National Consumer Disputes Redressal
M/S. Tdi Infratech Ltd. vs Sundeep Singh Gulati on 8 July, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 582 OF 2019 (Against the Order dated 10/07/2018 in Complaint No. 87/2012 of the State Commission Delhi) 1. M/S. TDI INFRATECH LTD. 10, SHAHEED BHAGAT SINGH MARG, NEAR GOLE MARKET, NEW DELHI -1 ...........Appellant(s) Versus 1. SUNDEEP SINGH GULATI R/O. 86-C, DEEP ENCLAVE, ASHOK VIHAR -111 DELHI 52 2. SONIA NARANG R/O. 86-C, DEEP ENCLAVE, ASHOK VIHAR -111 DELHI 52 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER For the Appellant : Mr. Rudresh Jagdale, Advocate For the Respondent : Mr. Gaurav Chowdhary, Advocate a/w respondent in person Dated : 08 Jul 2019 ORDER HON'BLE MR. DINESH SINGH, MEMBER
1. We heard learned counsel for the appellant - builder co. and learned counsel for the respondents - complainants, and perused the material on record.
2. This is a buyer - builder co. dispute relating to refund of the amount deposited by the buyers - complainants on cancellation of the allotment by the builder co.
3. First deposit of Rs. 5,87,500/- by the buyers - complainants was made in 2006; total deposit of Rs. 19,49,625/- was made between 2006 to 2010; allotment of the subject plot was cancelled by the builder co. in 2012; the complainants went before the State Commission in 2012; we are now in 2019; no refund, with or without deduction/s, with or without interest, has been made to the complainants by the builder co. till date i.e. till 07.06.2019, the date of hearing on admission before this Commission.
4. This first appeal has been filed against the Order dated 10.07.2018 of the State Commission with self-admitted delay of 163 days.
5. To begin with, the application for condonation of delay in filing the first appeal was considered. In this regard we inter alia specifically peruse the impugned Order dated 10.07.2018 of the State Commission and the application for condonation of delay.
6. The State Commission vide its said Order dated 10.07.2018 had allowed the complaint with the following directions:
Cancellation of allotment without any show cause notice is unfair and arbitrary, more so when to complainant had already deposited Rs. 19,49,625/-. The same is opposed to principle of natural justice.
Any how since the OP has already cancelled the allotment in 2012, now we do not feet it just and proper to restore the said allotment. Refund of amount would meet the ends of justice.
To sum up the OP is directed to refund the amounts paid by the complainant alongwith interest @ 10% per annum from the date of respective payments till the date of refund.
(extracts from the State Commission's Order) (emphasis supplied by us)
7. The State Commission has but ordered the builder co. to refund the amounts deposited by the complainants (Rs.19,49,625/-) with interest (@ 10% p.a.) from the date/s of respective deposits till the date/s of refund. It is seen that the State Commission has not directed to restore the allotment of the subject plot, which the builder co. had cancelled. It is also seen that the said amount of Rs.19,49,625/- (about 56% of the total cost of Rs. 34,88,250/-) was deposited by the complainants with the builder co. between 2006 to 2010. The builder co. cancelled the allotment in 2012. No refund, with or without deduction/s, with or without interest, was made, simultaneous to or within reasonable period of the cancellation. The complaint was filed before the State Commission on 01.03.2012. The decision of the State Commission on the complaint case was pronounced on 10.07.2018. This first appeal was filed before this Commission on 29.03.2019. No refund, with or without deduction/s, with or without interest, has been made by the builder co. to the complainants till date (i.e. till 07.06.2019, the date of hearing on admission). And the first appeal before this Commission was filed only after execution proceedings were initiated before the State Commission.
8. The stated reasons for delay in filing the appeal, as mentioned in paras 3 (3.1 to 3.4) to 9 a) to c) of the application for condonation of delay, are as below:
3. The Appellant is constrained to file the present Application seeking condonation of delay in filing the accompanying Appeal for r easons beyond the control of the Appellant Company, which are reproduced herein under:
3.1 The order was dispatched on 10.09.2018, and the free copy being received by the Appellant Company on 12.09.2018. It has now come to the knowledge of the counsel filing the present Appeal that the said free copy of the order was received by the Mr. Punit, office boy working with the office filing the present Appeal on 15.09.2018.
