State Consumer Disputes Redressal Commission
Mr. Dashrath Amrit Singh vs City And Industrial Development ... on 29 October, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint Case No. CC/99/596
1. Mr. Dashrath Amrit
Singh
Residing at 10,
Vijaya House, Station Road, Vikhroli (W), Mumbai 400 083.
...........Complainant(s)
Versus
1. City and
Industrial Development Corporation of Maharashtra Limited
Through its Marketing
Manager having its Head Office at CIDCO Bhavan, CBD Belapur, Navi
Mumbai 400 614.
............Opp.Party(s)
BEFORE:
HON'BLE Mr. P.N.
Kashalkar PRESIDING MEMBER
HON'BLE MR. Dhanraj
Khamatkar Member
PRESENT:
Mr.V.R.Mishra and
Mr.A.A.Khan, Advocates for M.Tripathi & Co. for the complainant.
Mr.Prakash Kadam,
Advocate for the opponent.
ORDER
(Per Shri P.N.Kashalkar, Honble Presiding Judicial Member ) (1) This is a complaint filed by the complainant against City and Industrial Development Corporation of Maharashtra Ltd. (hereinafter referred to as opponent CIDCO), which is a Government Company within the meaning of Sec.617 of the Companies Act, 1956. According to the complainant, the opponent CIDCO has been appointed a New Town Development Authority u/s. 113(3A) of the Maharashtra Regional and Town Planning Act, 1966. As such the opponent CIDCO is public corporation. According to the complainant, the state government acquired the lands within the delineated territory of New Bombay and CIDCO was entrusted to construct New Township. According to the complainant, in the month of May 1998, the opponent came out with a scheme of row-house plots at Nerul, Koperkhairane, Kharghar, Kalamboli and New Panvel and 60 sq.mtrs.row-house plots at Kalamboli under BUDP, Phase III on First Come First served basis for a fixed rate.
Opponent issued booklet containing terms & conditions of this scheme. This booklet is annexed and marked as Exh.A. The scheme was to be in operation from 8th June, 1998 to 10th August, 1998. As per booklet, the rate for 100 sq.mtrs. was `9,200/-per sq.mtr.
The complainant applied for a 100 sq.mtrs. plot at Nerul, Navi Mumbai. Accordingly, the opponent issued a letter of allotment dated 10/06/1998 to the complainant in respect of the plot No.18-A, Nerul, Navi Mumbai (hereinafter referred to as the said plot). As per the allotment letter, the complainant was called upon to pay a sum of `9,13,744/- being consideration for 9.32. sq.mtrs. @`9,200/- per sq.mtr.
After adjusting earnest money deposit of `40,000/-, the complainant was called upon to pay a balance sum of `8,73,744/- in two equal installments, first installment of `4,36,872/- was payable on or before 10th July, 1998 and the second installment of `4,36,872/- was payable on or before 10th August, 1998.
The complainant avers that he paid first installment of `4,36,872/- on 24th July, 1998 with interest of `3,016/- for delayed payment. Exh.C is the receipt of payment made by him. The complainant pleaded that in the meanwhile, the opponent CIDCO issued a notice in The Times of India dated 23rd July, 1998 stating therein that the they were offering residential plot on lease in Sector 2, 10, 19 and 21 at Nerul, Navi Mumbai under a different scheme, the area of the plots was between 297.78 sq.mtr. to 1383.26 sq.mtr. It was further stated in the notice that the base price of the said plot was at `5,750/- per sq.mtr. Exh.D is the booklet containing terms & conditions of the new tender dated July, 1998 alongwith advertisement dated 23rd July, 1998. According to the complainant, in the earlier scheme, he had applied for a plot with a fixed rate of `9,200/- per sq.mtr. while the said scheme was in force, the opponent came out with another scheme where the basic price was fixed at `5,750/-. The said scheme (latter) was more attractive than the earlier scheme.
According to the complainant, the first scheme was in operation from 08th June, 1998 to 10th August, 198 while the second scheme was in force from 23rd July, 1998. Both the schemes were concurrent in operation. He would have, therefore, been allowed a right of choosing between both the schemes. He alleged that since there was unreasonable classification in respect of both the schemes, there is unfair trade practice on the part of the opponent.
