CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

UdyogSadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

    Case No.140/2017

RUMA JAIN,

R/O C-9/2, DLF-1,

GURGAON,

HARYANA – 122 002                                                                   …..COMPLAINANT

                                   Case No.135/2017

1. SACHIN WADHWA
2. ANITA WADHWA

BOTH R/O M-29, FIRST FLOOR,

RAJOURI GARDEN, NEW DELHI                  …..COMPLAINANT

                                   Case No.136/2017

SARIKA JAIN,

R/O 6A/24, 2^ND FLOOR,

W.E.A., PUSA ROAD,

KAROL BAGH,

NEW DELHI - 110005                                          …..COMPLAINANT

                                   Case No.137/2017

KANUPRIYA JAIN,

R/O 31, RAJENDRA PARK,

PUSA ROAD,

NEW DELHI- 110005      …..COMPLAINANT

                                   Case No.138/2017

DEEPAK KUMAR JAIN,

R/O 31, RAJENDRA PARK,

PUSA ROAD,

NEW DELHI- 110060             …..COMPLAINANT

                                   Case No.139/2017

ASHOK JAIN,

R/O C-9/2, DLF-1, GURGAON,

HARYANA – 1 22 002             …..COMPLAINANT

Vs.   

NTPC JAL-VIDYUT AWASIYA SWAYAT SEHKARITA,

THROUGH ITS PRESIDENT AND SECRETARY,

52, HATHIBARKALA,

DEHRADUN,

ALSO AT:

34/11, PANT NAGAR,

JANGPURA,            

NEW DELHI- 110014                                   .…..RESPONDENT

Date of Institution-11.04.2017

Date of Order-28.02.2023

O R D E R

RITU GARODIA-MEMBER

The consumer complaints CC No. 135/2017, CC No. 136/2017, CC No. 137/2017, CC No. 138/2017, CC no. 139/2010 and CC No. 140/2017 involves identical facts and common question of law. Therefore, these complaints are club by together and are decided by this common order. Consumer complaint No.140/2017 is treated as leading complaint.

The complaints relate to deficiency in service on part of OP in non-delivery of the possession of a developed plot.

        The facts stated in complaint are that the complainant is a member of OP society who is engaged in development of plots. The complainant had applied for allotment of plot admeasuring 200 sq. yards @ Rs. 4,550/- per sq. yard. The complainant paid Rs. 9,12,010/- as consideration on 12.12.2012 wherein Rs. 9,10,000/- was paid towards the land money, Rs.510/- paid towards the admission fees and Rs. 1,500/- towards the share money.

        The complainant vide circular dated 25.8.2008 was informed that OP had received NOC for registration of land at Dehradun for 70 bighas of land instead of 100 bighas of land. Vide circular dated 25.6.2013, OP intimated that the process of possession has been completed and total of 42.50 bighas land has been registered in the name of OP. Vide circular dated 1.3.2014, she was informed a maping of the land has been done by land surveyor and final layout plan was prepared.  Vide Circular dated 3.11.2014, she was informed that the demarcation of plot is in progress and it will be completed by 8.11.2014.

        Complainant alleges that a plot number has been not allotted to her even after such a long wait. The complainant requested OP to refund the amount paid. The complainant also draws attention to the list for the month of June- July 2016 prepared by OP which mentioned that refund shall be made to the complainant. The complainant has not received refund till date and prays for the refund of amount deposited i.e. Rs. 9,12,010/- along with 18% interest and damages amounting to Rs. 3,00,000/-.

        Notice was issued to OP and OP filed his written statement along with an application on maintainability of the complaint on grounds of territorial jurisdiction.

In its reply, OP submits that Mr. Rajeev Chopra is a General Secretary and is competent to sign and verify all type of replies, petitions, applications etc. OP submits that the registered office is in Dehradun, the disputed property/ plot is in Dehradun and no cause of action has arisen under the territorial jurisdiction of this Commission.

