M/S. MERA BABA REAL ESTATE PVT. LTD. vs VINOD KUMAR GOYAL

This revision petition has been filed by the petitioner against the order dated 16.12.2014 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ''the State Commission'') in Appeal No. 109 of 2014 -Vinod Kumar Goyal Vs. M/s. Mera Baba Real Estate Pvt. Ltd. by which, while allowing appeal, complaint was allowed.

Brief facts of the case are that Complainant/respondent booked flat measuring 250 sq. yds. with OP/petitioner on 31.3.2006 and deposited Rs.3,30,000/- and remaining amount was payable in installments after allotment. Plot was to be allotted within 12 months from the registration, failing which, OP was liable to pay interest. It was further submitted that complainant also purchased rights of Daya Ram Goyal pertaining to one plot and that plot was also transferred in the name of complainant which merged with aforesaid booking. OP had no licence to set up

colony as required under Haryana Development and Regulation of Urban Areas Act which was issued only on 3.12.2007. Alleging deficiency on the part of OP, complainant filed complaint before District forum for direction to allot plot of 250 sq. yds. and get it registered. OP resisted complaint and submitted that complaint was barred by limitation and complainant has no locus standi to file complaint. It was denied that OP had no licence from concerned department. It was further submitted that as complainant had purchased one booking of Daya Ram Goyal in re-sale, complainant does not fall within purview of consumer. Complainant failed to make payment of installments inspite of repeated reminders rather complainant by letter dated 23.11.2011 asked for refund of booking amount. Denying any deficiency on their part, prayed for dismissal of complaint. Learned District Forum vide order dated 30.5.2013 dismissed complaint as barred by limitation. Appeal filed by complainant was allowed by learned State Commission and that order was upheld by this Commission in revision petition. Learned District Forum after hearing both the parties again dismissed complaint. Appeal filed by complainant was partly allowed by learned State Commission vide impugned order against which, this revision petition has been filed.

Heard learned Counsel for the parties finally at admission stage and perused record.

Learned Counsel for the petitioner submitted that as prayer in the complaint was for allotment of plot, learned State Commission committed error in allowing refund of money with interest inspite of defaults in making payment of installments and complainant not falling within purview of consumer; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

Learned Counsel for petitioner submitted that as there was no prayer for refund of amount, learned State Commission could not have given direction to OP to refund deposited amount with interest. It is not disputed that complainant made prayer in the complaint for allotment of plot of 250 sq. yds. whereas, learned State Commission has allowed refund of deposited amount with interest. Learned Counsel for the petitioner could not place any judgment to substantiate his argument that while praying direction for allotment of plot, refund of money cannot be granted. On the other hand, learned Counsel for the respondent has placed reliance on judgment of this Commission in 2010 STPL (CL) 1898 NC - M2K Infrastructure Pvt. Ltd. Vs. Praveen Kumar Yadav in which it was held that refund of amount can be ordered, though, complainant initially prayed for direction to complete construction. Learned State Commission in impugned order observed that learned Counsel for the complainant restricted his prayer to refund the amount deposited along with interest. In such circumstances, learned State Commission has not committed any error in allowing refund of money, though, direction for completing construction was prayed in the complaint.

As far awarding of interest is concerned, learned State Commission has allowed refund @ 9% p.a. from the date of deposit. Perusal of application for provisional registration of plot reveals

that complainant was entitled to interest @ 9% p.a. only if allotment of plot is not made within 12 months from the date of registration. In Clause 3 of the application it has specifically been mentioned that project is at conceptual stage and when concept takes a concrete shape, the offer of allotment will be issued and a contract will come into force. Perusal of record reveals that OP by repeated letters asked complainant to deposit installments to OP but failed to deposit due amount. OP by letter dated 15.9.2009 cancelled provisional registration and as per Company''s policy, 20% of the total price of the plot was forfeited. Perusal of Clause 7 of application form reveals that in case of default in making payment of installments, provisional registration certificate was to be treated as cancelled and allottee was entitled to claim actual amount paid by him. As complainant made default in payment of installments inspite of repeated demands, complainant was entitled to refund of original amount without interest and learned State Commission has committed error in allowing interest on deposited amount and to this extent, impugned order is liable to be modified.

Learned Counsel for the petitioner submitted that as complainant was allotted one plot and he purchased another plot of Daya Ram Goyal, complainant does not fall within purview of consumer. Learned State Commission allowed complaint on this basis that complainant specifically pleaded that both the bookings merged, so, it has to be treated as one plot and one booking. It was further mentioned in the impugned judgment that allegation of merger was not denied by OP rather same was admitted. This observation is contrary to record. Merely by requesting to OP by letter dated 1.3.2012 to convert two plots in one plot unless it is accepted by OP, it automatically does not merge into one plot. OP in its written statement has denied allegation of merger and has nowhere admitted that merger was accepted. In such circumstances, it is proved that complainant possessed two plots in OP''s colony so he does not fall within purview of consumer as held by this Commission in F.A. No. 1219 of 2014 - Indrajit Dutt Vs. Samriddhi Developers Pvt. Ltd. & Ors.

As complainant does not fall within purview of consumer, complaint was not maintainable and learned State Commission has committed error in allowing appeal and directing refund of money with interest.

Consequently, revision petition filed by the petitioner is allowed and impugned order dated 16.12.2014 passed by the State Commission in Appeal No. 109 of 2014 -Vinod Kumar Goyal Vs. M/s. Mera Baba Real Estate Pvt. Ltd. is set aside and complaint stands dismissed with no order as to costs.