OP and intimated it that Bank sanctioned the loan to him and requested to supply requisite documents including tripartite agreement to be signed by the complainant, bank and OP, so that the Bank could release this loan money to him. On 15.12.2010, the staff of OP told the complainant that Manager was not available and he was asked to come on the next day. The complainant again visited the office of OP, but he came back for want of necessary papers of allotment. The complainant again visited the office of OP, but OP failed to supply the duly signed tripartite agreement, which was required for getting the payment from the Bank. The State Bank of India was the banker in this case and it was duly nominated by the OP as a banker for the loan cases and no other bank was allowed to finance it. The OPs had an agreement with the Bank to finance the loan cases of the purchaser of the plots. The Bank and OP were in connivance with each. The OP had not adhered to the request of the complainant to provide tripartite agreement and hence OP sought the clarification from complainant regarding the delay in payment of due amount. The complainant submitted email dated 26.12.2010 to Ritesh Aggarwal Manager Commercial of OP and explained the delay date wise, which was self explanatory that he applied for loan and bank authorities took time in processing the loan and then said bank shifted the loan application to Baddi Branch of its Bank. Any lapse on Consumer Complaint No.46 of 2014 5 the part of complainant was denied in above said email. The complainant never received any intimation for the next two months or requisite documents including duly signed tripartite agreement from OP, which were essential for the disbursement of loan. The OP never intimated the complainant regarding any deficiency in the documents/loan papers of the complainant. On 03.03.2011, the complainant received letter from OP informing that his allotment of plot has been cancelled due to his failure to adhere to the terms and conditions of the allotment. It was recorded in the said letter that the OP sent many letters/reminders on 17.06.2010, 24.07.2010 and final reminder was sent on 08.12.2010 to pay the due amount. It was set out in the said letter that complainant has lost all rights and interest in the plot from 03.03.2011. It was further mentioned in the said letter that amount of Rs.2,65,515.48 paise deposited by the complainant was forfeited by the OP on account of administrative charges towards allotment, as per terms of allotment. The complainant denied that he received any letters/reminders dated 17.06.2010, 24.07.201 and final reminder dated 08.12.2010, as mentioned in above letter dated 03.03.2011. The complainant approached OP on 16.12.2010 after sanction of loan on dated 15.12.2010, for supplying the requisite documents including duly signed tripartite agreement, then complainant was informed unofficially that rates of plots have been revised from Rs.13,300/- per square yard to Rs.18,000/- per square yard and Mr. Ritesh on behalf of OP told the complainant that Consumer Complaint No.46 of 2014 6 he could make the payment @ Rs.16,200/- per square yard. The complainant raised strong objection to it, as he booked the plot @ Rs.13,300/- per square yard only. The OP was insistent that new rates have been revised to Rs.20,000/- per square yard, hence it asked the complainant to deposit the difference thereof out of his own pocket and complainant expressed his inability for this. The complainant visited the office of OP for more than 2 months after sanctioning of loan on 15.12.2010, but OP failed to do the needful.
The act of OP in cancelling the plot no.668 is illegal, arbitrary, violative of principles of natural justice. The OP was well aware that complainant applied for loan from its banker and intimation was duly sent to the OP accordingly, but OP failed to provide the tripartite agreement duly signed by it, despite many visits. As per agreement, period for payment of due installments would start from 28.10.2010, when the agreement was signed by the OP and handed over to the complainant alongwith schedule of repayment of due amount. The OP retained the booking amount of Rs.2,66,000/- with effect from 25.01.2010 and used this money upto June 2010 i.e. for six months, when the draw took place on 30.06.2010 and agreement was signed by both the parties on 28.10.2010 and on 02.11.2010, the complainant applied for loan with bank and the bank took time in processing the loan and loan was sanctioned on 15.12.2010 by the bank. As per clause 20 of the agreement, the OP has the discretion to condone the delay of repayment of installments by charging 18% Consumer Complaint No.46 of 2014 7 interest in exceptional circumstances, whereas no sympathy was shown by the OP in this case. The complainant has alleged deficiency in service on the part of OP in this case to the complainant. The complainant had earlier filed consumer complaint no.150 on 04.04.2011 before the District Forum Mohali, which was allowed on 02.06.2011 and cancellation of plot no.668 vide letter dated 03.03.2011 by OP was set aside therein and OPs were found deficient in service and the amount of compensation of Rs.20,000/- and Rs.5000/- as costs of litigation were granted to the complainant. Aggrieved by said order, the OPs filed F.A. No.978 of 2011 before State Consumer Disputes Redressal Commission Punjab and this Commission held that the District Forum Mohali had no pecuniary jurisdiction beyond Rs.20 lakhs to try this case and accordingly in view of directions of this Commission, the instant complaint has been filed afresh against the OP by the complainant. Copy of order dated 08.10.2013 of this Commission was sent to complainant on 13.01.2014 and he received the same on 23.01.2014 and thereafter the complaint was filed without any further delay. The bank issued disbursement letter to the complainant on 30.06.2011 with check list of documents was required in order to make disbursement of the loan amount. The complainant approached OP on the same day to get the tripartite agreement etc. On 02.07.2010, the OP supplied tripartite agreement to the complainant and the permission to mortgage was given with remark under pressure. Thereafter, the Consumer Complaint No.46 of 2014 8 complainant visited bank, which in turn, told him to get a Non Encumbrance Certificate (NEC) from the OP. The complainant again visited OP for NEC. The OP flatly refused to issue the said certificate, by saying that the same was not in its possession. The complainant alleged that he has a continuous cause of action and he filed the complaint praying that cancellation of plot no.668 made by the OP vide letter dated 03.03.2011, measuring 205 square yards allotted to complainant be set aside and to direct the OP to complete the formalities and hand over the ready possession of plot no.668 to the complainant without any delay. The complainant further prayed for compensation of Rs.5 lakhs for mental harassment and mental agony and Rs.33,000/- as costs of litigation alongwith interest.
