Narender Kumar Jain vs Taneja Developers & Infrastructure Ltd

These three first appeals have been filed by the appellants against the order dated 30.1.2014 passed in three consumer complaints no.92/2011, 93,2011 and 94/2011 by the State Consumer Disputes Redressal Commission, UT Chandigarh (for short, 'State Commission').

Brief facts leading to these appeals are that appellants booked three separate plots with respondent/OP. As the facts are similar in all these three cases, the F.A. No. 228 of 2014 Narender Kumar Jain Vs Taneja Developers & Infrastructure Ltd. shall be taken as the lead case and the facts will be referred to from that case. The complainant booked a plot admeasuring 250 sq. yards for Rs.16.25 lakhs. The complainant sold his plot to one M/s. Fateh Buildcon Pvt. Ltd. This company filed a consumer complaint against the respondent/OP which was dismissed as complainant company did not have any locus to file the consumer complaint as the company's name was not endorsed in the allotment letter. Later, individual allottees, namely, Narender Kumar Jain, Shashi Sehgal and Raj Kumari filed separate Consumer Complaints Nos. 92/2011 93/2011 and 94/2011 respectively before the State Commission. The complaints were resisted by the OP on the ground that appellants/complainants had sold their plots to a company namely, M/s. Fateh Buildcon Pvt. Ltd. and they are not consumers and their allotments were cancelled subsequently by the OP. Therefore, presently they are not even the allottees of the project being developed by the OP. Accordingly, it was requested to dismiss the complaints. The State Commission after considering the rival contentions and evidence on record, disposed of the complaints ordering refund of the amount paid by the complainants alongwith 12% p.a. interest from the date of deposit till realization alongwith Rs.20,000/- as cost of litigation.

Hence the present appeals.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the appellants stated that the State Commission has passed order of refund whereas the complainants wanted to get possession of the plot. Even if the complainants had sold their plots to a third party, namely, M/s. Fateh Buildcon Pvt. Ltd., however, the OP had not made any changes in the allotment letters and even on the request of the purchaser company, OP has not made any endorsement on the allotment letters and plots have not been transferred to the purchaser company, M/s. Fateh Buildcon Pvt. Ltd. Thus, the complainants remain the allottees of their plots under the project developed by the OP and therefore, complainants are consumers qua the OP. The contract between the complainants and OP does not change even if the complainants had made another contract with a third party in respect of the plots in question.

It was argued by the learned counsel for the complainants that the State Commission has wrongly allowed the refund and a builder will always be happy to refund because he would get a chance to sell the property at a very high price to new allottees.

Though the OP has sent the refund as per the order of the State Commission, however, the complainants have not encashed these drafts. The purchaser company M/s. Fateh Buildcon Pvt. Ltd vide application dated 12.1.2010 applied to the OP for transfer of the plots in the name of the company. The OP did not respond to this application and therefore, complainants are still the allottees of the plots in question. The complainants are ready to pay the remaining amount and are ready to take the possession of the said plots.

On the other hand, learned counsel for the OP stated that it is not disputed that the complainants sold the plots to the company, namely, M/s. Fateh Buildcon Pvt. Ltd and the company filed consumer complaint before the District Forum which was dismissed vide order dated 30.9.2011. The complainant has admitted in the complaint as under:

"For the personal reasons the complainant chose not to retain the plot and offered to transfer the same M/s. Fateh Buildcon Pvt. Ltd 2175, Phase-VII, Mohali (hereinafter also referred to as the "Company" and/or Proposed Transferee). Since the said company was looking for some residential accommodation for its officers, it accepted the offer of the complainant. In view of the above, the complainant executed various documents, such as a Transfer Letter, Indemnity Bond and Undertaking, which indicated that he had transferred all his rights in the said plot to the company. Copies of the said documents are annexed herewith and marked as Annexure C-3 to Annexure C-5 ."

