State Consumer Disputes Redressal Commission
Sanjay Jhanwar vs Vatika Ltd. on 6 June, 2013
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN, JAIPUR COMPLAINT CASE NO: 12/2012 Sanjay Jhanwar s/o Late Sh.C.L.Jhanwar r/o A-7, Nu-Lite Colony, Tonk Road,Jaipur ....Complainant Vs. Vatika Limited, Flat No. 621 A, 6th Floor, Devika Towers, 6 Nehru Place, New Delhi ( Branch Office at Vatika Infotech City, Near GVK Toll Plaza, Jaipur-Ajmer Expressway, Post Thikaria-232026, Jaipur) ....Non-petitioners Date of order 06.06.2013 Before: Mr. Anil Kumar Mishra-Presiding Member
Mrs.Sunita Ranka-Member Mr.Sanjay Jhanwar- complainant, present in-person alongwith Ms.Ritu Soni
-counsel for the complainant Mr.Sanjay Mishra- counsel for non-petitioner 2 BY THE STATE COMMISSION
1. Brief facts pertaining to the present complaint are that the complainant submitted an application for allotment of a 3 BHK apartment in the residential project of non-petitioner at Gurgaon-Manesar Road. The application form was obtained by the complainant from Jaipur Branch Office of the non-petitioner and it was submitted on 10.04.2008 at the Branch Office at Jaipur with booking amount of Rs. 3,00,000/- on 10.04.2008. A receipt of the aforesaid booking amount was given by the non-petitioner on 23.04.2008. The cost of the apartment was stated to be 53,21,925/-. The non-petitioner raised a demand of Rs. 2,32,193/- vide its letter dated 26.05.2008 and the complainant issued a cheque of the aforesaid amount on 26.05.2008 itself and the receipt of the same was issued to him on 25.06.2008. The non-petitioner again raised a demand of Rs.5,82,113/- on 18.10.2008 and the complainant issued a cheque of Rs. 5,32,152/- dated 18.10.2008 and cheque of Rs. 49961/- dated 22.10.2008 but the complainant requested for the Plan of the project and Builder Buyer Agreement. The receipt of the aforesaid amount was given to the complainant on 22.10.2008 and 28.10.2008 but the copy of the Plan of the Project and the copy of the agreement was not sent to the complainant. The complainant again sent a letter to the non-
3petitioner on 18.12.2008 and requested to send the Plan of the project as well as the copy of the agreement. The non-petitioner sent the copy of the Draft of Builder Buyer Agreement on 26.12.2008 from which the complainant came to know that the cost of the apartment was raised to Rs.62,71,266.76. As the complainant had some objections regarding the terms and conditions of the draft agreement, he objected to some of its terms and requested to modify the agreement vide his letter dated 10.01.2009. The complainant again sent reminder on 28.02.2009. The complainant vide his letters dated 13.04.2009, 16.05.2009, 27.06.2009, 26.08.2009 and 03.11.2009 requested the non-petitioner to settle the terms at the earliest and execute the agreement. The non-petitioner vide its letter dated 08.04.2010 demanded from the complainant the payment of due instalments within seven days to avoid penalty, but the complainant vide his letter dated 20.04.2010 requested for settlement of the grievances and issues raised by him. Subsequently, the non-petitioner vide its letter dated 06.05.2010 requested the complainant to treat the demand of payments as cancelled and informed the complainant that Builder Buyer Agreement was under revision. During the period 23.08.2010 to 30.07.2011 there had been correspondance between the complainant and the non-petitioner about the terms and conditions of the revised agreement. The non-petitioner vide 4 its letter dated 18.11.2011 threatened the complainant to terminate his allotment if the amount was not paid within seven days, but subsequently vide its letter dated 01.12.2011 informed the complainant that the termination of his Apartment No. 302 was kept on hold and also assured the complainant that a meeting would be fixed with the legal team of the non-petitioner for resolving all the issues before 10.12.2011. But the non-petitioner did not fix any meeting. The non-petitioner raised a demand of Rs.1,45,512.16 on 30.01.2012 towards EDC-IDC + 18% interest p.a. and to make payment within 7 days or else to cancel the allotment. The complainant made a payment of Rs. 200000/- vide cheque dated 18.01.2012 and asked for a break up of interest demanded by the non-petitioner on the amount. But the non-petitioner returned the aforesaid cheque without assigning any reasons. Ultimately, the complainant served a legal notice dated 23.12.2011 and the non-petitioner vide its letter dated 10.02.2012 terminated the allotment unilaterally and refunded the amount after deducting Rs.3,84,070/-. This letter of termination was received by the complainant at Jaipur. Aggrieved by the aforesaid termination of his allotment, the complainant has filed this complaint on the ground that the non-petitioner arbitrarily and illegally terminated the allotment and hence the complaint be allowed and the non-petitioner be directed to withdraw the 5 termination letter and allot the Apartment No. A-1805 afresh and to execute Builder Buyer Agreement after removing the arbitrary and unfair terms in the agreement and to direct the non-petitioner to intimate to the complainant the due amount of payment and deliver the possession of the apartment at the earliest.
