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Judgment
This is a consumer complaint that was moved along with an application under Section 12(1)(c) of the Consumer Protection Act, 1986 on behalf of the complainants who alleged that the plots which were booked by them were neither developed nor were they offered in terms of the representations made by the opposite party. The contention therefore is that the complainants were entitled to possession for which a prayer has been made in the complaint but at the same time in view of the circumstances and the events as unfolded, the complainants now pray for refund of the entire money deposited by them with the opposite party together with interest @ 24% from the date of such deposits. They have also demanded compensation @ Rs.10.00 Lakhs to each of the complainants towards each booking.
The project is “Lotus Valley” which was floated by the opposite party and according to the averments contained in para-1 of the preliminary objections in the written statement, a development agreement had been entered into between the opposite party and one M/s Felicity Estates and in that collaboration an approximate area of 250 bighas of land was sought to be developed as the project of Lotus Valley.
Bookings were invited and the applications which were entertained came to be confirmed with the initial deposit of Rs.11,000/- vide letter dated 10.08.2011. One of the letters for the purpose of illustration in the case of Monu Kumar, the complainant no.1, is extracted herein:
“Date:-10.08.11
To,
MONU KUMAR
C/O Mr. SANJAY KUMAR H. NO. 54,
MAIN MARKET ROAD, NEAR POST OFFICE,
GHITORNI, NEW DELHI-110030
Mob : 9312363900
Sub: Booking Confirmation and Request deposit of six PDC’s against your Membership No. LV-355
Greetings from Metro Max!!
We would like to take this opportunity to express our thanks for your faith in us and wish to extend a warm welcome to you as a resident of our Premium Residential Township “Lotus – Valley” at Jaipur, (Raj.).
We also confirm the receipt of your payment of Rs 11000/- by cash dated 02.08.11 towards the booking of residential plot measuring 125 sq.yds. @ Rs 1953/- per sq. yd. The allotment letter for the same will be issued to you after the receipt of 40% payment from you.
In this context, for making subsequent payment due towards your monthly Plan for six months, you are kindly requested to deposit six post dated cheques (PDC’s), which shall be produced in bank only after your due confirmation will in advance.
In addition to the above, the payment-schedule is also being enclosed along with this letter for your reference.
Also to help us serve you better, please keep this letter & payment schedule as a reference for all your future communications with us. For any further assistance you may contact the undersigned.
Thanking you,
Yours sincerely,
For Metro Max Infrastructure Pvt. Ltd.
Sd/-
(Raju Singh)
Accounts Coordinator
…”
Similar letters were issued in respect of other complainants though on different dates.
Another undisputed fact which needs to be taken notice is of the memorandum of understanding between the complainants and the opposite party for the allotment of land as proposed and this memorandum in the case of Monu Kumar is dated 29.07.2013. Such memorandums have also been executed in respect of other complainants as well.
The memorandum categorically recites about the liabilities and the obligations but in order to appreciate the controversy presently involved and in view of the submissions raised, it would be apt to extract clauses 10, 11 and 14 of the said memorandum which are extracted hereunder:
“10. The Company shall handover the possession of the above referred Plot/Shop/Villa to the Customer(s) with the following infrastructure (development) after receiving full payment and registering the allotted Plot/Shop/Villa in the favour of Customer(s):
Water supply line upto the Plot/Shop/Villa
a. Electricity supply line (poles) nearest to the Plot/Shop/Villa
b. Concrete road for accessibility to all Plots/Shops/Villas
c. The Customer(s) shall pay the cost towards installation of Electricity Sub-station, Meter cost and such other related expenses.
That the Customer(s) can get the Plot/Shop/Villa registered in his/her/their own name or in the name of any person so nominated by him/her/them within one month of the full payment received by the Company and after depositing required registration amount at the concerned authority on account of Stamp Duty and Registration Charges, Mutation Charges, all legal expenses & all other related expenses. However, for the preparation of required documents, submission thereof to the authority and other formalities in this regard, the Company would provide all assistance free of cost till the proper registration is done.
I/We agree that the sale of the Plot/Shop/Villa is subject to force majeure clause which inter-alia includes delay on account of non availability of steel, cement, or other building materials, or water supply or electric power or slow down strike or due to a dispute with the construction agency employed by the Company, civil commotion or by reason of war, or enemy action of earthquake or any act of God, delay in certain decisions/clearances from statutory bodies, or if non delivery of possession is as a result of any notice, order, rules or notification of the Government and/or any other public or Competent Authority or for any other reason beyond the control of the Company and in any of aforesaid events the Company shall be entitled to a reasonable corresponding extensions in time or delivery of possession of the said premises an account of force majeure circumstances. That the Company is committed to abide by the Government rules and Govt. decisions in enforced from time to time and I/We shall also stand by the company & co-operate with the Company irrespective of profit/loss in deal.”
Apart from this, there is a payment plan also appended to the said memorandum which needs to be extracted in order to ascertain the period of the execution of the said memorandum ending in a conveyance deed by way of registration. The said payment plan has the options that are extracted hereunder:
“MONTHLY PLAN (RATE 1953/- P. SQ YARD)
Installments
100
150
200
250
300
400
500
Booking
11000
15000
21000
25000
31000
41000
61000
23 Monthly Instal.
8013*23
12085*23
16070*23
20142*23
24126*23
32183*23
39805*23
Total Cost
195300
292950
390600
488250
585900
781200
976500
QUARTERLY PLAN (RATE 1899/- P. SQ YARD)
Intallments
100
150
200
250
300
400
500
Booking
25000
40000
55000
70000
85000
100000
111000
7 Quarterly Instal.
23557*7
34979*7
46400*7
57822*7
69243*7
94229*7
119786*7
Total Cost
189900
284850
379800
474750
569700
759600
949500
FLEXY PAYMENT PLAN DOWN PAYMENT PLAN
RATE 1836/- per Sq.Yd.
