State Consumer Disputes Redressal Commission
Joginder Singh Salaria vs M/S Pearls Infrastructure Projects ... on 14 December, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.76 of 2017
Date of Institution : 08.02.2017
Order reserved on: 12.12.2017
Date of Decision : 14.12.2017
Joginder Singh Salaria S/o Shri Baldev Singh Salaria, B-177
Kendrya Vihar Sector 48-B, Chandigarh (UT).
.....Complainant
Versus
1. M/s Pearls Infrastructure Projects Ltd. through its Chairman
(Mr. Nirmal Singh Bhangoo) A Wing, 2nd floor Stateman
House, Barakhamba Road Connaught Place New Delhi,
110001.
Also at
M/s Pearls Infrastructure Projects Ltd. through its Chairman
(Mr. Nirmal Singh Bhangoo) SCO no.06, Sector 69, SAS
Nagar Mohali (Pb.)
2. M/s P.A.C.L. Ltd. through its Chairman (Mr. Nirmal Singh
Bhangoo) A Wing, 2nd floor Stateman House Barakhamba
Road, Connaught Place, New Delhi.
.....Opposite Parties
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Joginder Singh Salaria, in person For opposite parties : Ex-parte ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Joginder Singh Salaria complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that on the assurances of representative of OPs for salient features of the Consumer Complaint No.76 of 2017 2 project, he applied for a plot in Mohali Township Sector 100, the project of OP no.1 in February 2011, by paying 15% amount, as earnest money to OP no.1. There was no existence of OP no.2 on documents presented and submitted for allotment of plot and receipts of payments received from him by OP no.1. OP no.2 Promoter company M/s PACL Ltd. entered into a project management agreement with OP no.1 marketing company M/s Pearls Infrastructure Projects Ltd. as OP no.1 on 11.07.2006, which collected money from buyers and thereafter disappeared. OP no.1 did not answer the reply of letter written to it in the last two years and it did not confirm the date of possession of complainant. OP no.1 issued allotment letter Annexure C-1, wherein it was mentioned that timely payment of installments is the essence of the understanding between the complainant and OPs. OPs have not started the development work at the site and only notional offer has been offered to him, vide letter dated 16.09.2014. OP no.1 has never shown its identity as marketing agent of OP no.2 PACL on letter heads, communication/issuing receipts of payments to the effect that it has been working for M/s PACL Ltd. It is further averred that architect M/s Khanna & Associates Chandigarh has confirmed vide their reports regarding approval of the projects and the development of site, which is in progress on 11.02.2011, whereas the development work has not been started by OPs till date. The complainant booked the above plot in Mohali for residential purpose only with his family, as he is in private service at Baddi (Himachal Consumer Complaint No.76 of 2017 3 Pradesh). Plot no.191 measuring 250 square yards was allotted to him by OP no.1 and he made the payments to OP no.1 through crossed cheque against receipts, but the property rights were with M/s PACL Ltd. OP no.2 and OP no.1 has been working as marketing agent of OP no.2 and this fact has not been disclosed to him. It came to his knowledge, when he made the representation before GMADA on 24.02.2016 that OP no.1 M/s Pearls has been working as agent of M/s PACL Ltd. OP no.1 concealed this fact from complainant as well as from other allottees. It is further averred that he paid money to OP no.1, but no possession has been offered to him. In every report, OP no.1 represented that development work is in full swing, but it never started the work of development at all. As per agreement dated May 2011, the possession of the plot was to be delivered in May 2014 (within 36 months from the date of agreement). GMADA authority has to inspect the work done in every six months in above said project, but it never visited and never published the reports. Architect, Housing Loan Company and GMADA are involved in the scam with OP no.1. OP no.1 did not give any reply to letters asking it for date of delivery of possession of plot, which were to be given in the year 2014. PACL Ltd. OP no.2 is also involved in Pongee scam and being investigated by SEBI on directions of Apex Court under committee constituted under Chairmanship of Hon'ble Justice Sh. R.M. Lodha and this committee is selling the properties through sale on CBI reports. Lastly, complainant sent letter on 21.07.2016 asking OPs for date of Consumer Complaint No.76 of 2017 4 delivery of possession. The complainant has made total payments of Rs.66,60,000/- out of total payments of Rs.70,00,000/- to OP no.1 for above plot. The complainant has also paid Rs.39,326/- (Rs.35,000/- + applicable service tax) for the club charges, but OP no.1 failed to deliver the possession within scheduled time to complainant nor it raised any such development thereat. The complainant has, thus, prayed that OPs be directed to pay the escalation cost @12% per year as non delivery of possession of plot; further to pay Rs.3,00,000/- as compensation for mental harassment per year; to hand over the possession of a developed plot in question at the earliest without demanding the electrical grid charges @300 per square yards & general maintenance for five years, club charges without providing club; to give monthly rent @18,000/- per month; to pay Rs.1,50,000/- as costs and litigation expenses; and to pay interest @18%, as charged by OPs on minor delay.
