National Consumer Disputes Redressal
M/S. Shah & Chheda Reality Builders & ... vs Cidco Limited on 28 September, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 77 OF 2014 (Against the Order dated 02/12/2013 in Complaint No. 568/1999 of the State Commission Maharastra) 1. M/S. SHAH & CHHEDA REALITY BUILDERS & DEVELOPERS THROUGH ITS PARTNER, B-21, MAHAVIR MARKET, PLOT NO. 1, SECTOR-18, VASHI, NAVI MUMBAI ...........Appellant(s) Versus 1. CIDCO LIMITED THROUGH ITS MANAGING DIRECTR, CIDCO BHAWAN, GROUND FLOOR, CBD BELAPUR, NAVI MUMBAI-400614 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
For the Appellant : Mr. Atul Nanda, Sr. Advocate with
Mr. Amol Suryavanshi and Mr. Priyadarshi
Gopal, Advocates For the Respondent : : Mr. Ajit Bhasme, Advocate
Dated : 28 Sep 2015 ORDER
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This appeal has been filed by the appellant against the order dated 2.12.2013 passed by the learned Maharashtra State Consumer Disputes Redressal Commission, Mumbai (in short, 'the State Commission') in Consumer Complaint No. 99/568 - M/s. Shah & Cheeda Reality Builders & Developers Vs. CIDCO Ltd.by which, complaint was dismissed.
2. Brief facts of the case are that opposite party/respondent sought offers for sale of plot No.12 situated in Sector 6, Airoli Navi Mumbai. Accordingly, the Complainant tendered an offer and paid a sum of `10,00,000/- towards earnest money deposit. The plot was allotted to the Complainant/Appellant by an allotment letter dated 19th May, 1998. According to Complainant junk of debris was lying on the said plot. The plot was not developed as per the requirement. There was South North slope of more than 5 feet, the north end of the plot was 4 ft above road level, storm water drain was 2/3 feet above the plot level, sewage line was also above the plot level. Since the Complainant found that the Opponent CIDCO had failed and neglected to provide essential services, the Complainant informed the Opponent by letters dated 5 and 10th June, 1998 asking the Opponent to execute necessary work. Opponent, however, instead of executing the necessary work, by letter dated 12th May, 1999 informed the Complainant that it was necessary for the Complainant to inspect the plot before making any offer and ultimately forfeited the earnest money deposit. Alleging deficiency on the part of OP, complainant filed complaint before State Commission. OP resisted complaint and denied the allegations made. It was stated that it was necessary for the Complainant to inspect the site before making offer and having inspected the site, the Complainant should have no grievance. It was stated that necessary action had already been taken by CIDCO to level plot and had provided necessary services. It was stated that since the Complainant had not paid further sums as per the letter of allotment, earnest money deposit was forfeited and Complainant cannot claim refund of the earnest money deposit and prayed for dismissal of complaint. Learned State Commission after hearing both the parties dismissed complaint against which this appeal has been filed along with application for condonation of delay.
3. Heard learned Counsel for the parties and perused record.
4. As there is delay of only 3 days in filing appeal, delay stands condoned for the reasons mentioned in the application.
5. Learned Counsel for the appellant submitted that inspite of conditional offer, OP issued allotment letter without levelling plot and committed error in forfeiting amount and learned State Commission committed error in dismissing complaint; hence, appeal be allowed and impugned order be set aside and complaint be allowed. On the other hand, learned Counsel for the respondent submitted that as per open offer complainant was under an obligation to inspect status of plot before offer bid and has failed to make payment of amount as required, amount was rightly forfeited and order passed by learned State Commission is in accordance with law; hence, appeal be dismissed.