Learned counsel for the OP further stated that due to non payment of further amount, the registration of the plot was cancelled on 6.8.2009. Before cancelling the registration, several reminders were sent for making due payment in respect of the plot. One such reminder was sent on 1.11.2008 wherein Rs.5,85,000/- was demanded as due payment. As per admission of the complainant, the said plot was sold to a company M/s. Fateh Buildcon Pvt. Ltd and the company has not sold back the plot to the complainant. Therefore, the complainants have no right over the plots. In the written statement, a plea has already been taken that the OP has nothing to do with the readiness and willingness of the complainant for making payments towards the allotment of the plot in question as his registration has already been cancelled way back in the year 2009. The learned counsel further informed that the OP has already complied with the order of the State Commission and draft of refund amount alongwith interest was already sent to the complainant. As registration has already been cancelled and the complainant never challenged the cancellation of the plot, therefore, cancellation has become final and therefore there can be no question of any allotment of the plot again.

I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record. It is admitted by the appellant/complainant that the plot was sold to M/s. Fateh Buildcon Pvt. Ltd. by the complainant. As the opposite party did not endorse the allotment in favour of M/s. Fateh Buildcon Pvt. Ltd., this only implied that the complainant was continuing as an allottee of the opposite party. The opposite party has objected to this argument and has stated that when M/s. Fateh Buildcon Pvt. Ltd. applied for transfer of the said plot in their name, allotment was already cancelled by the opposite party on 06.08.2009, though the complainant has denied this cancellation and has claimed that the complainant was not aware of any such cancellation nor any such letter was received in this regard. The opposite party has claimed that the registration was cancelled on 06.08.2009 and therefore, there was no question of transfer of the said plot in the name of M/s. Fateh Buildcon Pvt. Ltd. The assertion of the complainant that the complainant was not aware of the cancellation of the registration of the plot is not sustainable as the buyer company M/s. Fateh Buildcon Pvt. Ltd. in their complaint filed before the District Forum being CC No.159 of 2010, the complainant company has clearly stated the following:-

"8. That however for some strange reasons, the Opposite Party refused to accept the Cheques or the Letter and in fact informed the Complainant that the allotment stood cancelled. However, no written confirmation was given by the Opposite Party to the Complainant in this regard."

From the above, it is clear that the buyer company M/s. Fateh Buildcon Pvt. Ltd. was aware of the cancellation of registration of plots when they filed the consumer complaint, which was ultimately withdrawn by the Company on some technical ground as per order dated 30.09.2011 of the District Forum. As the present complaint has been filed by the complainant though special power of attorney given to Mr. Amrit Singh, who is the Director of M/s. Fateh Buildcon Pvt. Ltd., therefore, it is imperative that the complainant would also have known the fact of cancellation of his plot. Clearly, the plot was cancelled on 06.08.2009 and the same was in the knowledge of the complainant, however, the complainant did not take any steps to get this cancellation revoked either by pursuing with the opposite party or by taking legal recourse. The State Commission has taken a right view to minimize the loss to the complainant and has accordingly ordered the refund of the deposited amounts along with 12% p.a. interest. It is seen that in the advance registration form, the opposite party has committed to pay 15% p.a. interest on the deposited amount if the allotment is not done within a specified period. Though in the present case, the allotment was made, which was ultimately cancelled by the opposite party, I am of the view that in the interest of justice refund of the deposited amount along with 15% p.a. interest would be reasonable compensation to the complainant in the facts and circumstances of the case.

Based on the above discussion, I do not find merit in the appeals. However, the orders of the State Commission in these three consumer complaint Nos.92 of 2011, 93 of 2011 & 94 of 2011 are modified to the extent that the interest rate shall be payable on the amount of refund @15% p.a. instead of 12% p.a. as awarded by the State Commission. Accordingly, the appeal Nos.228 of 2014, 229 of 2014 & 230 of 2014 stand disposed of.