2. Notice was issued to OPs and they have not appeared despite substituted service carried out in Daily newspaper Jagbani and as such they were set exparte in this complaint on 06.11.2017.
3. The complainant tendered in exparte evidence his affidavit Ex.C-A alongwith copies of documents Ex.C-1 to C-7 and closed the exparte evidence.
4. We have heard the complainant in person at considerable length and have also examined the record of the case. The OPs are exparte in this case. Only exparte evidence has been adduced on record by the complainant to substantiate his claim in Consumer Complaint No.76 of 2017 5 this complaint. The complainant tendered his affidavit Ex.C-A in exparte evidence in support of his application, as pleaded in the complaint. He testified in this affidavit that he submitted an application to OP no.1 for allotment of plot no.191 Pearls City Sector 100 Mohali, measuring 250 square yards and paid Rs.7,00,000/-, being 10% cost of plot, as earnest money. This witness has further testified that OP no.1 represented to him that the requisite licenses, approvals and exemptions have been obtained by it from the Government of Punjab and from other competent authorities under law. The possession was handed over to him of the plot within three years from the date of commencement of development and construction of said township. Buyers agreement was executed in this regard on 10.01.2013. OP no.1 changed the basic conditions in its favour from conditions of allotment application dated 30.11.2011. OP no.1 nowhere mentioned the control of OP no.2 as owner of the project at the time of allotment of the plot to him or at the time of applying for allotment of above plot. The complainant has paid 95% price of the plot to OP no.1, but despite lapse of time, OP no.1 has not delivered the possession to him, as agreed upon. He further stated that OP no.1 is guilty of deceptive practice by not delivering the legal possession of the plot fully developed within the time despite receipt of 95% of the sale consideration. OP no.1 has also not developed the project and is liable to pay interest to him @18% per annum on the deposited amount of Rs.66,89,326/- till date of delivery of possession. Ex.C-1 is the payment plan of the plot issued Consumer Complaint No.76 of 2017 6 by OP no.1 in this case. The payment plan has been depicted in Ex.C-1 in Sector 100 Mohali. The club membership charges are Rs.35,000/- as shown in it. Plot buyers agreement was executed on 10.01.2013 between complainant and OP no.1 vide Ex.C-2 on the record in this case. Ex.C-3 is the copy of allotment letter sent by OP no.1 to complainant for allotting him plot no.191 in Pearls City Mohali Sector 100. The statement of account of the amounts received from complainant addressed to him by OP no.1 is Ex.C-4 on the record. OP no.1 has been shown to have received the amount of Rs.56,39,326/- from the complainant and the balance amount has been shown in it as Rs.17,16,314.33 paise only. This statement of account is dated 16.09.2014 in the name of complainant Joginder Singh Salaria. The version of the complainant is that he has paid more than 95% of the amount of above plot to OP no.1 in this case. OP no.1 offered possession to him by virtue of letter dated 16.09.2014 Ex.C-5 on the record, which was replied by complainant vide Ex.C-6 that plot is unregistered and has not been handed over to him. Ex.C-6/A is the document sent by OP no.1 to complainant that it has started collecting the documents from SEBI for the purpose of refunding the amounts to the customers of PACL OP no.2.
