State Consumer Disputes Redressal Commission
Anil Modi vs Omaxe Chandigarh on 4 September, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.45 of 2014
Date of Institution: 04.03.2014.
Date of Decision: 04.09.2015.
Anil Modi S/o Gopi Chand Modi, House No.533 Housing Board
Colony, Phase-I, Baddi, District Nalagarh, Himachal Pardesh.
.....Complainant.
Versus
M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. SCO
no.143-144, Sector 8-C Chandigarh.
....Opposite party
Consumer complaint under Section
17(1)(a) of Consumer Protection Act, 1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri H.S. Guram, Member Present:-
For the complainant : Sh. N.S. Jagdeva, Advocate
For the opposite party : Sh. Munish Gupta, Advocate
................................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Complainant Anil Modi has filed the complaint under Section 17(1) (a) of Consumer Protection Act 1986 (in short "the Act") against opposite party (in short 'OP') on the averments that in the month of January 2010, the OP advertised regarding new city coming up at Mullanpur near Chandigarh extension by it in various daily news papers and consequently complainant applied to OP through its agent for booking of a plot measuring 200 square yards. Consumer Complaint No.45 of 2014 2 The OP agreed to sell the plot @ Rs.13,300/- per square yard. The complainant prepared the demand draft no.870236 dated 25.01.2010 for Rs.2,66,000/- drawn on Dena Bank Baddi as 10% of total price. The OP supplied the basic terms and conditions of it to the complainant. As per clause 24 of it of the basic terms and conditions shall form part of the buyer's agreement/allotment letter.
The complainant opted for down payment plan B. As per Plan B, the allottee had to deposit 10% of the Basic Sale Price at the time of booking and then 85% + 100% of PLC, if any, 50% additional cost within 45 days. The OPs issued printed receipt on 19.03.2010 bearing date 25.01.2010 to the complainant against receipt of Rs.2,66,000/-. The OP had not allotted any plot to the complainant till June 2010 and complainant was intimated on 25.06.2010 through telephone that draw would take place for 200 square yard plots. The complainant was asked to deposit the amount to complete 25% of the earnest money enabling him to participate in the draw of 200 square yard plots. It was a great shock to complainant because he was not prepared for deposit of huge amount before the actual allotment, as he had to arrange money forthwith on interest from the market and then he deposited the same with the OP. The complainant was neither apprised about any draw of plots initially, nor there exist any condition in the basic terms and conditions of it. It was merely the source of collection of money by the OP. On 27.06.2010, the complainant deposited a sum of Rs.4,46,550/- Consumer Complaint No.45 of 2014 3 through demand draft no.870240 dated 26.06.2010 with the OP to complete 25% payment and a proper receipt was issued by the OP against it. The OP signed the buyer's agreement on 09.09.2010 and issued intimation letter to the complainant for due installments, mentioning a sum of Rs.18,86,195/- as due on 15.08.2010. Technically and officially the allotment was made by OP on 09.09.2010 to the complainant. The OP retained a huge amount of the complainant and used it in their project from January 2010 to September 2010 and allotment was made by the OP on 09.09.2010. After confirming the deal, the buyer's agreement was signed by both the parties on 09.09.2010 by accepting its terms and conditions. On 12.08.2010, the complainant applied to the State Bank of India RAPC Branch Sector 17 Chandigarh for sanction of loan for this purpose and all the necessary documents were completed by the complainant on 14.09.2010 and Bank took time in processing the loan case. Thereafter, the bank official visited the residence and factory of complainant at Baddi and shifted the loan case of complainant to State Bank of India Baddi Branch Baddi. On 14.12.2010, the Bank issued him the loan sanction letter for Rs.19 lakhs. After receiving the said loan sanction letter, the complainant approached OP and intimated it that bank had sanctioned the loan to him and requested to supply the requisite documents including tripartite agreement to be signed by the complainant, bank and OP, so that the Bank