2. The non-petitioner in its reply has submitted that the State Commission at Rajasthan does not have territorial jurisdiction to entertain the complaint as the subject matter of immovable property is situated at Gurgaon (Haryana). No cause of action arose at Jaipur and the present transaction of immovable property cannot be a subject matter of complaint under Consumer Protection Act and the complainant does not come within the definition of "consumer". The issues raised by the complainant in his complaint are complicated and require detailed evidence, so the matter cannot be decided by summary proceedings before this Commission and looking to the nature of the matter, it is exclusively triable by civil courts only. The complainant had booked two residential apartments in the same project which amounts to booking for commercial purpose and hence the complainant will not come within the definition of "consumer". The complainant had opted the "Construction Linked Payment Plan" and he did not pay all the dues within the stipulated period 6 and the complainant sought refund of the booking amount with interest vide his letter dated 16.05.2009 and 26.08.2009. Ultimately, the complainant denied due payments vide his letter dated 10.03.2011 under the garb of frivolous objections. The complainant just wanted to keep the property blocked by making initial payment and intended to reap the profit out of the property. Several opportunities were given to the complainant for clearing the dues but the complainant sent a legal notice on 23.12.2011. Ultimately, the booking of the complainant was terminated vide letter dated 10.02.2012 for want of payment of due instalments by the complainant. The total cost of the apartment was Rs.62,71,266.76/- but the complainant deposited only Rs.11,14,305.90/- which is self explanatory conduct of the complainant. Therefore, the complainant is not entitled to any compensation or re-allotment of the apartment and hence the complaint be dismissed.
3. The complainant submitted his own affidavit alongwith documents Anx.1 to Anx.33. An affidavit of Mr.Naveen Bakshi was submitted by the non-petitioner alongwith Anx. 1 to Anx. 9.
4. We have heard the arguments of both the parties and 7 carefully perused the entire record and the evidence submitted by the parties.
5. Preliminary objection of the non-petitioner is that the State Commission, Rajasthan does not have any jurisdiction to entertain the present complaint as the disputed property is situated at Gurgaon and no part of transaction has taken place in Rajasthan. Moreover, the complainant is also not a "consumer" and the matter pertains to complicated civil dispute and so the present complaint cannot be decided by this Commission in a summary manner.
6. In this regard, it is an admitted fact that the non-petitioner has its branch office at Vatika Infotech City, Near GVK Toll Plaza, Jaipur-Ajmer Expressway. It is also an admitted fact that the application form for allotment of the apartment was submitted at the branch office of non-petitioner at Jaipur and a cheque of Rs.3,00,000/- was given on 10.04.2008 at the branch office. It is also an admitted fact that the non-petitioner vide its letter dated 10.02.2012 ( Anx. 33 ) terminated the allotment of Apartment No. A 1805 and the aforesaid termination letter was addressed to the complainant at his Jaipur address and was received at Jaipur.