5. From careful evaluation of above referred exparte evidence on the record and hearing the submissions of complainant, we have reached this conclusion that so far as OP no.2 is concerned, it is not a privy to any contract with complainant. The Consumer Complaint No.76 of 2017 7 complainant applied with OP no.1 only for the allotment of plot in dispute. The complainant has paid the entire sale consideration to the extent of 95% to OP no.1 only. Services of OP no.1 has been hired by the complainant in this case and all the payment receipts herein have been issued by OP no.1 to the complainant. The plot buyers agreement is dated 10.01.2013 on the record. The name of OP no.2 figured in it, but we have come to this view that OP no.2 is not a signatory to this buyers agreement. Only stamp of OP no.2 is affixed without any signature at the bottom of this document. This document is entered into between OP no.1 and complainant only, as gathered by us on the record. So, we have come to this conclusion that complainant has neither hired the services of OP no.2 nor OP no.2 received any consideration from the complainant. Even if, OP no.1 has concealed the material fact that OP no.2 has also got some control over the project, then OP no.1 is guilty of unfair trade and deceptive trade practice only. The complainant seeks the relief of delivery of possession in this case and not the refund of the amount. Since, OP no.1 has received almost substantial amounts of sale consideration from complainant and the agreed date of delivery of possession was within three years from 10.01.2013, which has already expired in this case. The complainant has not still received the possession from OPs. So, in the circumstances of the case, the complainant is entitled to delivery of complete legal possession accompanied by occupancy certificate from OPs in this case within a period of four months from this date. The complainant primarily Consumer Complaint No.76 of 2017 8 claimed the relief of delivery of possession of the allotted plot with compensation for the monetary loss suffered by him. The complaint of the complainant has force and succeeds exparte in our view.
6. As a result of our above discussion, we exparte accept this complaint of complainant and direct OPs to deliver the complete legal possession of plot no.191 to complainant accompanied by occupancy certificate within four months period from the date of receipt of certified copy of this order. OP no.1 shall pay the interest @12% per annum to the complainant on the entire deposited amount with effect from 10.01.2016 till the date of actual delivery of complete and legal possession of the plot accompanied with occupancy certificate, as contemplated under Section 14 of the Punjab and Apartment and Property Regulation Act, 1995. We also exparte award the compensation of Rs.2,50,000/- to complainant for mental harassment and Rs.30,000/- as costs of litigation in this exparte complaint. In case, the amount is required to be paid by OP no.2 due to its control over the project, then in that eventuality, the recovery shall be effected by complainant through the instrumentality of SEBI Committee constituted by Hon'ble Supreme Court in Civil Appeal no.13301 of 2015 titled as "Subrata Bhattacharya Vs. Securities & Exchange Board of India". Top Court passed the order that where PACL Limited is concerned in any dispute or before any court, SEBI shall constitute a Committee for disposing of the land purchased by above company, so that the sale proceeds can be paid to investors, who have invested their funds in the company for Consumer Complaint No.76 of 2017 9 purchase of the land. Hon'ble Mr. Justice R.M. Lodha, the former Chief Justice of India, has been designated as Chairman of the said Committee by the Apex Court. The said committee has been authorized by Apex Court to collect relevant record including the title itself and so on and a Nodal Officer shall be appointed, who shall be the Incharge of funds collected and shall have a liaison with the Committee and shall also work as a Secretary of the said Committee. The Apex Court has ordered not to part with or share record and to approach the Committee etc., wherein PACL Ltd has a right or interest in order to repay customers/investors of PACL Limited herein this case, PACL Limited is also a party to prior agreement and as such the intervention of the above Hon'ble Committee is an indispensable and mandatory in this case, as per direction of the Hon'ble Supreme Court.
7. Arguments in this complaint were heard on 12.12.2017 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
8. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER December 14, 2017.
(MM) FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.71 of 2017 Date of Institution : 07.02.2017 Order reserved on: 11.12.2017 Date of Decision : 13.12.2017 Tanu Kapila, House No.55, Opposite Jajah Wali Kothi, Star Enclave, Manakwal Gill, Ludhiana.
.....Complainant Versus
1. M/s Vipul Limited, Corporate Office at : Vipul Tech Square, Golf Course Road, Sector 43, Gurgaon-122009, through its Managing Director.
2. M/s Vipul Limited, Vipul World, Village Bhanohar, P.O. Dakha, Ferozepur Road Ludhiana-141102, through its Managing Director or Authorized Representative.
