Delhi

StateCommission

CC/13/684

RAJ DULARI BANSAL - Complainant(s)

Versus

M/S TDI INFRASTRUCTURE - Opp.Party(s)

29 Mar 2019

ORDER

VIN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision:29.03.2019

 

Complaint Case No.684/2013

 

Smt. Raj Dulari Bansal,

W/o Sh. Jagdish Bansal,

AE-110, Shalimar Bagh,

Delhi-110088.                                                             …. Complainant

 

Versus

 

M/s TDI Infrastructure Ltd.,

9, Kasturba Gandhi Marg,

New Delhi-110 001.

 

Also at:

 

10, Shaheed Bhagat Singh Marg,

Gole Market, New Delhi-110 001.                              … Opposite Party

 

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1. Whether reporters of local newspaper be allowed to see the judgment?

  

2. To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. A complainant under Section 17 of the Consumer Protection Act, 1986 (in short, the “Act”) is filed by the complainant, Smt. Raj Dulari Bansal stating therein that OP had launched a project of ‘Integrated Township Residential Plotted Colony’ under the name and style of ‘TDI City, Kundli’ in Sonipat (Haryana). Earlier the predecessor-in-interest of complainant, namely, Shri Vijay Bansal had booked a residential plot in the aforesaid project vide application dated 20.02.2006 by giving a sum of Rs.5,87,500/- to OP for which a receipt was issued.  OP vide its letter of allotment dated 17.04.2008 confirmed the allotment of plot bearing No. H-965 A, admeasuring 250 sq.yds at Block-H, ‘TDI City, Kundli’ Sonipat, Haryana, in favour of her predecessor-in-interest. Subsequently, the allotment of aforesaid plot was transferred in favour of complainant vide transfer in the record of OP vide endorsement dated 12.02.2009.  Thereafter, complainant had also made payments to OP. In all by 09.07.2009, complainant had made payment of Rs.34,03,336/- to OP as per its demands including additional EDC etc.   
2. It is stated that OP vide its letter dated 12.3.09 had called upon the complainant for execution of Plot Buyer’s Agreement in respect of aforesaid plot.  Accordingly, a Plot Buyers’ Agreement (in short, the “Agreement”) dated 19.5.10 was executed between the parties.  It is stated that because of assurances and promises given by the OP for the delivery of the possession of the plot and completion of development work i.e. fully developed wide roads, schools, hospitals, water tanks, by-lanes, fresh water lines, electricity/power lines, street lights, temples, Gurudwaras, markets, trees & landscape etc., the complainant had made the payment of Rs.34,03,336/- to the OP.  It is alleged that OP has excessively charged an amount of Rs.2,93,705/- from the complainant. A sum of Rs.50,747/- was also illegally charged, which was supposed to be charged at the time of registration of sale deed only.
3. It is stated that as per clause 10 of the Agreement dated 19.5.10, the price of the plot covered ‘Development Cost’ of internal services such as laying of colony roads, waterlines, sewer lines, storm water drains, development of horticulture etc.. It is stated that common areas such as parks, community building, schools etc. are  not constructed or developed in the ‘H’ Block till date.  It is stated that on personal visits to the site, complainant did not find any progress in the Block and did not find any construction activity.  It is stated that at the site one can only find a total barren continuous stretch of land having thick bushes and wasteful vegetations.  Even the basic demarcation of the plot has not been done. It is stated that OP has not fulfilled its obligations to develop the services and building infrastructure, roads, parks in the ‘H’ Block where plot has been allotted, as has been agreed between the parties vide the Agreement referred above. It is stated that there is breach of obligation on the part of OP. It is further stated that hard earned money of the complainant is lying with OP without any purpose.  It is stated that the act of OP amounts to deficiency in service and unfair trade practice.  The complainant has been writing letters from 2009 uptill date of filing of the complaint to OP to either give the possession of developed plot or refund the money. It is stated that complainant has suffered mental agony, harassment and exploitation at the hands of OP.  Complainant is an old lady aged about 74 years and has prayed for refund of amount of Rs.34,03,336/- from OP along with interest @ 18% p.a. from dates of deposit till its realization. Complainant has also prayed for Rs.10 lacs towards compensation for causing mental agony, harassment to her and Rs.45,000/- towards litigation cost.
4. The complaint is opposed by the OP by filing a detailed written statement wherein it is stated that the complainant is not a ‘consumer’ and is only an investor who has invested the money to receive monetary gain which is nothing but a commercial activity as such the complaint is not maintainable under the Act.  It is admitted that plot in question was transferred in favour of the complainant.  It is stated that earlier the subject plot was booked by Shri Vijay Bansal by giving an advance registration form dated 21.02.2006.  The erstwhile owner had also paid a sum of Rs.5,87,500/- to OP, pursuant thereto OP had allotted plot No. H-965A.  Thereupon, OP had received a joint request from erstwhile owner and the complainant seeking transfer of the registration of subject plot in favour of complainant. Thereupon, OP had transferred the subject plot in favour of complainant.
