Sanjay Bansal vs M/s Vipul Ltd. And Ors

Ram Surat Ram (Maurya), Presiding Member

Heard Mr. N.K. Nantawala, Advocate for the complainant, Ms. Abhilasha Sharma, Advocate for opposite party-1 and Ms. Jigyasa Sharma, Advocate for opposite party-2.

Sanjay Bansal has filed above complaint for directing the opposite parties to (i) execute the buyers agreement/sale deed with the complainant qua flat Nos.1103, 1203, 903 in tower No.15 and flat No.1402 in tower No.21 in Orchid Petals Condominium Complex-1, Sector-49, Gurgaon, Haryana; (ii) pay Rs.5/- lacs as compensation for harassment, agony and pain suffered by the complainant; (iii) pay litigation cost; and/or (iv) any other order for compensation which is deemed fit and proper in the facts and circumstances of the case.

The complainant submitted that the opposite parties were companies registered under the Companies Act, 1956. They were promoters and developers of residential group housing condominium complex in Sector-49, Gurgaon in the name and style of ‘Orchid Petals.’ On 04.08.2004, the complainant booked four flats for himself and his family members in the above project by depositing an amount of Rs.3/- lacs for each flat (total Rs.12/- lacs). The total cost of the flats was Rs.15086150/-. At the time of booking the opposite parties did not have necessary statutory approvals like licence and sanctioned building plan etc. The opposite parties assured the complainant that the necessary sanctions/approvals would be taken soon. The schedule of instalment would be formulated after obtaining the approvals from the concerned authorities. The opposite parties did not intimate the complainant about the approvals in spite of several queries made by him. On 08.04.2005, the opposite party issued two letters allotting unit Nos.903 and 1203 in Tower-15 with demands. The complainant asked the opposite parties whether statutory approvals had been obtained or not and he was informed that it would take some more time. The complainant informed the opposite parties that he was ready to make payment subject to the opposite party obtaining necessary approvals in regard to the project. Again on 27.07.2005, the opposite party issued two allotment letters allotting unit No.1103 in Tower-15 and unit No.1402 in Tower-21 with demands without stating anything about the approvals. The complainant visited the office of the opposite parties and he was informed that the approvals would be obtained very soon. The complainant sent a letter dated 16.08.2005 to the opposite parties seeking time for making the payment of instalment. The complainant applied for housing loan with HSBC Bank but the loan could not be sanctioned because the project in question did not have the statutory sanctions from the concerned authorities. On 21.10.2005, the opposite parties issued another demand letter and nothing was mentioned about the approvals. The complainant, vide letter dated 11.11.2005 informed the opposite parties that his loan application is pending for approval as the project of the opposite party is not having necessary approvals. On receiving demand letters dated 15.04.2006 and 20.04.2016, the complainant visited the office of the opposite parties and he was intimated that all necessary approvals have been obtained and the complainant was given a calculation sheet requiring him to pay an amount of Rs.2970675/- for flat Nos.903, 1109 & 1203 in tower-15 and Rs.2201283/- for flat No.1402 in tower-21. The complainant paid the total amount on 25.04.2006, vide four cheques i.e. cheque No.214167 dated 21.04.2006 for Rs.990225/-, cheque No.214168 dated 21.04.2006 for Rs.990225/-, cheque No.214169 dated 21.04.2006 for Rs.990225/- and cheque No.510675/- dated 17.04.2006 for Rs.2201283/-. On 29.04.2006, the complainant received back the above four cheques from the opposite parties without mentioning any reason. On 03.05.2006, the opposite parties sent a legal notice to the complainant alongwith photocopies of four cheques of Rs.3/- lacs each paid for registration amount of the flats mentioning that the bookings of the complainant have been cancelled as he did not have the capacity to pay the instalments. The complainant replied to the legal notice on 17.05.2006 alongwith above four cheques but nothing was done by the opposite parties. Then, the complainant filed above consumer complaint before this Commission on 05.09.2006.