        OP has admitted that complainant has applied for a plot ad measuring 200 sq. yards on 12.12.2012 and the rate of Rs. 4,550/- per Sq. yard and paid Rs.9,12,010/- . OP has also admitted all the circulars.

        OP has relied on a General Body Meeting held on 24.01.2016. It is alleged that complainant was a party to GBM wherein certain decisions were taken. The minutes of the meeting were confirmed by letter dated 29.1.2016. It is submitted that, in the said meeting, it was also resolved that a new developer will accept new members in place of those who wish to resign or exit and Managing Committee shall facilitate transfer of shares to old members. OP has also refunded the deposited amount of 26 members. OP has stressed on the criteria of refunding. The said criteria were that the refund of old members will be made only after new members join the society. OP has filed photocopy of signatories of the emergency General Meeting convened on 24.1.2016.

Complainant has filed her rejoinder reaffirming the averments made in the complaint. Complainant has clarified that the entire transaction has taken place at the administrative office of the OP which is within the jurisdiction of this Forum. The complainant has also denied the minutes of meeting dated 24.1.2016.

Complainant has filed reply to the application on the maintainability of complaint on ground of territorial jurisdiction.

1. In complaint No. 140/2017 - Complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Receipt No. 1002 dated 15.12.2012 for a sum of Rs.9,12,010/- is exhibited as Exhibit CW-1/1.
2. Circular dated 25.08.2008 is exhibited as Exhibit CW-1/2.
3. Circular dated 25.06.2013 is exhibited as Exhibit CW-1/3.
4. Circular dated 01.03.2014 is exhibited as Exhibit CW-1/4.
5. Circular dated 03.11.2014 is exhibited as Exhibit CW-1/5.
6. Members details of Respondent dated 28.02.2015 is exhibited as Exhibit CW-1/6.
7. Email dated 19.05.2016 along with payment proposal list issued by OP is exhibited as Exhibit CW-1/7.
8. Legal notice dated 7.10.2016 with postal receipts is exhibited as Exhibit CW-1/8.

2. In complaint No. 135/2017 - Complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Receipt No. 1001 dated 15.12.2012 for a sum of Rs.9,12,010/- is exhibited as Exhibit CW-1/1.
2. Circular dated 25.08.2008 is exhibited as Exhibit CW-1/2.
3. Circular dated 25.06.2013 is exhibited as Exhibit CW-1/3.
4. Circular dated 01.03.2014 is exhibited as Exhibit CW-1/4.
5. Circular dated 03.11.2014 is exhibited as Exhibit CW-1/5.
6. Members details of Respondent dated 28.02.2015 is exhibited as Exhibit CW-1/6.
7. Email dated 19.05.2016 along with payment proposal list issued by OP is exhibited as Exhibit CW-1/7.
8. Legal notice dated 7.10.2016 with postal receipts is exhibited as Exhibit CW-1/8.

3. In complaint No. 136/2017 - Complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Receipt No. 1005 dated 15.12.2012 for a sum of Rs.7,98,260/- is exhibited as Exhibit CW-1/1.
2. Circular dated 25.08.2008 is exhibited as Exhibit CW-1/2.
3. Circular dated 25.06.2013 is exhibited as Exhibit CW-1/3.
4. Circular dated 01.03.2014 is exhibited as Exhibit CW-1/4.
5. Circular dated 03.11.2014 is exhibited as Exhibit CW-1/5.
6. Members details of Respondent dated 28.02.2015 is exhibited as Exhibit CW-1/6.
7. Email dated 19.05.2016 along with payment proposal list issued by OP is exhibited as Exhibit CW-1/7.
8. Legal notice dated 7.10.2016 with postal receipts is exhibited as Exhibit CW-1/8.

