TDI Infratech Ltd. v. Rajinder Singh Thakur, State Consumer Disputes Redressal Commission, Judgment, Law, casemine.com

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TDI Infratech Ltd. v. Rajinder Singh Thakur

Appeal No. : 9 of 2020 Date of Institution : 06.01.2020 Date of Decision : 08.07.2020 1. 1. 2. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH TDI Infratech Ltd., SCO 51-52, Sector 118, Chandigarh- Kharar Road, TDI City, Mohali , through its Chairman/MD/Director : TDI Mall, Sector 17, Chandigarh. Regional Office M/s Taneja Developers & Infrastructure Ltd., 9, Kasturba Gandhi Marg, New Delhi 110001, through its Chairman/MD/Director. TDI City, Sector 117, Mohali, Kharar Road, Punjab through its Chairman/MD/Director 140307 Appellants/Opposite Parties V e r s u s Rajinder Singh Thakur s/o Kanshi Ram, R/o VPO Maned Chatru, Tehsil Dharamshala, District Kangra (H.P.) ..Respondent/complainant BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MRS. PADMA PANDEY, MEMBER MR. RAJESH K. ARYA, MEMBER Present through Video Conferencing :- -1- 1. a. b. c. 1. Sh.Puneet Tuli, Advocate for the appellants. JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT This matter shows the fraudulent intent of the developer/appellants, who were not competent to book or to allot a plot under Critical Gap Area, which land was to be provided by the State of Punjab to them by way of acquisition; inspite of that, they (appellants) are booking the plots and amassing money from the public with regard to the land which is not in their hands, till date. Infact, the appellants initially booked the plot measuring 250 sq. yards in favour of Sh.Sanjay Sirohi and obtained earnest money of Rs.3 lacs on 06.06.2005. Total cost of the plot was fixed at Rs.16,25,000/-. Thereafter, Sanjay Sirohi transferred his interest in the said plot in favour of Amit Batra, who subsequently transferred his interest and rights to one Pritam Singh Sandhu, House No.1891, Sector 34D, Chandigarh and plot no.536 was allotted to him vide letter dated 28.05.2008 (Annexure R-5). The said Pritam Singh Sandhu, transferred plot no.536 (250 sq. yards), in favour of the respondent-Sh.Rajinder Singh Thakur. At the time of making allotment in favour of first vendee Sh.Sanjay Sirohi, even letter of intent was not issued to the appellants. Surprisingly, till date Govt. of Punjab has not cleared the acquisition proceedings of 10% Critical Gap area under Clause 5 (iii) (e) of Agreement dated 26.05.2006 (Annexure R-2) executed between the appellants and State of Punjab. It is more disheartening that the first vendee Sanjay Sirohi was allotted the plot on 06.06.2005 and subsequently, the appellants issued letter dated 17.09.2005 (Annexure R-A) without informing the proposed vendees including Sanjay Sirohi. Even Govt. of Punjab has not issued any notice to the interested persons who have booked the plots under TDI. The appellants/opposite parties have come up in this appeal by assailing order dated 15.11.2019, passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short the Forum) vide which the consumer complaint bearing no.682 of 2018, filed by the respondent was allowed as under:- 20] Keeping into consideration the discussion and findings, as made in the preceding paragraphs, it is proved that the Opposite Parties remained grossly deficient in rendering proper services to the complainant. Therefore, the present complaint is allowed against Opposite Parties No.1 to 3 with following directions:- To refund the entire amount, as deposited with the Opposite Parties qua the plot in question, to the complainant along with interest @15% per annum from the respective date(s) of deposit (since the date of registration) till the date of final payment. To pay a compensation amount of Rs.50,000/- to the complainant for causing immense mental agony, harassment due to deficient act of the Opposite Parties;