5. It is alleged that OP had discharged its obligation by offering possession of plot in question to the complainant vide its letter dated 11.05.2009. Vide said letter, OP also requested complainant to remit charges towards stamp duty, which has not been paid till date.  It is also stated that pursuant to offering possession, an Agreement dated 19.05.2010 was executed between the parties.  It is stated that complainant has failed to accept the possession of the plot despite offer being made.  The subject plot is lying vacant for several years and OP is burdened with its maintenance.  It is also admitted that as per clause 10 of the Agreement, the price of the plot covers internal services.  The payments made by complainant are also not denied. However, it is denied that any extra payment as is alleged was taken from complainant. It is denied that no development work as is alleged has been done.  The stand of the OP is that development work has been completed and whole area is developed and possession has been offered to genuine customers.  The letters alleged to have been sent by complainant seeking possession of plot or refund of money to OP, are denied by OP. It is stated that OP is still willing to hand over the possession of the plot.  There is no deficiency on its part and the money received has been utilized on the development of the plot.  A prayer is made for dismissal of the complaint.
6. Rejoinder is filed by the complainant wherein the allegations of development as alleged by OP are controverted and specifically denied.  Complainant has reiterated the averments made in the complaint case.
7. Both the parties have filed evidence by way of affidavits. Complainant has filed her own affidavit as well as affidavit of her husband i.e. Shri Jagdish Bansal. Complainant in her affidavit has deposed the contents of complaint case on oath. She has placed on record copy of receipt dated 1.4.06 vide which payment of Rs.5,87,500/- was paid to the OP, Ex-CW1/1; copy of letter of allotment dated 17.04.2008, Ex-CW1/2; copy of letter dated 12.03.2009 sent by OP to complainant  and Plot Buyer’s Agreement dated 19.05.2010, Ex-CW1/3 & Ex-CW1/4 respectively;  statement of accounts dated 30.01.2013, 14.05.2013 and 19.06.2013 sent by OP, Ex-CW1/5 to ExCW1/7 respectively; final statement of account dated 29.06.2010 of OP, Ex-CW1/8; copies of letters sent by complainant to OP on different dates, Ex-CW1/9 to Ex-CW1/14. The evidence of the husband of the complainant is also on the same lines.
8. OP has filed evidence by way of affidavit of Shri Paras Arora, its authorized signatory who has deposed the contents of written statement case on oath.  He has also placed on record copy of board resolution as Ex-RW-1/1; Advance Registration Form dated 21.02.2006 i.e. Ex-RW-1/II; copy of receipt dated 0.04.2006 as Ex-RW-1/III; copy of letter dated 11.05.2009 as Ex-RW-1/IV and copy of Plot Buyer’s Agreement dated 19.05.2010 as Ex-RW-1/V.  
9. Parties have also filed written arguments. We have heard Counsel for the parties and perused the material on record.    
10. It is admitted position that the predecessor-in-interest of complainant had booked the subject plot with OP. Thereafter the subject plot was transferred in favour of complainant vide endorsement of OP dated 12.02.2009. It is also admitted position that for the subject plot complainant has paid Rs.34,03,336/- to OP by 09.07.2009 towards instalments, EDC, infrastructure development charges, service charges etc. including additional development charges etc.
11. The stand of OP is that the possession of the plot was offered to complainant vide letter dated 11.05.2009 and complainant did not come forward to take the possession and is avoiding stamp duty charges. Complainant has denied that OP had sent the alleged letter to complainant. The burden is on the OP to prove that alleged letter was sent to complainant. However, no postal receipt or courier receipt is placed on record to substantiate that alleged letter was sent. Complainant has written number of letters to OP dated 10.05.2011, 21.06.2011, 28.01.2013, 13.05.2013, 26.08.2013 asking as to when the possession will be delivered to her for which she has paid full and final payment i.e. Ex. CW -1/9 to Ex. CW -1/14. OP has not responded to said letters. Had the alleged letter been sent, OP would have atleast responded to the aforesaid letters of complainant. The burden was on OP to prove that possession was offered vide aforesaid letter. However, OP has failed to discharge the burden.
12. Clause 14 of the Agreement is also relevant as regards the possession. As per said clause, seller shall execute the sale deed only after the said plot has been finally demarcated at site and full consideration is received and stamp duty and registration charges are paid. The aforesaid clause reads as under:

 

“14. That, the Seller, shall execute the Sale Deed in respect of the Said Plot, and get it registered in favour of the Purchaser(s) only after the Said Plot has been finally demarcated at site, within a reasonable time, only after receiving from the Purchaser(s), the entire sale consideration and other dues as defined herein and the full cost of Stamp Paper, registration charges, miscellaneous expenses etc. The possession of the said plot will also be given to the Purchaser only when the Purchaser makes payments of full sale price and other dues as stipulated in this Agreement.  The Seller, notwithstanding a Sale Deed/Conveyance Deed having been executed and registered in favour of the Purchaser, shall have right to recover all its dues payable by the Purchaser to the Seller under this Agreement.”   

 

13. When the Agreement between the parties was executed only on 19.05.2010 whereby it was agreed for handing over of possession after demarcation and registration of sale deed, in these circumstances even assuming letter dated 11.05.2009 was received by complainant, the same was a malafide attempt just to show that possession was offered whereas by then stage had not arisen for offering the possession. It is also not understood as to why complainant would delay the payment of stamp duty when entire consideration has been paid. The defence taken is a malafide attempt on the part of OP and is not worth consideration. It is not the stand of OP that when alleged letter was sent, demarcation had already been done and development as agreed had taken place. Further, as per OP, the Part Completion Certificate has been obtained only on 18.11.2013.  Therefore, OP could not have offered possession of the plot prior to obtaining CC.  In these circumstances even if alleged letter i.e. letter dated 11.05.2009 was sent, the same had no meaning. Considering the aforementioned facts and circumstances, the stand of OP is rejected.
14. We have gone through the part completion certificate dated 18.11.2013 also .  It is only a part completion of residential plotted colony on the land measuring 415 acres, Sector-58, 59, 60, 61 & 64, Sonipat Kundli Multifunctional Urban Complex Sonepat-TDI Infrastructure Ltd.
15. There is no mention of OP having obtained aforesaid part completion certificate in the written statement though the same was filed on 15.09.2014, or in the evidence of OP filed by way of affidavit of Shri Paras Arora on 22.09.2015 or in the written arguments.  As per complainant, the aforesaid certificate is only a part completion certificate and does not pertain to the plot allotted to her. However, Counsel for OP has submitted that the plot has been allotted to complainant in Sector-61 Sonipat Kundli Urban Complex and the part completion certificate covers Sector 61 also.  Accordingly, it is taken that the same covers plot allotted to complainant. Perusal of part completion certificate shows that the same is granted subject to fulfilment of terms and conditions mentioned therein which are as under:

 

1. That you shall be fully responsible for supply of water as per norms till such time the colony is handed over after final completion.

 

2. The service will be laid by the colonizer upto alignment of proposed external services of the town and connection with the HUDA system will be done by the Society at his own cost with the prior approval of the competent authority.  In case pumping is required, the same will be done by the Society at his own cost.  The services will be provided as per provision in the EDC of Sonepat.

 

3. Level/Extent of the services to be provided by HUDA i.e. water supply sewerage, SWD, roads etc. will be proportionate of EDC provisions.

 

4. That licencee will also maintain the internal services to the satisfaction of the Director General till the colony is handed over after granting final completion certificate.

 

5. That in case some additional structures are required to be constructed and decided by HUDA at a later stage, the same will be binding upon you.

 

6. That you shall maintain a roof top rain water harvesting system properly and keep it operational all the time.

 

7. The basement and stilt shall be used as per provisions of approval zoning plan building plans.

 

8. That the outer facade of the buildings shall not be used for the purposes advertisement and placement of hoardings.

 

9. That you shall neither erect nor allow the erection of any Communication and transmission Tower on top of the building blocks.

 

10. That you shall use the tube well room only for maintain the part and will demolish the same directed by the Department.