It is relevant to mention that initially the complaint was dismissed by this Commission as not maintainable, vide judgment dated 05.08.2013. The complainant challenged the order dated 05.08.2013 by filing an appeal before the Supreme Court and the Supreme Court, vide judgment dated 12.04.2019 allowed the appeal with the observation that the issue whether four flats were purchased for commercial purpose shall be decided by this Commission after adducing the evidence by the parties. The matter was remanded back to this Commission to decide the complaint afresh. Thereafter, the opposite party filed its written reply. Opposite party-2 has already filed its separate written reply on 22.11.2006

Opposite party-1 stated that despite repeated notices followed by reminders, the complainant failed to pay the instalment amount, therefore, his provisional booking of four flats was cancelled. Merely by paying the booking amount, no legal right accrued in favour of the complainant to obtain allotment of four flats. The complainant has falsely alleged that the opposite parties did not have the requisite approval for development of the project. The opposite parties had already obtained the licence and approval vide memo Nos.5DP-2004/9981 and 5DP-2004/9982 dated 13.07.2004 issued by the Director, Town and Country Planning, Haryana. In order to substantiate the non-payment the complainant has made false allegation that the opposite parties did not have necessary approvals to develop the project.

5a  Opposite party-1 also raised the question of maintainability on the ground that the complainant has booked four flats for commercial purpose to make profit by resale. The complainant is 36 years of age and he has not disclosed the names of family members. The nature of dispute between the parties is purely contractual and the appropriate remedy available with the complainant is a Civil Court. Opposite party-1 has nothing to do with the project and it is not a necessary party. In the year 2005, some differences arose between the opposite parties resulting in division of the property. In this regard, an MOU was also signed between them and OP-1 executed a general power of attorney dated 19.03.2007 in favour of OP-2 giving all rights and liberties to control all the affairs of the project in question. OP-1 also issued a public notice in leading newspapers disclosing that OP-1 & OP-2 are no longer working together. The reliefs sought by the complainant cannot be granted by OP-1 in view of the settlement between the opposite parties.

Opposite party-2 filed its written reply admitting the booking of four flats and the amount of Rs.12/- deposited by the complainant. There was no absolute allotment in favour of the complainant as the allotment was subject to fulfilment of conditions contained therein. As per allotment letter, the complainant was required to send his consent for allotment with the first instalment within 30 days from the date of the allotment. As the complainant failed to fulfil the conditions of the allotment, his allotment was cancelled. It is denied that the complainant made any query about the status of the project and statutory sanctions. When the complainant approached OP-2, he was properly intimated about everything. Moreover, the licence to develop the project was already obtained vide memo Nos.5DP-2004/9981 and 5DP-2004/9982 dated 13.07.2004 issued by the Director, Town and Country Planning, Haryana. Zonal plan for the project was approved on 25.02.2005. Thus, OP-2 was already having necessary licence and approvals before allotment of the flats to the complainant. The building plan was sanctioned on 16.09.2005 by the Director, Town and Country Planning, Chandigarh (Haryana). As the complainant was not in a position to make payment in time, he sent a letter dated 16.08.2005 for extension of time to make the payment of first instalment on the ground that his loan application is pending with the bank. It is denied that OP-2 demanded instalment vide letter dated 27.07.2005. This letter was a reminder for payment of first instalment as the complainant had delayed the first instalment for three and a half months. Although OP-2 was entitled to cancel the allotment after 30 days of non-payment but it showed the bona-fide and issued a reminder dated 27.07.2005 for payment of first instalment. OP-2 sent third reminder dated 21.10.2005 asking the complainant to make the payment, which he failed to do. Then, the opposite party-2 constrained to terminate the allotment of the flats. Although OP-2 was entitled to forfeit the registration amount, but it refunded the money to the complainant. It is denied that the complainant made payments vide four cheques dated 21.04.2006. These ante-dated cheques have been created by the complainant and sent with the reply to the legal notice of OP-2 dated 03.05.2006. When OP-2 has not received these cheques, therefore, there was no question to return the cheques to the complainant. OP-2 also raised the preliminary objection of maintainability as raised by OP-1. With these allegations, OP-2 stated that there is no deficiency in service on its part and the complaint is liable to be dismissed.

The complainant filed Rejoinder Replies, Affidavit of Evidence, documentary evidence and Affidavit of admission/denial of the documents filed by the opposite parties. The complainant also filed additional Affidavit of Evidence on 11.10.2022. OP-1 filed Affidavit of Evidence of Rakesh Sharma. OP-2 failed to file the Affidavit of Evidence despite several opportunities although it filed Affidavit of admission/denial of documents. The complainant filed the short synopsis of arguments.

We have considered the arguments of counsel for the parties and examined the record.

It is admitted between the parties that the complainant booked four flats in Orchid Petals Condominium Complex-1, Sector-49, Gurgaon, Haryana, by depositing an amount of Rs.3/- for each flat and the opposite parties allotted flat Nos. 903, 1103, 1203 in tower No.15 vide allotment letter dated 08.04.2005 and flat Nos.1402 in tower No.21 vide allotment letter dated 27.07.2005. Allotment letters contained payment schedule. It is the case of the opposite parties that as the complainant failed to make the payment despite repeated reminders, his allotment of four flats was cancelled and the complainant was informed vide notice dated 03.05.2006 and entire amount deposited by the complainant was returned. On the contrary, the complainant submitted that he did not make the payment as the opposite parties did not have statutory permissions to develop the project. It is alleged that the complainant wrote several letters to the opposite parties asking them about the approvals and sanctions and he was informed by the officials of the OPs that it would take some time. The complainant has not filed any evidence to prove that he had written letters, making inquiry regarding approvals except letter dated 11.11.2005 and the officials of the opposite parties intimated the complainant that the approvals and sanctions have not been obtained. The complainant has not filed any evidence to substantiate the allegation that the bank loan could not be sanctioned as the project of the opposite party was not in the approved list of the banks. On the other hand, OP-2 alongwith the written reply, has filed copy of licence dated 13.07.2004 and 18.04.2007 granted by the Director, Town and Country Planning, Haryana vide memo Nos.5DP-2004/9981 and 9982 as annexure D-2/4. OP-2 has also filed the copies of the approvals of the zonal plan dated 25.02.2005 as annexure D-2/5 and the building plan of the project dated 16.09.2005 as annexure D-2/7. The complainant was given several opportunities by the opposite parties vide reminders dated 27.07.2005, 21.10.2005, 02.03.2006, 29.03.2006, 15.04.2006 and 20.04.2006 to make payment and every time he failed to do so. OP-2 has also denied handing over of four cheques dated 17.04.2006 and 21.04.2006 of total amount of Rs.2970675/- and Rs.2201284/- respectively. The complainant has filed his statement of account of the bank, which does not show that the complainant had balance of above amounts. Thus, his allotment of four flats was cancelled after giving notice and reminders. We find that there is no deficiency in service on the part of the opposite parties. The complaint is, therefore, liable to be dismissed.

OP-1 has stated that there is a memorandum of understanding dated 30.09.2005 between OP-1 & OP-2 whereby they divided the projects/properties and the project ‘Orchid Petals’ came in the share of OP-2 and OP-1 has nothing to do with the project. In this respect there is no dispute between OP-1 & OP-2. OP-1 has also filed the copy of the MOU dated 30.09.2005 (annexure-3). Clause 1 of the MOU reads as under:-

“That it has been mutually agreed that the following projects shall henceforth be managed, sold, marketed, advertised, promoted and developed by the first party:-

i. Orchid Villa Nova Commercial Project in Village Wazirabad, Tehsil and District Gurgaon.

ii. Orchid Petals Project in village Ghasola, Tehsil and District Gurgaon.

iii......”

In the MOU dated 30.09.2005 first party is Orchid Infrastructure Developers (P) Ltd. (OP-2 herein). This fact is not disputed by OP-2. It is clear that OP-1 has no role to play in the project. It is only OP-2 who is liable for all the rights and liabilities.

ORDER

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