SOMAN BUILDERS (P) LTD. vs SATYAM SOMAN TAK

MR. Satyam Soman Tak, complainant for short, booked a plot in pursuance of advertisements issued by the opposite party (OP). He was allotted Plot No. 1665 (C) measuring 100 sq. yards at Kong Post Enclave, Jainnagar, Qutubgarh Road, Delhi by allotment letter dated 27.1.1993. He deposited 25% of the sale consideration totalling Rs. 13,000/- besides Rs. 500/- as processing charges regarding which the opp. party issued two receipts dated 26.1.1993 and 27.1.1993. No development charges were to be paid over and above the price charged from the buyer. Possession of the plot was to be delivered on payment of 25% of the price and the balance was recoverable in 11 monthly instalments with interest @ 10%. According to the scheme, the plot buyer was to be delivered immediate possession of the fully developed plots with metal roads, schools, shopping complex, parks, medical facilities, telephone, water, electricity, services of DTC and private buses, etc. Possession was to be delivered on payment of 25% of the price of the plot.

THE case of the complainant was that even though he had paid 25% of the costs in January, 1993 itself, the opp. party failed to deliver the possession even though the complainant repeatedly requested for the same. According to the complainant, me opp. party had no plot to offer and the advertisements were designed to defraud a large number of unwary persons desiring to own plots in the vicinity of Delhi. At site no development had been carried- out. In the circumstances, the complainant wrote to the opp. party vide his letter dated 4.9.1993 to refund the amount paid by him alongwith interest and compensation. Having failed to receive the amount, he approached the District Forum. In the written version, filed by the opp. party, various objections were taken. After hearing the parties, the District Forum allowed the complaint and directed the opp. party to refund Rs. 13,500/- received from the complainant alongwith 18% interest thereon from the date of deposit till repayment and Rs. 2.000/- as costs. Aggrieved by the order the opp. party has preferred this appeal. We have heard Mr. Virender Bhatt, Advocate for the appellant and the (respondent- complainant) who argued in person and have carefully gone through the records, including the written notes filed by Mr. Bhatt.

The first contention of the appellant is that the opp. party was only acting as sale promotor and the real coloniser was M/s. Jain Property Dealers. This contention is based on the ground that in the two receipts issued by the opp. party in the printed receipt proforma, there is mention of the following words". "Payment received on behalf of M/s. Jain Property Dealers". Compared to the bold letters "Samar Builders Private Limited", at the heading of the receipts, the aforesaid note of Jain Property Dealers is printed on the left hand bottom corner in small print".

The address and full description of Jain Property Dealer whether it was a private limited company or a partnership firm, etc. or the add ress have not been given. The complainant impleaded Jain Property Dealers as added opp. party. One Mr. Subhash Jain filed his affidavit before the District Forum on behalf of Jain Property Dealer to the effect that their names had been fraudulently mentioned in the receipts and they had nothing to do with the transactions or with Samar Builders Private Limited. The opp. party received the amount by cheque in its own name and not in the name of the alleged principal on whose behalf it was supposed to be acting. The above plea appears to have been taken only to create confusion and we find no merit in the same.

THE next contention is that the plot was offered but the complainant refused to take possession on the ground that a large number of people were living there. We have not been referred to any material to support this contention. On the other hand, the categorical case of the complainant is that contrary to the terms of the allotment, possession of the plot was not delivered to him even though he had paid 25% of the costs of the plot. The next contention is that the complainant was defaulter as he failed to pay in all the instalments. According to the terms of the agreement, the question of default became relevant if the opp. party had delivered the possession of the plot. In the facts of the present case, the possession was never delivered and the complainant was under no obligation to pay the instalments.

THE next contention is that according to the terms the dispute was to be decided through arbitration. On behalf of the respondent, it has been argued that the Act provides an additional remedy and the complainant cannot be non- suited on account of the arbitration clause. We find force in the contention of the respondents. Lastly, it was contended that according to agreement between the parties, the amount paid was liable to be forfeited. In support of the above contention, reliance has been placed on Condition No. 6 in the allotment letter which reads as under: "Allotment can be cancelled for non- payment of instalments and the amount paid thereof is liable to be forfeited". The complainant, on the other hand, relies on Condition No. 4 appearing on the back-side of the application which reads as under: "A payment once made for the booking of plot is not refunded. However, in exceptional cases refund can be made after deduction of 25% of the amountpaid by the allottee".

The complainant submitted that the condition No. 4, aforesaid was substantially varied in the allotment letter. It has further been submitted that the opp. party was not entitled even to 25% of the amount actually paid by the allottee for the simple reason that the opp. party failed to deliver possession of the plot in terms of the agreement. The contention of the complainant, respondent herein, is unexceptionable. For these reasons, we find no merit in the appeal the same is accordingly dismissed with costs quantified as Rs. 500/-. A copy of the order be furnished to the parties and sent to District Forum-II. Appeal dismissed with costs.