RATE 1737/- per Sq. Yd.
Booking Amount 20%
Within 30 Days 30%
Within 120 Days 10%
Within 210 Days 10%
Within 300 Days 10%
Within 390 Days 10%
On Registry 10%
Booking Amount 25%
Within 30 Days 70% +
IDC & EDC
On Registry 5%
TOTAL 100%
TOTAL 100%”
It is to be mentioned that one of the complainants namely Mr. Baljeet Singh Bansi had in addition to the plot also booked a shop measuring 100 sq. ft. Rest of the complainants have booked plots according to the measurements that are referred to in the Chart extracted in para-10 of the complaint where they have also indicated the plot amount (total consideration) and the amount paid by them. The said Chart is extracted hereunder:
“1.
NAME
Mr. Monu Kumar
PLOT NUMBER
AC-21
SIZE OF PLOT
125 Sq Yards
PLOT AMOUNT
INR 2,56,500/-
PAID AMOUNT
INR 2,46,379
BOOKING DATE
02/08/2011
Documents filed as Annexure-2 (Colly)
True copy of booking/confirmation letter dated 10.08.2011, allotment letter dated 11.08.2012, and MOU dated 29.07.2013 issued and executed by Respondent/ opposite party.
2.
NAME
Mr. Manoj Kumar Mahendru
PLOT NUMBER
T-20
SIZE OF PLOT
138.88 Sq Yards
PLOT AMOUNT
INR 2,79,565/-
PAID AMOUNT
INR 2,79,565/-
BOOKING DATE
15/03/2011
Documents filed as Annexure-3 (Colly)
True copy of booking confirmation dated 25.03.2011 and allotment letter dated 11.08.2012 issued by Respondent.
3.
NAME
Mr. Dinesh Sharma
PLOT NUMBER
AQ-19
SIZE OF PLOT
272.22 Sq Yards
PLOT AMOUNT
INR 5,43,895/-
PAID AMOUNT
INR 5,43,803/-
BOOKING DATE
09/09/2011
Documents filed as Annexure-4 (Colly)
True copy of booking confirmation letter dated 12.10.2011 and allotment letter dated 11.10.2012 issued by Respondent.
4.
NAME
Ms. Bharti Rawat
PLOT NUMBER
AV-10
SIZE OF PLOT
222.22 Sq Yards
PLOT AMOUNT
INR 4,43,996/-
PAID AMOUNT
INR 4,43,996/-
BOOKING DATE
08/02/2012
Documents filed as Annexure-5 (Colly)
True copy of booking confirmation dated 16.02.2012 and allotment letter dated 29.12.2012 issued by Respondent.
5.
NAME
Ms. Renu Rawat
PLOT NUMBER
P-26
SIZE OF PLOT
200 Sq Yards
PLOT AMOUNT
INR 3,99,600/-
PAID AMOUNT
INR 3,99,600/-
BOOKING DATE
08/02/2012
Documents filed as Annexure-6 (Colly)
True copy of booking confirmation dated 16.02.2012 and allotment letter dated 29.12.2012 issued by Respondent.
Annexure-7
Original SPA dated 14.10.2015 issued in favour of Vinod Rawat to file present complaint.
6.
NAME
Mr. Baljeet Singh Bansi
PLOT NUMBER
Shop No. G-101 & O-14,Wide Road.
SIZE OF PLOT
100 Sq. Ft. & 366 Sq Yards
PLOT AMOUNT
INR 1,07,600/- & 8,02215/-
PAID AMOUNT
INR 1,20,000/- & 7,04,944/-
BOOKING DATE
30/11/2011 & 30/10/2011
Documents filed as Annexure-8 (Colly)
True copy of booking confirmation dated 05.12.2011 and allotment letter dated 24.05.2012 issued by Respondent.
7.
NAME
Mr. Pankaj & Ms. Vidhi Agarwal
PLOT NUMBER
Two plots: E-10 & AV-22
SIZE OF PLOT
125 Sq Yd & 222.22 Sq Yd.
PLOT AMOUNT
INR 2,18,625/- & 3,88,363/-
PAID AMOUNT
INR 1,96,656/- & 3,48,517/-
BOOKING DATE
08/06/2011
Documents filed as Annexure-9 (Colly)
True copy of booking confirmation dated 25.06.2011 and MOU issued and executed by Respondent in respect of plot no. E-10
Documents filed as Annexure-10 (Colly)
True copy of booking confirmation dated 25.06.2011 and MOU issued and executed by Respondent in respect of plot no. AV-22
8.
NAME
Mr. Dheeraj Chawla
PLOT NUMBER
AV-14 Corner Plot
SIZE OF PLOT
277.77 Sq Yards
PLOT AMOUNT
INR 6,09,511/-
PAID AMOUNT
INR 5,82,227/-
BOOKING DATE
24/04/2011
Documents filed as Annexure-11 (Colly)
True copy of booking confirmation dated 07.05.2011 and allotment letter dated 06.04.2012 issued by Respondent
9.
NAME
Mr. Rahul Goel & Meenal Goel
PLOT NUMBER
Two Plots: K-3 & AV-21
SIZE OF PLOT
125 Sq Yd & 222.22 Sq Yards
PLOT AMOUNT
INR 2,18,625/- & 3,88,662/-
PAID AMOUNT
INR 1,96,656/- & 3,48517/-
BOOKING DATE
08/06/2011
Documents filed as Annexure-12 (Colly)
True copy of booking confirmation dated 25.06.2011 and MOU dated 25.06.2011 issued and executed by Respondent in respect of plot no. K-3.
Documents filed as Annexure-13 (Colly)
True copy of booking confirmation dated 25.06.2011 and MOU dated 25.06.2011 issued and executed by Respondent in respect of plot no. AV-21.
10.
