M/s T.G. Marketing Pvt. Ltd.Vs M/s Brahma City Pvt. Ltd.

Ram Surat Ram (Maurya), Presiding Member

Heard Mr. Arjun Mukherjee, Advocate, for the complainant and Ms. Sanjana Saddy, Advocate, for the opposite party.

M/s. T.G. Marketing Private Limited has filed above complaint directing the opposite party to (i) deposit Rs.13218163/-, or in alternative secure the above amount by way of Bank Guarantee; (ii) reserve a plot of 300 sq.yds. in Brahma City; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that M/s. Brahma City Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projected. The opposite party launched a project of an integrated township of plotted colony in the name of “Brahma City” at Golf Course Extension Road, Sectors 60, 61, 62, 63 and 65, Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. The complainant was a company, registered under the Companies Act, 1956. Board of Directors of the complainant passed a resolution to purchase of a residential plot in Brahma City, for residence of the Directors. The complainant booked Plot No.Y-37, Block-7 (area 300 sq.yds.), total price of Rs.24384835/- and deposited booking amount of Rs.2000000/- on 22.09.2012. The opposite party allotted Plot No.Y-37, Block-7 (area 299.568 sq.yds.), total price of Rs.24384835/- vide Provisional Allotment Letter dated 11.10.2012. Payment plan was “development link payment plan”, under which, 50% of sale price had to be deposited within 150 days of booking, 10% on alignment of road at site, 15% on demarcation of plot, 10% on commencement of sewerage and water pipes works, 10% on metalling of road and 5% on offer of possession. Clause-13 of the Terms & Conditions, attached with Booking Form provides 36 months period for offer of possession. As per demand, the complainant paid the instalments time to time and deposited Rs.13218163/ till July, 2013. The opposite party sent copies of Plot Buyer’s Agreement, for signature of the complainant, in June, 2013. In June, 2013, the complainant came to know that FIRs had been registered against the Directors by the buyers of the project. The complainant found that development work was not progressing on the spot. The complainant wrote letters to the opposite party, seeking information about papers of the project, not progressing with the project and FIRs. The complainant made a meeting with the opposite party on 02.11.2013. The opposite party, vide letter dated 17.12.2013, informed that approval of zoning plans was likely to be received within 3-4 weeks then the development work would be started. The opposite party denied supply of papers relating to the project and did not give satisfactory reply about FIRs. The complainant wrote a letter dated 03.01.2014 to the opposite party seeking clear information on above issues. The opposite party again gave a vague reply through letter dated 26.02.2014. The opposite party, vide letter dated 16.05.2014, informed that they had submitted for revising layout plan and sought for ‘no objection’. The complainant filed its objection to revising layout plan before DTCP on 16.06.2014 and 11.12.2014. The complainant, vide email dated 12.08.2014, requested for refund of its money. Thereafter, the complainant wrote letters dated 23.08.2014 and 25.08.2014, for refund of the money. The complainant gave reminder dated 23.09.2014, for refund of the money. Then one Harsh Vardhan Chaturvedi from the office of the opposite party made a telephone call on 27.11.2015 and asked for reason for seeking refund and the amount of refund. The complainant, vide letter dated 27.11.2014, informed that as the opposite party could not confirm the allotment within one year of booking as such refund was sought for in terms of booking form and amount was specified. The complainant came to know that High Court of Punjab & Haryana, vide judgment dated 05.02.2015 passed in CWP No.27665 of 2013, quashed Licence No.64 of 2010 granted to the opposite party for development of “Brahma City”. The complainant, vide letters dated 15.02.2015 and 04.03.2015, again demanded for refund as licence of the opposite party had been quashed. The opposite party, vide letter dated 05.03.2015, informed that they had challenged the order of High Court in Supreme Court. The complainant, vide letter dated 13.03.2015, reiterated its demand for refund and also gave a legal notice dated 27.03.2015, in this respect. The complainant also wrote letter dated 14.03.2015 to DTCP Haryana to save its interest. The opposite party wrote a letter dated 17.03.2015 informed that the project was safe. The complainant again vide letter dated 26.03.2015, reiterated its demand for refund. Then this complaint was filed on 07.04.2015., alleging deficiency in service on the part of the opposite party.

The opposite party has filed its written reply on 23.12.2015, in which, booking of the plot, provisional allotment of the plot and the deposits made by the complainant, have not been disputed. The opposite party stated that they had invested huge amount in acquiring the land, obtaining Development Licence No.64 of 2010 and NOC from other departments. At the time of booking, entire papers relating to the project were shown and on satisfying with it, the complainant booked the plot. The opposite party confirmed the allotment, vide Provisional Allotment Letter dated 11.10.2012 as such the complaint ,seeking refund on the ground that allotment was not confirmed within one year, is not maintainable. High Court of Punjab & Haryana, vide judgment dated 05.02.2015 passed in CWP No.27665 of 2013, remanded the matter to DTCP Haryana to reconsider issuance of Licence No.64 of 2010, within 60 days. The order of High Court was challenged in SLP (C) No.4115 of 2015, which was disposed of vide order dated 13.03.2015, with observation that DTCP Haryana would reconsider issuance of Licence No.64 of 2010, uninfluenced with any observations of High Court. DTCP Haryana after considering all the objections, vide order dated 08.05.2015, restored Licence No.64 of 2010, from date of its issuance on 21.08.2015, with some condition, which were complied with by the opposite party as such DTCP Haryana, vide order dated 02.12.2015, affirmed the licence. The complainant was apprised with different orders time to time. The complainant cannot be permitted to take advantage of intermittent circumstances, which were malafidely created on false grounds. Statutory authority delayed approval of zoning plans due to which delay has occurred. The opposite party did not commit any negligence or deficiency in service. FIR Nos. 221 of 2013, 244 of 2013 and 674 of 2013 were lodged on false allegations, which were quashed/ cancelled on 11.03.2014 and 25.07.2014. The complainant is an investor in real estate with speculative purpose and not a consumer. Clause 30 of Terms & Condition contains an arbitration clause and the complaint is barred under Section 8 of Arbitration and Conciliation Act, 1996. The complaint is liable to be dismissed.