30 days from the date of receipt of copy of this order. -2- 1. 2. 3. 4. 5. 6. 7. 8. 9. The respondent, before the Forum, had filed consumer complaint, against the appellants, as they failed to deliver possession of plot No.536, measuring 250 sq. yards, Sector 117, TDI City, Kharar Road, Mohali (in short the project), by the committed date, despite the fact that entire sale consideration stood received by them. However, vide letter dated 7.12.2015, the appellants offered relocation to plot No.5247, which was not accepted by the respondent because of its location. When request made by the respondent to deliver possession of original plot no.536 was not acceded to by the appellants, he served legal notice dated 10.10.2018, but to no avail. On notice being issued, the appellants filed their joint written reply and the claim of the respondent was contested by them on numerous grounds, that he is not ainter alia, consumer; the Forum did not vest with pecuniary and territorial jurisdiction; and that the complaint filed is barred by limitation. On merits, the fact regarding purchase of plot by the respondent in resale; receipt of amount as mentioned in the complaint; non delivery of possession of plot No.536; offer of relocation to plot No.5247 was not disputed. It was stated that after execution of the Agreement with the State Government on 26.05.2006, when the first comprehensive layout plan in respect of the project in question was submitted for approval, the same also included the 10% of the land falling under the Critical Gap Area as agreed to be acquired by the State Government in the above Agreement; that plot no.536 also fell under the said critical gap area; that the Competent Authorities took considerable time to start the acquisition process of Critical Gap Area; that after issuance of notifications by the State Government, the concerned land owners challenged the said acquisition process and obtained stay from the Honble High Court for the States of Punjab and Haryana, at Chandigarh, and pendency of this legal recourse kept the acquisition process at halt for a long period without any fault attributable to the Company. The acquisition of concerned land parcel comprising the plot in question is still pending and has not been finalized by the Authorities till date. Under above circumstances, possession of plot no.536 could not be handed over to the respondent, as a result whereof, vide letter dated 07.12.2015, he was offered relocation which was not accepted by him; and that upon his refusal to accept relocation, he was also offered refund of deposited money with interest as per the Company policy, but that offer was also not accepted by him. Pleading that there is no deficiency in service on the part of the appellants, a prayer for dismissal of the complaint with cost, was made. The parties led evidence, in support of their case, before the Forum. The Forum after hearing the contesting parties and going through the record of the case, allowed the consumer complaint, in the manner stated above. Hence this appeal. At the time of arguments, Counsel for the appellants reiterated all the averments made and objections taken before the Forum i.e. the respondent was not consumer; complaint filed was barred by limitation; the Forum lacked territorial and pecuniary jurisdiction; and that possession of plot no.536 could not be delivered to the respondent as the same fell under the critical gap area notified by the State Government, as a result whereof he was offered relocation or in the alternative to take refund of the amount paid alongwith interest but he refused to do so and filed consumer complaint before the Forum. At the same time, Counsel for the appellants contended with vehemence that though the respondent, in the consumer complaint filed before the Forum, had sought directions to the appellants to deliver possession of plot no.536, yet, the Forum fell into a grave error and ordered refund of the amount paid alongwith interest; compensation and litigation expenses, which is not sustainable in the eyes of law because it is settled law that the Court cannot grant relief beyond pleadings. Prayer has been made to allow the appeal while setting aside the order impugned passed by the Forum. -3- 9. 10. 11. 1. 2. We have heard Counsel for the appellants, at the preliminary stage, and carefully gone through the material available on the record. First coming to the preliminary objections taken by the appellants to the effect that the respondent is not a consumer; that the complaint filed was barred by limitation and that the Forum lacked pecuniary jurisdiction, it may be stated here that we have gone through the order impugned and found that the said objections have rightly been dealt with by the Forum and need no interference of this Commission. Now coming to the objection taken regarding territorial jurisdiction of the Forum to entertain the consumer complaint out of which this appeal has arisen, it may be stated here that Sub-section 2 of Section 11 of the Act envisages that person aggrieved have remedy to file a complaint before a District Forum within the limits of whose jurisdiction:- (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. In the present case, admittedly the Regional Office of the Company is located at SCO No.1098-1099, 1 Floor, Sector 22-B, Chandigarh, wherefrom letter dated 12.04.2010 (Annexurest R-6) with regard to confirmation of receiving the documents for transfer of plot no.536 was issued in favour of the respondent. Even in the memo of parties furnished by the appellants in appeal, another Regional Office of the Company