Case No.CC/608/2013

Date of Institution:-28.05.2013

Order Reserved on :-19.09.2024

           Date of Order :-18.11.2024

IN THE MATTER OF:

1. Mrs. ShitalSaraf

W/o Sh. AbhishekSaraf

R/o L-24/7, DLF Phase-II,

Gurgaon, Haryana.

2. Mrs. SmitaSaraf

W/o Sh. VikramSaraf

R/o L-24/7, DLF Phase-II,

Gurgaon, Haryana.

          …..Complainants

VERSUS

Vipul Ltd.

Regd. Office at:

Regus Rectangle, Level-4,

Rectange 1, D4,

Commercial Complex,

Saket, New Delhi – 110017.

Also at :

VipulTechsquare

Golf Course Road,

Sector-43, Gurgaon – 120029.

… Opposite Party

O R D E R

Per R. C. YADAV , MEMBER

1. The brief facts of the case are thatOP is a limited company and engaged in the business of real estate/infrastructure development and running their business in the name and style of M/s  Vipul Ltd.  The sales executive of OP approached the complainants and offer to purchase a plot admeasuring 300 sq. yd. in the future project launched by the OP.  The said plot was originally allotted by the OP to some previous allottee Mr. LalitMehra.  It was also stated by the executive of OP that the previous allottee Mr. Mehra was looking for a prospective buyer of the said plot was amongst their esteemed client, so on his behalf the said executive of the OP approached the complainants.  The complainants had agreed to purchase the said plot and paid Rs.2,00,000/- to the original allottee, which he had earlier paid to the OP vide cheque no. 066181 dated 07.10.2005 drawn on CITI bank. The OP has issued a receipt no. 227 dated 14.10.2005 towards the said payment. After the payment made by the complainant, the original purchaser/allottee made an endorsement in favour of the complainants with respect to the said plot.  The agreed rate of the said plot as per the provisional registration letter dated 15.11.2005 was Rs.7,750/- per sq. yd.  Copy of receipt no. 227 dated 14.10.2005 is exhibit as EX CW1/Aand the previous letter dated 17.11.2005 as EX CW2/B.   The complainants have paid Rs.4,00,000/- to the OP towards part payment.  The OP has issued receipt no. 537 dated 27.03.2006 to the complainants, copy of which exhibit as is exhibit as CW-1/C. The OP has fixed the rate of the said plot initially @ Rs.7750/- per sq. yd.  but later on the same was increasedto Rs.10300/- per sq. yd. without intimated to the complainants.   The OP has demanded installment as per increased rate and when the complainants enquired about unreasonable increased rate, the OP did not even bothered to answer the queries to the complainants. On 17.02.2010, the complainants have requested the OP for cancellation of agreement for the said plot.  Copy of letter dated 17.02.2010 is exhibit as CW-1/D.  The OP has sent ‘format affidavit’ to the complainants and the OP has asked the complainants to sign this ‘format affidavit’ for cancellation of the plot.  The complainants have left no option to accept the same as executed by the OP.  The OP vide its letter dated 16.040.2010 offered the complainants for conversion their unit into commercial space. It was also offered special rate shall be charged for the said conversion into commercial space.  It was also submitted that complainants agreed upon the same but none of the executives from the OP approached the complainants so far.  The OP has neither refunded their deposited amount nor conversion their unit into commercial space.  Hence, this complaint.
2. The complainants have requested to the OP for refund of their deposited amount but of no avail.  In August, 2011, the OP has refused to return the said amount telephonically and intimated that the booking amount has been forfeited.  The complainants sent legal notice dated 12.03.2013 is exhibit as CW-1/G. The complainants have prayed for refund of their deposited amount of Rs.6,00,000/- (Rupees Six Lakh) alongwith interest @ 12% p.a. and Rs.5,00,000/- for mental agony and Rs.55,000/- for litigation charges.
3. OP has filed written statement taking preliminary objections thatthe complainants have booked a plot in the future project of OP and paid initially Rs.2,00,000/-.  It is submitted that the complainants have paid total Rs.6,00,000/- to the OP.  OP has stated that the complainants have just paid registration amount and the complainants were keen to invest in the future project be developed by the OP and hence this is not a consumer case and the complainants have invested in the project.  The OP has stated that the complainants were offered to change their plot into commercial space but the complainants have not replied to the OP. The OP has stated that in terms of clause 12 of application dated 25.03.2006, specifically agreed that “the courts situated at Gurgaon, Haryana alone shall have the jurisdiction in the matters arising out of or touching and/or concerning the application.”  In view of specific clause in the application that Gurgaon courts alone shall have jurisdiction in the matters arising out of or touching and/or concerning the application, the present complaint is not maintainable before this Forum.  The OP has stated that the complaint is time barred as the complainants have not filed the complaint within 2 years from the date of occurrence.  Hence, the complaint is liable to be dismissed.