He, therefore, addressed a letter dated 14/08/1998 through his advocate setting out the above facts and requested to reduce price of the plots in the first scheme and make the adjustment through the set off in the second installment as the complainant has already paid the first installment of the lease premium in respect of the said plot. The complainant pleaded that this would be equitable and fair having regard to the fact that plots allotted to them in the first scheme were far away from Nerul Railway Station and were located in not so developed area compared to the plots offered in the second scheme. He should be allowed to switchover to the second scheme and consideration already paid towards the plot in the first scheme should be adjusted towards the payment of the price eventually arrived at for the second scheme without any penalty whatsoever. But the opponent did not give any reply to the complainants letter.
The complainant pleaded that along with other purchasers who had also applied under the first scheme he jointly wrote a letter dated 8th September, 1998 to the Managing Director of the opponent and requested him to consider reducing the price of the first scheme to bring it at par with the second scheme and make necessary adjustment due from them and extend payment schedule accordingly. The opponent did not reply to the complainant.
Hence, the complainant sent another letter dated 19th April, 1999, but still he did not receive any favourable reply. He then asked for refund their moneys which they had paid in first scheme.
By sending letter dated 09th April, 1999, the opponent replied that they had rejected joint request made by the purchasers. The said letter is at Exh.G. The complainant then again requested the opponent to pay heed to his request, but it was informed that revision of price with retrospective effect was not applicable and hence request of the complainant to consider the current base price for the plot was rejected and that he was supposed to pay the balance lease premium as per the scheduled date. It was further revealed to the complainant that since the complainant had not paid balance lease premium in the grantable extended period which was over on 9th June, 1999, the request made by them for payment of balance amount with delayed payment charges could not be considered. According to the complainant, the opponent thus indulged in the unfair trade practice by coming out of a scheme earlier in point of time with the higher prices and during the subsistence of the said scheme they came out with another with the lower price. Thus, the opponent committed breach of New Bombay Development Plan.
The complainant pleaded that action of the opponent coming out with the two schemes almost simultaneously in one scheme providing lesser price and another scheme providing the higher price is a classic example of unfair trade practice committed by the opponent. The complainant, therefore, pleaded that action of the opponent is contrary to the provisions of the Consumer Protection Act, 1986. The opponent is guilty of unfair trade practice, since the price quoted for the first scheme was not true and correct market price and other scheme of the opponent being floated with lesser price.
Therefore, he filed this consumer complaint alleging deficiency in service on the part of the opponent.
The complainant prayed that the opponent should be directed to reduce the price of plot of the first scheme to the level of the rate mentioned in the second scheme. He also prayed that the opponent should be directed to withdraw the cancellation letter dated 3rd December, 1999.
(2) The opponent filed written version and pleaded that the complainant is not a consumer as contract stands terminated and at any rate the opponent is not providing any services to the complainant. The opponent also pleaded that the prayers of the complainant cannot be granted by this Commission under Consumer Protection Act, 1986.
Opponent pleaded that they had earlier floated a scheme whereby the allotments were made on the basis of first come first served and the price fixed was `9,200/-
per sq.mtrs. The complainant accepted the offer and a contract was entered into between the parties. The complainant had paid first installment and had to pay the second installment due to which the contract was terminated. The opponent pleaded that another tender was invited where a base price of `5,750/- was fixed. These two schemes were different as in the first scheme the price was fixed and allotment was granted to the purchasers and the choice was given to them. That in the second scheme the allotment was not certain as it depended on the price offered. The opponent pleaded that offer was always upwards of the base price.
There was no similarity between the two schemes and there was no discriminated practice. Complainant cannot seek to amend or modify the terms of the contract by seeking to reduce the cost of the plot. The complainant also cannot claim the lower price as he has not joined in the second scheme. The opponent pleaded that there is no deficiency in service as the contract entered into between the parties has been terminated as per contractual terms and the complaint is misconceived. The opponent further pleaded that the price fixation or the terms of the scheme is a policy matter and merely because there was a change in policy adopted by the opponent will not warrant any relief to the complainant.
Hence, the opponent requested to dismiss the complaint with costs.
(3) The complainant filed affidavit evidence which is nothing but two page affidavit sworn before the notary affirming whatever stated in the complaint is correct and true to the best of my knowledge and belief. The complainant also filed an affidavit to prove documents. The opponent also filed affidavit sworn in before the public notary. We heard the submissions of Adv.V.R.Mishra along with Adv.A.A.Khan proxy for M.Tripathi & Co. for the complainant and Adv.P.B.Kadam for the opponent CIDCO. Mr.Kadam-advocate for the opponent rightly submitted that the complaint filed by the complainant is not tenable in law. The complainant was admitted on his volition for first scheme floated by CIDCO. As per the first scheme, the complainant had paid `4,36,872/-
as first installment and he was required to pay second installment on the following month i.e. on 10/08/1998.