3. Housing Development Finance Corporation Limited, SCO 14, Canal Colony, Green Park Avenue, Pakhowal Road, Ludhiana.
.....Opposite Parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member. Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. R.K. Bhatia, Advocate For opposite party nos.1 & 2 : Sh. Vineet Sehgal, Advocate For opposite party no.3 : Ms. Anjali Moudgil, Advocate ................................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite parties (OPs) on the averments that OP nos.1 and 2 represented to develop a residential township known as "Vipul World" consisting of high end independent floors/flats, towers including car parking spaces and other facilities. OP nos.1 and 2 Consumer Complaint No.71 of 2017 2 also represented to have sufficient statutory approvals for constructing and developing the above such apartments, being owners of the land to be developed. The complainant booked residential apartment in the above said project on 23.04.2013 by depositing booking amount of Rs.3,50,000/-,vide cheque no.067366 drawn at Axis Bank against receipt. OP nos.1 and 2 allotted unit no.35 on ground floor, block E, containing built up area 1180 square feet in their project to him for total sale price of Rs.33,89,308/- including external development charges, social infrastructure fund and labour cess etc. Floor buyer's agreement was executed between the parties on 31.10.2013. As per clause 24 of the above agreement, OP nos.1 and 2 were bound to hand over possession of the apartment within 24 months from the date of booking and with grace period within 27 months. The complainant opted construction linked plan and paid Rs.22,00,000/- to OP nos.1 and 2 till date. OP nos.1 and 2 have not raised the construction or made development of the said apartment at the site. The complainant was keen to shift to the independent floor alongwith family and OP nos.1 and 2 were time bound to hand over the possession of such apartment to complainant till July 2015 including grace period of three months. Despite lapse of almost 3½ years, there is no sign of any progress or development on the site by OP nos.1 and 2. The club house, boundary walls, roads have been lying unconstructed, water system and other basic amenities are not available on the site. The complainant has been regularly paying the installments and OP Consumer Complaint No.71 of 2017 3 nos.1 and 2 charged interest from complainant for delay on their part. The complainant has availed housing loan from Housing Development Financial Corporation for buying the said apartment. The complainant approached OP nos.1 and 2 for refund of the amounts, as they have failed to construct the project and by developing it and to hand over the possession thereof in the time bound manner. The complainant has, thus, prayed for refund of the amount of Rs.22,00,000/- alongwith interest @24% per annum from the date of payment till realization and further prayed for compensation of Rs.5,00,000/- for mental harassment and Rs.35,000/- as costs of litigation.
2. Upon notice, OP nos.1 and 2 appeared and filed written reply and contested the complaint of the complainant vehemently.
Preliminary objections were raised by OP nos.1 and 2 that complainant was not in the capacity to pay the installments against the allotted unit to OPs. He wanted the allotment of the unit cancelled and sought refund of the money just to avoid forfeiture of 10% of money out of total sale consideration, as per agreement entered into between the parties. The complainant has intentionally concealed the emails dated 21.11.2014, 27.02.2015, 13.04.2015, 15.04.2015 and 31.08.2015, wherein the perusal of the same clearly highlighted that the complainant was not interested in taking the possession of the flat, rather he sought cancellation of the flat on one pretext or the other. Since, such request for cancellation of apartment invited penalty for forfeiture, hence he filed the present Consumer Complaint No.71 of 2017 4 complaint by abusing the process of law and by concealing the total facts. The complaint merits dismissal on this point. Floor buyers agreement was executed between the parties on 31.10.2013 and as per clause 45, the venue of arbitration would be at Gurgaon and matter was arbitral and hence Consumer Forum has no territorial jurisdiction to try the complaint. The complainant has no cause of action against answering OPs, as he is bound by the principle of promissory estoppels. The complainant himself admitted and stated that he remained out of