The complainant filed Rejoinder Reply, Affidavit of Evidence of Rajesh Gandhi and documentary evidence. The opposite party filed Affidavit of Evidence of Atul Vaid and documentary evidence. Both the parties have filed written synopsis.

By producing copy of Certificate of Registration of T.G. Marketing Private Limited, the opposite party raised preliminary issue that the complainant is not a consumer. The opposite party submitted that registered office of the complainant was at “25/27” Prince Golam Mohammad Shah Road, Gold Green, Kolkata-700095, WB”. Rajesh Gandhi and Taruna Gandhi, both the Directors of the complainant had their permanent house as “8, Chapel Road, 7th Floor, Hastings, Calcutta-700022”. Aims and object of the company was inter-alia to construct and develop residential or industrial colonies for the general advancement of the employees of the company and also for letting and selling on instalments. From above facts it is fully proved the complainant is an investor in real estate with speculative purpose and not a consumer. The opposite party relied upon judgment of this Commission, in Fright System (India) Private Limited Vs. Omkar Realtors and Developers Private Limited, 2021 SCC OnLine NCDRC 19 and Supreme Court in Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42. The opposite party sent Plot Buyer’s Agreement to the complainant for signature, in June, 2013 but it was not signed. Allotment Letter dated 11.10.2012 was confirmation of the allotment. Allotment remains provisional till signature of the agreement, as such, the allegation that allotment was not confirmed within one year of the booking, is incorrect.

We have considered the arguments of the parties and examined the record. Preliminary issue raised by the opposite party, has no force. The complainant has stated that the residential plot in question was booked for the purpose of residence of the Directors of the complainant. Although, the opposite party stated that Rajesh Gandhi and Taruna Gandhi, both the Directors of the complainant had their permanent house as “8, Chapel Road, 7th Floor, Hastings, Calcutta-700022” but this does not debar them from acquiring another residence in Delhi NCR. A plot of 500 sq.yds. cannot be used for development of residential or industrial colony, which was otherwise not permitted under the terms of allotment. The opposite party has not adduced any evidence to prove that the complainant is engaged in business of purchasing and selling the properties. Merely because the complainant is a company, it cannot be presumed that the residential plot was purchased for any commercial purpose. Supreme Court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers, (2020) 2 SCC 265, held that (i) ordinarily “commercial purpose” is understood to include manufacturing/industrial activity or business-to business transactions between the commercial entities; (ii) the purchase of good or service should have a close and direct nexus with a profit generating activity; (iii) the identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser/or their beneficiary; (iv) If it is found that dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of “earning livelihood by means of self employment” need not be looked into. Supreme Court in Emaar MGF Land Limited Vs. Aftab Singh, (2019) 12 SCC 751, held that Section 8 of Arbitration and Conciliation Act, 1996 does not affect the jurisdiction of Consumer Forum. The Preliminary issues raised by the opposite party have no merit.

The complainant booked the plot on 22.09.2012 and deposited more than 50% of the consideration till July, 2013. The complainant came to know that FIR Nos. 221 of 2013, 244 of 2013 and 674 of 2013 were lodged against the Directors of the opposite party by the buyers of this project. The opposite party, vide letter dated 17.12.2013, informed that approval of zoning plans was likely to be received within 3-4 weeks then the development work would be started and vide letter dated 16.05.2014, informed that they had applied for revision layout plan and sought for ‘no objection’. The complainant, vide email dated 12.08.2014, requested for refund of its money as more than one year had expired, after booking dated 22.09.2012 and deposit of 50% consideration till July, 2013 and the project was still not in its final shape and allotment was not confirmed. Booking Form provides that if for any reason, the company is not in a position to confirm the allotment of the plot applied by the applicant within a period of one year from the date of this application, then at the option of the applicant, the company shall refund the amount deposited by the applicant with simple interest of 12% per annum. The opposite party took plea that the allotment was confirmed vide Allotment Letter dated 11.10.2012. In Clause 10(a) of Terms & Condition, it has been clarified that demarcation and zoning plans for the plot/said colony are not at present approved by the competent authority. The opposite party has nowhere stated that layout plan was sanctioned before letter dated 11.10.2012. Vide Allotment Letter dated 11.10.2012, the opposite party provisionally allotted the plot. “Provisional’ means only for the present time. ‘Confirmation’ means final proof of something. In the absence of approved zoning plan, confirmation of allotment is not possible. In such circumstances, demand of refund in terms of the Booking Form was legal and cannot be denied. So for as interest is concerned, Supreme Court in Experion Developers (private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that in case of refund, 9% interest is just compensation, which amounts to restitutory and compensatory both.

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.