State Consumer Disputes Redressal Commission
Tdi Infrstructure Ltd. vs Rakhee Sadh on 31 July, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 31.07.2013 Case No. FA-918/12 (Arising from the order dated 05.09.2012 passed in Complaint Case No. 1638/08 by the District Consumer Forum-VI, District New Delhi, M Block. 1st Floor, Vikas Bhawan, IP Estate, New Delhi.) TDI INFRASTRUCTURE LTD. - APPELLANT (FORMERLY INTIME PROMOTERS PVT LTD) Versus RAKHEE SADH - RESPONDENT CORAM : S.A. SIDDIQUI - MEMBER (JUDICIAL) S.C. JAIN - MEMBER 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? S.A. SIDDIQUI (ORAL) JUDGEMENT
1. The Appellant/OP has filed this appeal under Section 15 read with Section 17 of the Consumer Protection Act, 1986 (herein after called the Act) against judgment and order dated 5.9.2012 passed by Ld. District Consumer Disputes Redressal Forum-VI, District New Delhi, M Block. 1st Floor, Vikas Bhawan, IP Estate, New Delhi, in Complaint Case No. 1683/08- Rakhee Sadh Vs the Director, Intime Promoters Pvt. Ltd.
2. Relevant facts relating to this appeal are that complainant/respondent Smt. Rakhee Sadh booked/registered residential flat of approx. Super built area of 1000-1100 sq. ft. in one of the Group Housing Project(s) of the Future Scheme(s) in their forthcoming Township TDI City at Kundli, Distt.
Sonepat, Haryana of Appellant/OP. She deposited a sum of Rs. 3,00,000/- in favour of the OP/appellant vide cheque No. 567461 dated 24.2.2006, vide Receipt No. 37841 dated 24.2.06. On demand of OP/appellant, complainant/respondent deposited Rs. 2,50,000/- through cheque No. 567462 dated 17.11.06 vide receipt No.; 53104 dated 20.11.06. Complainant/respondent was provided a priority No. 630 but it was not indicative of the specific property with detailed description. Flat Buyers Agreement giving detailed description of the property/construction was not signed.
After sometime, appellant/OP again raised further demand of Rs. 1,83,000/- in Nov. 2008, which was not paid by the complainant/respondent. It was stated that priority number was given by the OP/appellant just to mislead the purchasers.
Under these circumstances, the complainant was compelled to file complaint for refund of Rs. 5,50,000/- along with interest collected by the OP/appellant.
3. The OP filed its reply in which payment of Rs. 5,50,000/- was not disputed but it was maintained that as per conditions of the application form, complainant was to make the payment of 50% of the total sale consideration, which complainant failed to deposit and therefore complaint was liable to be dismissed.
4. The parties led evidence in support of their cases.
5. Ld. DCDRF-VI on the basis of evidence placed on record came to the conclusion that OP indulged in unfair trade practice and directed the OP to return payment of Rs. 5,50,000/- with interest @ 9% p.a. A sum of Rs. 50,000/- was awarded as compensation for mental pain and agony along with Rs. 10,000/- as litigation expenses. The OP was further restrained from launching such collection drive/registration, against future projects at identified land, locations, without any pre-approved scheme from the Government concerned.
8. The OP, therefore, felt aggrieved and filed the present appeal alleged that impugned order dated 5.9.2012 passed by DCDRF VI was erroneous and in total disregard of the established principle of law. The respondent/complainant moved application with the appellant/OP (formerly known as Intime Promoters Pvt. Ltd.) for provisional allotment of residential flat in Group Housing Project(s) and paid a sum of Rs. 3,00,000/- on 24.2.06. Later on they also paid a sum of Rs. 2,50,000/- for securing priority at the time of allotment in forthcoming scheme.
Subsequently, complainant/respondent failed to make the payment of Rs. 1,83,000/-. Ld. District Forum failed to consider that respondent only paid Rs. 5,50,000/-, which was simply 33% of the total consideration. The complainant/respondent was required to pay 50% of the total sale consideration for allocation of a residential flat. Subsequent to such payments, the respondent/complainant would have been entitled to have a Flat Buyers Agreement executed in her favour. The complainant/respondent being fully aware of the terms and conditions of the scheme failed to deposit 50% of the sale consideration and as such was not entitled for allocation of a flat in the scheme and the complaint was not maintainable and liable to be dismissed.
