State Consumer Disputes Redressal Commission
M/S Taneja Dev. & Infra. Ltd. vs Sh. Tej Bhadur Singh on 19 August, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 19.08.2013 Case No. FA-586/12 (Arising from the order dated 23.4.2012 passed in Complaint Case No. TC/1217/08 by the District Consumer Forum-VI, District New Delhi, M Block, Ist Floor, Vikas Bhawan, IP Estate New Delhi-110001) M/S TANEJA DEVELOPERS & - APPELLANT INFRASTRUCTURE LTD. Through Its Authorized Representative Having its place of Business at: 10, Shaheed Bhagat Singh Marg, Gole Market, New Delhi. Versus SH. TEJ BHADUR SINGH - RESPONDENT R/O F-176, 2ND Floor, Mansarovar Garden, NewDelhi-15. CORAM : S.A. SIDDIQUI - MEMBER (JUDICIAL) S.C. JAIN - MEMBER 1. Whether reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? S.A. SIDDIQUI (ORAL) JUDGEMENT
1. Having been aggrieved by the order dated 23.4.2012 passed by the District Consumer Forum-VI, District New Delhi, M Block, Ist Floor, Vikas Bhawan, IP Estate New Delhi-110001 in Complaint Case No. TC/1217/08, OP, M/s Taneja Developers and Infrastructure Ltd. (Formerly Intime Promoters (P) Ltd.), preferred this appeal against Complainant/respondent, Tej Bahadur Singh.
2. In aforesaid complaint, the following order was passed:
We direct the OP to allot the Plot in A B C Block, TDI City Kundli, Sonepat at the same plot value which was declared at the time of booking i.e. 29,37,500/- after total payment which is due towards complainant. If the plot is not available with the OP, we direct the OP to refund the booking amount along with interest @ 18% p.a. from the date of booking till the date of payment. In second option --- We further award Rs. 5,00,000/- as compensation.
3. Relevant facts leading to the filing of this appeal are noted below:
Appellant/OP issued publication regarding selling of plots in TDI City Kundli. The complainant became the member of OP Society for getting the plot admeasuring 250 sq. yds. vide advance registration form dated 7.3.2006 and deposited a sum of Rs. 5,87,500/- through cheque No. 815681 dated 12.3.2006 drawn on Indian Bank, Rajouri Garden, New Delhi. It was cancelled by the OP vide receipt No. KR 3-1040-OL-Kun-1 dated 1.4.2006 for the said booking @ Rs. 11,750/- per sq. yd. The Appellant/OP promised to make the allotment within a period of six months from the date of registration. Thereafter, complainant received a letter dated 4.1.2008 asking for more payment.
On assurance of the OP/appellant, the complainant issued a cheque from the account of his son bearing No. 838229 dated 28.2.2008 for a sum of Rs. 3,58,000/-. The Complainant/respondent was assured that after encashment of cheque, the allotment number of plot A-16/11 would be given in TDI City Kundli. However, the complainant was surprised when he obtained a Bank statement and found that the cheque was not encashed by the OP/appellant nor it was returned. The OP/appellant, through its letter dated 13.6.2008 cancelled the membership of the complainant/respondent from the Society.
4. The complainant sent a legal notice dated 23.6.2008 to the OP/appellant requesting for restoration of membership of the complainant and for allotment of plot No. A-16/11 in Block A in TDI City. When the request for plot was not heeded by the OP/appellant, complainant/respondent was left with no choice but to file a complaint before DCDRF-VI, M Block, Ist Floor, Vikas Bhawan, New Delhi.
5. In their reply, the OP/appellant admitted that complainant/respondent had applied for residential plot in its upcoming project at TDI City, Kundli, Sonepat and had deposited a sum of Rs, 5,87,500/-. The offer of allotment was intimated through various letters.
Since, the complainant had deliberately failed to make further payment, the membership from the society was cancelled and letter dated 13.6.2008 was issued to the complainant/respondent.