3.2 However, after inquiries it has come to light that the said order was placed in the file titled as "Sandeep Gulati vs. TDI infrastructure" bearing CC No. 520 of 2013. A copy of the Complaint bearing CC no. 520 of 2013 and the last available order is annexed herewith and marked as ANNEXURE CA - 1. On account of this, the counsel filing the present Appeal was not aware of the impugned judgement being passed as the receipt of impugned judgment or the impugned judgment in CC No. 87 of 2012 was not brought to the attention of the counsel. It is in light of this that the instructions to file appeal could not be sought from the Appellant. An Affidavit explaining the events filed by Mr. Punit is annexed herewith and marked as ANNEXURE CA - 2.
3.3 It is relevant to note that the Appellant Company received copy of the notice on 12.03.2019 in Execution Proceeding. It is on account of the receipt of the said notice that the Appellant became aware of the Appeal in the matter not having been filed. A copy of the notice received in Execution Proceedings bearing EA No. 95 of 2018 is annexed herewith and marked as ANNEXURE CA - 3.
3.4 Thus upon inquiries from the Appellant Company the office of the counsel looked into the matter and discovered the error, albeit bonafide, made by Mr. Punit. Upon becoming aware of the error, an office of the Counsel took immediate steps towards filing the Appeal. The said Appeal came to be filed before this Hon'ble Commission on 29.03.2019.
4. That the aforementioned circumstances which were entirely out of control of the Appellant, led to a delay of 232 days in filing of the present Appeal from the date of impugned judgment i.e. 10.07.2017 and 163 days from the date of receipt of free copy i.e. from 12.10.2018.
5. However, in light of the aforementioned circumstances the Appellant humbly prays that the delay be computed from the date of acknowledge of the impugned judgment i. e. 12.03.2019 and hold the accompanying Appeal to be filed within limitation.
6. It is respectfully submitted, that the Appellant has set out its case explaining the delay in filing the matter and humbly submits that t here is sufficient cause for Condonation of delay which was caused for reasons beyond the control of the Appellant or its counsel. It is necessary to state that a litigant shall not be subjected to hardships on account of technicalities and as such failure to adjudicate upon the present dispute will lead to great travesty of justice.
7. The Appellant has a strong prima facie case in its favour and is likely to succeed as the order passed by Ld. State Commission is erroneous. It is humbly submitted that the Appellant / Applicant would suffer irreparable loss if the present application is not allowed.
8. It is respectfully submitted that it is in the interest of justice that the delay in filing the accompanying Appeal is condoned by this Hon'ble Commission.
9. The Appellant humbly submits that the balance of convenience is in favour of the Appellant and against the Respondent.
PRAYER In light of the facts and circumstances of the case and the submission made, it is most humbly prayed that this Hon'ble Commission may be graciously pleased to :-
a) Allow the present application and hold that the Appeal has been filed within limitation in light of the explanation provided in the present application;
Alternatively
b) condone a delay of 163 days from the date of receipt of free copy of the impugned order.
c) Pass such other / further orders as this Hon'ble Commission may deem fit in light of the case.
(extracts from the application for condonation of delay) (emphasis supplied by us)
9. The Act 1986 is to provide speedy and simple redressal to consumer disputes (Statement of Objects and Reasons). The normative ideal period for disposing of an appeal is 90 days (section 19 A of the Act). The period of limitation to file appeal is 30 days (section 19 of the Act). This appeal has been filed with (further) admitted delay of 163 days.
10. The stated reasons for delay, as reproduced, verbatim, in their entirety, in para 8 above, point towards managerial inefficiency and perfunctory and casual attitude to the law of limitation, they are illogical and absurd in explaining convincingly and cogently the delay in filing the appeal.
11. Sufficient cause to explain the delay is not visible.
12. However, in the interest of justice, to decide the first appeal on merit, on facts and law, we deem it appropriate to condone the delay subject to just and reasonable cost.
13. In the facts and specificities of the case, and inter alia in the light of the discussion made above, we find cost of Rs. 1,00,000/- to be just and reasonable.