is shown to be located at TDI Mall, Sector 17, Chandigarh. Thus, it is very much clear that the appellants have two Regional Offices at Sector 22-B and Sector 17, Chandigarh, wherefrom they were working for gain. As such, a part of cause of action accrued to the respondent/complainant, to file consumer complaint before the Forum at Chandigarh, in view of Sub-section 2 of Section 11 of the Act, referred to above. As such, this limb of argument is without substance and stands rejected. Perusal of record reveals that the plot no.536 was, in the first instance, booked by one Sanjay Sirohi vide Advance Registration Form dated 06.06.2005 (Annexure R-4), on making payment of Rs.3 lacs. Thereafter, the said plot was sold by him by way of transfer to one Amit Batra, who later on sold the same to Pritam Singh Sandhu. It is an undisputed fact that the said third vendee-Pritam Singh Sandhu had already paid entire sale consideration to the appellants. It is also admitted fact that thereafter the said plot was purchased by the respondent, in resale, from Pritam Singh Sandhu and the amount already paid to the Company by Pritam Singh Sandhu towards sale consideration of the said plot, was adjusted, as the respondent had paid the amount of sale consideration to Pritam Singh Sandhu. In this manner, respondent-Rajinder Singh Thakur has stepped into the shoes of Pritam Singh Sandhu and became the proposed vendee of plot no.536. It is not in dispute that possession of plot no.536 aforesaid, could not be delivered till date to the respondent by the appellants, solely on the ground that 10% critical gap area has -4- 2. 3. 4. 5. not been provided by acquisition, by the State of Punjab. No such condition was imposed at the time of allotting the plot to respondent-Rajinder Singh Thakur or any of his predecessors-in-interest. Even the appellants did not furnish the details and names of the interested persons who have already booked the plots under them, before entering into the agreement dated 26.05.2006 (Annexure R-2). Thus, the appellants have concealed the names of the proposed vendees from the Govt. of Punjab. In these circumstances, there is no alternative except to refund the amount already paid by the respondent. However, instead of offering possession of plot no.536 aforesaid, within the committed period i.e. 12 months or within a reasonable period from the date of allotment/transfer of the said plot, the appellants maintained silence till November 2015 i.e. for more than about 10 years of allotment of the said plot i.e. from Registration Form[ dated 06.06.2005 (Annexure R-4) and thereafter vide letter dated 07.12.2015 informed the] respondent that possession of plot no.536 could not be delivered to him, as it fell under the critical gap area notified by the State Government and he was offered relocation to plot no.5247 in the said project. To defend the appellants, their Counsel contended with vehemence that Letter of Intent in respect of the project in question was issued by the Competent Authorities on 21.12.2005 (Annexure R-1). The State Government agreed to make the acquisition of land under the provisions of Land Acquisition Act, 1894, for the appellants to the extent of 10% of the total area of the project, falling in Critical Gap Area. Pursuant to the above-said Letter of Intent, an agreement was also executed between the Government of Punjab and the appellants on 26.05.2006. After execution of the said Agreement with the State Government, when the first comprehensive layout plan qua Mega project land was submitted for approval, the same also included the 10% of the land falling under the Critical Gap Area as agreed to be acquired by the State Government. Since the land falling under the critical gaps of the project was to be acquired by the Government, the Layout plan of the company was approved by the Chief Town Planner, Punjab, for the entire project land shown in the said Layout, including the Critical Gap Area. After such approval by the Competent Authority, allotment of plots was made by the Company to its customers, which also included plot no.536 and the development work on the project site was commenced as per approved layout and service plans. In parallel, the Company continued following-up the State Government to acquire the land falling under the critical gaps as per their commitments. However, when notification was issued, it was found that plot no.536 also fell into Critical Gap Area. Despite repeated requests and regular follow-ups made by the appellants, the State Government took a considerable time to start the acquisition process of . After the notifications were issued by the State Government, theCritical Gap Area concerned land owners challenged the said and obtained the stayacquisition process against those notifications from the Honble High Court for the States of Punjab and Haryana, at Chandigarh, and pendency of this legal recourse kept the acquisition process at halt for a long period without any fault attributable to the appellants Company and the acquisition of concerned land parcel comprising the plot in question is still pending and has not been finalized by the Authorities till date. Owning to the above circumstances, the possession of plot no.536 could not be handed over to the complainant. From the perusal of record, it reveals that Letter of Intent (LOI) in respect of the project in question was issued in favour of the appellants on 21.12.2005 (Annexure R-1), whereas, on the other hand, the plot in dispute had been sold by the appellants to one Sanjay Sirohi, on 06.06.2005 vide Advance Registration Form (Annexure R-4). It further reveals from the record that without waiting for the State Government to notify Critical Gap Area in the project land, the appellants kept on receiving amount towards the plot in question. The -5- 5. 