State Consumer Disputes Redressal Commission
K.K.Chaturvedi vs Indore Treasure Town Ltd. on 27 December, 2022
Daily Order M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BHOPAL PLOT NO.76, ARERA HILLS, BHOPAL CONSUMER COMPLAINT NO. 08 OF 2015 FILED ON 25.02.2015 DECIDED ON 27.12.2022 1. K. K. CHATURVEDI, 2. MRS. SANDHYA CHATURVEDI, BOTH R/O FLAT NO.204, CARNATION, SHALIMAR TOWNSHIP, A.B.ROAD, INDORE (M.P.) ... COMPLAINANTS. VERSUS 1. INDORE TREASURE TOWN PVT.LTD. 6TH FLOOR, TREASURE ISLAND, 11, TUKOGANJ, MAIN ROAD, INDORE (M.P.)-452 001 2. PUNE ENTERTAINMENT WORLD DEVELOPERS PVT.LTD. 6TH FLOOR, TREASURE ISLAND, 11, TUKOGANJ, MAIN ROAD, INDORE (M.P.)-452 001 3. ENTERTAINMENT WORLD DEVELOPERS BIJALPUR PVT.LTD. 6TH FLOOR, TREASURE ISLAND, 11, TUKOGANJ, MAIN ROAD, INDORE (M.P.)-452 001 4. GENERAL MANAGER, MARKETING, TREASURE TOWN, MR-3 ROAD, NEAR CHOITHRAM SQUARE, VILLAGE-BIJALPUR, A.B.ROAD, INDORE (M.P.)-452 017 5. MR.MANISH KALANI, 6TH FLOOR, TREASURE ISLAND, 11, TUKOGANJ, MAIN ROAD, INDORE (M.P.)-452 001 ... OPPOSITE PARTIES BEFORE : HON'BLE SHRI A. K. TIWARI : PRESIDING MEMBER HON'BLE SHRI D. K. SHRIVASTAVA : MEMBER -2- COUNSEL FOR PARTIES: Complainant no.1 is present in person on behalf of complainants. Ms. Sangeeta Moharir, learned counsel for the opposite parties. O R D E R
(Passed On 27.12.2022) The following order of the Commission was delivered by A. K. Tiwari, Presiding Member:
This complaint has been filed under Section 17 Read with Section 12 of the Consumer Protection Act, 1986 (for short 'Act').
2. Brief facts of the case as stated by the complainants are that the Opposite party no.1 is a company and opposite party no.2 & 3 are subsidiary companies of opposite party no.1. The opposite parties no.1, 2 & 3 owned 130-140 acres of land collectively at Village-Bijalpur A. B. Road, Indore and launched residential township in the name and style "Indore Treasure Town" and started marketing with huge publicity in newspapers and other means at the site through opposite party no.4. The opposite party no.5 is the main promoter who has many companies in different names with cross holdings and for development of Treasure Town, he has obtained license of Colonizer. It is alleged that before obtaining all essential permissions like Building permission, colonizer license, development permission, environment clearance, opposite parties launched the project for booking.
3. The complainant no.1 was working as General Manager (Legal) with Grasim Industries Limited till mid-November-2006, thereafter he joined -3- opposite party no.4 group whose MD is opposite party no.5, as Executive Vice President (Legal) from 16.11.2006. The opposite party no.5 formulated a policy dated 24.06.2009 (Annexure-A) for giving 10% discount to the staff members prior to public launch of the project. The complainants were looking for a big house and since no such big house was available with the opposite parties, it was decided to have two adjacent row house which can be used as a single big house and therefore the complainants booked two houses and paid booking amount of Rs.51,000/- each total Rs.1,02,000/- vide two cheques bearing number 015616 dated 30.07.2009 of Axis Bank Ltd. Indore and another cheque no. 149912 dated 30.07.2009 of HDFC Bank, Indore respectively. Particulars of which were given in the letter dated 30.07.2009 (Annexure-B) addressed to the opposite party no.4 wherein the plot area was mentioned as 2100sq.ft each and constructed area up to 2800sq.ft and their location 3rd and 4th from the club house.
4. It is stated that the opposite parties launched the said residential township project for public booking by way of advertisement in daily newspaper Dainik Bhaskar dated 01.08.2009 (Annexure-C) and other newspapers. The row house no.3 was having plot area 2100sq.ft and constructed area of 2836sq.ft on the ground and first floor with an option to construct 500sq.ft on the second floor which the opposite parties would -4- construct, if so desired, by the complainants @ Rs.1,000/- per sq.ft. The row house no.4 is having plot area 2100 sq.ft and constructed area 2008 sq.ft.
