Unitech Limited vs Jaidev Kapoor

MR. Justice Ashok Bhan, President-This Order shall dispose of First Appeal No. 103 of 2005 arising from Complaint Case No. C-607 of 1993 filed by Shri Jaidev Kapoor and First Appeal No. 104 of 2005 arising out of Complaint Case No. C-546 of 1993, filed by Smt. Sarla Kapoor, before the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as ''the State Commission'' for short), seeking the same relief, which have been disposed of by the State Commission by passing identical Orders dated 7.2.2005 giving the same relief. In First Appeal No. 103 of 2005, the number of plot in question is H-44 whereas in First Appeal No. 104 of 2005, the number of plot in question is H-47. Since, rest of the facts in both the First Appeals are identical, we are disposing them of by a common Order. For convenience sake, we are taking facts from First Appeal No. 104 of 2005.

BRIEFLY stated, the facts leading to the filing of this case are as under: As per the allegations made in the complaint, in response to the advertisement in various newspapers, respondent/complainant booked plot No. H-47 measuring 420 sq. mtrs. in preferential location called as ''B'' Category on 7.3.1986 at South City, a colony being raised by the appellant in Gurgaon and paid Rs. 40,549 through cheque dated 7.3.1986 as earnest money plus extra charges of Rs. 10,057 for preferential location. It is stated that the respondent continued to make the payment from time-to-time as per Plan ''C'' category inclusive of interest, development charges as per the demands raised by the appellant. That respondent paid last instalment of Rs. 4,981 in the month of March, 1990 which the appellant did not accept on the plea that a letter would be sent to the respondent some time in July or August, 1990 for final payment and formal allotment of plot to the respondent. That the respondent did not receive any such communication in spite of having sent reminder dated 5.9.1990. That respondent received letter dated 17.4.1992 from the appellant informing that the preferential category has been changed to ordinary category under Clause 3 of the Terms and Conditions of Allotment singed and agreed by the respondent. That respondent again requested the appellant, vide letter dated 6.6.1992, for allotment of preferential location plot followed by reminders but did not receive any response. Thereafter, respondent served Legal Notice dated 12.10.1992 on the appellant to which appellant informed and advised the Advocate of the appellant that they have not allotted any plot to the appellant as per their records and, therefore, the Notice was irrelevant. Thus, being aggrieved, respondent filed the complaint before the State Commission seeking direction to the appellant to allot the preferential Plot No. H-47 to the respondent which was booked by the respondent on 7.3.1986 and, in case the appellant fails to allot the preferential plot, a direction be issued to the appellant to allot a plot from the general category and pay the difference of consideration of Rs. 5,00,000 to the respondent. Respondent also sought damages to the tune of Rs. 2,00,000 for non-allotment of plot so far and for causing mental tension and agony to the respondent.

ON being served, appellant filed its Written Statement denying all allegations made by the respondent.

STATE Commission, after taking into consideration, the pleadings and the evidence, lead by both the parties, allowed the complaint and it was held that the appellant had changed the location of the plot arbitrarily and discriminately. That the appellant did not have the absolute discretion to change the location of the plot under Clauses 3 and 6 of the Agreement. That the appellant had failed to disclose any reason whatsoever which compelled it to change the location of the plot from preferential plot to a site which is non-preferential. Based on this finding, the State Commission partly allowed the Complaint and directed the appellant to handover the possession of the plot for which full consideration amount had already been received by it and to pay a compensation of Rs. 2,00,000 towards the loss suffered by the respondent along with costs which were quantified at Rs. 2,000. It was held that since the plot was allotted in the year 1989 and much water has flown under the bridge and the price of the real estate has sky rocketed, the respondent should not be deprived of the plot already allotted by the appellant which is a non-preferential location plot.

COUNSEL appearing for the appellant contends that under Clauses 3 and 6 of the Agreement, appellant had the absolute discretion to effect suitable and necessary alteration in the layout plan and, if necessary, to change the position, boundaries, area as well as number of the plot. As against this, learned Couunsel for the respondent contends that allotment of the plot and its possession could be changed only if it was necessary to alter the layout plan. Since, in the present case, no alteration had been made in the layout plan, the change of the location of the plot from preferential to non-preferential category was not justified.

CLAUSES 3 and 6 of the Agreement reads as follows: "Clause 3. The company shall have the right to effect suitable and necessary alterations in the layout plan, if and when found necessary, which alternations may involve all or any of the following changes namely, change in the position of the plot, change in the number of the plot, change in the boundaries. To implement any or all of the above changes supplementary sale deed or deeds, if necessary will be executed and got registered. If there is any increase/decrease in the are a rebate in the price of the decreased area will be allowed at the original rate at which the plot was booked for sale...."

"Clause 6. The seller shall have the right to effect the alterations in the layout plan, if and when considered by it to be necessary and desirable. Alterations inter alia involve all or any of the following changes namely change in the position of the plot, change in the number of the plot, change in its boundaries. In case company is not in a position to allot a property applied within a period of one year from the date hereof, the company shall be responsible only to consider for alternative property or refund of the amount deposited with simple interest @ 10% p.a. Similarly, if due to the change in the layout plan of the colony in preferential location seized to be so located then the seller will be liable only to refund of extra charges recovered with simple interest @ 10% p.a."

A perusal of these two clauses would show that the appellant had the absolute discretion either to change the position, the number, the boundaries or the area of the flat, in case the Company was not in a position to allot the property applied for. The stand taken by the respondents in their Written Statements has not been indicated in the impugned Order. The Written Statement filed by the appellant has not been placed on record either by the appellant or by the respondent. In the complaint filed, it has not been alleged that the layout plan had not been changed or that there was no necessity to make alteration in the layout plan. Even the State Commission has not recorded the finding that the alteration in the layout plan was not necessary. In the absence of any pleadings or findings recorded by the State Commission, the submission made on behalf of the respondent that it was not necessary to undertake alteration in the layout plan or that no alteration had been effected in the layout plan, cannot be accepted. The aforesaid fact has not been either pleaded or proved. The number of the plot allotted to the respondent remains the same which clearly indicates that there must have been a change in the layout plan because of which the plot, which was a preferential plot ceased to be so.

THE parties are bound by the terms and conditions of allotment. The plot has already been allotted to the respondent and the State Commission itself has recorded a finding that the prices of real estate in South City, Gurgaon had sky rocketed. The respondent, in all, had paid a sum of Rs. 2,31,214. Rs. 10,057 paid by the respondent for preferential location charges have been adjusted against the stamp duty charges. For a plot which was worth Rs. 2,31,214, the grant of Rs. 2,00,000 by way of compensation is not at all justified. Otherwise also, the appellant had the absolute discretion to change the position, the number, the boundaries as well as the area of the plot. In our considered view, the State Commission was not justified in awarding the sum of Rs. 2,00,000 by way of compensation. The same is ordered to be deleted. For the reasons stated above, the Appeal is allowed to the extent indicated above. Rest of the Order of the State Commission is upheld. Parties to bear their own costs. Appeal allowed.