could release this loan money to him. On Consumer Complaint No.45 of 2014 4 15.12.2010, the staff of OP told the complainant that Manager was not available and he was asked to come on the next day. The complainant again visited the office of OP, but he came back for want of necessary papers of allotment. The complainant again visited the office of OP, but OP failed to supply the duly signed tripartite agreement, which was required for getting the payment from the Bank. The State Bank of India was the banker in this case and it was duly nominated by the OP as a banker for the loan cases and no other bank was allowed to finance it. The OPs had an agreement with the Bank to finance the loan cases of the purchaser of the plots. The Bank and OP were conniving with each. The OP had not adhered to the request of the complainant to provide tripartite agreement and hence OP sought the clarification from complainant regarding the delay in the payment of due amount, which has been shown due from 15.08.2010 by the OP. The complainant submitted email dated 26.12.2010 to Ritesh Aggarwal Manager Commercial of OP and explained the delay date wise, which was self explanatory to the effect that he applied for loan and bank authorities took time in processing the loan and then said bank shifted his loan application to Baddi Branch of its Bank. Any lapse on the part of complainant was denied in above said email. The complainant never received any intimation for the next two months or requisite documents like duly signed tripartite agreement from OP, which were essential for disbursement of loan. The OP never Consumer Complaint No.45 of 2014 5 intimated to the complainant regarding any deficiency in the documents/loan papers of the complainant. On 03.03.2011, the complainant received letter from OP informing that his allotment of plot has been cancelled due to his failure to adhere to the terms and conditions of the allotment. It was recorded in the said letter that OP sent many letters/reminders on 24.07.2010, 09.09.2010, 01.11.2010 and final reminder sent on 08.12.2010 to complainant to pay the due amount. It was set out in the said letter that complainant lost all rights and interest in the plot from 03.03.2011. It was further mentioned in the said letter that amount of Rs.2,33,358.14 paise was forfeited by the OP on account of administrative charges towards allotment, as per terms of allotment. The complainant denied this fact that he received any letters/reminders and final reminder, as mentioned in above letter dated 03.03.2011. The complainant approached OP on 15.12.2010 after sanction of loan on dated 14.12.2010, for supplying the duly signed tripartite agreement, then complainant was informed unofficially that rate of plots have been revised from Rs.13,300/- per square yard to Rs.18,000/- per square yard and Mr. Ritesh on behalf of OP asked the complainant that he could make the payment @ Rs.16,200/- per square yard. The complainant raised protest to it, as he booked the plot @ Rs.13,300/- per square yard only. The OP was insistent that new rates have been revised to Rs.20,000/- per square yard hence it asked the complainant to deposit the difference thereof out of his own pocket Consumer Complaint No.45 of 2014 6 and complainant expressed his inability for this. The complainant visited the office of OP for more than 2 months after sanction of loan, but OP failed to do the needful. The act of OP in cancelling the plot no.507 is illegal, arbitrary, violative of principles of natural justice. The OP was well aware that complainant applied for loan from its banker and intimation was duly sent to the OP accordingly, but OP failed to provide the tripartite agreement duly signed by it, despite many visits. 