5. Thereafter the complainants entered into agreements dated 30.08.2009 (Annexure-F) for row house no.3 and (Annexure-G) for row house no.4 and vide cheque no.115265 of Axis Bank dated 13.12.2009 paid a sum of Rs.5,05,880/- for row house no.3 thus total Rs.5,56,880/- against total cost of Rs.55,68,770/- and for row house no.4 paid Rs.3,57,470/-/- by two cheques of HDFC bank one is no. 149920 dated 13.12.2009 for Rs.57,470/- and second is no. 115264 dated 13.12.2009 for Rs.3,00,000/- against total cost of Rs.40,84,870/-. It is further submitted that via e-mail dated 30.08.2010, the opposite parties informed regarding change of row house no.3 to row house no.5 of 2499 sq.ft. It is alleged that the opposite parties unilaterally extended the date of completion from 31.12.2010 to 30.06.2011 i.e. for six months which is an admitted position of backing out the agreements as to providing possession. It is alleged that not only after proposed and conveyed dated of possession i.e. 31.12.2010 but also after one year thereof, the opposite parties unable to finalize the construction and used money of the complainants. The opposite parties vide their letters dated 25.03.2013 in respect of row house no.4 and 3 (converted to 5) informed the complainants that as per the agreements dated 30.08.2009, the whole money was to be paid by 31.12.2010 and the same was not paid, -5- the amount paid by the complainants in respect of row houses i.e. Rs.9,65,350/- (Rs.1,02,000/- paid on 30.07.2009 and Rs.8,63,350/- paid on 13.12.2009) will be forfeited by the opposite party no.1 and would be selling to others. The complainants submit that the conduct of the opposite parties is to grab the money, use it, not to construct or deliver the property, misguide, hold it for selling to the third party and unlawfully gain out of that is apparent from the above and by sending letter dated 25.03.2013 and forfeiting the amount paid by the complainants and offering the row houses to third party at higher rate depriving the rights of the complainants.
6. The complainants therefore filed the present complaint against the opposite parties seeking refund of Rs.9,65,350/- deposited by them towards row house no.4 and 3(converted to 5) with interest @ 24% p.a. from 01.08.2009 to 31.12.2009 on Rs.1,02,000/- and from 13.12.2009 31.01.2015 on a sum of Rs.9,65,350/-. The overall claim of the complainants as on 31.01.2015 is Rs.99,36,171/- with interest @ 24% p.a. w.e.f. 01.02.2015 along with costs. The complainants have filed their affidavits and Annexures A to PP.
7. The opposite parties have filed there reply wherein they have admitted certain facts and declined certain facts. Along with reply, preliminary objections were also raised that if the cumulative amount of compensation along with cost of houses are added, then the amount comes -6- to more than Rupees One Crore, which is beyond the pecuniary jurisdiction of this Commission. Thus the complaint deserves dismissal on this sole ground itself. The allegations relate to the rights and obligations of the party arising out of the agreed terms. Such matters can only be dealt with by the appropriate court and not by this Hon'ble Commission. The present complaint is not a complaint within the meaning of Section 2(c) of the Consumer Protection Act, 1986 as there is no allegation or averment of any deficiency in service hired or availed as also the complainants have made no allegation of unfair trade practice.
8. In reply to the complaint, it is submitted that subject to terms and conditions of the allotment letters, the opposite parties allotted town house no.4 and 5 to the complainants but the complainants failed to act as per terms and conditions of the allotment letters, therefore, the opposite parties cancelled allotment. The opposite party no.5 formulated a policy of giving 10% discount to the staff members is denied in whole. The complainant had booked two independent Town house and one apartment in the township and it cannot be said that these units were booked for residential purpose only. The staff discount offered is only for two bookings and not for the bulk booking as mentioned by the complainant. The complainants were having full knowledge and information of all town houses, their sizes, design, locations, floor plans and prices to be launched in the Treasure Town -7- Project. As the town house no.3 could not be constructed as per the area mentioned in allotment so company requested to the complainants to shift adjacent town house no.5 and for this shifting the complainants had given their consent. At the time of shifting the complainant no.1 had paid only Rs.5,56,880/- and not a very huge amount as stated by the complainants. The complainant had never offered sweat equity of Rs.50,00,000/- so issue of adjustment of these amount against town house no.4 and 5 does not arise.