2. Upon notice, the OP filed its written reply and contested the complaint of the complainant. It was averred in preliminary objections that complaint is not maintainable and is without cause of action. The complainant defaulted in payment of installments as per payment opted and he is not entitled to any relief. It was further pleaded in preliminary objections that complainant is not a consumer, as defined under Section 2(1)(d). The complainant was alleged to be an investor and, thus, excluded from the definition of consumer under the Act. On merits, it was admitted that complainant booked a plot by paying a sum of Rs.2,66,000/-. Any deficiency in service on the part of OP was vehemently denied. It was further pleaded that the alleged amount stood forfeited by the OP, as per Consumer Complaint No.46 of 2014 9 terms and condition agreed between the parties. The OP showed its goodwill and gesture on the request of dealer namely Prime Properties and gave a discount of 3% in this case. It was denied that OP collected money and in fact, the complainant himself approached the answering OP by submitting application for allotment and provisional allotment on the basis of the submission of application was made, vide letter issued to the complainant dated 30.06.2010. On 30.06.2010, the complainant accepted the provisional allotment and undertook to abide by the terms of the application form and allotment and agreed to make due payments in time as and when demanded as per the agreed terms. It was alleged that receipt dated 25.01.2010, if got issued on 19.03.2010 by the OP will automatically show the printed dated as 19.03.2010 and not that of 25.01.2010. It was denied that OP issued due installment letter by wrongly mentioning due date of amount. The said letter was issued as per agreed terms and as per payment plan opted by the complainant, which clearly showed that complainant was supposed to pay 85% of the basic sale price + 100% PLC (if any) + additional costs within 45 days of booking/allotment. It was further averred that complainant concealed the factum of provisional allotment made, vide letter dated 30.06.2010 and his acceptance of the even date. OP denied any negligence on its part. The signing of allotment letter on 28.10.2010 was mere confirmation and, infact, the allotment was made, as stated above on 30.06.2010. It was further pleaded by OP that Consumer Complaint No.46 of 2014 10 complainant never paid heed to the repeated requests for payment of due amount and, thus, left with no option and finally notices were issued to the complainant for payment of due amount and eventually on failure to do so, the allotment was cancelled, vide letter dated 03.03.2011. It was further averred by the OP that it time and again made requests to pay the due installments and various opportunities were given to complainant to deposit the due installments. It was further maintained that reminders dated 17.06.2010, 24.07.2010 and final reminder dated 08.12.2010 were sent to the complainant to deposit due amount and eventually left with no option, the OP cancelled allotment of the said plot. The OP denied the allegations of the complainant regarding cancellation of plot wrongly. The OP further pleaded that complainant was well aware of his duty to pay the balance amount within stipulated period of the booking/allotment. Even if time of 45 days is to be counted from 09.09.2010, then the complainant failed to make the payment within the stipulated time and therefore the OP cannot be said to be at fault. It was further stated in the written reply by OP that clause no.20 of the agreement is matter of record. The OP denied the allegations of the complainant shifting the blame upon the OP in the cancellation of said plot. The OP further pleaded that complainant had not adhered to the payment and complainant committed default therein, despite repeated reminders, which eventually led to the forfeiture of the deposited amount and cancellation of the plot. The answering OP controverted Consumer Complaint No.46 of 2014 11 the other averments of the complainant. The OP prayed for the dismissal of the complaint.