45 days period for payment would start from 09.09.2010, when the agreement was signed by the OP and handed over to the complainant alongwith schedule of repayment and due amount, as per agreement. The OP retained the booking amount of Rs.2,66,000/- with effect from 25.01.2010 and used this money upto June 2010 i.e. for six months, when the draw took place on 30.06.2010 and buyer's agreement was signed by both the parties on 09.09.2010 and complainant applied for loan with bank on 08.12.2010 and the bank thereafter took time in processing the loan case and loan was sanctioned on 14.12.2010 by the bank. As per clause 20 of the allotment letter/buyer's agreement, the OP has the discretion to condone the delay of repayment of installments by charging 18% interest in exceptional circumstances, whereas no sympathy was shown by the OP in this case to the complainant. The complainant has alleged deficiency in service on the part of OP in this case. The complainant earlier filed the consumer complaint no.151 on 04.04.2011 before the District Forum Mohali, which was Consumer Complaint No.45 of 2014 7 allowed on 02.06.2011 and cancellation letter dated 03.03.2011 of plot no.507 of OP was set aside therein and OPs were found deficient in service and the amount of compensation of Rs.20,000/- and Rs.5000/- as costs of litigation were granted to the complainant. Aggrieved by the said order, the OPs filed F.A. No.977 of 2011 before State Consumer Disputes Redressal Commission Punjab, this Commission held that the District Forum Mohali had no pecuniary jurisdiction beyond Rs.20 lakhs to try this case and accordingly in view of directions of this Commission, the instant complaint has been filed against the OP by the complainant. Copy of order dated 08.10.2013 of this Commission was sent to complainant on 13.01.2014 and he received the same on 22.01.2014 and thereafter the complaint was filed without any further delay. The bank issued disbursement letter to the complainant on 30.06.2011 with check list of documents required in order to make disbursement of the loan amount. The complainant approached OP on the same day to get the tripartite agreement etc. On 02.07.2010, the OP supplied tripartite agreement to the complainant and the permission to mortgage was given with remarks under pressure. Thereafter, the complainant visited bank, which in turn told him to get a Non Encumbrance Certificate (NEC) from the OP. The complainant again visited OP for NEC, as the same was in OP's possession. The complainant alleged that he has a continuous cause of action and he filed the complaint praying that cancellation of plot no.507 made by Consumer Complaint No.45 of 2014 8 the OP vide letter dated 03.03.2011, measuring 205 square yards allotted to complainant be set aside and to direct the OP to complete the formalities and hand over the ready possession of plot no.507 to the complainant without any delay and further prayed that in the alternative, to allot a plot of same dimension @ of Rs.13,000/- per square yards, as agreed upon as per booking of the plot dated 25.01.2010. The complainant prayed for compensation of Rs.5 lakhs for mental harassment and mental agony and Rs.33,000/- as costs of litigation.
2. Upon notice, OP filed its written reply and contested the complaint of the complainant. It was averred in preliminary objections that complaint is not maintainable and is without cause of action. The complainant committed default in payment of installments as per payment plan opted and he is not entitled to any relief. It was further pleaded in preliminary objections that complainant is not a consumer, as defined under Section 2(1)(d) of the Act. The complainant was alleged to be an investor and, thus, excluded from the definition of consumer. On merits, it was admitted that complainant booked a plot by paying a sum of Rs.2,66,000/-. Any deficiency in service on the part of OP was vehemently denied. It was further pleaded that the alleged amount stood forfeited by the OP, as per terms and conditions agreed between the parties. The OP showed its goodwill and gesture on the request of dealer namely Prime Properties and gave a discount of 3% in this case. It was Consumer Complaint No.45 of 2014 9 denied that OP collected money and in fact, the complainant himself approached the answering OP by submitting application for allotment and provisional allotment on the basis of the submission of application was made, vide letter issued to the complainant dated 30.06.2010. On 30.06.2010, the complainant accepted the provisional allotment and undertook to abide by the terms of the application from and allotment and agreed to make due payments in time as and when demanded as per the agreed terms. It was further alleged that receipt dated 25.01.2010, if got issued on 19.03.2010 by the OP would automatically show the printed dated as 19.03.2010 and not that of 25.01.2010. It was denied that OP issued due installment letter by wrongly mentioning