job for the last six months and was unable to pay the due payments and requested for cancellation of the unit. The complainant failed to pay the amounts of installments to OP nos.1 and 2 and demand notices dated 20.01.2015, 01.05.2015, 04.07.2016, 16.07.2015, 23.12.2015, 23.01.2016, 03.06.2016, 09.08.2016 and 26.10.2016 were issued to him supported by postal receipts. The complaint is alleged to be misconceived. The complainant requested that in case his cancellation of unit was not made, he be given atleast 10 months time to continue with his investment. The answering OPs also contested the complaint even on merits. OP nos.1 and 2 admitted that they are in process of developing the above project. The fact of booking of residential apartment in the said project by complainant on 23.04.2015 with booking amount of Rs.3,50,000/- with OPs was admitted. The fact of allotment of apartment no.35, ground floor Block E to complainant for total consideration of Rs.33,89,308/- was also admitted. This fact was also admitted that complainant has paid a sum of Consumer Complaint No.71 of 2017 5 Rs.22,00,000/- to OP nos.1 and 2 till date. OP nos.1 and 2 also offered possession of the apartment to complainant, vide letter and reminders dated 15.12.2016, 21.01.2017, 20.02.2017 and 28.03.2017. It is further averred that Clause 23 of Floor buyers agreement lays down that if the vendees neglected to take possession of the independent floor after expiry of 30 days from the date of notice for whatever reason, the vendor will be deemed to have received the possession of the said independent floor and thereafter the said independent floor shall lie at the risk and cost of the vendee and vendee shall be liable to pay holding charges @Rs.5/- per square feet per month until the vendee takes physical possession of the unit. These holding charges shall be payable by the vendee over and above his/her share of maintenance charges, municipal/local authority charges, levies etc., as determined by the vendor. The OPs offered the possession of the unit to the complainant and has not come forward to receive the same. Notice dated 09.12.2016 was duly replied by OPs vide reply dated 15.12.2016 offering possession of unit no.35 to him and email dated 16.12.2016 was also issued to him in this regard. OP nos.1 and 2 controverted the other averments of the complainant and prayed for dismissal of the complaint.
3. OP no.3 filed its separate written reply by raising preliminary objections that complaint is directed against OP nos.1 and 2 only in terms of buyers agreement. There is no allegation of deficiency in service against OP no.3. As regards the finance Consumer Complaint No.71 of 2017 6 advanced by the HDFC Limited is concerned, the rights of the parties to the present lis are governed by the loan agreement and the tripartite agreement in this regard. In case of cancellation of unit or in the contingency of the termination of the plot buyer's agreement, the HDFC Limited has the first charge/right to seek apportionment of its dues. The loan account of the complainant is regular and in case of any future default OP no.3 has to proceed in accordance with the terms of loan agreement. It was averred on merits, that complainant obtained housing loan of Rs.9,00,000/- out of Rs.15,00,000/- from OP no.3 on the basis of above agreement. OP no.3 denied any deficiency in service on its part and prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.CW/A alongwith copies of documents Ex.C-1 to C-24 and closed the evidence. OP no.3 tendered in evidence affidavit of Nandan Singh Rawat Manager Ex.OP3/A alongwith documents Ex.OP3/1 to Ex.OP3/4 closed the evidence. OP nos.1 and 2 tendered in evidence affidavit of Mrs. Parul Sharma authorized representative Ex.OP1/2-A alongwith documents Ex.OP1/2-1 to Ex.OP1/2-9(b) and closed the evidence.
5. We have heard the learned counsel for the parties and have also examined the record of the case. Evidence on the record has been adverted to by us in this case for resolution of dispute between the parties in this case. Ex.C-1 is copy of receipt no.040 dated 23.04.2013, vide which, the complainant paid cheque of the Consumer Complaint No.71 of 2017 7 amount of Rs.3,50,000/- to OP nos.1 and 2 as booking amount towards purchase of unit no.35, Block-E ground floor in Vipul world scheme. Buyers agreement Ex.C-2 was executed between the parties on 31.10.2013 in this case. It is evident from perusal of buyers agreement Ex.C-2 that the total sale consideration of the project was