M/S. ANSAL HOUSING & CONSTRUCTION LTD. vs INDIAN MACHINERY CO.

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 22.03.2013, passed by the Delhi State Consumer Disputes Redressal Commission (for short ''the State Commission'') in FA No. 800/2009, "M/s. Ansal Housing & Construction Ltd. versus M/s. Indian Machinery Co." vide which, while dismissing the appeal filed by the petitioner, the order dated 1.10.2009, passed by the District Forum in consumer complaint no. 967/2007, was upheld.

Briefly stated, the facts of the case are that the petitioner/builder floated a housing scheme on the land allotted to them by the Uttar Pradesh State Industrial Development Corporation (UPSIDC) at Tronica City, Ghaziabad in which a plot measuring 359 sq. yard, bearing no. C/C-287 was allotted to M/s. Jyoti Estates. The said plot was then transferred to the complainant on 10.02.2001. The complainant made a total payment of Rs.4,78,778/- in six instalments to the petitioner/Opposite Party upto 22.04.2002. The case of the complainant is that he paid security, maintenance charges etc. of the said plot regularly, but the said area was not developed and the market value of the land in question went down to less than Rs.1,000/- per sq. yard. The complainant had been visiting the office of the OP to enquire about the status of the plot, but he was told in May 2006 that the said plot had been cancelled. The complainant maintains that he was not given any notice regarding the cancellation, although he had made payment of about 58% of the basic cost of the plot. The cancellation amount of Rs.3,96,683/- alleged to have been sent by the OP was never received by him. The complainant/respondent, therefore, filed the consumer complaint before the District Forum, which ordered the restoration of plot no. C/C-287 to the complainant vide order dated 06.08.2009 and directed the OP to deliver the possession to the complainant on depositing the balance amount, without any forfeiture of amount. A sum of Rs.50,000/- as compensation for mental agony and harassment and Rs.10,000/- as costs was also allowed to the complainant. An appeal was filed by the petitioner/OP against the order of the District Forum before the State Commission, but the same was ordered to be dismissed. It is against this order that the present revision petition has been filed.

This revision petition was ordered to be dismissed vide order dated 24.05.2013, passed by this Commission on the ground that this was a case of filing the second consumer complaint by the complainant before the District Forum and that, such second complaint was not maintainable. A Civil Appeal No. 557/2016 (arising out of SLP (C) No. 19618/2013 filed against the order dated 24.05.2013 of this Commission) was decided by the Hon''ble Supreme Court on 27.01.2016, according to which, the order of this Commission dated 24.05.2013 was set aside and it was directed that the second complaint filed by the complainant was maintainable. Accordingly, the learned counsel for the parties have been heard again and the matter is being decided after due consideration of the merits of the case and the arguments led by the respective counsels.

The learned counsel for the petitioner/OP builder submitted that plot No. C/C-287 measuring 359 sq. yd. had been allotted to M/s Jyoti Estates vide letter dated 05.02.2001, a copy of which has been placed on record and the payment plan was attached with the said letter. Thereafter, vide letter dated 10.02.2001, the said plot was transferred in the name of the complainant, Indian Machinery Company. The complainant was, therefore, bound by the terms and conditions of the allotment. Following the failure of the complainant to deposit the instalments as per the payment plan, the allotment of the said plot had been cancelled by the petitioner/OP in April 2005 and intimated to the complainant vide letter dated 06.04.2005. As per letter dated 26.11.2005 addressed to the complainant, a cheque No. 867686 dated 25.11.2005 for a sum of 3,09,638/- had been sent to the complainant after forfeiting 20% of the total value of the plot as per clause 6 of the allotment letter. A copy of the said cheque had also been placed on record. The learned counsel stated that there had been no deficiency in service on their part and hence, it was not justified on the part of the consumer fora below to order the restoration of the said plot. Moreover, the said plot had already been transferred to some other person and hence, there was no possibility of the restoration of the allotment. In support of his arguments, the learned counsel has drawn attention to an order dated 06.01.2015 pronounced by this Commission in " DLF Ltd. vs. Bhagwanti Narula (RP No. 3860/2014) " in which, it was stated that the petitioner builder company could not be said to be deficient in rendering services to the complainant, so long as the petitioner company was acting as per the terms and conditions agreed between the parties. However, in the said judgment, this Commission also held that an agreement for forfeiting more than 10% of the sale-price would be invalid. This Commission held that the petitioner was liable to refund the amount deposited by the complainant after deducting 10% of the sale-price as earnest money only. When asked whether the petitioners were ready to grant refund to the complainant after deducting 10% of the sale-price, the learned counsel answered in the affirmative, although the petitioner had allowed refund after deducting 20% of the sale-price as forfeiture money. The learned counsel has also drawn attention to an order dated 07.01.2015 passed by this Commission in " DLF Southern Town Pvt. Ltd. vs. T.P. Balachandra Panicker " (RP No. 1974/2014) , in support of his arguments.