8Thus, the booking of the apartment as well as the payment of initial booking amount has been made at Jaipur office of the non-petitioner and the termination of the allotment was also communicated to the complainant at his Jaipur address. Section 17 (2) (a) of the Consumer Protection Act,1986 provides that a complaint can be instituted in the State Commission within the limits of whose jurisdiction the opposite party or each of the opposite parties actually and voluntarily resides or carries on business or has a branch office or personally work for gain. As the non-petitioner has its branch office at Jaipur where the apartment was booked by the complainant and the initial booking amount was paid here in Jaipur and the communication of the termination of the allotment was also communicated to the complainant at Jaipur. Therefore, a part of the cause of action arose in Jaipur and hence, under the aforesaid provisions, the present complaint is maintainable in Rajasthan and this Commission has jurisdiction to entertain the present complaint. In this regard, in the light of judgments of the Hon'ble Supreme Court and the Hon'ble National Commission in Manu/CF/0055/2011 (NC) (Munish Sahgal Vs. DLF Home Developers) , Manu/CF/0137/2011 (NC) ( Aggarwal Packers & Movers DRS Transport (P) Ltd. Vs. Renu Sharma ) , Appeal No. 155/2006 decided on 09.07.2007 ( Mrs.Veena 9 Khanna Vs. M/s. Ansal Prop. & Ind. ), AIR 1989 SC 1239 (ABC Laminart Pvt. Ltd. Vs. A.P.Agencies ), 2008 (4) APLJ 66 (HC) (State of Andhra Pradesh Vs. T.V.Krishna Reddy) and AIR 1947 (Pat.) 134 ( Arthur Butler Vs. Distt. Board, Gaya ) this Commission has jurisdiction to entertain the present complaint.
7. The other objection raised by the non-petitioner is that the complainant is not a "consumer" as the non-petitioner is not providing any service to the complainant after taking any consideration from him but the complainant intended to purchase immovable property from the non-petitioner and this matter pertains to civil dispute, so this matter is not a "consumer dispute". In this regard, we are in agreement with the arguments of the complainant that where the developer carries on the activity of construction on land and allots the residential apartments and flats or plots after inviting applications from the public, then his act amounts to "service" and when the possession is not handed over to the allottee within the stipulated period, then the delay amounts to deficiency or denial of service and such dispute is not a civil dispute. The Hon'ble Supreme Court in Lucknow Development Authority Vs. M.K.Gupta ( Manu / SC/0178/ 1814 ) has held that when possession of the property is not delivered within the 10 stipulated period, the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property but amounts to deficiency in rendering service. The Hon'ble National Commission also in I (2008 ) CPJ 431 (NC ) ( Gaziabad Development Authority Vs. R.B.Sharma ) has followed the aforesaid judgment of the Hon'ble Apex Court and held that the disputes pertaining to the allotment of flat by developers to an allottee is not a civil dispute and Consumer Courts can adjudicate such disputes. Therefore, in the light of the aforesaid judgments, it is also proved that the complainant is a "consumer " and the present dispute is a " consumer dispute " which can be adjudicated by this Commission.
8. The argument of the learned counsel for the non-petitioner that booking of two flats by the complainant at the same time in the same project shows that the complainant intended to use the flats for commercial purpose and for investment purpose, does not sound good and reasonable for the reasons that mere booking of two flats does not reflect that the purchase was intended for commercial purpose only. A commercial purpose of the premises can be inferred only when some commercial activity is in fact carrid out by the complainant in the aforesaid flats. Moreover, there is no legal bar that two or more residential flats cannot 11 be purchased by a person. In fact, number of flats that can be bought or should be bought depends on the need of an individual. But in the present matter, even the possession of the flat has not been handed over to the complainant and therefore, it cannot be said that two flats intended to be purchased by the complainant were to be used commercial purpose.
9. One of the other arguments of the learned counsel for the non-petitioner is that the present matter is a complicated matter and requires oral evidence and cross- examination of the parties and so this Commission cannot adjudicate such matter and the present matter can be decided by a civil court only. This argument also does not hold good in the light of the judgments of the Hon'ble Supreme Court in 2002 DNJ (SC) 594 (J.J. Merchant (Dr.) Vs .Srinath Chaturvedi ) and 2003 (3) DNJ (SC) 857 (CCI Chamber Co-operative Housing Society Vs. Development Credit Bank ) wherein it has been laid down that the Consumer Fora and Commissions are comptent enough to decide complicated matters. Moreover, the documents submitted by both the parties in the present matter are admitted documents and the complainant has been treated to be a "consumer" and hence this Commission is competent to adjudicate the present complaint.