3. The complainant tendered in evidence his affidavit Ex.C-1/A alongwith documents Ex.C-1 to Ex.C-16, except Ex.C-11 (as there is no document exhibited as Ex.C-11) and closed the evidence. As against it, OP tendered in evidence affidavit of Harsh Bhargav Authorised representative Ex.OP-1/A alongwith documents Ex.OP-1 to OP-6 and closed the evidence.
4. We have heard the learned counsel for the parties and have also examined the record of the case. The complaint has been filed with delay and the delay in filing the complaint has been condoned by this Commission, vide order dated 14.03.2014 and complaint was accordingly admitted. The evidence led on record by the parties is required to be examined by us in this case. Ex.C-1 are the Basic terms and conditions in this case. As per clause 24 of Ex.C-1, they shall form part of the Buyer's Agreement/Allotment letter which the applicant/allottee shall execute on confirmation of allotment. The basic terms and conditions as per clause 24 of Ex.C-1 would be read in conjunction with allotment letter/Buyer's Agreement. The complainant opted for plan-A (Interest free installment linked payment plan) of Payment Plan of the Plot vide Ex.C-2 on the record. The complainant was required to pay 10% of BSP at the time of booking, 15% of BSP less Rs.100/- per square Consumer Complaint No.46 of 2014 12 yards TPD at the time of allotment (within 30 days), 10% of BSP + 50% of PLC (if any) + 50% of additional cost within next 2 months, 10% of BSP within next 2 months, 10% of BSP + less Rs.100/- per square yards TPD within next 3 months, 10% of BSP within next 3 months, 10% of BSP within next 2 months, 10% of BSP + 50% of PLC (if any) less Rs.100/- per sq. years TPD within next 2 months and 5% of BSP + Stamp duty + Registration Charges + other charges (if any) less Rs.300/- per sq. yards, if applicable, as a timely payment incentive on offer of possession Ex.C-2 on the record. The complainant paid the amount of Rs.2,66,000/- to OP vide receipt dated 25.01.2010, print date 19.03.2010, vide Ex.C-3. The complainant paid the another amount of Rs.4,46,550/- to OP vide receipt dated 29.06.2010, print date 29.09.2010, vide Ex.C-4. Ex.C-5 is the copy of letter of provisional allotment of plot no.668 by OP to complainant. Ex.C-6 is copy of receipt for payment of Rs.20,581/- dated 24.07.2010, print date 23.07.2010 by complainant to OP. Ex.C-7 is copy of allotment letter dated 28.10.2010 of plot no.668 measuring area 205.81 square yards in the name of Sanjay Narula complainant issued by OP to complainant alongwith terms and conditions, which shall also take the shape of buyer's agreement. Ex.C-8 is the copy of letter dated 15.12.2010 from State Bank of India SSI Baddi (HP) to complainant regarding sanctioning of housing loan of Rs.19.50 lacs for purchasing of plot no.668, Omaxe Chandigarh Extension. It has proved that the housing loan of Consumer Complaint No.46 of 2014 13 Rs.19.50 lacs was sanctioned to complainant for purchasing of plot no.668 by the bank vide Ex.C-8. Ex.C-9 is the copy of letter from complainant to Manager-Commercial of OP regarding intimation of delayed payment due to non-sanction of loan and for releasing the requisite documents. Ex.C-10 is the letter by OP dated 03.03.2011 addressed to complainant to the effect that his deposited amount has been forfeited as cancellation of allotment of the plot no.668 and balance amount, if any, could be collected therefrom. The complainant filed the complaint before District Forum Mohali against the OPs on the above referred ground and the District Forum Mohali accepted the complaint by setting aside the cancellation of allotment of plot by directing the OPs to restore the plot to the complainant and complainant was directed to deposit the due amount within one month from the date of receipt of order with OP vide Ex.C-12. The order of District Forum was challenged before State Consumer Disputes Redressal Commission Punjab in first appeal no.978 of 2011. This appeal was decided on 08.10.2013 and State Commission Punjab set aside the order of District Forum on the ground that District Forum has no pecuniary jurisdiction to try the matter, because the value of the plot exceeded Rs.20 lakhs. The complainant resultantly filed the instant complaint before this Commission. The State Consumer Disputes Redressal Commission Punjab gave the opportunity to complainant to make a prayer for excluding the period spent by him in prosecuting the complaint, vide Consumer Complaint No.46 of 2014 14 Ex.C-13. Ex.C-14 is copy of letter dated 22.06.2011 from complainant to OP regarding demanding the requisite documents. Ex.C-15 is copy of email dated 02.07.2011 from complainant to OP. Ex.C-16 is the copy of document regarding mortgaging the property. The OP relied upon affidavit of Harsh Bhargav, Authorized Representative of OP Ex.OP-1/A. The gist of the affidavit is that the complainant failed to make the payment within stipulated period, which led to forfeiture of his earnest money, resulting into cancellation of plot in question. Ex.OP-1 is copy of application form of complainant regarding allotment of plot to OP. Ex.OP-2 is copy of its basic terms and conditions. Ex.OP-4 is copy of letter dated 30.07.2010 from OP to complainant regarding provisional allotment of plot no.668 measuring 205.81 square yards. Ex.OP-5 is copy of letter dated 30.07.2010 from complainant to OP regarding the fact that complainant has already paid Rs.7,12,550/- towards payment of 25% of BSP against provisional allotment of the plot no.668. Ex.OP-6 is copy of letter of intimation of due installments from OP to complainant of Rs.03,62,231/-.