4. The complainant has filed rejoinder reiterating the allegations made in the complaint and denying the allegations leveled in the written statement.
5. Both the parties have led evidence as well as filed written arguments in support of their case.
6. On 19.09.2024, the case was listed for arguments,complainants have not been appearing since long and we have heardthe Ld. Counsel Sh. Ankur Sharma for OP. Hence, the case was reserved for order.
7. We have carefully considered the material on record and thoroughly perused the documents placed on record.
8. It is the case of the complainants that they had booked a plot admeasuring 300 sq. yd. in the future project launched by the OP.  The said plot was originally allotted by the OP to some previous allottee Mr. LalitMehra.  It was also stated that the previous allottee Mr. Mehra was looking for a prospective buyer of the said plot was amongst their esteemed client, so on his behalf the executive of the OP approached the complainants.  The complainants had agreed to purchase the said plot and paid Rs.2,00,000/- to the original allottee, which he had earlier paid to the OP vide cheque no. 066181 dated 07.10.2005 drawn on CITI bank. The OP has issued a receipt no. 227 dated 14.10.2005 towards the said payment. After the payment made by the complainant, the original purchaser/allottee made an endorsement in favour of the complainants with respect to the said plot.  The agreed rate of the said plot as per the provisional registration letter dated 15.11.2005 was Rs.7,750/- per sq. yd.  The complainants have paid Rs.4,00,000/- to the OP towards part payment.  The OP has issued receipt no. 537 dated 27.03.2006 to the complainants.   The OP has fixed the rate of the said plot initially @ Rs.7,750/- per sq. yd. but later on the same was increased to Rs.10,300/- per sq. yd. without intimated to the complainants.   The OP has demanded installment as per increased rate and when the complainants enquired about unreasonable increased rate, the OP did not even bothered to answer the queries to the complainants. On 17.02.2010, the complainants have requested the OP for cancellation of agreement for the said plot.  The OP has sent ‘format affidavit’ to the complainants and the OP has asked the complainants to sign this ‘format affidavit’ for cancellation of the plot.  The complainants have left no option to accept the same as executed by the OP.  The OP vide its letter dated 16.040.2010 offered the complainants for conversion their unit into commercial space. It was also offered special rate shall be charged for the said conversion into commercial space.  It was also submitted that complainants agreed upon the same but none of the executives from the OP approached the complainants so far.  The OP has neither refunded their deposited amount nor conversion their unit into commercial space.  The complainants have requested to the OP for refund of their deposited amount but of no avail.  In August, 2011, the OP has refused to return the said amount telephonically and intimated that the booking amount has been forfeited. 
9. It is admitted fact of both the parties that the complainants have paid total consideration of Rs.6,00,000/- to the OP.  But the OP has desired to change the residential plot into commercial space.  It was obligation on part of the OP that on receipt of the amount, the OP should have handed over the possession of the plot but the OP has not handed over the plot to the complainants.
10. It is the case of the complainants that when they did not get the possession of plot, they asked for refund of deposited money but the same has not been refunded despite repeated requests and correspondences with the OP.  It is the case of this conduct amounts to deficiency in service and unfair trade practice. The OP has not denied the booking of the flat in their written statement. As far as the plea of Arbitrator clause between the parties is concerned, the same is not relevant as Section 3 and Section 100 CPC do not bar in filing of such complaint, despite having their Arbitration clause between the parties. The OP was under obligation to refund booking amount as claimed by complainants. Non-delivery of possession of plot on receipt of money within a reasonable time amounts to deficiency in service and unfair trade practice.

“ArifurRehman Khan Vs. DLF Southern Home Pvt. Ltd. (2020) 16 SCC 512” is the authority on this point.

11. We are satisfied that this act on part of the OP constitutes deficiency in service and also unfair trade practice.
12. Accordingly, we allow the complaint and direct the OP to refund Rs.6,00,000/- (Rupees Six Lakh)to the complainant alongwth an interest @ 6% p.a. from the date of deposited moneyandRs.2,00,000/- (Rupees Two Lakh) as lumpsum for mental agony and litigation charges within 45 days from the date of receipt of the order failing which OP shall be liable to pay entire amount alongwithinterest @ 9% p.a. till realization.

• Copy of the order be given/sent to the parties as per rule.
• The file be consigned to Record Room.
• Announced in the open Court on 18.11.2024.