4. In complaint No. 137/2017 - Complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Circular dated 25.08.2008 is exhibited as Exhibit CW-1/1.
2. Circular dated 25.06.2013 is exhibited as Exhibit CW-1/2.
3. Circular dated 01.03.2014 is exhibited as Exhibit CW-1/3.
4. Circular dated 03.11.2014 is exhibited as Exhibit CW-1/4.
5. Members details of Respondent dated 28.02.2015 is exhibited as Exhibit CW-1/5.
6. Email dated 19.05.2016 along with payment proposal list issued by OP is exhibited as Exhibit CW-1/6.
7. Legal notice dated 7.10.2016 with postal receipts is exhibited as Exhibit CW-1/7.

The complainant has not filed any receipt of payment of Rs.5,65,760/- to the OP. However, the payment of the said amount is admitted by the OP in parawise reply in Para 4 as under:-

That contents of para 4 of the compliant needs no reply being the matter of record. It is admitted that the complainant paid Rs. 5,65,760/- to the respondent.

5. In complaint No. 138/2017 - Complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Receipt No. 1003 dated 15.12.2012 for a sum of Rs.9,12,010/- is exhibited as Exhibit CW-1/1.
2. Circular dated 25.08.2008 is exhibited as Exhibit CW-1/2.
3. Circular dated 25.06.2013 is exhibited as Exhibit CW-1/3.
4. Circular dated 01.03.2014 is exhibited as Exhibit CW-1/4.
5. Circular dated 03.11.2014 is exhibited as Exhibit CW-1/5.
6. Members details of Respondent dated 28.02.2015 is exhibited as Exhibit CW-1/6.
7. Email dated 19.05.2016 along with payment proposal list issued by OP is exhibited as Exhibit CW-1/7.
8. Legal notice dated 7.10.2016 with postal receipts is exhibited as Exhibit CW-1/8.

6. In complaint No. 139/2017 - Complainant has filed evidence by way of affidavit and exhibited the following documents:-

1. Receipt No. 1004 dated 15.12.2012 for a sum of Rs.9,12,010/- is exhibited as Exhibit CW-1/1.
2. Circular dated 25.08.2008 is exhibited as Exhibit CW-1/2.
3. Circular dated 25.06.2013 is exhibited as Exhibit CW-1/3.
4. Circular dated 01.03.2014 is exhibited as Exhibit CW-1/4.
5. Circular dated 03.11.2014 is exhibited as Exhibit CW-1/5.
6. Members details of Respondent dated 28.02.2015 is exhibited as Exhibit CW-1/6.
7. Email dated 19.05.2016 along with payment proposal list issued by OP is exhibited as Exhibit CW-1/7.
8. Legal notice dated 7.10.2016 with postal receipts is exhibited as Exhibit CW-1/8.

The documents relied and accepted by the OP in all the cases are the same as under:-

OP has filed evidence by way of affidavit of Sh. Rajeev Chopra, General Secretary of OP. He reiterates the averments made in OP’s reply. He further states that another GBM was held on 27.2.2016 wherein it was decided to refund the amount paid by the members with 4.5% interest from date of payment till 31.3.2016. The refund was being made as per the entry and serial number of the members. The complainant is at serial No. 157 and it will take around 10 months to refund the amount, provided new members join the society. The affidavit is dated 18.9.2018.  He has exhibited the following documents:-

1. Copy of power of attorney issued in favour of Mr. Rajeev Chopra is annexed as Annexure A-A1.
2. Copy of application form of the complainant is annexed as Annexure B-B2.
3. Copy of Signatories of emergency GBM and minutes of emergency meeting as Annexure C-C4.
4. The certificates along with list of members and extracts from GBM dated 27.2.2016 is annexed as Annexure RE01 TO RE08.

OP has also filed MOU dated 25.2.2016 executed between the society and the new builder.

We have considered the rival contentions of the party. It is admitted by both the parties that each complainant has paid the amount mentioned in receipts, on 15.12.2012 towards booking of a developed plot ad measuring 200 sq. Yards each in Dehradun. Admittedly, the land was acquired in 2013 and each complainant was informed that demarcation is in progress and will be completed by 8.11.2014. No plot has been allotted till date.