Rs.33,89,308/-. As per clause 24 of buyers agreement Ex.C-2, the OP nos.1 and 2 agreed to deliver the possession of the said independent floor to complainant within 24 months with a further grace period of 90 days, subject to force majeure circumstances. No force majeure circumstances at all are pleaded or proved on record in this case by OP nos.1 and 2. As per clause 24 of buyers agreement, OP nos.1 and 2 agreed to deliver the possession of the floor to complainant within 27 months by the end of January 2016. The payment schedule is part of this buyers agreement. It is construction linked plan and payment was to be released as per construction stages of the project. Ex.C-3 is the copy of letter dated 20.02.2014 from OP no.3 for according approval of loan to complainant to the tune of Rs.15,00,000/- for purchasing above apartment. Ex.C-4 is copy of receipt dated 22.07.2013, vide which, complainant paid another amount of Rs.3,47,402/- to OP nos.1 and
2. Ex.C-5 is the copy of cheque no.137471 dated 09.04.2014 of Rs.3,34,385/- in favour of OP nos.1 and 2. Ex.C-6 is cheque dated 05.10.2014 of Rs.12,418/- in favour of OPs and Ex.C-7 is the copy of another demand draft dated 24.09.2014 in favour of Vipul Punjab Project Sales of Rs.3,21,967/-. Ex.C-8 and C-9 are copies of other Consumer Complaint No.71 of 2017 8 D.D. of Rs.2,22,000/- dated 19.11.2014 and cheque no.137476 dated 19.11.2014 of Rs.1,09,435/- in favour of OPs. Ex.C-10 is the copy of statement of complainant issued by Axis Bank. Ex.C-11 is the email sent by complainant asking OPs to intimate him the accurate time frame in which money will be refunded to him. Ex.C-12 is the copy another email in this regard. Ex.C-13 is the copy of legal notice dated 09.12.2016 served upon OPs by complainant and Ex.C-14 and C-15 are the copies of postal receipts thereof. Ex.C-16 is the copy of email dated 16.12.2016 to complainant by OPs to the effect that on receipt of full amount, the final physical possession shall be delivered to him. Ex.C-17 to C-24 are the photographs clicked by the complainant of the above project.
6. The OPs also led rebuttal evidence to refute the case of the complainant in this case on the file. The OPs relied upon request Ex.OP1/2-1 sent by complainant on 21.11.2014 for cancellation of unit and refund of the amount. He further stated that due to lack of money, he is unable to pay installments even of the bank. He borrowed money from his brother for making previous payments and he is unable to help him. He tried to sell the unit by giving advertisement, but it is in futile, as market is not responding appropriately. He expressed his helplessness in paying the installments and prayed for either his unit be cancelled or to refund him the deposited amount and he admitted his default and further prayed for at least 10 months time, so that he could get some job and continued with the investment. This document sent by Consumer Complaint No.71 of 2017 9 complainant within time frame period of delivery of possession has been relied upon, as sheet anchor of their case by OP nos.1 and 2. The contention of counsel for OP nos.1 and 2 is that complainant himself admitted that he was in a position to pay the installments and as such sought the refund of the amount. OP nos.1 and 2 also relied upon Ex.OP1/2-2 email dated 27.02.2015 sent by complainant to OP for cancellation of the unit, as he is left with no other option. Ex.OP1/2-3 to Ex.OP1/2-5 may also be read in this context. OP nos.1 and 2 raised demand notice Ex.OP1/2-6(a) dated 20.01.2015 asking him to deposit the amount of Rs.3,31,435/-. Ex.OP1/2-6(b) to Ex.OP1/2-6(i) are the copies of other demand notices and reminder sent to complainant for demanding the installments. Ex.OP1/2-7 is the copy of another email dated 22.11.2014 from OP nos.1 and 2. It is reply of email of complainant dated 21.11.2014 sent by OPs to him. Vide this email, OP nos.1 and 2 intimated the complainant that Management has decided that four months installment would not be charged from him. OP nos.1 and 2 further relied upon Ex.OP1/2-8(a) letter dated 15.12.2016 sent to complainant by OP nos.1 and 2 asking him to complete the formalities and to make the payment within 30 days of issue of this letter. Any delay of payment beyond date i.e. 14.01.2017 will attract holding charges. Ex.OP1/2-8(b) is the copy of reminder dated 21.01.2017 to complainant for taking possession of the apartment. OP nos.1 and 2 also relied upon reminder sent to complainant vide Ex.OP1/2-8(c) and Ex.OP1/2-8(d) in this regard.