due date of amount of Rs.18,86,195/-. The said letter was issued as per agreed terms and as per payment plan opted by the complainant, which clearly showed that complainant was supposed to pay 85% of the basic sale price + 100% PLC (if any) + additional costs within 45 days of booking/allotment. It was further averred that complainant concealed the factum of provisional allotment made vide letter dated 30.06.2010 and his acceptance thereof the even date. OP denied any negligence on its part. The signing of allotment letter on 09.09.2010 was mere confirmation and, infact, the allotment was made, as stated above on 30.06.2010. It was further pleaded by OP that complainant never paid any heed to the repeated requests for payment of due amount and, thus, left with no option and finally Consumer Complaint No.45 of 2014 10 notices were issued to the complainant for payment of due amount and eventually on failure to do so, the allotment was cancelled, vide letter dated 03.03.2011. It was further averred by the OPs that it time and again made requests to pay the due installments and various opportunities were given to complainant to deposit the due installments. It was further maintained that reminders dated 24.07.2010, 09.09.2010, 01.11.2010 and final reminder dated 12.08.2010 were also sent to the complainant to deposit due amount and eventually OP was left with no option but to cancel the said plot. The OP denied the allegations of the complainant regarding cancellation of plot wrongly and arbitrarily. The OP further pleaded that complainant was well aware of his duty to pay the balance amount within 45 days of the booking/allotment. Even if time of 45 days is to be counted from 09.09.2010, then the complainant failed to make the payment within the stipulated time and therefore the OP could not be said to be at fault. It was further stated in the written reply by OP that clause no.20 of the buyer's agreement is a matter of record. The OP denied the allegations of the complainant in shifting the blame upon the OP in the cancellation of said plot. The OP further pleaded that complainant had not adhered to the payment plan punctiliously and complainant committed default therein, despite repeated reminders, which eventually led to the forfeiture of the deposited amount and the cancellation of the plot. The answering Consumer Complaint No.45 of 2014 11 OP controverted the other averments of the complainant. The OP prayed for the dismissal of the complaint.
3. The complainant tendered in evidence his affidavit Ex.C-1/A alongwith documents Ex.C-1 to Ex.C-16 and closed the evidence. As against it, OP tendered in evidence affidavit of Harsh Bhargav Authorised representative Ex.OP-1/A alongwith documents Ex.OP-1 to OP-6 and closed the evidence.
4. We have heard the learned counsel for the parties and have also examined the record of the case. The complaint has been filed with delay and the delay in filing the complaint has been condoned by this Commission, vide order dated 14.03.2014 and complaint was accordingly admitted. The evidence led on record by the parties is required to be appraised by us in this case. Ex.C-1 is copy of application form for allotment of plot. Ex.C-2 is copy of cheque of Rs.2,66,000/- dated 25.01.2010 in favour of OP issued by complainant of Dena Bank Baddi. Ex.C-3 are the basic terms and conditions in this case. As per clause 24 of Ex.C-3, they shall form part of the Buyer's Agreement/Allotment letter, which the applicant/allottee shall execute on confirmation of allotment. The basic terms and conditions as per clause 24 of Ex.C-3 would be read in conjunction with allotment letter/Buyer's Agreement. The complainant opted for plan-B of Payment Plan of the Plot, vide Ex.C-4 on the record. The complainant was required to pay 10% of Consumer Complaint No.45 of 2014 12 BSP at the time of booking, 85% of BSP + 100% of PLC (if any) + 100% Club Cost +100% of EEC within 60 days of booking/allotment and 5% of BSP +100% of IFMS + Stamp Duty + Registration Charges + Other costs (if any) on offer of possession. The complainant paid the amount of Rs.2,66,000/- to OP vide receipt dated 25.01.2010, print date 19.03.2010, vide Ex.C-5. Ex.C-6 is copy of another receipt for payment of Rs.4,46,550/- dated 27.01.2010, print date 31.08.2010 by complainant to OP. Ex.C-7 is copy of letter of intimation of