Mukesh Kumar Jain vs M/s Senior Builders Ltd. & 3 Ors

Subhash Chandra, Member

This consumer complaint has been filed under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short, ‘the Act’) alleging deficiency in service and unfair trade practice on the part of the opposite parties in not handing over possession of a shop booked in their project even after payment of over 80% of the sale consideration.

In brief, the facts of the case, as per the complainant, are that the complainant had booked a shop on 17.12.2009 in the Senior Mall, M.G. Road, Gurgaon, Haryana which was promoted by opposite parties no. 1 & 2.  A Memorandum of Understanding (MOU) was signed between the complainant and the opposite party no. 2 as per which a sale consideration of Rs.1,33,33,500/- was agreed upon for a shop measuring 888.9 sq. ft. @ Rs.15,000/- per sq. ft.  Between 17.12.2009 and 11.03.2010 the complainant paid a sum of Rs.1,15,90,000/- in instalments which is over 80% of the sale consideration.  Vide Letter dated 13.03.2010 shop no. UF-3 was allotted to the complainant.  This letter was signed by one Vijay Dixit, M.D. of the opposite party no. 1.  On 06.10.2010, 02.06.2011, 11.01.2012 and 22.08.2012, the complainant wrote letters to opposite party no. 1 seeking possession of the shop and completion of necessary formalities and handing over of the shop.  As no response was received, he issued a legal notice on 24.09.2013 which was not replied to.  It is alleged that the shop has not been handed over nor have any documents been executed. Opposite party had promised to hand over possession within 12 months failing which he undertook to pay interest as compensation @ 24% p.a which is alleged to have not been done. The complainant has approached this Commission and prayed for the following reliefs:

(a) The Opposite Parties may be directed to execute the documents in the name of the complainant and hand over the Possession of the Commercial space which was booked by the complainant after taking the balance amount;

(b) That the Opposite parties may directed to pay interest @ 24% p.a. which was assured by them in MOU on the entire deposited i.e. Rs. 1,15,90,000/- from the date of deposit till refund of the same.

(c) The Opposite parties may be directed to pay the Complainant a compensation of Rs. 15 Lacs for the mental pain and agony caused Complainant by the Opposite parties due to the delay in possession.  The complainant due to the negligence of the opposite party is under immense mental pressure and suffered immense mental agony for the rear that his entire hard earned money has been lost and nothing has been remained for his family and he has been duped of his hard earned money.

(d) The cost of these proceedings may please be award in favor of the complainant and against the Opp. Parties because the complainant was forced to take legal steps by the Opp. Parties.

(e) This Hon’ble Commission may pass any other order, which this Hon’ble Commission may feel necessary and expedient in the peculiar circumstances of the present case.

The complaint was resisted by way of written statement by the opposite party no. 1.  The averments in the complaint have been denied and it has been stated that opposite party no. 1 was not a confirming party to the MOU in question.  It is contended that the payment was made by the complainant solely to opposite party no. 2 with whom opposite party no. 1 had entered into a Joint Venture on 21.08.2009 for the completion of its project Senior Mall on M.G. Road, Gurgaon.  It is contended that as per Clause 16 of the Joint Venture agreement, the payment of 24% p.a. compensation was the liability of the opposite party no. 2.  However, this joint venture was terminated by a registered deed of cancellation before the Sub Registrar, Gurgaon on 25.01.2010 and, therefore, opposite party no. 1 had issued a letter dated 13.03.2010 to the complainant offering possession of the shop in question subject to payment of the balance amount.  It is contended that the liability of opposite party no. 2 cannot be transferred to opposite party no. 1 and that opposite party no. 1 has itself been a sufferer at the hands of opposite party no. 2.

Parties led their evidences way of affidavit and filed their written statements and synopsis. We have heard learned counsels for the complainant and given thoughtful consideration to the documents on record.  Opposite party no. 2 had already been proceeded ex-parte vide order dated 01.12.2015.  Opposite party no. 1 was also proceeded ex-parte on 16.01.2023. However, its written submissions were considered as final arguments.

It is evident from the record that the registration for allotment was issued jointly by opposite parties no. 1 & 2 although it is signed by opposite party no. 2.  This document does not contain any reference to any Joint Venture between the parties or the consequential impact of the termination of this joint venture.  The payments made by the complainant were, therefore, made under the bonafide belief that they were being made to the parties’ promoting the sales and signatory to the registration of allotment.  The registration for allotment does not contain any provision for the complainant to exit in case of termination of the Joint Venture between the opposite parties.  The termination of the Joint Venture has also been done without keeping the complainant informed as no intimation of the same or its consequences have been formally conveyed to the complainant who is the affected party.  In fact, even the letter offering possession dated 13.03.2010 does not mention that the Joint Venture which is now being brought to the notice of the complainant by opposite party no. 1, had been terminated. A document which was prepared by opposite parties and presented to the complainant after having accepted a substantial amount of the sale consideration as an allottee of the shop, containing one sided clauses, is liable to be held as an unfair trade practice.  The letter dated 13.03.2010 offering possession is evidence of the delay in the offer of possession being made to the complainant for which the opposite party is liable to compensate the complainant as per the terms of allotment.

The terms of the agreement required the complainant to pay the opposite party the sale consideration in instalments. The opposite party have not disputed that a sum of Rs.1,15,90,000/- stands deposited with them as on 11.03.2010. The Agreement is silent with regard to the Joint Venture between the opposite parties and its repercussions on the complainant in case of its abrogation. It has been held in a catena of judgments of the Hon’ble Supreme Court and this Commission that arguments continuing one sided terms are liable to be held as an unfair trade practice. The offer of possession dated 13.03.2010 is admittedly delayed and made subject to further payments.

For the reasons mentioned above, the complaint is partly allowed.  The opposite party is directed to complete the documentation and hand over possession of the shop no. UG-3, Senior Mall, M.G. Road, Gurgaon to the complainant who shall deposit the balance payment due. The opposite party shall pay the complainant compensation for the delay @ 6% p.a., from the dates of respective deposits, till the date of offer of possession. This order shall be complied within 8 weeks, failing which interest shall be paid @ 9% p.a. Opposite party shall also pay litigation cost of Rs.25,000/- to the complaint.

The consumer complaint stands disposed of with these directions.