M/s. JMD Ltd. & Anr vs Neetu Juneja & Anr

Ram Surat Ram Maurya, Presiding Member

Heard Mr. Arjun Sawhney, Advocate for the appellants and Mr. G. P. Singh, Advocate for the respondents.

Above appeal has been filed against the order of State Consumer Disputes Redressal Commission, Delhi, dated 08.03.2013 passed in CC/101/2012, whereby the complaint has been allowed and the appellants have been directed to allot any of two flats bearing no. 1001 and 1501, Q Apartments to the complainants, who were directed to pay the price of Rs.35,85,500/- and any amount paid by the complainants would be adjusted against the sale consideration. After payment to the appellants, they were directed to deliver possession within 30 days and complete all the formalities including the lease deed registration.

Ms. Neetu Juneja and Mrs. Gunjit Juneja (the respondents) filed CC/101/2012 for directing the appellants to pay compensation of Rs.50 lacs with interest @ 18% per annum since the date of deposit, pendentlite and future with cost and to restore the Flat no. I-601, “JMD Garden”, Sohna Road, Village Islampur, District Gurgaon and any other relief, which is deem fit and proper in the fact of the case.

The complainants stated that JMD Ltd. was a company registered under the Companies Act, 1956 and was engaged in the business of development and construction of Group Housing Project. JMD (the opposite party) launched a Group Housing Project in the name of “JMD Garden” at Sohna Road, Village Islampur, District Gurgaon, in the year 2004. The representative of the opposite parties approached the complainants and lured them to invest in the project. The complainants deposited Rs.4 lacs on 07.10.2004 through cheque and booked an apartment. Thereafter, the opposite parties issued a Provisional Allotment Letter allotting Flat no. I-601, JMD Garden, Sohna Road, Village Islampur, District Gurgaon, admeasuring 2020 sq. ft. for total cost of Rs.35 lacs. The opposite parties thereafter through letter dated 22.09.2005, raised a demand of Rs.3,67,600/-, which was deposited by the complainants. The opposite parties again raised a demand in May, 2006 of Rs.7,77,962/-, which was deposited on 22.05.2006. As per allotment letter total cost of the flat was Rs.35 lacs. Although the opposite parties had realized total amount of Rs.15,45,562/- up to 22.05.2006, but, the construction was not started on the spot. The opposite parties again sent a demand letter dated 28.12.2006. As the opposite parties have not raised any construction, therefore, the complainants did not deposit that amount. Suddenly on 04.01.2007, some official of opposite party no.1 called the complainants at the office of the opposite parties, when the complainants visited the office of the opposite parties, they gave a printed proforma of Flat Buyer Agreement and asked them to sign the same. Although, various terms and conditions of the said agreements were unreasonable, one sided and unwarranted and the complainant had also objected to it. However, on the insistence of the officials of the opposite parties to the complainants to sign the agreement, otherwise the deal would be cancel, and as the complainants have already paid substantial amount as such they have no option but to sign the Flat Buyer Agreement as such it was signed. The complainants demanded the copies of the license sanctioned lay out plan of the project. Although, the opposite parties have promised to supply it, but, it was not supplied. The complainants has to arrange payment of balance amount through bank loan and for that purpose the complainants approached ING Viyas Bank, who agreed to sanction the loan. The complainants as well as the officials of ING Viyas Bank visited the office of the opposite parties and demanded the papers relating to the project for sanction of the loan, but, the papers were not supplied, therefore the loan could not be sanctioned. In the meantime, the opposite parties again issued demand letters dated 03.04.2007 & 23.07.2007. As the opposite parties are not proceeding with the construction nor they have supplied the relevant papers for sanction of the loan, the demand letters could not be complied with. In the meantime the Opposite Parities issued a letter dated 09.10.2007, whereby the provisional allotment of the flat as well as agreement dated 04.01.2007 were cancelled. Along with this letter, the opposite parties have also attached two cheques refunding the amount deposited by the complainants. The complainants examined the Flat Buyer Agreement dated 04.01.2007 and also made enquiries from the office of DTCP about the license as well as sanction of  lay out plan and came of know that neither license was granted nor plan was sanctioned. The pre launched booking and collection of huge amounts was unfair trade practice. Although, the complainants have already deposited substantial amount and the opposite parties were not proceeding with the construction, therefore, the cancellation letter dated 09.10.2007 was illegal. The complainants gave a legal notice dated 17.12.2017 to the opposite parties to recall their cancellation letter dated 09.10.2007 and restored the flat of the complainants. The opposite parties, however gave a reply dated 31.12.2007 (received in February 2008) in which they have denied to restore the cancellation. Thereafter, this complaint was filed in the year 2012.

The appellants filed its written reply in the complaint and contested it, the appellants admitted the deposit of Rs.4 lacs on 07.10.2004, Rs.3,67,600/- on 22.09.2005 and Rs.7,77,962/- on 22.05.2006, but, the appellants have denied that they had not license or lay out plan was not sanctioned. The appellants stated that the details of the license as well as lay out plan has been mentioned in the Flat Buyer Agreement signed on 04.01.2007. The Provisional Allotment Letter as well as Flat Buyer Agreement contained the payment plan, which was construction linked payment plan. The appellants raised demand of 4th stage on 19.08.2006, which was not paid. The appellants through letter dated 28.12.2006, demanded the installment payable on completion of 6th stage, but, the complainants did not deposit that amount the complainants voluntarily  approached the opposite parties in their office and assured that after signing of the agreement they would make payment of the balance amount, but, it was not paid. Thereafter, on completion of 7th stage again the appellants raised demand through letter dated 03.04.2007, which was also not paid. Thereafter, again on completion of next stage the appellants raised demand through letter dated 23.07.2007, but, the complainants did not pay. As the complainants stopped payment after 22.05.2006, therefore, the appellants had no option, but, to cancel the allotment and it was cancelled by the letter dated 09.10.2007 and total amount deposited by the complainants were refunded along with payment orders bearing number 120415 and 120416, both dated 08.10.2007. The legal notice of the complainants dated 17.12.2007, has been properly replied. Thereafter, this complaint was filed in the year 2012, which is time barred. In the meantime the appellants have already sold the Flat no. I-601, JMD Garden, Sohna Road, Village Islampur, District Gurgaon, which was earlier allotted to the complainants on 09.01.2012. The complaint is not maintainable and is liable to be dismissed.

Both the parties filed their evidence and after hearing both the parties the State Commission by the impugned order dated 08.03.2013, found that although the opposite parties have sold Flat no. I-601, JMD Garden, Sohna Road, Village Islampur, District Gurgaon, but, according to the affidavit of the complainants, Flat no. 1001 and 1501 in Q Apartments are vacant, therefore, they can allot either of anyone from them to the complainants. On this finding the complaint was allowed and the order as stated above has been passed hence this appeal has been filed.

In the appeal, the respondents have produced the order of Competition Appellate Tribunal, New Delhi, dated 29.03.2011, whereby the Compensation Application No. 108 of 2005 filed by the complainants was dismissed as not maintainable and the subsequent application filed by the complainants was also rejected on 03.05.2011. On the basis of these documents, the respondents argued that as against the cancellation of allotment letter dated 09.10.2007, the respondents have already approached the authorities under the Monopolies and Restrictive Trade Practice Act, 1969, in the year 2008. The said application was later on dismissed by the Competition Appellate Tribunal by order dated 29.03.2011, therefore, the time consumed for pursuing the Compensation Application No. 108 of 2005 is liable to be excluded under Section 14 of the Limitation Act, 1963 and the complaint cannot be treated as time barred.

I have considered the arguments of the Counsel for the parties and examined the record. The fact that the respondents filed Compensation Application No. 108 of 2005, which was dismissed by Competition Appellate Tribunal, New Delhi on 29.03.2011, has not been disputed by the Counsel for the appellants. However, the Counsel for the appellants stated that in the present case Doctrine of Election is fully applicable and this complaint is not maintainable. I do not agree with the argument of the counsel for the appellants in this respect, inasmuch as, the Doctrine of Election is applicable where concurrent remedy is available to the litigants and the litigants voluntarily   elected one remedy. In the present case, a perusal of the order of Competition Appellate Tribunal shows that the application of the respondents have been dismissed as not maintainable. Therefore, the time consumed for pursuing remedy before the tribunal, which was ultimately found as not maintainable is liable to be condoned and the complaint cannot be dismissed on the ground of limitation.

In the present case, it is admitted that the payment plan was construction linked payment plan, which is given in annexure-2 of the agreement. As per payment plan, the 10% BSP was payable at the time of booking, 10% BSP plus 50% PLC was payable within 45 days of booking and 10% BSP plus 50% PLC plus 25% car parking cost was payable on start of excavation. The respondents in their complaint have stated that total amount of Rs.15,45,562/- was paid till 22.05.2006, which is not disputed by the opposite parties. According to the opposite parties, as per payment plan the installment payable at the 4th stage was demanded by letter dated 19.08.2006, but, the installment was not deposited by the complainants. Thereafter, the installment payable on 6th stage was demanded by letter dated 28.12.2006, which was again not deposited by the complainants. At the time of signing of the agreement on 04.01.2007, the complainants assured to pay the installment, but, they did not bother to make payment. Thereafter, the installment due on 03.07.2007 & 23.07.2007, were also demanded. In spite of service of demand letter, the opposite parties have not made payment, therefore, the agreement was cancel invoking the power under Clause 7 of the Flat Buyer Agreement.

The complainants took the defence that the demands were raised without achieving the stage of construction and in fact on the date of demand the opposite parties did not have even the license and lay out plan was not sanctioned. But, in this respect the complainants have not filed any evidence in the Flat Buyer Agreement, the details of license have been mentioned. If the complainants were challenging that no license was granted or lay out plan was not sanctioned, the complainants could have filed RTI reply in this respect from the concerned authorities, but, there is no evidence to say that the demands were raised without having any license or without having any lay out plan and without achieving the stage of construction.

On the one hand, the complainants are alleging that the construction was not being raised, but, after selling the flat of the complainants on 09.01.2012, the complainants filed affidavit stating that Flat no. 1001 and 1501 were vacant, meaning thereby that entire construction of the project was not only raised but also sold except two flats. Therefore, the denial of the complainants to deposit the installment as demanded by the letter dated 19.08.2006, 28.12.2006, 03.04.2007 & 23.07.2007, was not proper and amounts to willful default in payment of the installment.  Under Clause-7 of the agreement, timely payment of the installment was an essence of the contract. The parties to a contract are under obligation to perform their respective promises mentioned in the contract under Section 37 of the Contract Act, 1872. If a party refused to perform his promise then other party has right to put the contract to an end under Section 39 and the contract becomes voidable under Section 55. The cancelation of allotment as well as Flat Buyer Agreement through letter dated 09.10.2007, does not suffer from any illegality. No deficiency in service can be attributed on the part of the appellants.

The allotment was cancelled on 09.10.2007 and the flat allotted to the respondents was sold on 09.01.2012. Direction of the state commission in its order dated 08.03.2013 to allot a flat to the respondents on the same price as agreed on 07.10.2004 is an arbitrary exercise of power. Without recording finding of deficiency in service on the part of the appellants, no relief could have been granted to the respondents. The order of state commission is illegal and is liable to be set aside.

However, according to the own case of the appellants, they have not forfeited the earnest money and refunded the entire amount to the complainants through pay orders number 120415 and 120416 dated 08.07.2007. If these pay orders were not encashed by the complainants, the appellants may again return the amount of Rs.15,45,562/- along with simple interest of @ 6% per annum from 09.10.2007 till the date of refund. If the amount has been encashed by the complainants, this amount is not liable to be paid.

Order

In view of the aforesaid discussion the appeal is allowed. The order of State Consumer Disputes Redressal Commission, Delhi, dated 08.03.2013 passed in CC/101/2012 is set aside. If the amount as refunded by the appellants on 09.10.2007, has not been encashed by the respondents, the appellants shall pay this amount of Rs.15,45,562/- with interest @ 6% per annum from 09.10.2007 till the date of refund within period of two months from the date of this judgment.