NAME
Mr. Vivek Kumar Katiyar
PLOT NUMBER
AC-10
SIZE OF PLOT
125 Sq Yards
PLOT AMOUNT
INR 2,67,375/-
PAID AMOUNT
INR 2,46,315/-
BOOKING DATE
29/02/2012
Documents filed as Annexure-14 (Colly)
True copy of booking confirmation dated 12.03.2012 and allotment letter dated 04.02.2013 issued by Respondent
11.
NAME
Ms. Nidhi Mittal/Anuj Kumar Mittal
PLOT NUMBER
A-20
SIZE OF PLOT
222.22 Sq Yards
PLOT AMOUNT
INR 4,33,996/-
PAID AMOUNT
INR 4,33,996/-
BOOKING DATE
20/06/2011
Documents filed as Annexure-15 (Colly)
True copy of booking confirmation dated 07.07.2011 and payment plan showing allotment of plot no. AV-20.
12.
NAME
Mr. Mohit Goel
PLOT NUMBER
AV-16
SIZE OF PLOT
222.22 Sq Yards
PLOT AMOUNT
INR 4,33,107/-
PAID AMOUNT
INR 4,33,107/-
BOOKING DATE
07/07/2011
Documents filed as Annexure-16 (Colly)
True copy of booking confirmation dated 25.07.2011 and payment plan showing allotment of plot by Respondent.
13.
NAME
Ms. Tanuja Kant
PLOT NUMBER
Z-2 Park Facing
SIZE OF PLOT
138.22 Sq Yards
PLOT AMOUNT
INR 2,97162/-
PAID AMOUNT
INR 1,64,988/-
BOOKING DATE
10/03/2011
Documents filed as Annexure-17 (Colly)
True copy of booking confirmation dated 17.02.2011 and allotment letter dated 25.08.2012 issued by Respondent.
14.
NAME
Mr. Dheeraj Goel
PLOT NUMBER
P-24
SIZE OF PLOT
200 Sq Yards
PLOT AMOUNT
INR 3,98,682/-
PAID AMOUNT
INR 3,66,682/-
BOOKING DATE
05/11/2011
Documents filed as Annexure-18 (Colly)
True copy of booking receipt dated 15.10.2011 and MOU dated 06.12.2011 issued and executed by Respondent.
15.
NAME
Ms. Mradula Gupta
PLOT NUMBER
AZ-6 Park Facing
SIZE OF PLOT
200 Sq Yards
PLOT AMOUNT
INR 4,49,460/-
PAID AMOUNT
INR 3,96160/-
BOOKING DATE
30/08/2011
Documents filed as Annexure-19 (Colly)
True copy of booking confirmation dated 17.09.2011 and allotment letter dated 22.12.2012 issued by Respondent.
16.
NAME
Mr. Vineet Sood & Mrs. Kamna Sood
PLOT NUMBER
AQ-25
SIZE OF PLOT
272.22 Sq Yards
PLOT AMOUNT
INR 6,11,760/-
PAID AMOUNT
INR 6,33,522/-
BOOKING DATE
04/09/2011
Documents filed as Annexure-20 (Colly)
True copy of booking confirmation dated 17.09.2011 and payment plan showing allotment of plot AQ-25 Park issued by Respondent.
17.
NAME
Mr. Rajan Prakash Tyagi
PLOT NUMBER
X-11
SIZE OF PLOT
125 Sq Yards
PLOT AMOUNT
INR 249750
PAID AMOUNT
INR 249750
BOOKING DATE
10.10.2011
Documents filed as Annexure-21 (Colly)
True copy of booking confirmation dated 12.10.2011 and payment plan showing allotment of plot issued by Respondent.
18.
NAME
Mr. Dinesh Chandra & Mrs. Rekha Verma
PLOT NUMBER
AQ-27
SIZE OF PLOT
272.22 Sq Yards
PLOT AMOUNT
INR 5,37,362/-
PAID AMOUNT
INR 3,35,138/-
BOOKING DATE
01/08/2011
Documents filed as Annexure-22 (Colly)
True copy of booking confirmation dated 05.09.2011 and allotment letter dated 22.10.2012 issued by Respondent.
19.
NAME
Ms. Rakhsi Rajan & Mr. Amitabh Rajan
PLOT NUMBER
AX-4
SIZE OF PLOT
311.11 Sq Yards
PLOT AMOUNT
INR 7,29,537/-
PAID AMOUNT
INR 7,29,537/-
BOOKING DATE
17/08/2011
Documents filed as Annexure-23 (Colly)
True copy of booking confirmation dated 26.08.2011 and payment plan showing allotment of plot issued by Respondent.
20.
NAME
Mrs. Sangeeta Agarwal & Mr. Amit Kumar Agarwal
PLOT NUMBER
AC-13
SIZE OF PLOT
125 sq. yds.
PLOT AMOUNT
INR 2,49,750/-
PAID AMOUNT
INR 1,90,126/-
BOOKING DATE
07/02/2012
Documents filed as Annexure-24 (Colly)
True copy of booking confirmation dated 07.02.2012 and payment plan showing allotment of plot issued by Respondent.
21.
NAME
Ms. Surabhi Tyagi
PLOT NUMBER
X-12
SIZE OF PLOT
125 sq. yds.
PLOT AMOUNT
INR 2,29,500/-
PAID AMOUNT
INR 68,850/-
BOOKING DATE
10.10.2011
Documents filed as Annexure-25 (Colly)
True copy of booking confirmation dated 12.10.2011 and payment plan showing allotment of plot issued by Respondent.
22.
NAME
Mr. Mithlesh Singh
PLOT NUMBER
AB-30
SIZE OF PLOT
125 Sq Yards
PLOT AMOUNT
INR 2,41,875/-
PAID AMOUNT
INR 2,41,875/-
BOOKING DATE
16/06/2011
Documents filed as Annexure-26 (Colly)
True copy of booking confirmation dated 25.06.2011 and allotment letter dated 18.07.2011 issued by Respondent.
23.
NAME
Umesh Kr Upadhyay & Ms Aparna Mishra
PLOT NUMBER
BD-1
SIZE OF PLOT
500 sq yards
PLOT AMOUNT
IND 11,23,650/-
PAID AMOUNT
IND 6,58,061/-
BOOKING DATE
08/08/2011
Documents filed as Annexure-27 (Colly)
True copy of booking confirmation dated 07.08.2011 and MOU dated 28.09.2013 issued and executed by Respondent.
24.
NAME
Mr Dhannu Mal
PLOT NUMBER
AC-25
SIZE OF PLOT
125 sq. yd.
PLOT AMOUNT
INR 2,56,500/-
PAID AMOUNT
INR 2,56,500/-
BOOKING DATE
11.11.2011
Documents filed as Annexure-28 (Colly)
True copy of booking confirmation dated 11.11.2011 and allotment letter dated 08.08.2012 issued by Respondent.
25.
NAME
Mr. Deepak Yadav & Mr. Rakesh Yadav
PLOT NUMBER
O-2
SIZE OF PLOT
366.66 sq. yd.
PLOT AMOUNT
INR 8,02,215/-
PAID AMOUNT
INR 7,04,938/-
BOOKING DATE
02.01.2012
Documents filed as Annexure-29 (Colly)
True copy of booking confirmation dated 07.01.2012 and allotment letter dated 31.10.2012 issued by Respondent.
26.
NAME
Mr. Manish Kumar
PLOT NUMBER
V-15
SIZE OF PLOT
125 sq. yd.
PLOT AMOUNT
INR 2,50,000/-
PAID AMOUNT
INR 2,50,000/-
BOOKING DATE
12.10.2011
Documents filed as Annexure-30 (Colly)
True copy of booking confirmation dated 12.10.2011 and MOU dated 05.03.2013 issued and executed by Respondent.
27.
NAME
Mr Om Prakash
PLOT NUMBER
V-16
SIZE OF PLOT
125 sq. yd.
PLOT AMOUNT
INR 2,56,500/-
PAID AMOUNT
INR 2,56,500/-
BOOKING DATE
28.09.2011
Documents filed as Annexure-31 (Colly)
True copy of booking confirmation dated 10.10.2011 and allotment letter dated 11.05.2013 issued by Respondent.
28.
NAME
Ms. Nidhi Sankla
PLOT NUMBER
AP-6 Park Facing
SIZE OF PLOT
200 yds.
PLOT AMOUNT
INR 4,37,580/-
PAID AMOUNT
INR 4,37,580/-
BOOKING DATE
07.10.2011
Documents filed as Annexure-32 (Colly)
True copy of booking confirmation dated 12.10.2011 and payment plan showing allotment of plot by Respondent.
29.
NAME
Ms. Varsha Tyagi
PLOT NUMBER
X-9
SIZE OF PLOT
125 Sq Yards
PLOT AMOUNT
INR 2,56,500/-
PAID AMOUNT
INR 2,50,303/-
BOOKING DATE
01/09/2011
Documents filed as Annexure-33 (Colly)
True copy of payment plan showing allotment of plot issued by Respondent.
30.
NAME
Mr. Anuj Kumar Mittal
PLOT NUMBER
AV-19
SIZE OF PLOT
222.22 Sq. yds.
PLOT AMOUNT
Rs.4,33,996/-
PAID AMOUNT
Same as above
BOOKING DATE
20.06.2011
Documents filed as Annexure-34 (Colly)
True copy of Booking confirmation letter dated 07.07.2011 and payment plan showing allotment of plot by Respondent.
31.
NAME
Mr. Shiv Singh Fauzdar & Sh. Chaudhary Vipul Kumar
PLOT NUMBER
D-3
SIZE OF PLOT
125 Sq Yards
PLOT AMOUNT
INR 2,56,500/-
PAID AMOUNT
INR 2,56500/-
BOOKING DATE
05.03.2011
Documents filed as Annexure-35 (Colly)
True copy of booking confirmation dated 28.03.2011 and allotment letter dated 23.06.2012 issued by Respondent.
32.
NAME
Ms. Rakhi Tyagi
PLOT NUMBER
L-5 Corner
SIZE OF PLOT
183.83 sq. yd.
PLOT AMOUNT
INR 4,08,231/-
PAID AMOUNT
INR 3,08,138/-
BOOKING DATE
11.07.2011
Documents filed as Annexure-36 (Colly)
True copy of payment plan showing allotment of plot.
33.
NAME
Mr. Sees Ram
PLOT NUMBER
V-11 & S-11 (park)
SIZE OF PLOT
125 & 200 yd.
PLOT AMOUNT
INR 7,05,960/- & 7,05,960/-
PAID AMOUNT
INR 7,05,960/- & 7,05,960/-
BOOKING DATE
25.10.2011
Documents filed as Annexure-37 (Colly)
True copy of transfer/booking confirmation letter showing allotment of plot V-11 issued by Respondent.
Documents filed as Annexure-38 (Colly)
True copy of payment plan issued by Respondent regarding allotment of plot no. S-11.
34.
NAME
Mr. Piyush Tyagi
PLOT NUMBER
AC-14
SIZE OF PLOT
125 sq. yd.
PLOT AMOUNT
INR 256500/-
PAID AMOUNT
INR 243649/-
BOOKING DATE
28.09.2011
Documents filed as Annexure-39 (Colly)
True copy of payment plan showing allotment of plot.
35.
NAME
Mr. Amit Arora
PLOT NUMBER
Aq-21
SIZE OF PLOT
272.22 Sq Yards
PLOT AMOUNT
INR 5,30,557/-
PAID AMOUNT
INR 4,68,614/-
BOOKING DATE
12/10/2011
Documents filed as Annexure-40 (Colly)
True copy of booking confirmation dated 12.10.2011 and allotment letter dated 06.08.2012 issued by Respondent.
Annexure-41
Original SPA dated 28.10.2015 issued in favour of Mr. Sudhir Kumar Sikka BY Complainant No. 35 to file present complaint.”
The aforesaid needs to be clarified at the outset inasmuch as the written statement dated 31.08.2021 filed on behalf of the opposite party in para-10 states as under:
“10. As to Para 10. That the contents of Para no. 10 of the complaint are wrong and denied as stated, but it is submitted that Vivek Kumar Katiyar and Umesh Kumar Upadhyay and Mr. Aparna Mishra, detail of which is mentioned in tables at S.No.10 and 23 in the Para have already settled the matter with the opposite party and they have taken the settlement amount and now there is nothing due from the part of the opposite party to them. Moreover in table at S.No. 27, Mr. Om Prakash, has paid only Rs.2,50,315/- and not Rs.2,56,500/- as alleged. Similarly in table at S.No. 33, Sees Ram, has paid Rs. 11,45,015/- and not Rs.14,11,920/- as alleged. In the same fashion, in table at S.No. 16, Vineet Sood and Mrs. Kamna Sood has paid Rs.6,12,060/- and not Rs.6,33,522/- as alleged and also in table at S.No.6, Baljeet Singh Bansi, has actually paid Rs.8,07,644/- and not Rs.8,24,944/- as alleged. The contents of above preliminary objections are reiterated and reaffirmed to reply the Para.”
Learned counsel for the opposite party points out that the payments with regard to such complainants who had sought impleadment and even others are not exactly available and therefore the same will have to be clarified accordingly during final calculations. Learned counsel for the complainants submits that IAs No. 12882 of 2016, 564 of 2020 and 565 of 2020 were filed seeking impleadment where the amounts regarding the said interveners have been disclosed which according to the learned counsel for the complainants has not been disputed.
According to the complainants, no development took place in spite of the fact that payments had been made as per the payment plan by the complainants through post-dated cheques that had been realized by the opposite party and therefore waiting for long the complainants made enquiries but of no avail. However, through a letter dated 25.11.2014 the complainants were informed that due to unavoidable administrative reasons there is a delay in the registration of the plots that could not be executed and that it shall be carried out as soon as possible after the same is clarified with the intervention of the concerned administrative authorities possibly latest by 31.03.2015.
Thereafter, identical letters dated 26.11.2014 were received by the complainants. The letter in the case of Monu Kumar, complainant no.1, is extracted hereunder:
“Date: 26/11/2014
To,
MONU KUMAR
C/O Mr. SANJAY KUMAR H. No. 54, MAIN MARKET ROAD, NEAR POST OFFICE, GHITORNI, NEW DELHI-110030
Subject: Registration of Plot(s) in Lotus Valley LV-355
Dear Customer(s),
We would like to thank you for your association with us and the faith & trust you have demonstrated in Lotus Valley, Jaipur (Rajasthan). With regards to the plot registration date of lotus valley integrated township, we wish to inform you that the same has been delayed due to certain unavoidable administrate reasons. However, the process of plots registration in this project has already been initiated and the matter is under consideration with the concerned administrative authorities which is expected to be cleared/finalized latest by 31.03.2015.
Further, we are doing our level best for completion of other allied development works in the projects and we are hopeful that the registration of plots will be executed as soon as possible. However the priorities shall be given to those customers who have made timely complete payment in respect of their respective plot.
It is to further inform you that in case the registration of plots is not finalized by concerned administrative authorities due to any other unforeseen and unavoidable circumstances latest by 31.03.2015, customer(s) those who desire to cancel their respective booking with us shall contact our office and the matter shall be considered by us according to circumstances.
The inconvenience caused in respect of delay in registration of plots due to above mentioned unavoidable circumstances is extremely regretted. Please have patience with us as we are also eager and desirous to execute the registry in the name of our esteemed customers in respect of their respective plots.
It is further inform you that due to certain administrative reasons our office have been shifted from B-1, Plot No. 10, LSC, Vasant Kunj, New Delhi to near by another building at Vasant Kunj. Hence, it is requested that all correspondence in future may please be made on our New office address noted below:
M/s Metro Max Infrastructure (P) Ltd.
D-12, 1st floor, Opposite- B-9, Gate No.1
Vasant Kunj, New Delhi-110070
….
Thanking you,
Your Cordial,
For M/s Metro Max Infrastructure (P) Ltd.
Sd/-
(Authorized Signatory)”
In spite of this, according to the complainants, neither any development was made nor anything was visible in the name of the development and then another letter dated 14.05.2015 was received by the complainants offering the execution of the sale deeds by 31.10.2015. The letter received by Monu Kumar is extracted hereunder:
“Date: 14/05/2015
TO,
MONU KUMAR
C/O- Mr. SANJAY KUMAR H.NO. 54, MAIN MARKET ROAD, NEAR POST OFFICE, GITORNI, NEW DELHI-110030
Sub: - Regarding Lotus Valley Plots Registration (LV-355)
Dear customer,
We would like to thank you for your association with us and the faith and trust you have demonstrated by you in project namely “Lotus Valley” at Jaipur, (Rajasthan) in respect of the plots booked by you with us in the said project.
We wish to inform you further that we are ready to execute the sale deed(s)/registries in respect of your respective booked plot(s) by 31.10.2015.
We are pleased to inform you that all the necessary administrative formalities have been completed for registration of your respective plot(s).
The inconvenience caused in respect of delay in registration of plots is deeply regretted. Please have patience with us as we are also eager and desirous to execute the registries in the name of our esteemed customers regarding their respective plots. Further we wish to bring to your kind notice that Development and other works will be completed very soon.
Please feel free for any assistance/queries in our Vasant kunj office.
Thanking you,
Your Cordial,
For M/s Metro Max Infrastructure Pvt. Ltd.
Sd/-
(Authorized Signatory)”
According to the opposite party, the complainants did not come forward in spite of this offer having been made way back in the year 2015 and the present complaint was filed in representative capacity on 10.11.2015.
It is in this background that the notices were issued on this complaint on 27.11.2015. During the pendency of the complaint, the issue of maintainability of the complaint under Section 12(1)(c) of the Consumer Protection Act, 1986 was being considered when on 09.01.2017 this Commission dismissed the application under Section 12(1)(c) of the 1986 Act as also the complaint itself. The said order dated 09.01.2017 is extracted hereunder:
“Monu Kumar and 32 others have filed the joint complaint alleging deficiency in service on the part of the opposite party builder in respect of the Buyer’s agreement executed between the respective complainants and the opposite party. The complainants have sought the following reliefs:
“a. Direct the respondent M/s Metro Max Infrastructure Pvt. Ltd. to demarcate plots, hand over possession of the respective plots / shop to the complainants and execute sale deeds / registries the same in favour of respective complainants.
b. Direct the respondent to pay interest @ 24% per annum from the date of booking till handing over of possession of plots/ shop on the amount paid by the complainants till date to the respective complainants.
c. Direct the respondent to pay compensation of INR 1,00,000/- to each of the complainant
d. Any other order in the interest of justice.
If the Hon’ble Commission arrives at a finding that the Respondent does not have the right / title to execute sale deeds:
a. Direct the respondent to refund the money deposited by the complainants with interest @ 24% per annum from date of booking.
b. Direct the respondent to pay compensation of INR 10,00,000/- to each complainant towards each booking.
c. Any other order in the interest of justice.”
The matter came up before the predecessor Bench on 27.11.2015. The predecessor Bench after hearing the learned counsel for the complainants admitted the complaint and issued notice to the opposite party. On 04.10.2016, learned counsel for the complainants informed the Bench that application of the complainants seeking permission to proceed with the complaint on behalf of more than one complainant moved under section 12 (1) ( c) of the Consumer Protection Act, 1986 ( in short, the Act) is still pending. The disposal of the application under section 12 (1) ( c ) of the Act was deferred pending the decision of the larger Bench in respect of reference pertaining to interpretation of Section 12 (1) ( c) of the Act.
We have heard the respective parties on issue of grant of permission under section 12 (1) (c ) of the Act.
Learned counsel for the complainants has contended that as the consumer complaint was admitted by the Bench on 27.11.2015, the permission under section 12 (1) (c ) of the Act is inherent in the order of admission, therefore, now the issue pertaining to section 12 (1) ( c ) of the Act cannot be reopened. We do not find merit in this contention. Section 12 of the Act deals with the manner in which the complaint shall be made and 12 (1) ( c ) of the Act provides that where there are numerous consumers having same interest, one or more consumers can file a consumer complaint with the permission of the District Forum on behalf of or for the benefit of all consumers so interested. Thus, it is clear that common action on behalf of more than one consumers cannot be maintained without seeking permission under section 12 (1) (c ) of the Act. . Merely because due to inadvertence, the complaint was admitted without disposing the application under section 12 (1) ( c ) of the Act, it cannot be assumed that permission under section 12 (1) (c) of the Act have been granted to the complainants to proceed with the complaint.
Learned counsel for the complainants has further contended that this is a fit case for grant of permission under section 12 (1) (c) of the Act because the test to determine whether or not the case falls within the ambit of section 12 (1) (c) of the Act is as under:
“a. Whether any relief which is or might be exclusive to only few consumers has been claimed in the complaint and whether the relief claimed in the complaint is not common and would not benefit all the buyers. The area/cost/size/booking of individuals is wholly immaterial.
b. Whether deficiency of OP which with in all probability is would be common grievance of all consumers of OP is at issue in the complaint. Whether the issue in the complaint focuses on individual wrongs of OP or common grievance of buyers/common mischief of OP.
c. Whether despite information and date of all consumers of OP being in public domain, complaint does not contain such particulars?
d. Whether in a 12 (1) ( c) complaint, complainants are bound to know the exact number of opposite party especially the OP being a Private entity and no such date available in public domain.”
It is submitted that above said parameters are satisfied in the instant case. Therefore, this is a fit case for grant of permission under section 12 (1) (c) of the Act to proceed with the complaint.
The issue pertaining to the interpretation and scope of Section 12 (1) (c) of the Act was considered by the Larger Bench of this Commission on reference by the President in the matter of Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. decided on 07.10.2016, wherein while discussing the primary object of Section 12 (1) ( c) of the Act, larger Bench has observed as under:
“The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term ‘persons so interested’ and ‘persons having the same interest’ used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words “all consumers so interested’ and “on behalf of or for the benefit of all consumers so interested”, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider.”
On reading of the above, it is clear that one or more consumers can be permitted to pursue a class action on behalf of themselves and numerous other consumers provided that they seek relief not only on behalf of themselves but on behalf of other numerous consumer who may be so interested in the outcome of the consumer complaint. On perusal of the prayer clause, it is clear that above noted 33 complainants have sought relief only for themselves and not for other consumers who might have booked plots / shops in the development project undertaken by the opposite party. Thus, in our view, this is not a fit case for grant of permission under section 12 (1) (c) of the Act.
It is pertinent to note that as per allegations in the complaint, some of the complainants had booked shops in subject project. Section 2 (1) (d) of the Act defines the term ‘consumer’ as a person who has bought or hired or availed of services for consideration. However, the Section itself carves out an exception and excludes the person who had bought goods or hired or availed of services for commercial purpose from the definition of ‘consumer’. However, the explanation to section 2 (1) (d) of the Act provides that for the purpose of definition of consumer, ‘commercial purpose’ does not include use by a person of goods bought or the services availed by him exclusively for the purpose of earning his livelihood by means of self employment. In order to find out whether the persons who had booked shops in the subject project are covered under the explanation to Section 2 (1) (d) of the Act, we have gone through the complaint but there is no allegation to the fact which may indicate that the persons who had booked the shops are covered under the explanation to section 2 (1) (d) of the Act. Thus, this is a case of misjoinder of parties and causes of action because some of the complainants are not consumers.
In view of the discussion above, we do not find merit in the application under section 12 (1) ( c) of the Act. It is accordingly dismissed. As a consequence, complaint is rejected. It is clarified that this order will not come in the way of the complainants to avail of their legal remedy on the same cause of action by approaching appropriate forum in appropriate form.”
Questioning the correctness of the said order, the complainants approached the Apex Court in Civil Appeal No. 9963 of 2017 which was allowed on 14.02.2020 holding that the grant of permission under Section 12(1)(c) has to be inherently read into the order dated 27.11.2015. Accordingly, the above quoted order was set aside and the matter was remitted back to this Commission with a direction to consider the matter afresh on merits. The order of the Apex Court dated 14.02.2020 is also extracted hereunder:
“1. This civil appeal is filed, by the complainant(s) in Consumer Case No. 1361 of 2015 filed before the National Consumer Disputes Redressal Commission (for short, ‘NCDRC’), aggrieved by the order dated 09.01.2017.
The aforesaid complaint is filed by the appellant Monu Kumar and 32 others. In the joint complaint, it is alleged that there is deficiency of service on the part of the respondent-opposite party in respect of Buyer’s agreement executed between the respective complainants and the opposite party. As the complaint was filed under Section 12(1)(c) of the Consumer Protection Act, 1986 (for short, the ‘Act’), by number of consumers having the same interest, they sought permission to file a joint complaint by filing separate application. In the application for permission to file joint complaint in Consumer Case No. 1361 of 2015, the following order was passed on 27.11.2015 :
“Dated 27 Nov 2015
ORDER
Learned counsel for the complainants present. Arguments heard.
The case stands admitted.
Notice be issued to opposite party returnable on 2.8.2016 with the direction to the opposite party to file the written version within 30 days from the date of receipt of notice as per Section 13 of the Consumer Protection Act, 1986. Time of 15 days can be extended by filing an application by the opposite party. In case, the written version is not filed within the aforesaid period, the right of the opposite party to file the written version shall stand forfeited.
……………..J
J.M. MALIK
PRESIDING MEMBER
………………….J
DR. S.M. KANTIKAR
MEMBER”
Having admitted the Consumer Case and issued notice, the impugned order is passed rejecting the application for grant of permission to file joint complaint under Section 12(1)(c) of the Act and consequently rejecting the complaint filed.
We have heard learned counsels on both sides, perused the impugned order and other material on record. As much as complaint was filed on behalf of number of individual consumers, an application was filed seeking permission to file joint complaint and after hearing the arguments of the learned counsel, case was admitted and notice was issued. Though expressly it is not stated that permission is granted in the application seeking permission to file joint complaint, but in view of the fact that admission of the complaint is recorded in the order dated 27.11.2015 and notice was issued the permission is to be read as inherent in the order of admission. When the specific application was moved seeking permission for filing joint application and having passed order of admission by issuing notice on such application, the Commission ought not to have rejected the application by the impugned order. The grant of permission is to be read inherently into the order dated 27.11.2015.
For the aforesaid reasons, the impugned order is set aside, matter is remitted back to the National Consumer Disputes Redressal Commission, New Delhi with a direction to consider the matter afresh and dispose of the complaint case on its own merits. The civil appeal is accordingly allowed with a directed as indicated above.”
It is in this background that the complaint has been heard finally today where learned counsel for the complainants has advanced his submissions based on the pleadings on record to contend that the inordinate delay is clearly admitted which is evident from the pleadings of the parties and there being no development as on date at the site in question even after 12 years, there is no cause for the complainants to seek possession and as such the complainants seek refund of the entire amount as prayed for in the complaint itself.
One of the arguments that is based on the submissions raised is that it is admitted to the opposite party that the change of land user in respect of the project has not been obtained and this fact being admitted and not being disputed till date, there is no question of taking possession of any plot the user whereof is not permitted by the administrative authorities. He therefore submits that the only option left with the complainants is to seek refund.
It has also been pointed out that the opposite party took up a plea in the written version to the effect that there was a dispute pending with regard to a portion of the land of the project between M/s Felicity Estates and one tenure holder namely Ram Avtar. From a perusal of the pleadings, it is evident that the said dispute was settled between M/s Felicity Estates and Mr. Ram Avtar in the year 2015 and a copy of the settlement deed has been filed along with the written version.
Learned counsel for the complainants contends that even assuming that the said dispute could be one of the causes for non-development, the same was never mentioned nor any such fact was ever made known to the complainants including the intimation which was given on 25.11.2014. It is urged that the said communication vaguely asserts administrative reasons which cannot be correlated to the force majeure clause 14 of the memorandum of understanding. He submits that the disputed land according to the settlement deed involved a very small area of 1.99 hectares and therefore there was no legal or any other impediment with the opposite party so as to deny registration of the plots of the remaining part of the land. The contention is that this was an excuse, inasmuch as, if the title was disputed and there was a legal impediment, then this was also coupled with the fact that there was no permission of the change of land user to enable the opposite party to convey a clear title free from all encumbrances to the complainants and hence the aforesaid stand taken of force majeure is absolutely misplaced. As a matter of fact the conduct of the opposite party was deceitful and amounted to an unfair trade practice.
Learned counsel for the complainants then contends that the entire money deposited by the complainants was available with the opposite party who did not utilize it for the development of this project nor did make any offer of possession and instead attempted to convey the property promising a registration in future through the letter dated 14.05.2015 was a mirage for the complainants that has not been achieved till date.
He has then invited the attention of the Bench to the payment schedule attached to the memorandum of understanding to urge that the most flexible of the payment schedule is the 23 months’ spread-over and therefore calculating the said period from July 2013 and the payments already received by the opposite party, the same expired in 2015 with neither any development nor with any evidence to support the contention that the opposite party ever intended to get the plots registered. He therefore submits that in the background aforesaid, any such defence being taken by the opposite party, the same is untenable in the eyes of law.
It is therefore submitted that in the said background the property not being capable of being legally negotiable by the opposite party, the entire exercise of receiving money on the promise of delivery of a plot is clearly an unfair trade practice and the deficiency in service stands confirmed in the above background.
Responding to the said submissions, learned counsel for the opposite party submits that the question of title of the land was nowhere in dispute and as a matter of fact the opposite party had expressed its regret for a short delay that was communicated through the letter dated 25.11.2014 which came to be clarified with the subsequent communication of 14.05.2015 where a clear offer had been made for getting the plots registered, the complainants after receiving the said letter did not come forward for the registration and instead have filed this complaint. He therefore submits that there was hardly any delay, and the delay if any was on account of the administrative reasons that stand explained on record. There was no defect of title so as to not convey the plots to the complainants and consequently the submissions made on behalf of the complainants do not hold water. He further submits that the force majeure clause and the schedule of payment if as admitted on record are applied, then even as on date the opposite party in spite of any such hurdle is prepared to register the plots in favour of the complainants subject to their final clearance of the dues.
He further contends that some of the facts relating to payments as indicated in para-10 are not correct and as a matter of fact the same has been clarified in the response contained in the written version. To that extent, the learned counsel for the opposite party appears to be correct as the same has not been disputed in the rejoinder affidavit. The rest of the payments as disclosed in para-10 of the complaint subject to above have therefore not been disputed.
Learned counsel submits that they have provided all amenities for carrying out the developments for which reliance has been placed on the photographs that have been filed along with the written version which indicates the existence of a clump of trees and a gate of entry. The aforesaid has been disputed by the learned counsel for the complainants contending that the said photographs match the same photographs that were filed along with the complaint in the year 2015 and hence there is no change in the status of the site and hence this argument is an eyewash.
One of the other submissions made by the learned counsel for the opposite party is that only 10 of the complainants have filed their evidence whereas this is a representative complaint which ought to have been accompanied by separate affidavits of all those who have either joined or have proposed to join through impleadment applications. The contention in short appears to be that in the absence of any such evidence in support of the commonness of the action, the complaint in respect of the other complainants should be rejected.
Having heard learned counsel for the parties, there are certain undisputed and admitted facts, namely, the offer and confirmation of the booking in 2011, the memorandum of understanding entered into between the parties in the year 2013 and the payments made subject to the exceptions which have been indicated hereinabove.
Coming to the issue of the title of the land and its possession, if there was some dispute with regard to a miniscule area as urged by the learned counsel for the opposite party, then there was nothing else to prevent the registration but what appears from the facts on record is that the change of land user was not available with the opposite party and it is not available even till today. There is no evidence to that effect. The question of therefore carrying out the registration free from all encumbrances does not arise and hence receiving and retaining money without any such legal necessities having been performed or the documents having been obtained is a clear unfair trade practice.
The question which now remains is as to whether there is any delay in handing over the plots in question. It is more than clear that in spite of the payments having been made as per the schedule under the agreement, the offer of possession now itself is far beyond the schedule of the agreement and as a matter of fact stands inordinately delayed and was not even clear under the letter dated 14.05.2015. A perusal of the letter dated 25.11.2014 extracted hereinabove admits the delay. The averments contained in the written version could not dispute the same. The letter dated 14.05.2015 very conveniently promises registration on a future date on 31.10.2015. It is not an immediate offer or a clear offer for getting the plots registered and hence the same cannot be construed in any way an offer of possession and registration in terms of the agreement between the parties. Consequently, this letter does not come to the aid of the opposite party to demonstrate that there was any timely offer of possession and therefore in the given circumstances, the lodging of the complaint before this Commission in November, 2015 appears to be justified.
The delay is admitted as indicated above and the default having been committed with the possession of the entire money deposited by the complainants is a clear deficiency in service on the part of the opposite party.
Consequently on both counts the arguments raised on behalf of the opposite party does not commend itself for acceptance. It has been held in a large number of cases including the judgment in the case of Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors. (2021) 3 SCC 241 that agreements or memorandums containing disadvantageous clauses in the background above are one-sided clauses and hence they cannot be pressed into service for providing any aid or benefit to the builders. In the present case, the same is clearly manifest from the facts on record and it is evident that the complainants have virtually deposited their money for no return of any worth.
In the aforesaid circumstances, the relief prayed for therefore deserves to be granted.
It is clarified that the learned counsel do not dispute the fact that two complainants whose names were deleted vide order dated 02.08.2016 have already settled their dispute namely Mr. Vivek Kumar Katiyar and Mr. Umesh Kumar Upadhyay/Ms. Aparna Mishra. Apart from this, during the pendency of the complaint, learned counsel for the opposite party informs that Mr. Rahul Goel whose name appears at Sl. No.9 in the chart extracted hereinabove has also settled his claim and hence the present order shall not apply in respect of them or those allottees or such other allottees who may have settled their claim with the opposite party.
Accordingly, this complaint is allowed. The opposite party is directed to refund the entire amount deposited by all the complainants except those mentioned hereinabove along with 9% interest with effect from the date of such deposit till the date of actual payment within three months from today.
In the event of any default in making the refund within the said period, the rate of interest shall stand enhanced to 12%.
This order shall cover the claim of such allottees who have booked their plots or shops under the project in question as the application under Section 12(1)(c) of the Consumer Protection Act, 1986 had been allowed and it binds the builder and all such allottees seeking or desirous of having refund.