due installments dated 09.09.2010 of Rs.18,86,195.56 paise from OP to complainant. Ex.C-8 is the copy of allotment letter dated 09.09.2010 of Plot no.507, measuring area 205.62 square yards in the name of Anil Modi complainant, which shall also take the shape of buyer's agreement. Ex.C-8 has, thus, proved that the allotment letter/buyer's agreement was issued by OP to the complainant on 09.09.2010, which was to be executed by the complainant as allottee. Ex.C-9 is copy of letter dated 14.12.2010 from State Bank of India SSI Baddi (HP) to complainant regarding sanctioning of housing loan of Rs.19 lacs for purchase of plot no.507, Omaxe Chandigarh Extension. It has proved that the housing loan of Rs.19 lacs was sanctioned to complainant for purchase of plot no.507. A note is recorded on it that the loan case was delayed on account of its processing at Baddi Branch of the Bank by shifting the loan case. Ex.C-10 is copy of letter and Ex.C-10/A to Ex.C-10/C are the copies of email from complainant to Consumer Complaint No.45 of 2014 13 Manager-Commercial of OP dated 26.12.2010 regarding intimation of delayed payment due to non-sanction of loan. Ex.C-11 is the letter by OP dated 03.03.2011 addressed to complainant to the effect that his deposited amount stood forfeited resulting in cancellation of allotment of the plot no.507 and balance amount, if any, could be collected therefrom. The complainant filed the complaint before District Forum Mohali against the OPs on the above referred grounds and the District Forum Mohali accepted the complaint by setting aside the cancellation of allotment of plot by directing the OPs to restore the said plot to the complainant and complainant was directed to deposit the due amount within one month from the date of receipt of order with OP. The order of District Forum was challenged before State Consumer Disputes Redressal Commission Punjab in first appeal no.977 of 2011. This appeal was decided on 08.10.2013 and State Commission Punjab set aside the order of District Forum Mohali on the ground that District Forum had no pecuniary jurisdiction to try the matter, because the value of the plot exceeded Rs.20 lakhs. The complainant resultantly filed the instant complaint before this Commission. The State Consumer Disputes Redressal Commission Punjab gave the opportunity to complainant to make a prayer for excluding the period spent by him in prosecuting the complaint from the ambit of limitation. Ex.C-14 is copy of email from complainant to OP regarding intimation of bank loan of Rs.19 lacs to complainant and for demanding the requisite documents from OP. Consumer Complaint No.45 of 2014 14 Ex.C-15 is copy of letter from Assistant General Manager of State Bank of India Chandigarh RACPC to complainant dated 30.06.2011 regarding executing the documents. Ex.C-16 is the copy of tripartite agreement dated 02.07.2011 between complainant and the State Bank of India and OP. The OP had not signed this tripartite agreement on the record. The OP relied upon affidavit of Harsh Bhargav, Authorized Representative of OP Ex.OP-1/A. The gist of the affidavit is that the complainant failed to make the payment within stipulated period, which led to the forfeiture of his earnest money, resulting into cancellation of plot in question. Ex.OP-1 is copy of letter dated 25.01.2010 from Prime Properties Chandigarh to the Manager of OP regarding giving discount of 3% of brokerage directly to complainant of 200 yard plot. Ex.OP-2 is copy of letter dated 30.07.2010 from OP to complainant regarding provisional allotment of plot no.507 measuring 205.62 square yards. This is tentative allotment only and cannot be said to be conclusive or final allotment and was subject to variation thereafter. The letter sent by complainant to OP is Ex.OP-3 regarding the fact that complainant has already paid Rs.7,12,550/- towards payment of 25% of BSP against provisional allotment of the plot no.507. Ex.OP-4 is copy of letter of intimation of due installments from OP to complainant of Rs.18,86,195.56 paise. Ex.OP-5 is the intimation to complainant that relaxation in payment of installment would not be extended to the complainant. Ex.OP-6 is the copy of letter dated 03.03.2011 Consumer Complaint No.45 of 2014 15 indicating the forfeiture of earnest money by OP of complainant resulting into cancellation of said plot.