6. 7. 1. appellants kept on transferring the plot in question, to various persons, referred to above and ultimately to the respondent, on receipt of transfer fees. However, later on, when notification was issued by the State Government, it was found that plot no.536 also fell into Critical Gap Area. Facts of the case narrated above, clearly goes to show that the appellants were not in As far as acquisition ofpossession of the land even, at the time of booking of the said plot. 10% of area is concerned, State of Punjab has issued notification dated 15.02.2009 published in Punjabi Vernacular Newspaper (Annexure R-7) and another Notification dated 10.08.2009 (Annexure R-8) published under Section 6 of Land Acquisition Act, 1894, but thereafter no proceedings were initiated and the matter is at stand-still since then. Even the Land Acquisition Act, 1894 has since been repealed, nothing has been placed on the record to establish if the land proceedings have been initiated under the new or the old Act of Acquisition. In these circumstances, it is not in the interest of justice to usurp and utilize the hefty amount received from the respondent. As per established law, if the project proponent sells the project without obtaining necessary permissions or clear title of the land, it would amount to adopting unfair trade practice. It was so said by the Honble National Commission in Atul Maheshwari and ors. Vs. Yamuna Expressway Industrial Development Authority, II (2016) CPJ 623 (NC). Relevant portion of the said judgment reads thus:- The OP is guilty of unfair trade practice, it should not have announced the scheme, until or unless they got clear title of the acquired land. It is common knowledge that after contesting the case before the District/Additional District Judge, the farmers always go to the Hon'ble High Court and then to the Hon'ble Supreme Court. It is not understandable why the Government agency has made an attempt to lead the gullible people up the garden path. The story does not stop here. Unashamedly, the OP is taking the further instalments, issuing default notice and asking the consumers to deposit stamp duty without acquiring the possession. They have no courtesy to appear before this Commission. Is it the service to the Public? Is it the so called "VIKAS"?. The respondent could not be made to wait for an indefinite period, at the whims and fancies of the appellants. The appellants were thus deficient in providing service and also adopted unfair trade practice, on this account. Now we will deal with the contention raised by Counsel for the appellants that though the respondent had sought directions for delivery of possession of plot no.536, yet, the Forum fell into a grave error and ordered refund of the amount paid alongwith interest, which is not sustainable in the eyes of law. We have considered the contention raised and are of the considered view that the same needs rejection, for the reasons to be recorded hereinafter. It may be stated here that since it has been candidly admitted by the appellants, in their written reply and also by their Counsel during arguments, that possession of plot in dispute cannot be delivered to the respondent, as it no more exists because of the reasons that the land whereupon it was located has been notified as critical gap area, and, as such, when there was no possibility of delivery of possession thereof in the near future, the Forum was right in ordering refund of the amount paid alongwith interest, compensation etc. keeping in view the prayer made by him in his consumer complaint to the effect that Any other relief may please also be granted to the -6- 1. 2. A similar question,complainant in view of facts and circumstances of the present complaint. as to whether, under existing/inhibited circumstances, the Consumer Fora can grant relief in the absence of prayer to that effect or not, fell for determination before the Principle Bench of the Honble National Commission in First Appeal No.1516 of 2019, titled as BPTP Ltd. Vs. Pradeep . The Honble National Commission while answering the saidSharma, decided on 23.12.2019 question in the affirmative, held as under:-

29. In the present Appeals also the Complainants cannot be asked to wait indefinitely as the possession of the booked Flats has not been handed over so far and there is also no possibility of handing over the possession in the near future inasmuch as the EWS Block has not been constructed so far by the Developer which was a condition for issuance of Occupation Certificate. The stand taken by the Developer that the Complainants are not entitled for refund of the deposited amount in absence of prayer to that effect, is unwarranted, unjustified and Therefore, we are of the considered view that the Complainants are unsustainable. entitled for refund of the principal amount with reasonable interest and compensation. The State Commission has only directed the Developers to refund the amount deposited by the Complainants with interest ranging from 10% to 12% p.a. Besides, a direction has also been given to the Developer to pay 50,000/- to the Complainants in this batch of Appeals. Hence, we are of the opinion that the impugned orders do not suffer from any illegality, warranting interference.

TDI Infratech Ltd. v. Rajinder Singh Thakur

TDI Infratech Ltd. v. Rajinder Singh Thakur

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