OP has filed an application for dismissal of complaint on grounds of territorial jurisdiction as registered office and plot dispute are located in Dehradun. The complainant has resisted this application on the ground that the entire transaction has taken place in the administrative office which is within the jurisdiction of this Forum. Order sheet dated 7.5.2018 is reproduced as follows:- Present:- Sh. Sandeep Thukral, advocate for the complainant. SH. Rajinder Dhar, advocate for OP. Rejoinder and CE as well as reply to the application regarding territorial jurisdiction filed.

Put up for arguments on the application regarding territorial jurisdiction for 19.09.2018.

Later on Mr. Rajinder Dhar, advocate for OP appeared and submitted  that in fact the payment was received by way of cheque in Delhi office  and cheque was encashed at Delhi hence he is withdrawing his application regarding the lack of territorial jurisdiction.

In view of his submission, the application moved by OP regarding lack of territorial jurisdiction is dismissed as withdrawn. Put up for RE for 19.09.2018.

OP has withdrawn his application regarding the lack of territorial jurisdiction while submitting that the payment was received by payment of Cheque in Delhi office and the cheque was encashed in Delhi office.

Ordersheet dated 14.10.2018 shows that Mr. Rajeev Chopra, General Secretary of OP and power of attorney holder of OP was present in the Forum. He informed that Forum that the land of a society has been transferred to the new developer. He also undertook to make the payment to the complainant within 10 months from the date of affidavit i.e. 19.9.2018.

The minutes of the emergency GBM held on 24.1.2016 shows:-

4. ...................

The developer may be authorized to suggest new members, subject to acceptance of Managing Committee so that existing members willing to resign/ exit may do so, on receipt of full payment and interest within a period not exceeding three months from the date of execution of the agreement. In case the developer fails to make full payment to all such resigned members within these three months, the society may be free to identify an alternate developer or builder and treatment of amount deposited to bank to secure interest of society may be negotiated and suitably lied up as deemed appropriate by the Managing Committee. However, the security deposit of Rs. 50 lakhs shall be forfeited by the Society.

7. it was further resolved that the present members of the Managing Committee shall neitherresign from the membership of the society nor relinquish charge as Managing Committee member till all willing members get consideration for transfer of shares or decide not to transfer of shares within a period of 6 months after date of Agreement with the developer.

9. ..............................

ii) That the present Managing Committee may be authorised to transfer the shares of the members opting out on payment of their dues to the new members as may be nominated by the developer.

The list attached to minute’s shows that 26 members had already been paid.

Extracts of Agreement dated 25.2.2016 between OP and M/s Anandam Hospitality are as follows:-

Extracts from the meeting of executed Committee held on 27.7.2016 are as follows:-

An undated certificate signed by Mr. Rajeev Chopra General Secretary states that 52 members have been refunded according to the seniority while 3-4 members were being paid without seniority has signed before the AGM and has paid earlier. The member in question is between serial no. 166 to 170 which is towards the end of the list.These members would be getting refund within 8 to 10 months.

E-mail dated 19.5.2016, is as follows:-

‘This list had been revised/ updated based on inputs received from members whose names were not included earlier but they forwarded their earlier mail to us. This list has been updated and issued in consultation with the Monitoring Committee members also. Exact date for payment will be intimated to members as per this list. However, we hope to complete the payment at the earliest and within 3-4 months.’ The company list contains the name of the complainant at serial No. 122

Thus, from the chronology of the event, it is clear that OP society received money from the complainant in year 2012 and started the process of demarcation of plot in year 2014. An AGM was held on 24.1.2016 which shows that M/s Anandam was willing to take care the liabilities of the society as reality sector was going through a difficult phase and valuation of land was getting affected. It was resolved to accept the offer from M/s Anandam for developing the land and the managing committee was authorised to accept new members in place of those who wish to resign or exit. The developer was also authorised to suggest new members subject to acceptance of Management Committee and existing member may exit on receipt of full payment and interest within a period not exceeding 3 months from the date of execution of the agreement.

