National Consumer Disputes Redressal
M/S. Jmd Ltd. vs Mrs. Meenu Aggarwal on 7 February, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 135 OF 2013 (From the order dated 06.12.2012 in Complaint Case No. 19 of 2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) M/s. JMD Ltd., Through its General Manager (Marketing), Upper Ground Floor, Devika Tower, 6, Nehru Place, New Delhi Appellant (s) Versus Mrs. Meenu Aggarwal, Wife of Shiv Kumar Aggarwal, Resident of 651, Model Town, Jallandhar, Punjab Respondent (s) BEFORE: HON'BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER HONBLE DR. B C. GUPTA, MEMBER For the Appellant : Mr. Abhishek, Advocate For the Respondent : Mr. Shubham Bhalla, Advocate PRONOUNCED ON 07th FEBRUARY, 2014 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This appeal has been filed by the appellant against the order dated 06.12.2012 passed by the Ld. State Commission in complaint No. 19/2012-Meenu Aggarwal Vs. M/s. JMD Promotors Ltd., by which complaint was allowed and opposite party was directed to allot flat on receiving price of the flat along with 18% per annum interest on due installments and complainant was further granted Rs. 11,000/- as litigation expenses.
2. Brief facts of the case are that the complainant-respondent was allotted flat No. D-1201 on 12th Floor in JMD Garden, Gurgaon for Rs. 28,59,375/- vide buyers agreement dated 01.04.2006. Complainant paid Rs. 3,00,000/- on 07.10.2004, Rs. 7,67,723 on 24.03.2006 and Rs. 2,00,000/- on 22.05.2006 and also paid Rs. 5,70,000/- in cash to Mr. Anil Sharma and Mr. Rajesh Soni on 24.03.2006 as premium for adjustment. Complainant further submitted that her mother fell ill and was admitted in the hospital and ultimately expired on 11.05.2007 so, complainant could not make payment of installments in time. It was further alleged that the complainant did not receive any reminders sent by the opposite party-petitioner for making payment but was shocked to receive letter dated 09.10.2007 regarding cancellation of flat. It was further submitted that the opposite party No.2 was not competent to terminate the agreement. Complainant is still willing to pay all dues with interest @ 18% per annum as per condition No.8 of the agreement, but opposite party, inspite of receipt of legal notice has not restored flat.
It was further submitted that complainant earlier filed complaint before the District Forum, Gurgaon, which was dismissed vide order dated 15.02.2011 and appeal filed by her was dismissed by the State Commission vide order dated 31.03.2011, against which, revision was filed by the complainant before this Commission and this Commission, vide order dated 14.02.2012, granted complainant four weeks time to file the complaint. Complainant filed this complaint alleging deficiency on the part of the opposite parties.
Opposite party No.2-appellant contested complaint and submitted that the complaint is bad for misjoinder of opposite party No.1 as OP-1 does not exist and opposite party No.2 was known earlier as M/s. JMD Promoters Ltd. and name of OP-1 had been changed to M/s. JMD Ltd.
It was further submitted that the complainant deliberately omitted to pay the installments as per payment plan, so, his allotment was cancelled and aforesaid flat has already been sold to another purchaser much before filing of the complaint and possession has also been handed over to him. It was further submitted that the complaint was barred by limitation. It was further submitted that as complainant failed to make the payment of outstanding amount, opposite party returned the deposited amount vide Pay Orders dated 08.10.2007 along with cancellation letter dated 09.10.2007 and prayed for dismissal of the complaint.
3. Learned State Commission after hearing both the parties allowed complaint and directed the opposite party to allot flat after receiving price of the flat along with 18% per annum interest on due installments, against which this appeal has been filed.