9. In previous notices and letters addressed by the complainant to the opposite parties it was mentioned that he was offered a big house/bunglow or sweat equity of Rs.50 lacs but in the present complaint, complainant speaks only about sweat equity of Rs.50 lacs. It was the duty of the complainant no.1 to get revised agreement/supplementary agreement as per the new area and basic sale price. The dimensions/sizes/super area of the said town house are subject to variations with reasonable limits and may vary up to 10% of the size, therefore issue raised by the complainant regarding the variance of super built area is not acceptable as it is within the limit of 10%. These issues were raised by the complainant only for delaying the paying the payment of due instalment. The complainant is regular defaulter in making payment of due instalment as demanded by the company and has paid only booking amount of 10% till the cancellation of -8- these units by the opposite parties on the ground of non-payment. Penalty amount at the rate of Rs.5/- per sq.ft. is allowed at the time of possession and can be granted only to those customers who are regular in making payment of instalment and not to those customers who are defaulters. The complainant had only paid 10% amount so the complainant has no right to ask about the possession. The present complaint filed by the complainant is only for recovery of Rs.50 lacs which complainant is illegally demanding with the heading of sweat equity. It is matter of record that vide letter dated 06.05.2013, opposite parties cancelled booking of town house no.4 and 5 with forfeiture of earnest money on the ground of non-payment.
10. The chronology summarized by the complainants in paragraph no.21 is false and baseless. The complainants are not entitled to get the relief claimed by them in paragraph 22 of the complaint. As per clause 20 of the agreement, opposite parties shall be entitled to forfeit the earnest money in case of non-fulfilment/breach of the terms and conditions of the agreement, therefore, complainants are not entitled to get any amount. Complainants themselves are defaulters and on this ground, the opposite parties cancelled their allotment, therefore, the complainants are not entitled to get any amount as claimed. The complainants have filed false complaint against the opposite parties with intention to harass the opposite parties, therefore, this complaint deserves to be dismissed. The opposite parties -9- have filed affidavit of Shri Yogesh Goswami, Authorized Signatory of the opposite parties.
11. We have heard complainant no.1 and learned counsel for the opposite parties and perused the record.
12. Complainant no.1, who appears in person has reiterated the same facts as have been stated in the complaint that on different dates they had paid Rs.9,65,350/- including booking amount towards the houses in question. He argued that despite making payment there is no action on the part of the opposite parties to construct and deliver the possession of the constructed houses whereas as per agreement, they had to deliver the possession of the house on 31.12.2010 but the opposite parties unilaterally extended the date of completion from 31.12.2010 to 30.06.2011 i.e. for six months which is an admitted position of backing out the agreements as to providing possession. It is alleged that not only after proposed and conveyed dated of possession i.e. 31.12.2010 but also after one year thereof, the opposite parties unable to finalize the drawings and forget about the construction and used money of the complainants. He argued that it is an admitted fact that after expiry of date of possession, nothing was done nor any milestone achieved by the opposite parties. Complainants visited the site many time during the year 2012 and in the months of January and February-2013 to take stock of the situation but the basic development like -10- road, sewage, excavation and other preliminary work was going on at such a belated stage. He argued that at present, the value of the property increased by 300%, therefore, the complainants are entitled to get the present market value of the property. The opposite parties have committed gross deficiency in service and unfair trade practice. He therefore prayed that the complaint be allowed.
13. On the other hand, learned counsel for the opposite parties argued that the complainants have voluntarily accepted the offer and executed agreements dated 30.08.2009 wherein in clause 20 it has been specifically mentioned that in case of default in payment of instalments towards the houses under the scheme, the opposite parties are entitled to cancel the allotment and forfeit the amount paid. The complainants have filed the complaint only for recovery of Rs.50 lacs which complainants are illegally demanding under the head of sweat equity. Since the complainants were defaulter in not making the payment in time stipulated they are not entitled to any relief. No deficiency in service or unfair trade practice has been committed by the opposite parties and thus the complaint deserves to be dismissed with costs.
14. The questions which arose for our consideration in this complaint are:
-11-1) Whether there is deficiency in service on part of the opposite parties in not giving possession of the constructed houses in prescribed time despite part payment as alleged by the complainants?
2) If yes, then the relief.
15. After hearing learned counsel for the parties and ongoing through the complaint, documents, reply of opposite parties, affidavits, written arguments filed by the complainants and other evidentiary material on record we find that the objection of the opposite parties that this Commission lacks pecuniary jurisdiction does not merit consideration as it has already been decided by this Commission vide order dated 06.01.2016 at the time of admission of the complaint and the complaint was admitted.
16. From the record, we find that it is an admitted fact that against the total sale consideration i.e. cost of both houses, Rs.96,53,440/- the complainants on different dates had paid only Rs.9,65,350/- including booking amount. The complainants have filed agreements dated 30.08.2009 (Annexure F and G) wherein the cost of house no.3(now 5) was mentioned as Rs.55,68,770/- and cost of the house no.4 was mentioned as Rs.40,84,670/- thus totaling Rs.96,53,440/- out of which the complainants between 30.07.2009 to 13.12.2009 paid Rs.5,56,880/- towards house no.3 and Rs.4,08,470/- towards house no.4 Rs.4,08,470/- totaling Rs.9,65,350/-
-12-In clause 7 of the aforesaid agreements, it is mentioned that no further intimation/notice regarding payments will be sent by the companies and it will be the responsibility of the Allottee to adhere strictly to the schedule of payment as given in Annexure-A.
