DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. No. 9/2020  

QUORUM:

Judgment By: Shri S.S. Malhotra (President)

JUDGMENT    

By this judgment the Commission would dispose off the present complaint filed by the Complainant against OP alleging deficiency in service by not allotting the plot to the complainant despite booking.

1. Complainant in the complaint have interalia submitted that on the representation, that OP is a large company and have been developing various complexes of high reputation, the complainant on 18.02.2005 visited the office of OP and made an advance payment of Rs.5,75,000/- for a plot of 400 sq. yards to be allotted in its present or future project and OP issued a receipt which is attached as Annexure P-1 and he was given customer code PH/S0143 to the complainant however on 04.01.2006 the respondent informed the complainant that they would offer a residential plot to the complainant in proposed project at Sonipat and also requested the complainant to pay further amount of Rs.5,75,000/- by 19.01.2006 and accordingly complainant paid another amount of Rs.5,75,000/- on 19.01.2006 and receipt thereof is attached as Annexure P-3 but no allotment of plot was made. The complainant then approached the OP in December 2006 and he was assured that plot would be allotted but again it was not done even upto January 2008 and assurance was being given, that plot would be allotted and as far as delay is concerned, the OP would pay an interest @ 10% p.a. on the amount paid by the complainant for delay but no response was ever received upto September 2018.   The complainant then lodged a complaint on 05.09.2012 to SHO PS Barakhamba Road but no action was taken by Police.  Complainant even filed a complaint u/s 200 Cr.P.C. along with application u/s 156(3) Cr.P.C. before the concerned MM Patiala House Court and as per the ATR filed by the IO, the respondent agreed to return the money but it was not at all refunded and then the complainant came to know that several other complaints are also pending against the OP in Delhi as well as in Sonipat and as such complainant has filed the present complaint with the prayer that OP be directed to allot a plot and deliver the possession thereof or in the alternate refund an amount of Rs.11,50,000/- within interest @ 14% p.a. along with compensation of Rs.5,00,000/- and litigation charges of Rs.1,00,000/-. 
2. OP has filed its reply inter alia taking various preliminary objection that complaint is not maintainable as the booking was towards a mere plot and in terms of the judgment in Ganesh Lal V/s Shyam, the sale of mere plot does not fall within the ambit of CP Act, the complainant was only investor and had purchased a property for investment purpose, the complaint is vaxious and malafide in nature, and also involves complex and complicated questions of law and facts, & therefore this Commission has no jurisdiction to entertain the complaint, where matters are decided, summarily and the interest claimed is highly exaggerated. However, the fact that complainant booked a plot and paid Rs.5,75,000/- on 18.02.2005 and Rs.5,75,000/- on 19.01.2006 is not disputed.
3.  As far as merits are concerned, it is denied that there was any delay on the part of OP and it is submitted that due to certain technical reasons, the allotment of land in Sonipat could not be made to the OP by the authorities however it is stated that it was open to the complainant to opt for another allotment of plot in any of the other township being developed by the OP. The fact that amount has not been returned so far is also denied and it is prayed that complaint of the complainant be dismissed.
4. The complainant was directed to file Rejoinder but it was not filed although CE was filed and matter was fixed for 27.04.2022 on which date OP did not appear and was proceeded ex-parte for the purpose of filing of evidence.    
5. The OP thereafter filed an application to set aside the ex-parte proceedings against him along with the evidence but said application was dismissed being not maintainable. Therefore, the written statement of the OP as well as evidence filed by OP although is on record, yet since OP was proceeded ex-parte at the stage of filing of evidence his evidence is not worth appreciating except for any admission  in favour of the complainant.
6. The Commission has heard the arguments and perused the record.
7. The OP is a builder who had to develop the residential plot in the township of Parsvanath City Sonipat Haryana had entered into an agreement with Complainant and received Rs.575000/- on 18.02.2005 and Rs.575000/- on 19.01.2023 and in total he has received Rs.11,50,000/- is not denied.  However, it is matter of record that no specific plot number was allotted by OP for this booking. The possession of any of the plot in any of the project of OP still has not been given to the complainant is also not denied.    
8. The basic contention of the OP is that the complainant purchased the property for investment purpose, the complainant is not a ‘consumer’ under CPA and further as mere plot of land is not covered under the “Consumer Protection Act”, the complaint is liable to be dismissed.    
9. The complainant on the other hand has argued that it was not a mere plot which was to be handed over to the complainant rather OP has to allot a plot within the township, to be developed by the OP and therefore all the amenities like Roads, Electricity, Water, Security, Safety and House Keeping etc. were to be provided by the OP in the said township and further although there was no written agreement entered into by the OP with the complainant yet they had duly received the amount for the purpose of developing the township and therefore complainant is the ‘consumer’ and above all the OP has not filed any evidence on record that the complainant has booked this plot for investment purpose.    
10. No doubt there is no specific agreement on record but non supplying of the agreement by the OP despite having received an amount of Rs.11,50,000/- itself amounts to deficiency in service as well as Unfair Trade Practice  by the OP, as after having received an amount of Rs.11,50,000/- from the complainant, the OP was duty bound to enter into a formal agreement with the complainant so as to ensure that the developed plot be handed over to the complainant as per the agreement within the scheduled period. Therefore, the deficiency on the part of OP is writ large on the face of it.  The OP otherwise also has not been able to file any document by which it can be said that complainant purchased the property for investment purpose.  This assumption of the OP is nothing but at attempt to mislead the Commission by writing irrelevant fact and therefore this contention of the OP is also not well found.  However the Commission has enquired from the counsel for the complainant that how and which number of the plot is being sought by him since there is no specific allotment of specific land / plot and since there is only a priority number of the pre-launch scheme as promulgated by the OP it cannot be ascertained as to which number of the plot would be ordered to be given to the complainant.  Ld. counsel for complainant submitted that this is the only document with the complainant which was given by the OP and this by itself is an unfair trade practice on the part of OP.  Be that as it may, and even that it is unfair trade practice yet in the totality of circumstances, in the absence of any particular plot number to be handed over to the complainant, the relief w.r.t. direction for handing over the specific plot by the OP to the complainant cannot be passed and even otherwise such relief, even if granted it would not be executable.  Therefore, this Commission is of the view that the OP has adopted unfair trade practice while initially calling and accepting the money from the prospective buyers of the plot (without specifying the plot number) and then has further indulged into unfair trade practice in not converting the said Code No.PH/SO143  to a specific plot number with the intention to use the public money at large and this is happening right from 2005 i.e. when the complainant booked the property with OP and accordingly OP is held to be deficient in providing the services to the complainant.  Above all it is also observed by the Commission that OP is not converting the priority number into plot number, at its whims and fencies and further is not returning the amount to the complainant and above all is trying to justify itself with intention to keep the money of the complainant without any reason.  Therefore, the highhandedness apart from unfair trade practice and deficiency in services against OP is writ large. 
11. Therefore the Commission is of the opinion that complainant has been able to prove deficiency on the part of OP although could not prove as to which plot number is to be given to him. In the circumstances, the alternative relief as prayed by the complainant succeeds and therefore the Commission hereby orders as follows:

• OP would return an amount of Rs.11,50,000/- to the complainant with interest @ 10% p.a. from the date of deposit and would also pay compensation of Rs.25,000/- and the litigation charges of Rs.10,000/- to the complainant.                  

This order be complied with within 30 days from the date of receipt of the order failing which the OP would pay interest @ 14% p.a. on the entire amount from the date of deposit upto the date of realization.    

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room. 

Announced on 09.09.2024.