4. Heard learned counsel for the parties finally at admission stage and perused the record.
5. Learned counsel for the appellant submitted that respondent has not come with clean hands and on account of default in making payments, appellant rightly cancelled flat and allotted to some other person, even then, learned State Commission has committed error in allowing complaint hence appeal be allowed and impugned order be set aside. On the other hand, learned counsel for the respondent submitted that on account of complainants mothers treatment and death, due installments could not be deposited in time and as complainant was willing to make payment along with interest, learned State Commission has not committed any error in allowing the complaint hence appeal be dismissed.
6. Perusal of earlier complaint filed before the District Forum clearly reveals that the complainant in para-5 of the complaint conceded receipt of reminders sent by opposite party during March and April, 2007. But in the present complaint, complainant has intentionally denied receipt of reminders sent by the opposite party for making payments of due installments.
Opposite party has placed on record reminders dated 28.03.2006, 18.08.2006, 06.01.2007, 19.03.2007, 18.04.2007, 17.07.2007 and 15.09.2007, asking complainant to make payment along with interest but as complainant did not make payment, opposite party vide letter dated 09.10.2007, cancelled the allotment as per Clause-7 of the agreement, which runs as under:
That the time of payment of installments and other dues as stated in Schedule of Payments (Annexure-II) is the essence of this Agreement. It shall be incumbent on the Flat / Unit Allottee (s) to comply with the terms of payment and other terms and conditions of sale, failing which he shall forfeit to the Company the entire amount of earnest money and this Agreement shall stand cancelled and the Flat / Unit Allottee (s) shall be left with no lien on the said Flat / Unit. The Company shall thereafter be free to deal with the said Flat / Unit in any manner, whatsoever, at its sole discretion. The amount (s), if any, paid over and above the earnest money shall be refunded to the Flat / Unit Allottee (s) by the Company without any interest after sale of the said Flat / Unit.
7. We do not find any deficiency on the part of the opposite party in cancelling allotment of Flat on account of non-payment of the due installments as per Clause-7 of the Agreement.
8. Learned counsel for the respondent submitted that as per Clause-8 of the aforesaid agreement, complainant was willing to pay interest @ 18% per annum on delayed installments and learned State Commission has not committed any error in allowing complaint, subject to payment with interest. No doubt, Clause-8 of the agreement enables opposite party to accept payment of due installments along with 18% per annum interest but this Clause does not give any right to the complainant to make payment of due installments with interest as of right and complainant does not get any right to compel opposite party to accept payment and not to cancel allotment.
Preceding clause-7 of the agreement enables opposite party to cancel allotment on account of default in making payment of installments. Complainants mothers treatment and ultimate death does not automatically empower complainant to get cancellation letter set aside; particularly when her mother expired on 11.05.2007 and even after that date, opposite party issued demand notice dated 17.07.2007 and 15.09.2007, which ultimately led to cancellation of allotment vide letter dated 09.10.2007.
9. Learned State Commission also observed in the order that complainant paid Rs.5,70,000/- in cash to Mr. Anil Sharma and Rajesh Soni, which fact has not been admitted by opposite party in its written statement. Complainant had not adduced any evidence in support of this payment; except her own affidavit. In such circumstances, payment does not stand proved and learned State Commission has committed error in holding that Rs. 5,70,000/- has been paid by complainant in cash to the opposite party.
10. In the light of the above discussion, it becomes clear that as complainant failed to make payment of due installments, opposite party rightly cancelled allotment as per Clause-7 of the buyer agreement and learned State Commission committed error in allowing complaint and impugned order is liable to set aside; particularly when this flat has already been allotted to some other person and possession has been handed over to him.
11. Consequently, appeal filed by the appellant is allowed and impugned order dated 06.12.2012 passed by the learned State Commission in Complaint No. 19/2012- Meenu Aggarwal Vs. M/s. JMD Promotors Ltd. is set aside and complaint stands dismissed, with no order as to costs.
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....J (K. S. CHAUDHARI) PRESIDING MEMBER Sd/-
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(DR. B. C. GUPTA) MEMBER SB/4