 

11. That you shall complete the community building within stipulated period prescribed on policy dated 3.04.2012.

 

12. As per service plan estimate the arrangement for water supply, disposal of sewerage as per guidelines of HSPCB/Environment Department and drinking water shall be made by the firm themselves.  Consent for smooth functioning till the external services are provided by HUDA has already been given by the colonizers.”

 

16. It is also mentioned in the aforementioned certificate that if the aforesaid conditions are not fulfilled, the certificate shall be void ab-initio. Nothing has been placed on record by OP to show that the aforesaid conditions have been fulfilled. There is also nothing on record to show that intimation of having received the part CC by OP was given to complainant. There is also nothing on record to show that after receipt of part CC, any offer of possession of plot was sent to complainant. During the course of arguments, on the direction of this Commission, husband of the complainant, Shri Jagdish Bansal had visited the site with  his Counsel Shri Praveen Aggarwal in the presence of the official of OP Shri Ritesh Vijhani, General Manager (Marketing). Shri Jagdish Bansal has filed a detailed affidavit wherein it is stated that on 08.06.2016, the site inspection was done along with aforesaid official of OP.  It is stated that site inspection revealed a sorry state of affairs and there is no development or progress commensurate to a habitable city or colony at all.  There are no lanes existing and all roads are Kaccha roads. There are no footpath or back lanes either.  There are no drains, no parks etc. The relevant para of the affidavit is as under:

 

“3.     That the inspection of site reveals the sorry state of affairs and absolutely no development or progress commensurate to a habitable city or colony or block has taken place at all.  In as much as there is no lane existing and all the roads are kaccha and there are no footpath or back lanes either. No fresh water lines are to be seen there and so far as sever lines are concerned, there are a few open dry manholes only.  There are no absolutely no water drains, no parks, no development of horticulture or community building or any electricity/power lines or cable.  Similarly no landscaping has been done whatsoever and no trees or any kind of greenery are to be seen and also there is no site for recreational activities.  That there are no full grown trees anywhere and only the bushes exist in barren land.  That there are no post office, bank or any finished hospital or temple/gurdwara existing or working either.  Moreover neither any power/electricity lines, sever lines, fresh water lines are existing nor shown as functioning.  It is further submitted that no demarcation of any plots have been done in Blocks # E, F, G & H whatsoever and there is only continuous long stretch of barren land running into hundreds of acres.

 

4.       That even the plot in question i.e. bearing No. H-965A is at least 6 feets below the kaccha road level and it would require herculean task/efforts and enormous cost to fill it up with sand and mud just to make it levelled with the kaccha lane.”

 

17. An affidavit of Shri Praveen Aggarwal, Advocate is also filed which is on similar lines. Even photographs of the site are also placed on record which shows the site as a barren land. 
18. Shri Ritesh Vijhani, General Manager of OP has also filed his affidavit in response to aforesaid affidavits and has denied that there is no development work at the site as is stated in aforesaid affidavit. It is stated that services which OP had to provide to buyers as per Agreement terms are provided. However, no proof is filed by OP except part conditional CC discussed above.
19. There is nothing on record to show that internal development work as is agreed by OP vide Agreement between the parties is completed.  The issuance of part CC will not be a conclusive proof of the fact that the project has been developed as envisaged under the Agreement between the parties. The deficiency in service and unfair trade practice on the part of OP is established. OP has retained the hard earned money of an old lady since 2006 who is presently of 78 years of age.
20. As per settled law, when the OP has failed to deliver the possession within the reasonable time, the discretion is with the complainant whether he wants subject plot or refund of money. Reliance is placed on the judgment of Emaar MGF Land Ltd. & Ors. v. Amit Puri II (2015) CPJ 568 NC, wherein National Commission has held that if developers fails to deliver possession of allotted plot/flat within stipulated time, for any reason, save and except a force majeure condition agreed to between the parties, an allottee can’t be compelled to accept alternate site/plot and he would be within his right to seek refund of amount deposited with the builder against the allotment. 
21. In view of above discussion, we allow the complaint and direct the OP to refund to complainant amount of Rs.34,03,336/- with interest @ 10% p.a. from the date of each payment till payment. OP shall pay Rs.25,000/- towards cost of litigation to complainant.        
22. A copy of this order as per the statutory requirement be forwarded to the parties free of charge. Thereafter the file be consigned to Record Room.

 

 

(Justice Veena Birbal)

President

 

 

 

(Salma Noor)

Member