The learned counsel has also drawn attention to the order dated 09.07.2000 of this Commission in " Rajasthan State Industrial Development and Investment Corporation Ltd. vs. Diksha Enterprises " (RP No. 3811/2007) , and "Travel India Bureau Pvt. Ltd. vs. HUDA & Ors." [II (2008) CPJ 329 (NC)] , saying that the complainant in this case did not fall under the definition of ''consumer''. Further, as observed in the order dated 26.08.2003, " Puran Chand Wadhwa vs. Hamil Era Textiles Ltd. " (RP No. 147/2000) , the petitioner was supposed to have performed its statutory duty, once the letter in question, had been posted to the complainant.

The learned counsel for the respondent/complainant stated, however, that before ordering the cancellation of the plot, no opportunity had been provided to the complainant to state his case. Moreover, it had been rightly observed by the State Commission in their order that the OPs had failed to prove that the letter of offer of possession or the letter of cancellation had ever been received by the complainant. The order passed by the consumer fora below were, therefore, in accordance with law and should be upheld.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

Admittedly, allotment of the plot in question, was made to the complainant vide letter dated 10.02.2001 by way of transfer of the said plot from the name of M/s. Jyoti Estate to the present complainant. The present complainant was, therefore, bound by the terms and conditions of the allotment. The case of the complainant is that having received about 58% of the consideration for the plot, the OP should not have cancelled the same. However, the complainant has not been able to advance any cogent reasons as to why he could not deposit the entire consideration in time. The complainant has taken the plea that no development had taken place on the said land and there was no habitation in the said area. The market rate of the land in question, had come down to less than 1000/- per sq. yard. This plea of the complainant is, however, not tenable because the petitioner is stated to have sent a number of letters by way of reminders to the complainant on various dates, asking him to pay the balance amount. The letter of cancellation was also sent to him on 06.04.2005. Later on, a refund cheque was sent vide letter dated 26.11.2005 by registered post. It is, therefore, not possible to believe the version of the complainant in his complaint that he came to know about the cancellation, when he went to the office of the petitioner in the month of May 2006 to enquire about the status of his plot and the progress of the work. It seems highly improbable that the complainant did not receive any of the documents sent by the petitioner to him from time to time.

The petitioner has drawn attention to an order passed by this Commission in "Puran Chand Wadhwa vs. Hamil Era Textiles Ltd." (supra) , saying that in the absence of any proof to the contrary, it is to be presumed that the letter was duly sent by the petitioner to the complainant. From the given facts and circumstances, it cannot be concluded that the complainant did not receive various letters like letter of offer possession, letter of cancellation and also the relevant cheque sent vide registered post. The State Commission stated in their order that the petitioner had not filed any document to show that the letter of offer of possession and letter of cancellation had been received by the complainant. However, the said argument does not reflect a correct appreciation of the facts on record. Relying on the view taken in the case " Puran Chand Wadhwa vs. Hamil Era Textiles Ltd." (supra) ", it is held, therefore, that the petitioners cannot be held to be deficient in service, once it is established that they duly discharged their duty, as soon as the documents were posted.

Further, the petitioner stated that they had sent a cheque of 3,09,638/- to the complainant after forfeiting 20% of the sale price of the plot from the amount deposited by the complainant. However, keeping in view, the order of this Commission in the case "DLF Ltd. vs. Bhagwanti Narula" (supra) , it would not be justified to allow the petitioner to deduct more than 10% p.a. of the amount of sale-price as earnest money. Since the learned counsel for the petitioner also agreed to the above proposition during the arguments before us, it is held that the petitioner shall return the amount deposited by the complainant after deducting 10% of the value of the property as earnest money. This revision petition is, therefore, partly allowed and the orders passed by the Consumer Fora below are set aside. The petitioner is directed to refund the necessary amount in terms of this order within a period of four weeks from today. It is further stated that since the petitioner has used this amount all these years to his benefit, the complainant shall be entitled to an interest @9% p.a. on the amount to be refunded from the date of cancellation of the plot till date. The revision petition stands disposed of accordingly. There shall be no order as to costs.