6. Ld. DCDRF-VI after evaluation of evidence on record recorded a finding to the effect that OPs were guilty of deficiency in service and had even indulged in unfair trade practice. Ld. District Forum, therefore, decreed the complaint against the OPs. Hence this appeal.
7. The impugned order dated 23.4.2012 was assailed on the ground that it was passed in utter disregard of the settled principle of law. Ld. District Forum failed to appreciate that at the time of registration of residential plot, the complainant was clearly told about the terms and conditions. The complainant after deposit of Rs. 5,87,500 on 7.3.2006, never bothered to make further deposits in time as per schedule provided to him by the OP. He knew fully well that at the time of booking, 20% of the cost i.e. 5,87,500/- was to be despoiled, which he did. He was to deposit 10% at the time of allotment.
Thereafter, within 2 months of allotment again 10% and within 4 months, 10% so on and so forth were to be deposited but he deliberately violated the terms and condition of the allotment and failed to make payment within time. Under the circumstances, allotment of the residential plot was cancelled for:
(a) Not making due payment in time
(b) for violating the terms and conditions of the advance registration booking form.
8. The appellant/OP maintained that Ld. District Forum failed to appreciate that registration of residential plot was rightly cancelled since the complainant/respondent failed to honour the terms and conditions of the advance registration form and further failed to pay the due payments. A copy of the Advance Registration Form as Annexure A-5, Copy of letters 13.6.2008 and 23.9.2008 as Annexure-6 (Colly) were filed. Ld. District Forum also failed to appreciate that complainant/respondent failed to make payment despite several letters and reminder letters sent to him. It was further maintained that Ld. District Forum failed to consider that appellant had taken huge amount of loans from Banks in order to complete the project.
Ld. Forum came to a wrong conclusion that the OP/appellant was guilty of deficiency of service or had indulged in unfair trade practice. The impugned order was untenable being illegal and deserves to be dismissed.
9. The respondent/complainant filed reply. It was stated that therein that membership of the complainant/respondent on deposit of Rs. 5,87,500/- was admitted by the OP/appellant. After deposit of Rs.
5,87,500/- on 7.3.2006 through cheque, another deposit of Rs. 3,58,000/- was made on 28.2.2008. This amount according to details supplied by the OP/appellant consisting of Rs.2,93,750/- being 10% part payment and Rs. 64,250/- being extra development charges.
The complainant/respondent was issued receipt for the same from the office of the OP/appellant. At the time of making of this payment, respondent/complainant was assured that after encashment of the cheque, the respondent/complainant shall receive allotment number of plot in A Block TDI City, Kundli, which according to representative of the appellant/OP was marked as A-16/11, TDI City, Kundli. The total value of the plot was Rs. 29,37,500/- and basic rate was Rs. 11,750/- per sq.yds., in the year 2006. The complainant/respondent came to know that prices in the area had gone four fold high and therefore, OP/appellant resorted to dishonest method of cancelling the allotment of the residential plot on flimsy ground alleged violation of terms and conditions of the Advance Registration Booking Form. The appellant/OP even did not bother to serve notice for cancellation.
As a matter of fact, the payment was only little bit delayed for which OP/appellant would have charged adequate interest. As a matter of fact, the amount deposited by the complainant/respondent was kept and utilized by the OP/appellant for more than 2 years and when the price had gone up in the area, all of a sudden membership of the complainant/respondent was cancelled on flimsy ground. This amounted not only to deficiency of service but also shows that the OP/appellant never bothered to adopt unfair trade practice as rightly held by Ld. DCDRF in its impugned judgment and order dated 23.4.12. Not only this, the complainant respondent sent a legal notice dated 23.6.2008 through Sh. M.L. Mahajan, Advocate for restoration of membership of the plot but despite due service of the notice, appellant/OP did not reply the notice. As a matter of fact, appellant/OP never made any demand by the installments. On the other hand respondent/complainant had been approaching the appellant/OP time and again asking for information regarding the payment of the installment if due. The appellant/OP had no power to make any demand without allotting the plot number and likewise appellant/OP cannot cancel the membership of the respondent/complainant without sending him registered notice demanding the payment.