17. In clause 20 of the aforesaid agreements, it has been specifically mentioned that the payment on or before the due date of the amount payable by the Allottee as per the payment plan opted by the Allottee or as demanded by the companies from time to time is the essence of this agreement for sale. If any instalment as per the schedule is not paid by the due date the companies will charge interest @ 18% p.a. on the delayed payment for the period of delay. It is agreed between the parties that the companies shall adjust the amount received from the allottees first towards interest, if any, and the balance shall be appropriated towards the balance amount payable. However, if the total amount in arrears is to be received from the Allottee exceeds the total sum of installments with the preceding six months, then the allotment will stand cancelled without any prior intimation to the Allottee and the Allottee shall be left with no right in the Town house. In such an eventuality, the earnest money of 10% as mentioned in clause (8) above shall stand forfeited and the company reserves the right to forfeit other amounts received from the allottee including the entire amount received till date from the allottee.
-13-18. It is also pertinent to mention here that the complainants are also at default since they have to first deposit 10% of total cost at the time of agreement and thereafter in 8 instalments i.e. (first three instalments of 10%, fourth to six instalment of 15% and seventh instalment of 10% and eighth and last instalment of 5%) till 31.12.2010 which was extended by the opposite parties till 30.06.2011 starting from 30.08.2009. However, from 30.07.2009 to 13.12.2009 the complainants paid only 10% of the total consideration along with booking amount and failed to pay further instalments under the garb of sweat equity which is evident from the letter dated 06.04.2013 (Annexure FF) of the complainants to the opposite parties in which it is clearly stated that "At the time of joining the Group, Mr.Manish Kalani made a commitment that I should serve the organization and should not think of switching over to any other Group and he will give a big house/bunglow or sweat equity of Rs.50 lacs." Further in paragraph 5 it is mentioned that "Mr. Manish Kalani advised that I am not required to pay any amount till the Board Resolution is passed for giving effect to the credit of Rs.50 lacs towards the extraordinary contribution made by me." However, the complainant failed to establish this fact by any evidentiary material document that Mr. Manish Kalani assured him not to pay the further amount or he was not getting any salary from the opposite party company.
-14-19. Thus we find that the complainants are also at fault by not depositing the instalments on time. They paid only 10% amount of total consideration amount at the time of agreement including booking amount and failed to further eight instalments. By letters dated 25.03.2013 (Annexure DD & EE) the opposite parties along with revised payment schedule asked the complainants to deposit the amount as per schedule but they failed to do so. When the complainants failed to pay the instalments, the opposite parties vide letters dated 06.05.2013 (Annexure-GG & HH) cancelled their allotments and forfeited the 10% amount deposited by them as per terms and conditions of the agreement executed between the parties. From letter dated 03.06.2013 (Annexure LL) it is evident that this fact of forfeiture of amount was very well within the knowledge of the complainants. 20. So far as the opposite parties are concerned, that even after receiving marginal amount, the opposite parties failed to construct the houses in question within promised time period. However, since the complainants also failed to deposit the instalments despite repeated reminders, therefore, the opposite parties cancelled their allotment and forfeited the amount deposited by the complainants as per terms and conditions of the agreement executed between the parties.
-15-21. But at the same time as discussed above, the complainants are also at fault and they paid only 10% amount of the total consideration of two houses i.e. Rs.9,65,350/- (including booking amount) against the total cost of Rs.96,53,440/- meaning thereby that a nominal amount of only 10% and expecting the delivery of possession of the constructed houses.
22. However, since this Act is beneficiary for consumer, thus, in our considered view, in the interest of justice, the complainants are only entitled to get refund of the amount of 10% deposited by them with the opposite parties and since the opposite parties are also at fault hence, they are also not entitled to forfeit the amount by one-sided agreement.
23. In view of the discussion above, considering the facts and circumstances of the matter, the consumer complaint is partly allowed and the opposite parties are directed jointly and severally as follows:
1) To refund the amount of Rs.9,65,350/- deposited by the complainants with them within two months from the date of this order to the complainants.
2) To pay compensation in form of interest @ 6% p.a. on the amount deposited by the complainants from the date of filing of this complaint i.e. 25.02.2015 till payment.
3) To pay compensation Rs.5,000/- as costs of litigation to each of the complainants.
(A .K. Tiwari) (D. K. Shrivastava) Presiding Member Member