MOHIT GUPTA vs Director, Greenbay Infrastructure Pvt. Ltd

GREENBAY Infrastructure - the Opposite Party developed a modern township under the name of style of Greenbay Golf Village has 9 Golf Course modern club etc. On 04.11.2011, Mohit Gupta, complainanant applied for allotment of 750 yards plot @ Rs. 16,400/ - per sq. yd. and paid Rs. 12,30,000/ - as booking amount being 10% of the basic sale price. The Opposite Party did not issue any receipt. The application form also did not mention the plot number.

SUDDENLY , the complainant received a demand notice dated 19.11.2011. The said demand notice runs as follows: - "Booking for a plot in, ''Greenbay Golf Village '' at Sector -22D, Yamuna Expressway, Uttar Pradesh This is reference to your cheque no. 205431 for Rs.2,00,000/ - dated 05/04/2011 of HDFC Bank Ltd. and cheque no. 956814 for Rs.10,30,000/ - dated 05/04/2011 of Bank of India for booking of a Plot in Greenbay Golf Village Sector -22D, Yamuna Expressway, Uttar Pradesh. Kindly note following payment are outstanding in respect of the booking: Particulars Amount Amount due against booking amount 13,50,000/ - Amount due within 45 days of booking 13,50,000/ - Amount due within 90 days of booking 13,50,000/ - Total amount payable 40,50,000/ - Less amount received 12,30,000/ - Balance payable 28,20,000/ - However, till date we have not received any payments against the overdue amounts. You are now suggested to remit the amount due immediately within 7 days from the date of issue of this letter failing which we shall have no option but to terminate the application and in that case based on company policy of cancellation, which will be applicable in your case, the company reserves the right to deduct 10% of basis sale value of the unit as ''Earnest Money ''."

The complainant was surprised to note that new enhanced rate of Rs. 18,000/ - per sq. yd. Instead of Rs. 16,400/ - per sq. yd. was demanded. Moreover, the complainant was required to pay a sum of Rs. 28,20,000/ -, within 7 days. No allotment letter was sent till then. No number of plot was given thereon. No formal receipt for the paid amount of Rs. 12,30,000/ - was given till the filing of this case. The complainant met the opposite Party and they assured him that the above deficiency would be removed.

HOWEVER , on 19.12.2011, the complainant was surprised to receive the cancellation letter, which runs as follows: - "Please refer our Final Notice dated 19/11/2011 requesting you to clear due installments of Rs. 28,20,000/ -. However, we have not received any payment towards the due installments till date. This Cancellation Notice is being issued to you after several attempts made to contact you in efforts to recover the money due to us. In the circumstances of non payment of due installments, it will be difficult to continue your booking in our Projection and therefore, we regret to inform you that Company has decided to terminate the allotment of aforesaid unit in ''Greenbay Golf Village. Based on Company Policy of Cancellation clearly mentioned in the Application Form, which will be applicable in your case, the Company reserves the right to deduct 10% of basic sale value of the unit as ''Earnest Money '' You are requested to not to do any transaction in relation to the aforesaid unit and return the original documents of the aforesaid property issued to you to process the cancellation proceedings. "

ON 24.12.2011, the complainant protested that he had not received any allotment letter, area and number of the plot. He also protested about the rate of per square yard. He also requested that the above said deficiencies in the Greenbay Golf Village be removed. On 30.12.2011, the complainant contended that due to personal reasons, he was unable to hold the above said plot. He also prayed that booking of the above plot be cancelled and the booking amount of Rs. 12,30,000/ - be refunded at the earliest. He wrote so many letters for the refund of the money but the same was not refunded. The Opposite Party sent an intimation cum demand letter dated 25.05.2012 wherein the price of the plot was calculated @ Rs. 16,4000/ - per sq. yd. On 12.05.2012, the complainant however, received the allotment letter, which runs as follows: - "Subject: Allotment Letter - GREENBAY GOLF VILLAGE at Sector 22 D, Yaumna Expressway - Uttar Pradesh. Dear Sir/Madam, With reference to your Application dated 05/04/2011 we are pleased to allot PLOT NO.17 in our ''GREENBAY GOLF VILLAGE '' Group Housing project at Sector 22 D, Yamuna Expressway, in your favour as per the following details; Super Area : 750 sq/yrd. Basic Sale Price : Rs. 16,400/ - Per sq/yrd. Unit No. : PLOT NO. 17,BLOCK -A Block/Tower : BLOCK -A As per the ''Schedule of Payment ''contained in the Application Form, a payment of Rs. 12,30,000/ - (Rupees Twelve Lakhs Thirty Thousand Only) has been received. Kindly note that the First installment of Rs. 12,30,000/ - (Rupees Twelve Lakhs Thirty Thousand Only) would due on 20/05/2011 i.e. within 45 DAYS OF THE BOOKING. We thank you for the opportunity to serve you the look forward to having you enjoy your unit at "GREENBAY GOLF VILLAGE ". We shall keep you posted with the latest updates. For M/s GREENBAY INFRASTRUCTURE PVT. LTD."