5. From critical evaluation of above referred documents on the record, we find that the complainant is not intentionally at fault in making the payment of the installments to the OPs. The complainant showed his sincere intentions from the very beginning in applying for loan to the State Bank of India, which had shifted the loan case to Baddi Branch of State Bank of India (HP). The delay took place in Consumer Complaint No.46 of 2014 15 processing of the loan case of the complainant by the Bank. Had there been any malafide intention on the part of complainant, he would not have deposited initial amount with the OP. We find that the OP is taking undue benefit of clause 17 of allotment letter to the effect that the delay in sanction of loan would not be a ground to extend the time. Clause 20 thereof is also a part of allotment letter/buyer's agreement Ex.C-8. The clause 20 is incorporated later to clause 17 in it, and it cannot be ignored by us altogether. This clause gives discretion to the OP in exceptional circumstances to condone the delay in payment by charging penal interest @ 18% on the amount outstanding upto one month delay from the due date of outstanding and @ 24% per annum thereafter on all outstanding dues from their respective due dates. Had clause 17 been introduced subsequently to clause 20 of it, then in that case it would have been said that primacy has been given to clause 17 of allotment letter/buyer's agreement Ex.C-8. We cannot exclude from consideration clause 20 of allotment letter/buyer's agreement Ex.C-8 on the record. This is a case of extreme hardship undergone by the complainant, as it evident from the documents on the record. The loan case of the complainant was sanctioned by the bank ultimately on 15.12.2010, vide Ex.C-8 on the record. The complainant duly intimated to the OP regarding the delayed payment by explaining the reason for delayed payment, vide Ex.C-9. Once the State Bank of India Branch Baddi sanctioned the loan and tripartite agreement was Consumer Complaint No.46 of 2014 16 handed over to complainant to be executed by OP, but the OP had avoided their responsibility to sign the tripartite agreement on the ground of delayed payment by taking resort to clause 17 of buyer's agreement Ex.C-7. We find that the complainant cannot be penalized for no fault on his part. The complainant won the case from District Forum, but the judgment was set aside on technical ground of pecuniary jurisdiction of District Forum Mohali by State Commission Punjab. After sending the intimation of delayed payment by complainant to OP vide Ex.C-9, the OP preferred to cancel the plot vide letter dated 03.03.2011 Ex.C-10 on the record in this case. There is no explanation by OP as to why the OP has not exercised the discretion in condoning the delay as per clause 20 of the buyer's agreement, when this is a genuine case of the complainant. Housing is a service as defined under the Act, a builder is also under solemn obligation to remove genuine defects of the buyers and should not proceed to cancel the booking of the plot, when there is no fault on the part of buyer. A common man collects money with great efforts in his entire life and then dreams to build some house for his family and if such tragedy happened to him, then he is left nowhere. We are, thus, of considered view after evaluation of above referred evidence on the record and hearing the submissions of counsel for the parties that the cancellation of plot no.668 by OP, vide impugned letter dated 03.03.2011 Ex.C-10 deserved to be set aside in this case. We accept the complaint of the Consumer Complaint No.46 of 2014 17 complainant by directing OP to restore the allotment of plot no.668 to complainant and complainant is further directed to make the payment of balance sale price, as due, from the date of this order with interest calculated thereon as per clause 20 of Ex.C-7. The complainant shall deposit the due amount with OP within 45 days from the date of receipt of certified copy of the order. We also award the compensation of Rs.25,000/- to the complainant for mental harassment and Rs.10,000/- as costs of litigation. The complaint is, thus, accepted and stands disposed of accordingly.
6. Arguments in this complaint were heard on 02.09.2015 and the order was reserved. Now the order be communicated to the parties.
7. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S. GURAM) MEMBER September 04, 2015.
(MM)