14. The delay in filing the first appeal is, thus, condoned subject to cost of Rs. 1,00,000/- (rupees one lakh) to be paid by the builder co. to the complainants by way of 'payee's a/c only' bank draft within four weeks of the date of pronouncement of this Order.
15. We are hereinafter examining the case on merit.
16. The rival contentions have been brought forth by the State Commission in its Order of 10.07.2018:
The case of the complainants is that they booked plot in Township project of OP in TDI City at Kundli, Sonepat, Haryana. They paid Rs. 5,87,500/- against booking charges through cheque dated 07.03.2006 which was acknowledged by receipt dated 31.03.2006. OP made provisional allotment of plot no. E-117 measuring 250 sq. yards. OP sent a letter dated 14.04.2006 for payment of Rs. 2,93,750/- against preferential location charges in case complainant opt for the same. The complainants did not want any preferential location. So the said amount was not deposited.
Complainants paid Rs. 64,250/- in cash towards external development charges on 15.06.2006, Rs. 1 lakh through cheque and Rs. 2,57,750/- in cash towards instalments which were duly acknowledged by the Ops vide receipt no. 41230, 41231, 41229. They paid Rs. 2,95,000/- in cash on 28.06.2008 towards next instalment which was also acknowledged vide receipt no. 81082. On 01.09.2008 OP sent a wrong revised annexure for payment of balance amount of Rs.13,02,500/- including payment towards wide road (18 mts. and above) @ 10% i.e. Rs.2,93,750/-, PLC of Rs. 2,93,750/-, and EDC of Rs. 2,57,000/-. The complainants asked for deduction of charges towards wide road and preferential location charges. Wide road for which the OP was charging the amount was not 18 mts. and above but only 12 mts wide as told by the official of the OP.
Shockingly, the complainant received letter dated 06.01.2012 regarding cancellation of provisional allotment due to non payment of dues. Complainants produced the same made written protest. They sent legal notice dated 16.01.2012 for recalling cancellation letter dated 06.01.2012. The act of the OP is unlawful, illegal, arbitrary, opposed to public policy. Hence this complaint for directing the OP to recall its letter dated 06.01.2012 and restore the allotment. In the alternative the complainant had sought directions for allotment of another plot of the same size in the same block and project in same consideration. The complainant also prayed that OP may be directed to accept the outstanding amount and pay compensation of Rs.2 lakhs for mental and physical agony, Rs. 33,000/- for cost of litigation.
The OP filed WS raising preliminary objections that complainant had not annexed completed advanced registration form and allotment letter so that this Commission doesn't become aware of terms and conditions. The complainant approached this Commission almost two months after cancellation of allotment. On merits the OP admitted application for allotment and payment of Rs. 5,87,500/-. It filed copy of advance registration form as annexure - R-1. It pleaded that clause expressly specified that any default in making the payment within time stipulated, would automatic make the allotment liable for cancellation. Later the questioned letter of payment provided another opportunity to avail of other elements of preferential location charges except 18 mts. wide road already offered vide letter dated 05.04.2006. Receipt of the payments were also not denied. The complainant did not pay amount due 7 months after allotment. It denied that assurance was given to the complainant that charges would be removed. Reminder vide letter dated 20.07.2009 and 20.08.2009 was sent. He deposited Rs. 3,52,375/- but deliberately chose not to make the payment of Rs. 87,715/- towards interest. Thus he doesn't deserve any indulgence.
The complainant filed rejoinder and evidence by affidavit. OP also filed affidavit of Shri Paras Arora, AR in evidence.
(extracts from the State Commission's Order) (emphasis supplied by us)
17. The State Commission had heard both sides, appraised the evidence, and, vide its Order dated 10.07.2018, allowed the complaint as below:
Both the parties have filed the written arguments. We have gone through the material on record and heard arguments advance by counsel for complainant. However, oral arguments of counsel for the OP could not be heard as none appeared for the OP on 06.07.2018.
The booking by complainant and payments by him are not disputed. When the complainant did not avail the option of preferential location charges given vide letter dated 14.04.2006, there was no fun for the OP to reiterate the said demand vide letter dated 01.09.2008.