VIDE letter dated 13.06.2013, the opposite party wrote to the complainant that they were forfeiting the earnest amount. The relevant para runs as follows: "This is in continuation of our earlier Demand Letters in which we have been requesting you to make the payment of outstanding dues in respect of the above captioned property. However, it is noted that despite the above mentioned letter/s and reminder/s you have failed/neglected to make the payment of the outstanding dues in terms of the payment plan appended with the Application Form and as on date a sum of Rs. 47,10,141.00 (Rupees Forty -Seven Lakhs Ten Thousand One Hundred Forty -One only) is still outstanding and payable by you. It may be noted that in terms of the Application Form it has been agreed by you that "the Applicant(s) agree to comply with the terms and conditions of the Application and Confirmation Agreement failing which the Company shall have the right to cancel/terminate the allotment/Conformation Agreement and forfeit the entire amount of Earnest Money, interest on delayed payment, brokerage if paid etc. Thereafter the Applicant(s) shall be left with no lien right, title, interest or any claim of whatsoever nature in the said plot ... The Company shall thereafter be free to resale and / or deal with the said plot in any manner whatsoever ". Accordingly, in view of the wilful and persistent default by you we are constrained to cancel the booking / Allotment of the above captioned property and forfeit the earnest money. The amount (s), if any, paid over and above the Earnest Money, interest delayed payment etc., would be refunded by the Company only after realizing such amounts from resale but without any interest or compensation of whatsoever nature. Please note henceforth you have not been left with any right, title or interest in the captioned property and the Company is free to deal with the same in any manner ".

UNDER these circumstances, the complainant filed the present complaint with the following prayers: - "a) Direct the respondent to withdraw the cancellation cum termination letter 13 -06 -2012 and restore the Allotment of Plot No. 17 Block A measuring 750 yards in Greenbay Golf Village Sector 22D at Yamuna Expressway Uttar Pradesh in favour of the Complainant. b) Direct the respondent to waive interest charged in various demand Letter/Notices. While the complainant had been pursuing to remove deficiencies. c) Direct the respondent to issue a fresh, revised and correct Allotment Letter revised Payment Plan and revised Intimation Cum Demand Letter with fresh and revised dates of payment. d) Award such compensation for mental agony and harassment of Rs. 5,00,000/ - and Rs. 1,00,000/ - toward litigation expenses or any other sum the Hon ''ble Commission deems reasonable. e) Pass any other further order as the Hon ''ble Commission may deem fit in the interest of justice and equity."

It must be pertinent to mention here that the defense of the Opposite Party was forfeited vide order passed by this Commission while placing reliance on Dr. J.J. Merchant Vs. Srinath Chaturvedi III (2002) CPJ 8 (SC) . The review petition was also dismissed while placing reliance again on Dr. J.J. Merchant Vs. Srinath Chaturvedi III (2002) CPJ 8 (SC), Unitech Ltd. Vs. Sanjay Goyal and Ors. In Civil Appeal No. 6042 of 2013 (SC) and Kamal Prit Palta and Anr Vs. Vikas Rana and Ors., Civil Appeal Nos. 4806 -4807 of 2013, decided on 12.07.2013 by the Hon ''ble Supreme Court.