6. It is not disputed that OP invited offer for purchase of plot. It is also not disputed that complainant submitted offer along with clarification letter dated 23.3.1998. Letter dated 23.3.1998 runs as under:
"Dear Sir, With reference to above as per discussion with M.D. on 10th Februatry'97; we are participating in the above tender with a view to build Modern State-of-Art, new generation "Shopping Mall" with 21st Century outlook, the said Shopping Mall will include services to the motorist such as spares, fuel, accessories etc. along with 'Convenient Shopping' for Household, Gifts, Garments etc. The above clarification is required since:
The above activities are part "Mercantile Land Use' under clause 7 of GDCR for Navi Mumbai 1975. Under Clause 14 sub-clause 5 of GDCR, land uses specially mentioned in the agreement to lease is binding on the intending lease irrespective of any other Clauses.
As plot no. 12 in Sector-6 is not properly levelled, you are requested to level the plot before issuing allotment letter.
In view of the above you are requested to take suitable action.
Thanking you,"
Perusal of aforesaid conditional offer reveals that plot was not levelled and before issuing allotment letter plot was to be levelled. It further transpires that by letter dated 6.4.1998, complainant apprised about encroachment on plot by dumping building material by Railways and OP by letter dated 4.5.1998 apprised that material has been taken away by Railways. Again, by letter dated 4.5.1998, complainant apprised that plot be levelled by removing excess earth filling dumped on the plot before issuing allotment letter, but OP issued allotment letter dated 19.5.1998. Again by letter dated 22.5.1998 complainant apprised that still plot is not levelled and it does not have water line and sewerage line, but OP vide letter dated 22.5.1998 apprised that plot has been levelled. Again by letter dated 5.6.1998 levelling of plot was denied by complainant. Later on, complainant vide letter dated 4.2.1999 asked for refund of earnest money of Rs.10,00,000/- which was denied by OP on account of which, this complaint was filed.
7. Perusal of invitation to offer letter reveals that any conditional offer was liable to be summarily rejected. When complainant submitted offer letter along with conditional letter dated 23.3.1998, OP should have rejected conditional offer. If conditional offer was not rejected, OP was under an obligation to accept offer with conditions submitted by complainant failing which offer stands revoked as per Section 6 of the Contract Act which runs as under:
6. Revocation how made A proposal is revoked -
(1) by the communication of notice of revocation by the proposer to the other party;
(2) by the lapse of the time prescribed in such proposal for its acceptance, or, if no time is so prescribed, by the lapse of a reasonable time, without communication of the acceptance;
(3) by the failure of the acceptor to fulfill a condition precedent to acceptance; or (4) by the death or insanity of the proposer, if the fact of the death or insanity comes to the knowledge of the acceptor before acceptance.
OP had no right to accept offer without fulfilling condition precedent to the offer.
8. Hon'ble Apex Court in Appeal (Civil) 3451 of 2006 - Food Corporation of India & Anr. Vs. Ram Kesh Yadav & Anr. observed as under:
10. When an offer is conditional, the offeree has the choice of either accepting the conditional offer, or rejecting the conditional offer, or making a counter offer. But what the offeree cannot do, when an offer is conditional, is to accept a part of the offer which results in performance by the offeror and then reject the condition subject to which the offer is made.
In the light of aforesaid observation of Hon'ble Apex Court when offer was conditional, OP either should have rejected conditional offer as per invitation to offer document or should have accepted offer with condition precedent to accepting the offer meaning thereby, allotment letter could not have been issued before levelling the plot and payment was not due before levelling plot. As allotment letter was issued without levelling plot and on making request for refund of earnest money, OP committed deficiency in forfeiting earnest money instead of returning earnest money and learned State Commission committed error in dismissing complaint only on the basis of Clause 3 of the allotment letter which could not have come in force till plot was levelled.
9. In the light of aforesaid discussion, complainant was entitled to refund of earnest money deposited by him with open offer and learned State Commission committed error in dismissing complaint and appeal is to be allowed.
10. Consequently, appeal filed by the appellant is allowed and impugned order dated 2.12.2013 passed by the learned State Commission in Consumer Complaint No. 99/568 - M/s. Shah & Cheeda Reality Builders & Developers Vs. CIDCO Ltd. is set aside and complaint is allowed and respondent is directed to refund Rs.10,00,000/- with 12% p.a. interest from the date of deposit till refund. Parties to bear their own costs.
......................J K.S. CHAUDHARI PRESIDING MEMBER