Consumer Complaint No.71 of 2017 10
7. From critical analysis of above referred evidence on the record and perusal of affidavit of complainant Tanu Kapila Ex.CW/A and affidavit of Nandan Singh Rawat, Manager of HDFC Ltd. Ex.OP3/A and affidavit of Mrs.Parul Sharma Authorized person of OP nos.1 and 2 Ex.OP1/2-A and perusal of other documents on the record, we hold that complaint before this State Commission is competent. Larger bench of Hon'ble National Commission has held in "Aftab Singh Vs. EMAAR MGF Land Ltd. & Anr." in C.C. no.701 of 2015 decided on 13.07.2017 that Section 3 of the Act confers additional remedy on the Consumer Forum. that Section 3 of Act confers additional remedy on the Consumer Forum to try the complaint and inspite of arbitration clause, the Consumer Forum is competent to try the complaint. This contention of OPs is not accepted by us on the basis of law laid down by larger bench of National Commission. The complainant has alleged deficiency in service on the part of OPs. The submission of counsel for complainant that OPs have not raised the development on the site and their offer of possession is mere idle formality only. There is affidavit of complainant on the record in this regard. The complainant also relied upon some photographs Ex.C-17 to C-24 on the record. We find that construction and development is under process in photographs Ex.C-17 and C-24. We are unable to make out from these photographs that they pertains to the project in dispute in this case only. The counsel for the OPs has not admitted this fact that they to be belonged to the project before us during the arguments. Consumer Complaint No.71 of 2017 11 Consequently, there is counter affidavit to the affidavit of complainant filed by OP nos.1 and 2, vide Ex.OP1/2-A. This witness has stated in affidavit that offer of possession was sent to complainant, but complainant failed to take possession by clearing the installment amounts. We find that complainant himself has been writing to OP nos.1 and 2 for cancellation of units due to his financial inability, as is evident from his correspondence written to OPs, as discussed above. The complainant approached OP nos.1 and 2 during the validity of the period of delivery of possession that cancellation of the unit due to his financial inability to pay the due amounts. What was the need of the complainant to have sent above emails to OP nos.1 and 2 for cancellation of unit due to his financial inability, if OPs have not developed this project within time. The complainant has been in default in clearing the installments, whereas OP nos.1 and 2 offered the possession by writing many letters to him in this regard. Buyers agreement has been executed in this regard by parties and parties are bound by the terms and conditions of the buyers agreement. Clause 3 of the buyers agreement lays down as under:
"3. That 10% of the total amount of sale consideration shall deemed to be the earnest money which would be liable to be forfeited in the event of any default or breach of conditions of this agreement on part of the Vendee(s), in accordance with the provision of this agreement."Consumer Complaint No.71 of 2017 12
It is, thus, plain that in case the applicant wants the refund of the money, 10% of total amount of sale consideration shall be deemed to be earnest money, which would be liable to be forfeited even in the event of any default or breach of conditions of the agreement. In this case, the complainant has not paid the installments to OP nos.1 and 2, despite the fact that they wrote letters to him to take the possession of the apartment. The complainant has not proved any documents on the record by summoning the record of the competent authority that there are no basic amenities available in the project. The complainant himself has to file the complaint to avoid forfeiture of the 10% of the amount, as per clause 3 of the buyers agreement only in this case in our view. We agree with the submission of counsel for OP nos.1 and 2 that complainant himself admitted his default by writing letter to OP nos.1 and 2 expressing his inability to pay the installments vide Ex.OP1/2-2 and Ex.OP1/2-3. These letters were written by complainant before the agreed date of delivery of possession to OPs. We, thus, infer that complainant is interested in refund of the money only without proving any deficiency in service on the part of OPs. The case of the complainant is governed by clause 3 of buyers agreement Ex.C-2. OP nos.1 and 2 are justified in forfeiting the 10% of the amount of sale consideration in this case due to fault of the complainant, as admitted by him in making the due installments to OPs.
8. The counsel for complainant relied upon law laid down in "Praveen Vs. Earth Infrastructures Ltd. and another" in CC Consumer Complaint No.71 of 2017 13 no.1730 of 2016, decided on 21.11.2017 by the National Commission. The National Commission held in the cited authority that complainant was in default, the opposite party ought to have cancelled his installment and could even have forfeited the earnest money, as per terms and conditions of the buyers agreement. This authority would not help the complainant in our view.
9. As a result of our above discussion, we partly accept the complaint of the complainant and direct OP nos.1 and 2 to refund the deposited amount of complainant to him by forfeiting 10% amount of total sale consideration, as per buyers agreement Ex.C-2. The complainant is not entitled to any compensation for mental harassment. The parties shall bear their own costs. OP no.3 has the first right of recovery over the amount of loan advanced by it, as it has charge over the loan amount.
10. Arguments in this complaint were heard on 11.12.2017 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
11. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER December 13, 2017.
(MM)