DURING the pendency of this case, another SLP was filed in the Supreme Court, which dismissed the Special Leave to Appeal (Civil) No(s). 24705/2013 in the case of "The Oriental Insurance Co. Ltd. Versus M/s Rajankumar and Bros (IMPEX) " dated 13.08.2013, against the order of this Commission passed in CC No. 200/2012, dated 01.07.2013.

HOWEVER , we have heard the counsel of both the parties as the counsel for the Opposite Party was allowed to argue on legal issues. The learned counsel for the Opposite Party conceded that rate of per square yard is Rs. 16,400/ - though, they have been allotting the plot @ Rs. 18,000/ - per sq. yd. to other customers. It is rudimentary principle of jurisprudence that the documentary proof will always get preponderance over the oral evidence because it is a well -known axiom of Law that men may tell lies but the documents cannot. We have seen the application form, which clearly, specifically and unequivocally mentions that the booking of plot is at the rate of Rs. 16,400/ -. Subsequently, the Opposite Party in the last notice dated 12.05.2012 also admitted that the rate of plot was Rs. 16,400/ - per square yard. The admission of this fact comes out from the horse ''s mouth itself. Secondly, the attention of this Commission was also invited towards the head of the original application where it is clearly mentioned that the booking of plot @ Rs. 16,400/ - per sq. yd., size of the plot booked -750 yards, No. of unit - Plot No. 17, Block -A, at Greenbay Golf Village. However, a clear look at the said endorsement clearly goes to reveal that it was written subsequently. The hand -writing in the application form in both the pages are different than the other writings. Even if, plot No. was given at the time of filling up the form, it does not cut much ice on this issue. The submission made by the counsel for the Opposite Party was that the complainant vide its letter dated 30.12.2011 had itself signified his willingness to withdraw from this transaction.

WE are unable to locate substance in these arguments. It appears that the Complainant was fed up with the unnecessary demands made by the OP on various occasions. Ultimately, he thought that it would be of no use if he hangs on with this plot.

THE last submission made by the counsel for the OP was that the opposite party is entitled to interest because the money was not paid to it as per the schedule mentioned in their letter dated 19.11.2011. It is not out of place to mention here that in this notice the rate of property was shown as Rs. 18,000/ - per sq. yd. The complainant was under no obligation to pay the higher amount. The whole gamut of the above said facts and circumstances clearly go to show that the OP was not honest in its dealings. It is difficult to fathom why did he make demand @ Rs. 18,000/ - per sq.yd. The OP has tried to play fast and loose with its customers. His action is below the belt. The OP should have been honest and fair while dealing with its customers. The action or the OP is arbitrary, dictatorial, capacious and unreasonable. Had it been honest, complications should not have arisen.

THE complainant has been asking the OP that which plot has been given to him. This was mentioned in each and every letter. If the number was given earlier, he should have been told repeatedly that this was his plot number, which was situated in such and such area. Silence on the part of the OP is pernicious. Due to bizarre conduct of the OP, we are of the considered view that it is not entitled to any interest. It has been harassing the complainant for the last so many years. It is also surprising to note that the Opposite Party has not entered into the agreement. Terms and conditions were not settled. It is difficult to understand why did the OP take the money from the Complainant and enjoyed the same for so many years without any agreement. The OP has succeeded to feather its own nest.

IN the result we accept the complainant and cancel the cancellation -cum -termination letter dated 13.06.2012 and restore the allotment of plot No. 17, measuring 750 sq./yards, Sector 22 D, at Yamuna Expressway, Uttar Pradesh in favour of the complainant without charging any interest. The Opposite Party is further directed to issue fresh, revised and correct allotment letter, revised payment plan and revised intimation cum demand letter with revised and fresh dates and payment, within a period of 90 days from the date of receipt of this order in accordance with Law, terms and conditions of the agreement. OP is directed to issue these deeds within 90 days from the date of receipt of this order otherwise, it shall be liable to pay penalty of Rs. 500/ - per day till the needful is done. In case the Complainant does not comply with the above said demand, within reasonable and already specified time, it will be at liberty to proceed against the Complainant as per Law. Keeping in view the facts and circumstances, the complainant is also entitled to have Rs. 1,00,000/ - towards litigation expenses and mental agony. The said amount be paid within 90 days as aforesaid otherwise, it will carry interest @ 9% till its realization.