The MOU between OP society and M/s Anandam Hospitality Private Limited shows that the development rights were transferred to M/s Anandam Hospitality Private Limited. The list of members willing to exit would be given to the developer who will refund the amount within 3 months but not exceeding 6 months.

OP has also relied on GBM dated 27.2.2016. Mr. Rajeev Chopra, the General Secretary, has issued a certificate stating that the outgoing members will be paid interest @4.5% p.a. from the date of deposit till 31.3.2016 which shall be paid within 8 to 10 months. He has also admitted in this Commission on 4.10.2018 that the amount would be refunded within 10 months from the date of affidavit i.e. 19.9.2018.

It is clear that OP has taken the money and has promised to refund the money firstly, within 3 months vide GBM dated 24.1.2016, then within 3 to 6 months vide MOU dated 25.2.2016, then within 8 to 10 months vide GBM dated 27.2.2016, then within 3 to 4 months vide e-mail dated 19.5.2016 and finally, within 10 months from the date of affidavit i.e. 19.9.2018. The money has not been refunded to complainant till date. The promise to refund the money due to lack of development in the project and further delaying the refund on one pretext or other constitutes gross deficiency on part of OP.

We also find it a fit case to place reliance on the judgment of the Hon’ble Supreme Court in Kolkata West International City Pvt. Ltd. v. Devasis Rudra, II(2019)CPJ29 (SC)=III (2019)SLT 631, decided on 25.3.2019 in which the Hon’ble Apex Court has observed as hereunder:

“.....It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March, 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period. A period of seven years is beyond what is reasonable.

In the present matter each complainant has made the payment in 2012 and is waiting for refund since 2016. No payment has been made till date which is beyond reasonable time.

Hence, in the facts and circumstances of the case we find OP guilty of deficiency of service and unfair trade practice and direct it to refund the amount as under:-

    In CC No. 140/2017- OP is directed to refund:-

1. Rs. 9,12,010/- with @9% interest from date of deposit till payment is made.
2. Rs. 50,000/- as compensation for mental harassment and physical inconveniences.
3. Rs. 10,000/- towards litigation expenses.

In CC No. 135/2017- OP is directed to refund:-

1. Rs. 9,12,010/- with @9% interest from date of deposit till payment is made.
2. Rs. 50,000/- as compensation for mental harassment and physical inconveniences.
3. Rs. 10,000/- towards litigation expenses.

In CC No. 136/2017- OP is directed to refund

1. Rs. 7,98,260/-/- with @9% interest from date of deposit till payment is made
2. Rs. 50,000/- as compensation for mental harassment and physical inconveniences.
3. Rs. 10,000/- towards litigation expenses.

In CC No. 137/2017- OP is directed to refund

1. Rs. 5,65,760/- with @9% interest from date of deposit till payment is made.
2. Rs. 50,000/- as compensation for mental harassment and physical inconveniences.
3. Rs. 10,000/- towards litigation expenses.

In CC No. 138/2017- OP is directed to refund

1. Rs. 9,12,010/- with @9% interest from date of deposit till payment is made.
2. Rs. 50,000/- as compensation for mental harassment and physical inconveniences.
3. Rs. 10,000/- towards litigation expenses.

In CC No. 139/2017-  OP is directed to refund

1. Rs. 9,12,010/- with @9% interest from date of deposit till payment is made.
2. Rs. 50,000/- as compensation for mental harassment and physical inconveniences.
3. Rs. 10,000/- towards litigation expenses.

The order to be complied within 30 days from the date of uploading of order failing which it will carry an interest of @12% p.a. from the date of order to till payment is made by OP.

Signed copy be placed in each complaint case. File be consigned to record room.