5. From critical evaluation of above referred evidence on the record, we find that complainant is not intentionally at fault in not making the payment of the due installments to the OPs. The complainant exhibited his sincere intention from the very beginning in applying for loan to State Bank of India, which was shifted to the Baddi Branch of State Bank of India (HP) from Chandigarh Office. The delay took place in processing of the loan case of the complainant by the Bank. Had there been any malafide intention on the part of complainant, he would not have deposited initial amounts with the OP. We find that the OP is taking undue benefit of clause 17 of allotment letter Ex.C-8 to the effect that the delay in sanction of loan would not be a ground to extend the time. Clause 20 thereof is also a part of allotment letter/buyer's agreement Ex.C-8. The clause incorporated later to clause 17 in it, which is clause 20 cannot be ignored by us altogether. This clause gives discretion to the OP in exceptional circumstances to condone the delay in payment by charging penal interest @ 18% on the amount outstanding upto one month delay from the due date of outstanding and @ 24% per annum thereafter on all outstanding dues from their respective due dates. Had clause 17 been introduced subsequently to clause 20 of it, then in that case, it would have been said that primacy has to be given to clause 17 of allotment letter/buyer's agreement Ex.C-8. We Consumer Complaint No.45 of 2014 16 cannot exclude from consideration clause 20 of allotment letter/buyer's agreement Ex.C-8 on the record. This is a case of extreme hardship undergone by the complainant, as it is evident from the documents on the record. The loan case of the complainant was sanctioned by the bank ultimately on 14.12.2010, vide Ex.C-9 on the record without any fault of the complainant. The complainant duly intimated to the OP regarding the delayed payment by explaining the reasons for delayed payment, vide Ex.C-10. Ex.C- 10/A to Ex.C-10/C the copies of email dated 26.12.2010 on the record. Once the State Bank of India Branch Baddi sanctioned the loan and tripartite agreement was handed over to complainant to be executed by OP, but the OP had avoided their responsibility to sign the tripartite agreement Ex.C-16 on the ground of delayed payment by taking resort to clause 17 of buyer's agreement Ex.C-8. We find that the complainant cannot be penalized for no fault on his part. The complainant won the case from District Forum Mohali, but the order has been set aside on jurisdiction ground of pecuniary jurisdiction of District Forum Mohali by State Commission Punjab. After sending the intimation of delayed payment by complainant to OP vide Ex.C-10, Ex.C-10/A to Ex.C-10/C, the OP preferred to cancel the plot vide letter dated 03.03.2011 Ex.C-11 on the record in this case. There is no explanation by OP as to why the OP has not exercised the discretion in condoning the delay, as per clause 20 of the buyer's agreement, when this is genuine case of the complainant justifying Consumer Complaint No.45 of 2014 17 the invocation of clause 20. Housing is a service as defined under the Act and a builder also is under solemn obligation to remove genuine defects of the buyers and should not proceed to cancel the booking of the plot, when there is no fault on the part of buyer. A common man collects money with great efforts and then dreams to build some house for his family and if such tragedy happened to him, then he is left nowhere. Even there is no postal receipt of letters from OP to complainant vide Ex.R-4 to R-6 on the record. We are, thus, of this considered view after evaluation of above referred evidence on the record and hearing the submissions of counsel for the parties, that the cancellation of plot no.507 by OP, vide impugned letter dated 03.03.2011 Ex.C-11 deserves to be set aside. We accept the complaint of the complainant by directing OP to restore the allotment of plot no.507 to complainant and complainant is further directed to make the payment of balance sale price, as due from the date of this order with interest calculated thereon as per clause 20 of Ex.C-8. The complainant shall deposit the due amount with OP within 45 days from the date of receipt of certified copy of the order. We also award the compensation of Rs.25,000/- to the complainant for mental harassment and Rs.10,000/- as costs of litigation. The complaint is, thus, accepted and stands disposed of accordingly.
6. Arguments in this complaint were heard on 02.09.2015 and the order was reserved. Now the order be communicated to the parties.
Consumer Complaint No.45 of 2014 18
7. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S. GURAM) MEMBER September 04, 2015.
(MM)