1210. Now we would consider whether the act of termination of allotment of the flats by the non-petitioner amounted to deficiency in service or not ? It is an admitted fact that the complainant booked a 3 BHK flat in the project of the non-petitioner by submitting an application form and depositing the booking amount of Rs. 3,00,000/- on 10.04.2008 at its Jaipur branch office ( Anx. 1 ) and an amount of Rs. 2,32,193/- was paid to the non-petitioner on 26.05.2008 ( Anx. 2 ). An amount of Rs. 5,82,113/- was also paid to the non-petitioner by the complainant vide two cheques dated 18.10.2008 and 20.10.2008 at the demand of the non-petitioner ( Anx. 3 ). Initially, the cost of the apartment was shown to be Rs.53,21,925/- but the non-petitioner vide its letter dated 26.12.2008 informed the complainant that the cost of the flat was also increased to Rs.62,71,266.76 ( Anx. 5 ). The non-petitioner, alongwith this letter, also sent a draft of Builder Buyer Agreement to the complainant which the complainant treated to be heavily tilted towards the non-petitioner and hence he objected to some of the terms and conditions of the agreement vide his letter dated 10.01.2009 ( Anx. 6 ). The complainant thereafter sent many reminders ( dated 28.02.2009, 13.04.2009, 16.05.2009, 27.06.2009, 26.08.2009, 03.11.2009 ( Anx. 8 ) and letter dated 20.04.2010 Anx. 11 ) to the non-petitioner to revise the terms and conditions of the agreement but the non-petitioner did not pay any 13 heed to the request of the complainant despite assurance to revise the terms. The non-petitioner vide its letter dated 07.04.2009 also threatened the complainant to cancel the allotment. Later on, the non-petitioner vide its letter dated 08.04.2010 ( Anx. 10 ) demanded the payment of instalment within seven days to avoid penalty and interest. In response to aforesaid letter, the complainant vide his letter dated 20.04.2010 ( Anx. 11 ) requested the non-petitioner to resolve the issues and objections raised by him about the draft agreement.
11. It is also pertinent to mention here that t he non-petitioner vide its letter dated 06.05.2010 ( Anx. 12 ) requested the complainant to treat the demand of payments made to him as cancelled as it was sent by mistake with bulk mails and assured the complainant that Builder- Buyer Agreement was under revision. Despite this letter dated 06.05.2010, the non-petitioner did not revise the terms and conditions of the Builder Buyer Agreement till the termination of allotment of Flat No. A-1805 vide letter dated 10.02.2012. It is evident from the documents submitted by the complainant that he repeatedly requested the non-petitioner to change some of the unreasonable and arbitrary terms and conditions of the proposed agreement and the non-petitioner also assured vide it's letter dated 06.05.2010 14 and e-mail dated 22.11.2010 ( Anx.16 ) that the agreement was under
consideration for revision and it would be sent to him after receipt of the original agreement. Later on, the non-petitioner vide letter dated 13.01.2012 ( Anx. 29 ) demanded the due payment of Rs.1,45,512.16 towards EDC-IDC due interest @ 18% p.a. from the complainant within seven days or else to terminate the allotment. T he complainant vide his letter dated 25.11.2011 ( Anx. 24 ) informed the Directors of the non-petitioner that he was ready and willing to pay the agreed sale consideration. With respect to the objections about the agreement, the non-petitioner also assured the complainant on 01.12.2011 ( Anx. 26 ) that a meeting with the legal team of the non-petitioner would be arranged before 10.12.2011 but no such meeting was ever fixed with the complainant and ultimately without giving any opportunity of hearing or without resolving the issues and objections raised by the complainant with regard to terms of the agreement, the non-petitioner vide its letter ated 10.02.2012 ( Anx. 33 ) terminated the allotment of Flat No. A-1805 of the complainant and after deducting Rs. 3,84,070/-, made the payment to the complainant.