He did not pay second installment at all. Hence, his contract was terminated. In the letter sent to the complainant dated 10/06/1998, row-house plot No.144 was offered to the complainant. It was clearly mentioned that he was required to pay first installment on or before 10th July, 1998 and second installment on or before 10th August, 1998 and this letter is dated 10th June, 1998.
In this letter, it is categorically mentioned that if you fail to pay above lease premium hereinbefore mentioned on the due dates or upon payment of total lease premium by you, if you fail to execute the Agreement to Lease within a period of one month from the date of last payment or within a period which may be extended by the Corporation or if you fail to submit to the Corporation plans of the intending Row House within a period of 6 months from the date of execution of agreement or to commence erection of the intended building/buildings within a period of 12 months from the date of execution of such agreement to lease or to complete erection of the intended Row House in accordance with approved plans and obtain Occupancy Certificate from the Corporation, our Corporation shall be entitled to rescind or terminate the Agreement so concluded or to be formulised or formulised in the standard form and revoke the licence granted or to be granted to you to enter upon above plot of land for the purpose of erecting the intending Row House and to forfeit entire Earnest Money Deposit paid by you and plus 25% of the agreed premium. Besides this, the opponent CIDCO shall claim compensation for damage or loss, if any, suffered by the Corporation as a result of rescission or termination of the agreement consequent upon default of the purchaser to pay the amount towards installments of the agreed premium on due dates. In this case, admittedly the complainant paid first installment of `4,36,872/- which he paid at later date with interest on delayed payment.
He paid the said installment on 24/07/1998, but he was required to pay second installment on or before 10/08/1998 which he failed to do so. He was informed by the opponent CIDCO that it was not possible to them to consider their letter dated 08/09/1998 for revision of price with retrospective effect as the said prices were not applicable to their scheme.
But still the complainant did not bother to pay balance amount and therefore, the opponent CIDCO addressed a letter dated 13/10/1999 to the complainant and informed him that he has not made any payment of balance lease premium in the grantable extended period for payment of 2nd installment which has been over on 09/06/1999 and his request for payment of balance amount without charging any delayed payment charges could not be considered. Another letter dated 28/10/1999 was also sent to the complainant and he was clearly told that for the first Row-House plot bearing No.144 which he had opted to purchase in Sector 18-A at Nerul, his request for balance lease premium at lower price was regretted. Thereafter, the opponent CIDCO wrote another letter to the complainant on 03/12/1999 informing him that since he had not paid agreed two monthly installments, the corporation hereby terminates the agreement so concluded between Corporation and the complainant and forfeits EMD in full and 25% of the agreed lease premium. Thus, we are finding that for the default committed by the complainant, the opponent CIDCO terminated the agreement executed between the complainant and the opponent because the complainant had committed default in making payment of second installment of `4,36,872/- on or before 10/08/1998. He was not prepared to pay delayed payment charges, follow other conditions of the scheme in which he had applied for Row-House bearing No.144 in Sector 18-A at Nerul, Navi Mumbai and he was simply asking the opponent CIDCO to re-consider his request to reduce based price to bring it at par on second scheme floated by the CIDCO. He was not ready to pay second installment that was over-due.
Therefore, the opponent CIDCO rightly terminated his contract by sending letter mentioned supra. We are finding that the consumer complaint as filed by the complainant is, as such, not tenable in law. He filed the complaint just to defend himself from the probable action of forfeiture of earnest money and 25% of the first installment, he filed this consumer complaint to make a show that CIDCO was guilty in committing unfair trade practice within the meaning of Sec.2(1)(r) of the Consumer Protection Act, 1986. On the whole, we are finding no substance in the consumer complaint.
Hence, the order.
ORDER (1) Consumer complaint stands dismissed.
(2) Parties to bear their own costs.
(3) Inform the parties accordingly.
Pronounced on 29th October, 2012.
[HON'BLE Mr. P.N. Kashalkar] PRESIDING MEMBER [HON'BLE MR. Dhanraj Khamatkar] Member pgg