In case, the complainant/respondent failed to make payment despite service of notice then only the appellant/OP had power to cancel the membership/allotment. The impugned judgment and order dated 23.4.2012 passed by Ld. DCDRF-VI was legally sound and maintainable.
10. We have heard Mr. Karan Minocha, Counsel for the Appellant and Sh. Gaurav Mahajan, Counsel for the Respondent.
11. Advance Registration Form, TDI City, Annexure P-1 submitted by the complainant/respondent is on record. The complainant/respondent got himself registered for allotment of residential plot of size 250 sq. yds in upcoming project of OP in TDI City, Kundali, Sonepat. For registration purpose, cheque no. 815681 dated 12/3/2006 for a sum of Rs. 5,87,500/- was issued which was duly received by the OP/appellant. This was to be treated as registration deposit subject to certain conditions:
(a) That your offer of allotment for a residential plot in your future scheme(s) shall be made to me/us within 6 months of my registration application made herein.
(b) The said registration deposit paid by me/us would be adjusted against the booking amount payable by me/us and when your offer of allotment for a residential plot is made to me/us.
(c) In the event your offer of allotment for a residential plot/house is made to me after 6 months, a simple interest @ 10% p.a. shall be paid to me/us for the period beyond 6 months on the amount paid by me/us upto the date the said offer of allotment is made.
(d) payment plan was also mentioned in the registration Form which the registrants accepted to abide/follow.
12. Option (1) was down payment plan, which was not accepted by the complainant. He adopted option-2. According to this option, at the time of booking 20% i.e. Rs. 5,87,500/- was to be paid, which the complainant paid. At the time of allotment, 10% of the cost was to be paid i.e. Rs. 2,93,750/-. Thereafter, within 2 months of allotment, 10% was to be paid again. Thereafter, within 4 months of allotment, 10% was to be paid onwards. But there is nothing to prove that the OP/appellant in compliance of the terms and conditions made offer of allotment within six months of registration application. The complainant in compliance of the letter dated 4.1.2008 made payment of Rs. 3,58,000/- on 28.2.2008 through cheque No. 838229, which consisted of Rs. 2,93,750/- as 10% of the cost + Rs. 64250/- towards development charges.
13. Under these circumstances, there appears no justification for cancellation of the membership/allotment of the residential plot without issue of mandatory registered notice. Therefore, we do not find any infirmity in the finding recorded by the Ld. DCDRF-VI holding OP guilty of deficiency of service and indulging in unfair trade practice. We, therefore, in principle agree with the finding of the Ld. DCDRF-VI. However, we are also of the view that the alternative finding requires some modification in the interest of justice. The Ld. DCDRF-VI while directing the refund of the booking amount ordered payment of interest @ 18% p.a., which is in higher side. After awarding interest award of compensation to the tune of Rs. 5 Lacs also appears in higher side. Therefore, we modify the impugned judgment and order dated 23.4.2012 in the following manner:
(i) The appellant/OP is directed to allot the plot in A B C Block, TDI City, Sonepat at the same plot value, which was declared at the time of booking i.e. Rs. 29,37,500/-
after total payment, which was due towards complainant. In the alternative, if the plot is not available with the appellant/OP, we direct the appellant/OP to refund the booking amount along with interest @ 12% from date of booking till date of payment.
(ii) We further direct payment of award of Rs. 2,50,000/- as compensation in case above said plot is not provided to the complainant, which includes cost of litigation as well.
14. In the result, the appeal is partly succeeds and the impugned order dated 23.4.2012 stands modified accordingly.
15. A copy of this judgement and order as per the statutory requirement be provided to the parties free of charge and one copy be sent to the District Consumer Redressal Forum-VI to place it on the record of the Complaint Case No. TC/1217/08, thereafter the file be consigned to Record Room.
16. Registry is directed to release FDR, if any, as per rules.
17. Pronounced on 09.10.2013.
(S.A. SIDDIQUI) MEMBER (JUDICIAL) (S.C. JAIN) MEMBER rn