Cancellation of allotment without any show cause notice is unfair and arbitrary, more so when to complainant had already deposited Rs. 19,49,625/-. The same is opposed to principle of natural justice.
Any how since the OP has already cancelled the allotment in 2012, now we do not feet it just and proper to restore the said allotment. Refund of amount would meet the ends of justice.
To sum up the OP is directed to refund the amounts paid by the complainant alongwith interest @ 10% per annum from the date of respective payments till the date of refund.
(extracts from the State Commission's Order) (emphasis supplied by us)
18. We find the Order dated 10.07.2018 of the State Commission to be well-appraised and well-reasoned. We note the extract of the appraisal made by the State Commission, quoted in para 17 above, and in particular its emphasised (underlined) portions. We find no palpable mis-appreciation of evidence by the State Commission. No jurisdictional error, or a legal principle ignored, or miscarriage of justice, is visible.
19. Further, as brought out from the material on record furnished by the appellant builder co. while filing its instant first appeal, the following significant and material ingredients are evident in this matter:
(i) The chronology is as below:
Date of registration by the complainants with the builder co. for a residential plot:
05.03.2006 Date of making first deposit and amount of the deposit:
05.03.2006 Rs. 5,87,500/-
(Rs. 2,93,750/- + Rs. 2,93,750/-) (earnest money / booking charges) Date of making last deposit and amount of the deposit:
09.03.2010 Rs. 2,93,750/-
(Rs. 1,46,875/- + Rs. 1,46,875/-) Date of issuance of allotment letter by the builder co. to the complainants:
05.04.2006 Total cost of the subject plot:
Rs. 34,88,250/-
(earnest money / booking charges and subsequent instalments) Dates of making deposits with the builder co. and amounts of the deposits:
07.03.2006 15.06.2006 15.06.2006 15.06.2006 28.06.2008 03.09.2009 03.09.2009 09.03.2010 09.03.2010 2006 to 2010 Rs. 5,87,500/- (Rs. 2,93,750/- + Rs. 2,93,750/-) (earnest money / booking charges) Rs. 64,250/-
Rs. 1,00,000/-
Rs. 2,57,750/-
Rs. 2,95,000/-
Rs. 1,75,688/-
Rs. 1,75,687/-
Rs. 1,46,875/-
Rs. 1,46,875/-
(subsequent installments) Total deposited:
Rs. 19,49,625/-
(about 56% of the total cost) Date of letter cancelling the allotment:
06.01.2012 Date of filing of complaint with the State Commission (c.c. no. 87 of 2012):
01.03.2012 Date of Order of the State Commission:
10.07.2018 Date of filing appeal by the builder co. before this Commission (f.a. no. 582 of 2019):
29.03.2019 Date of hearing on admission before this Commission:
07.06.2019
(ii) The complainants deposited a total amount of Rs. 19,49,625/- with the builder co. between 2006 and 2010, which was about 56% of the total cost of Rs. 34,88,250/-.
(iii) The builder co. cancelled the allotment in 2012. No refund, with or without deduction/s, with or without interest, was made simultaneous to or within reasonable period of the cancellation (reasonable period here would connote such period as a reasonable man would not normally agitate).
(iv) The complainants went before the State Commission in 2012. (v) The State Commission in 2018 directed the builder co. to refund the amount deposited by the complainants with it (Rs.19,49,625/-) with interest (@ 10% p.a.) from the date/s of respective deposits till the date/s of refund. (The State Commission did not give directions to restore the allotment.) (vi) No refund, of any amount, with or without deduction/s, with or without interest, was made during the course of litigation before the State Commission.
(vii) This first appeal was filed before this Commission on 29.03.2019. No submission or affirmation to make any refund, of any amount, with or without deduction/s, with or without interest, has been made by the builder co. in its memo of appeal.
(viii) We fail to discern any logic or reason for the builder co. not making or committing any refund, of any amount, with or without deduction/s, with or without interest (and, if with interest, at any rate it itself deems apt), after it has cancelled the allotment.