There was neither any deficiency of service on the part of the appellant/OP nor they indulged in any sort of unfair trade practice. As against this complainant/respondent herself violated the terms and conditions of the scheme agreement and filed a complaint on malafide grounds to unnecessarily harass the OP/appellant. It was further maintained that the finding of the Ld. District Forum regarding adoption of unfair trade practice allegedly adopted by the appellant/OP was totally uncalled for besides being erroneous. Such an issue was neither pleaded by the complainant/respondent nor addressed during the course of arguments. The finding was in blatant violation of the principle of audi alteram partern. The complainant/respondent herself was guilty of violation of the terms and conditions and the impugned order suffers from perversity and complete non-application of mind. Ld. District Forum unnecessarily indulged into uncalled for grounds against the OP and granted relief to the complainant/respondent, which was neither pleaded nor prayed in the complaint.
9. The complainant/respondent filed reply stated therein that the finding of the Ld. District Forum was just and in accordance with the law. Its conclusion that the OP adopted unfair trade practice was based on the established facts and evidence filed on record. OP Builder with illegitimate motive of grabbing money from innocent people in the name of future project(s) collected large amount of money from the purchasers in the name of future prospective project(s) without having any approval/sanction from the concerned authorities. They enjoyed the public money with complete impugnity openly indulged into unfair trade practice. The impugned judgment and order dated 5.9.12 was fully justified and based on the facts and circumstances of the case. It was further maintained that alleged provisional allotment letter was silent about the essential ingredients of a allotment letter i.e. Unit No./Flat No., Specification, Tower No., expected date of delivery of possession etc. Appellant/OP has failed to comply with the terms of application/registration form i.e. to issue provisional allotment within six months i.e. before 24/8/2006.
Therefore, there was no justification for further payment of Rs. 1,83,000/-. The present appeal, therefore, does not have any merit and is liable to be dismissed with exemplary cost.
10. We have heard Ms. Kanika Agnihotri, Counsel for the Appellant and Sh. M.K. Shah, Counsel for the Respondent and perused the material on record.
11. It was argued on behalf of the appellant/OP that the appellant at no stage was guilty of deficiency of service under terms and conditions of the application/registration form submitted on 24.2.06. 50% of the total amount of sale consideration was to be paid by the complainant/respondent.
It was the condition precedent for the allocation of the flat. Since only 33% of the total amount of sale consideration was deposited by the complainant/respondent, her application/registration was liable to be cancelled. This complaint was based on misrepresentation and concealment of the facts.
12. It was further argued that Ld. District forum erroneously and without any legal justification held that OP/appellant was guilty of adopting unfair trade practice. There was no such pleading or any such relief was prayed by the complainant/respondent yet Ld. District Forum made adverse comments which were totally uncalled for and granted a relief which was never prayed besides higher amount of compensation and interest were awarded. She relied upon the following three judgments in support of her arguments:
(i) Manohar Lal Vs Ugrasen Civil Appeal No. 973 of 2007 decided on 3.6.2010 (SC)
(ii) Bangalore Development Authority Vs. Syndicate Bank Civil Appeal No. 5462 of 2002, decided on 17.5.07 (SC)
(iii) M/s Sikkim Subba Associates Vs. State of Sikkim AIR2001SC2062 (SC)
13. On the other hand Ld. Counsel for the respondent/complainant argued that on the date of application i.e. 24.2.06, payment of 50% of the amount of total consideration was not condition precedent for allocation/allotment of flat. Second instalment of Rs. 2,50,000/-
was tactfully extorted from the complainant/respondent with a malafide intention and by misleading to give priority at the time of allotment. As a matter of fact, no Flat Buyer Agreement giving details and specification was ever provided. The complainant was kept in dark. No tentative date of construction or its completion or due date of giving possession etc. was ever given. After depositing a sum of Rs. 5,50,000/-, which was 33% of the total sale consideration, the applicant patiently waited for about 30 months and decided to file a complaint when no shred of any construction activity was noticed no there was any identified location nor so called future scheme was approved by the concerned authorities/Government of Haryana. Therefore, it was a clear cut case of adoption of unfair trade practice on the part of the builder/OP. It was further argued that as per terms and condition under Para (a) & (c) of application form, allotment was to be made within six months of the encashment of application money and in the event, offer of provisional allotment of residential flat in group housing project was to be made after six months, a simple interest @ 12% p.a. shall be paid for the period beyond six months on amount paid. Ld. Counsel for the respondent argued that modest rate of interest (9%) was awarded whereas the complainant/respondent was entitled for 12% interest.
14. It is not disputed that the complainant/respondent deposited a sum of Rs. 5,50,000/- for Future Scheme on verbal basis, no agreement was actually executed. The booking/registration was invited from the interested persons in the name of Future Scheme/Project. The location was unidentified. The scheme was never sanctioned or approved by the Government and therefore, collection of huge amount in the name of Future Project(s) was nothing short of adopting an unfair trade practice. Ld. District Forum rightly observed that a faade of building contract was created shrewdly with an idea to collect handsome amount of public money in the name of forfeiture of 50% of deposit money in the name of the policy of the Company for cancellation of booking/registration although no agreement or contract existed between the parties. In this case, a sum of Rs. 5,50,000/- was collected, no specific allotment was given within six months. There was no question of cancellation when allotment has not been made. The term of provisional allotment was also misleading as provisional allotment can only be made after any tangible thing/construction existed on the spot.
No provisional allotment can be made when the construction itself has not started nor any scheme was approved by the concerned authorities. We, therefore, come to the conclusion that it was a clear cut case where the builder had indulged in unfair trade practice shrewdly collecting money from the intending purchaser in the name of a future scheme without any sanction from the Government concerned.
15. We have gone through the ruling filed by the Ld. Counsel for the appellant, which were in a different context. The courts/Tribunals have been given very wide powers in granting relief(s) in the interest of justice. They can even go beyond prayer made in case such a relief can logically be granted. The facts, circumstances and evidence on record suggest that the conclusion reached by the District Forum to the effect that OP adopting unlawful trade practice was fully justified. Therefore, we come to the conclusion that District Forum did not commit any illegality or irregularity while passing the impugned order. Moreover in the complaint (copy of which is available on record) prayer has been made to grant any other relief which the court deemed fit, just and proper.
Such reliefs are usually claimed apart from main reliefs, therefore, the District Forum did not travel beyond its powers while holding that the OP was guilty of adopting unfair trade practice.
16. So far as grant of interest @ 9% p.a. and award of compensation of Rs. 50,000/- are concerned do not appear unjust or excessive. There was provision of grant of 12% interest in case provisional allotment was made after six months of encashment of application money. The provisional allotment was not made within six months.
The complainant had to suffer a lot.
She kept on waiting for about 30 months, thereafter filed present complaint. Under the facts and circumstances of the case, grant of 50,000/- towards compensation and interest @ 9% were not unjust or excessive.
Therefore, we do not find any merit in this appeal, which is liable to be dismissed.
17. Before concluding the discussion, it is pertinent to mention here that the complainant/respondent during the pendency of the appeal moved an application under Section 151 of the CPC with a prayer that the appellant/OP may be directed to allot and handover the possession of flat admeasuring 1100 sq. ft. (approx.) booked in the project of the appellant in terms of the respondents application dated 24.2.06. The construction is now believed to have been completed and ready for possession. The application was opposed by the appellants counsel. This appeal has been filed by the TDI Inf. Ltd having been aggrieved with the Impugned Order dated: 05.09.12 passed by Ld. District Forum, the complainant/respondent was never aggrieved with the impugned order and therefore, no such application is entertainable in an appeal filed on behalf of the Appellant/OP Builder. The application is, therefore, found to be incompetent and is rejected.
18. In view of the above discussion, the appeal has no force and is accordingly dismissed.
ORDER Accordingly, the appeal is dismissed. The cost is made easy.
19. A copy of this order as per the statutory requirement be forwarded to the parties free of charge, thereafter the file be consigned to Record Room.
20. The FDR, if any, deposited by the appellant at the time of filing of the appeal shall be refunded as per rule.
(S.A. SIDDIQUI) MEMBER (JUDICIAL) (S.C. JAIN) MEMBER rn