12. Thus, it is evident from the correspondance between the complainant and the non-petitioner that on the one hand, the non-15
petitioner assured the complainant that the Builder Buyer Agreement was under
revision and the revised agreement would be sent to the complainant for execution and that demand for payment be treated to be cancelled ( Anx. 12 dated 06.05.2010 ) and that the termination of the allotment of the flat was also on hold ( Anx. 26 dated 01.12.2011 ) but contrary to the aforesaid assurances, the non-petitioner on the other hand, vide it's letter dated 10.02.2012 ( Anx. 33 ) unilaterally terminated the allotment of the allotted flat, though the complainant was ready and willing to pay the entire consideration to the non-petitioner against the cost of the flat. ( Anx. 24 dated 25.11.2011 ).
13.
We are in agreement with the argument of the learned counsel for the complainant that the complainant had every right to know about the terms and conditions of the Builder -Buyer Agreement and if the complainant had any objections and doubts about any of the terms and condition of the proposed agreement, then it was the duty of the non-petitioner to resolve those issues. But instead of resolving the issues, the non-petitioner terminated the allotment of flat without giving any opportunity to complainant and arbitrarily and illegally deducted Rs. 3,84,070/- from the amount deposited by the complainant and refunded the 16 balance amount to him. Such an act and conduct of the non-petitioner amounts to gross deficiency in service.
14. It is also evident that the complainant vide his letter dated 16.05.2009 ( Anx. 08 ) asked the non-petitioner that if the agreement could not be modified, then booking of his flat be cancelled and deposited amount be refunded, but the non-petitioner did not cancel the booking and did not refund the amount at that time but kept the money of the complainant and after utilizing the huge money of the complainant, terminated the allotment of the complainant after a lapse of almost four years when the complainant was willing and ready to pay the entire balance amount of the flat.
15. It is true that earnest money can be forfeited if the complainant did not fulfil his part of obligation by not making timely payment of instalments, but in the present matter, when the non-petitioner did not resolve the issues raised by the complainant about the unfair provisions of the agreement, the complainant requested the non-petitioner to cancel his allotment and refund the amount ( letter dated 16.05.2009 Anx. 8 ). The non-petitioner did not refund the money to the complainant at that time and kept and usurped the part payment of the cost of the flat for about four 17 years, then it cannot deduct any amount as earnest money, while making a refund to the complainant after cancellation of allotment of flat, particularly when the complainant was ready and willing to make the payment of entire consideration of the flat, if the issues raised by him about the agreement were resolved by the non-petitioner. Therefore, the principles of law laid down in Satish Batra Vs. Sudhir Rawal ( 2013 (1) SCC 345 ) and Sahara India Vs. P.Gajendra ( III ( 2010 CPJ 190 ( NC ) ) do not apply in the present matter. Thus, the entire conduct and act of the non-petitioner amounts to deficiency in service and also amounts to unfair trade practice. Therefore, the present complaint deserves to be allowed and the complainant is entitled to get the allotment of Flat No. A-1805 afresh and get the possession of the flat within a reasonable period, after payment of balance amount by the complainant against the consideration and cost of the flat.
ORDER
16. For the aforesaid reasons, the present complaint is allowed. The non-petitioner shall withdraw the termination of allotment of flat vide letter dated 10.02.2012 and issue a fresh allotment letter for Flat No. A -1805 in the name of the complainant. In case ,if it is not possible to allot Flat No. A- 1805 to the complainant, then a 18 flat of the same measurement and in the same project equivalent to Flat No. A -1805 be allotted to the complainant as per his choice and approval. The complainant shall also make payment of balance amount of the cost of the flat to the non-petitioner and thereafter the non-petitioner shall handover the possession of the aforesaid flat to the complainant within three months. The non-petitioner shall also make a payment of Rs. Two lakhs as compensation for mental agony and cost of proceedings.
(Sunita Ranka) (Anil Kumar Mishra) Member Presiding Member