(ix) Simply put, in plain language, the entire case of the builder co. is that after cancelling the allotment it can retain the total amount (Rs. 19,49,625/-) deposited by the complainants with itself till as long as it wants to (albeit ad infinitum) and that it is not duty bound to in any manner make any refund, of any amount, with or without deduction/s, with or without interest.
For the sake of discussion, the builder co. could have argued that it will make refund of such and such amount with such and such deduction and with such and such interest. But even such submission or affirmation has not been forthcoming from the builder co., either before the State Commission during the adjudication of the complaint case or before this Commission in its memo of appeal or in its arguments on admission.
Clearly, the contention of the builder co. has no element of justice or equity, and, on the face of it itself, simply bespeak of unfairness and arbitrariness.
(x) To put it in different words, the contention of the builder co. is that the complainants have no remedy whatsoever to get refund of even any part of the deposited amount, and even without any interest, far less the full deposited amount with reasonable interest thereon.
(xi) The first appeal was filed before this Commission (on 29.03.2019) only after execution proceedings were initiated (on 19.11.2018) before the State Commission.
20. We note ingredients of both, deficiency in service within the meaning of section 2(1)(g) & (o), and unfair trade practice within the meaning of section 2(1)(r), to be well and truly evident on the part of the builder co.
21. The Act 1986 is for better protection of the interests of consumers, in recognizedly a fight amongst unequals. (In this context, in this case, the significant and material ingredients enunciated in para 19 above specifically refer.)
22. We find the impugned Order dated 10.07.2018 of the State Commission to be without error. It does not require interference by this Commission. We find the award of refund of the deposited amount with (reasonable) interest to be just and equitable. The first appeal, thus, fails on merit.
23. This is a plain and simple case of a builder co. on the one side, and ordinary common consumers on the other side, with the builder co. first indulging in deficiency in service and unfair trade practice (refer paras 17, 19, and 20 above), causing loss and injury to the complainants, and then indulging in protracted litigation, spread over about 7 years, in one, and then, two, consumer protection fora (refer para 19 (i) above).
We also find that, before the second forum, i.e. this Commission, it has no case on limitation or on merit (though limitation has been condoned subject to cost).
The time and resources of this Commission have been unwarrantedly and unnecessarily wasted, which is not viewed favourably.
24. In the light of the above examination, the impugned Order dated 10.07.2018 of the State Commission is upheld and affirmed.
The award as contained in the Order dated 10.07.2018 of the State Commission shall be complied with within four weeks of the pronouncement of this Order.
Amount, if any, deposited by the builder co. with the State Commission, with interest, if any, accrued thereon, shall be adjusted in the award.
25. First charge on the awarded amount shall be of the concerned bank or financial institution, if any, that has provided loan to the complainants towards making payment for the subject plot to the builder co.
It shall be the responsibility of the builder co. and its Directors as well as its concerned functionaries as also of the complainants (i.e. of both sides) to inform the concerned bank or financial institution, if any, of this Order within two weeks of its pronouncement.
26. In addition, specifically for indulging in unfair trade practice, the builder co. is put to stern advice of caution through imposition of cost of Rs. 5 lakh to be deposited by the builder co. with the Consumer Legal Aid Account of the State Commission within four weeks of the pronouncement of this Order.
27. We may add that the duties / responsibilities of Director of a Company are laid-down in The Companies Act, 2013.
And we make it explicit that the builder co. (juristic person) as well as its Directors (person(s)) as also its concerned functionaries (person(s)) are liable, individually, jointly, and severally. And the liability qua the consumers-complainants initiated the day the consumers-complainants made their first deposit with the builder co. / its functionaries, and it continues.
We are making this observation inter alia in reference to 'enforcement' under section 25(3) and 'penalties' under section 27(1) of the Act 1986.
28. The State Commission shall undertake execution, both for 'enforcement' under section 25 and for 'penalties' under section 27 of the Act 1986, as per the law, in case of failure or omission to comply with this Order (paras 14, 24, 25 and 26 above).
29. A copy each of this Order be sent by the Registry to the State Commission, to the builder co., to its chief executive, and to the complainants, within seven days of its pronouncement.
30. So disposed (paras 14, 20, 24, 25 and 26 above).
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER