M/s TDI Infrastructure Limited vs Sinder Paul Garg

Ram Surat Ram Maurya, Presiding Member

Heard Ms. Kanika Angihotri, Advocate, for the appellant and Mr. Rajiv Garg, Advocate, for the respondent.

M/s. TDI Infrastructure Limited (the opposite party) has filed above appeal from the order of State Consumer Disputes Redressal Commission, Haryana, dated 09.02.2017, passed in CC/123/2014, allowing the complaint with cost of Rs.11000/- and directing the appellant to refund of Rs.4018125/- with interest @9% per annum, from the date of respective deposits, till the date of refund and pay compensation of Rs.21000/-.

Sinder Paul Garg (the respondent) filed CC/123/2014, for directing M/s. Intime Promoters Private Limited and others (the opposite parties) (now represented by the appellant) (i) to refund Rs.4818125/- with interest @12% per annum, from the date of payment till the date of refund, (ii) to pay Rs.10/- lacs, as compensation for mental agony and harassment, (iii) to pay Rs.55000/- as cost of the litigation; and (iv) any other relief which is deemed fit and proper be awarded to the complainant.

The complainant stated that the opposite parties launched a project of plotted township in the name of “TDI City” at Kundli, Sonepat, in the year 2005 and represented for providing basic amenities like electricity connection with poles, roads, water supply, sanitation, fully developed parks etc. Believing upon the representation of the opposite parties, the complainant booked a residential plot of 500 sq. yard, in the said project and deposited Rs.775000/- on 17.11.2005. In the Registration Form, price of the plot was mentioned @ Rs.7750/- per sq. yard and External Development Charges @ Rs.650/- per sq. yard. The opposite parties allotted Plot No. R-570, area 500 sq.yard, Basic Price Rs.3875000/- + EDC @Rs.790/- per sq. yard on 09.01.2006. As per allotment letter, 7 instalments of Rs.387500/- each, were payable in two monthly instalments, starting from date of allotment and 8th instalment, which was last instalment, was payable at the time of possession. Total EDC was payable in two monthly, 4 instalments, starting from the date of booking. Along with allotment letter, the opposite parties gave demand letter for Rs.387500/- (monthly instalment towards price) + Rs.98750/- (monthly instalment towards EDC), which was deposited by the complainant on 27.02.2006. The complainant applied for home loan from the Bank, for which, he was required to submit layout plan, allotment letter and conveyance deed of the plot. The complainant, vide letters dated 02.06.2006 and 13.07.2006, demanded from the opposite parties, for supply of layout plan, allotment letter and conveyance deed of the plot, for the purposes of obtaining home loan from the bank, but the opposite parties did not reply. As the opposite parties did not cooperate in obtaining home loan, as such, the complainant could not deposit other instalment on time. The complainant deposited Rs.800000/-+ Rs.1456875/- + Rs.1300000/- on 13.06.2008 (total Rs.3556875/-). Out of these deposits, the opposite parties adjusted Rs.800000/- towards interest. The opposite parties issued a Statement of Account of the complainant on 25.08.2008, showing -1 balance. The opposite parties issued a demand letter dated 20.07.2009, for Rs.436250/- in the head of balance amount of EDC. The complainant inquired about possession time to time, of which assurance was given again and again. As possession was unreasonably delayed, the complainant did not respond for last demand of EDC charges. The complainant went on the site on 26.10.2014 and found that there was no development on the spot. Then the complaint was filed, stating deficiency in service.

The opposite parties filed its written reply and contested the complaint.  They did not dispute allotment of the plot and initial two deposits. They stated that format of the agreement was sent to the complainant but he did not return it after his signature. They denied that total price of the plot of 500 sq. yard was Rs.4270000/-, which included price of parking bay, preferential location charge, EDC etc. They stated that after booking, the plot was allotted to the complainant on 09.01.2006. Along with allotment letter, a demand for second instalment was issued to the complainant, for depositing the amount on or before 17.01.2006. However that amount was deposited on 27.02.2006. Thereafter, the complainant did not deposit other instalments. They denied receipt of letters dated 02.06.2006 and 13.07.2006. The complainant neither paid instalment on time nor his request to revise the schedule of instalments was ever entertained. Allotment of the complainant was cancelled and he was informed vide letter dated 01.11.2007. The complainant then approached the opposite parties in June, 2008 and requested to restore his allotment. The complainant was informed that his allotment would be restored if he cleared the dues substantially. The complainant then gave two cheques of Rs.1456875/- and Rs.1300000/- on 13.06.2008. On encashment of these cheques, receipts were issued to him on 26.06.2008. Deposit of Rs.8/- lacs, on 13.06.2008 and issue of its receipt (Annexure-C-13) have been denied. At the time of restoring allotment on 26.06.2008, the interest was waived, as such, in the Statement of Account as issued on 25.08.2008, no balance dues was shown. Dues of EDC and last instalment were pending. The complainant committed default in payment of EDC, in spite of demand notice dated 20.07.2009 and reminders dated 21.08.2009 and 23.08.2010. As the complainant was himself defaulter, he cannot allege deficiency in service. Preliminary objection that the complainant was an investor in real estate and not a consumer and the complaint was not maintainable was also raised.

The complainant filed Affidavit of Evidence of Sinder Paul Garg and documentary evidence. The opposite parties filed Affidavit of Evidence of Tejinder Rathi and documentary evidence. State Commission, after hearing the parties, by judgment dated 09.02.2017 held that the complainant had failed to prove deposit of Rs.8/- lacs on 13.06.2008. From Statement of Account as supplied by the opposite parties on 25.08.2008, it is proved that the complainant had deposited Rs.4018125/- till 26.06.2008. If any amount was due then it might have been mentioned in the Statement of Account. Demand of EDC subsequent to it was not proper. Even up to 2017, the opposite parties were not able to offer possession of the plot. The complainant was entitled for refund of money. On these findings, State Commission allowed the complaint and the order as mentioned above has been passed. Hence this appeal has been filed.

The counsel for the appellant submitted that the respondent has chosen for “Time Linked Payment Plan”, under which, 7 instalments of Rs.387500/- each were payable in two monthly instalments, starting from date of booking and 8th instalment, which was last instalment, was payable at the time of possession. Total EDC was payable in two monthly, 4 instalments, starting from the date of booking i.e. 17.11.2005. 90% of sale price and 100% EDC was payable within one year of booking. The respondent deposited booking amount and only one instalment. Due to default in payment, his allotment was cancelled on 01.11.2007.The respondent paid Rs.2756875/- on 28.06.2008, then his allotment was restored. State Commission disbelieved statement of the respondent that he had paid Rs.8/-lacs on 13.06.2008. Rs.4018125/-was paid out of total consideration of Rs.4405626/-.Finding of State Commission that in Statement of Account as supplied on 25.08.2005, no dues was shown, is erroneous. She relying upon the judgment of this Commission in Randhir Singh Vs. Omaxe Chandigarh, 2014 SCC OnLine NCDRC 782 and  M/s. Mera Baba Real Estate Pvt. Ltd. Vs. Rakesh Jain, 2016 SCC OnLine NCDRC 1230, submitted that if the complainant was himself defaulter, he was not entitled for any interest. She further relied upon judgments of this Commission in Vivek Chopra Vs. Orris Infrastructure (P) Ltd., 2020 SCC OnLine NCDRC 1009, Surender Singh Vs. Vardhman Buildtech Pvt. Ltd., 2021 SCC OnLine NCDRC 5, Ram Vilas Sharma Vs. Gold Souk Infrastructure (P) Ltd., 2021 SCC OnLine 38 and Shradha Anand Vs. Ansal Hi-Teck Township Ltd., 2021 SCC OnLine NCDRC 576 and Supreme Court in HUDA Vs. Raj Singh Rana, AIR 2008 SC 3035 and submitted that at the most interest was payable @8% per annum.

I have considered the arguments of the counsel for the parties and examined the record. The opposite parties issued Statement of Account to the complainant on 25.08.2008, in which total deposit Rs.4018125/- till 26.06.2008 was shown and Balance was shown as ‘0.00’. After about one year of issue of Statement of Account, the opposite parties issued a demand letter dated 20.07.2009, for Rs.436250/- in the head of balance amount of EDC. According to the payment schedule, entire amount of EDC was payable in 4 instalments and last instalment of Rs.387500/-  of the sale price was payable at the time of possession. In such circumstances, State Commission held that the complainant had paid substantial amount of the consideration in June, 2008 and possession was not offered till 2017. Therefore there was deficiency in service on the part of the appellant. Finding of State Commission does not suffer from any illegality. So far as earlier default is concerned, according to own case, the appellant has condoned these defaults, waived interest and restored allotment in June, 2008. Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462, Wg.Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that in case of inordinate delay in offer of possession, the buyer was entitled for refund of money.

Supreme Court in Pioneer Urban Land & Infrasture Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Lanco Hills Technology Park Pvt. Ltd. Vs. Manisha Balkrishna Kulkarni & anr. (2020) II SCC 699, R.V. Prasannakumar Vs. Mantri Castles Pvt. Ltd. (2020) 14 SCC 769, Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes, Pvt. Ltd., (2020) 16 SCC 512, IREO Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna, (2021) 3 SCC 241 and Civil Appeal No.6044 of 2019, Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, decided on April 07, 2022 directed for payment of interest @9% per annum.

ORDER

In view of the aforesaid discussions, the appeal is dismissed.