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Mohanesh Malik & Another v/s Puri Construction Pvt. Ltd., New Delhi & Others

    Consumer Case No. 102 of 2014
    Decided On, 08 September 2022
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, PRESIDING MEMBER
    For the Complainants: Sanjoy Kr. Ghosh, Kartik Jasra, Advocates. For the Opposite Parties: Pravin Bahadur, Kanika, Saurabh Kumar, Advocates.


Judgment Text
1. Heard Mr. Sanjoy Kumar Ghosh, Advocate, for the complainants and Mr. Pravin Bahadur, Advocate for the opposite parties.

2. Mohanesh Malik and Mrs. Pooja Malik have filed above complaint for directing opposite parties-1 & 2 to revoke cancellation letter dated 06.03.2014, cancelling provisional allotment of Unit No.D-1-1201-A in the complex “Diplomatic Green, Phase-1”; (ii) to refund the complainants the excess amount of EDC and IDC received from them; (iii) to revoke and withdraw legal notice dated 29.03.2014 issued by opposite party-3 and directing opposite party-3 to continue with the loan agreement; (iv) to pay Rs.9800000/- as compensation for mental agony (v) to pay Rs.200000/- as cost of the litigation; and (vi) any other relief, which is deemed fit and proper in the facts and circumstances of the case be awarded to the complainants.

3. It has been stated that opposite party-1 is a company registered under the Companies Act, 1956 and engaged in the business of development and construction of Group Housing Project. The opposite parties-2 was its Managing Director. The opposite party launched a project in the year 2011 in the name of “Diplomatic Green Phase-1”, Urban Estates in Village Chouma, Sector-110A and 111, Gurgaon, Haryana. On coming to know about of the project and alluring on the representation and assurance of the opposite parties, the complainants booked an unit of an area of 4500 sq.ft. and deposited booking amount of Rs.1000000/- on 18.12.2011. The opposite parties issued a provisional allotment letter dated 18.12.2011 allotting Unit No.D-1-1201-A, for basic price of Rs.32400000/- i.e. @Rs.7200/- per sq.ft. in the project “Diplomatic Green”. The complainants deposited Rs.661715/- on 14.02.2012, Rs.6000000/- on 05.04.2012, Rs.1800000/- on 27.04.2012, Rs.800000/- on 05.05.2012, Rs.500000/- on 05.05.2012, Rs.300000/- on 21.05.2012, Rs.200000/- on 01.06.2012, Rs.699138/- on 18.06.2012, Rs.99537/- on 22.08.2012, Rs.3562550/- on 23.10.2012, Rs.132252/- on 19.12.2012, Rs.2182252/- on 15.03.2013, Rs.1380087/- on 27.04.2013, Rs.2453479/- on 15.07.2013, Rs.2430000/- on 01.08.2013, Rs.2430000/- on 03.10.2013, Rs.1620000/- on 05.02.2014 as per demand. Apartment Buyer’s Agreement was executed on 14.06.2012, in which, total consideration of Rs.38675321/- (including External Development Charges (EDC) @Rs.303/- per sq.ft. and Internal Development Charges (IDC) @ Rs. 32/- sq.ft.) was mentioned. The complainants entered into a tripartite agreement dated 17.05.2012 with Citibank, for taking loan of Rs.22000000/-. The complainants provided all necessary documents to the bank. Thereafter, the Citibank made payment of the loan amount to the builder directly.

4. The complainants made a complaint to Town and Country Planner, Haryana Urban Development Authority on 12.05.2013 that while getting signature on Builder Buyer’s Agreement, the opposite parties took signatures of the complainants on the blank papers and thereby they have committed unfair trade practice. Director General, Town and Country Planning, Haryana made a public notice that external development charges as well as internal development charges have been revised and reduced. On coming to know about this public notice, the complainants gave an e-mail dated 07.04.2014 that the opposite parties had charged EDC and IDC on a higher rate. Due to revision of rate of EDC and IDC the excess amount be returned to the complainants. The complainants again vide e-mail dated 29.09.2013 requested to return of the excess amount of EDC and IDC collected from them. The opposite parties replied aforesaid e-mail vide e-mail dated 30.09.2013 stating that due to revision of rate of EDC and IDC, the authorities have not returned any money to them. Thereafter various reminders were also given to the opposite parties in this respect. However, the opposite parties did not give any satisfactory reply to return of the excess amount realised in the head of EDC and IDC. The complainants made a complaint dated 12.05.2013 to the Town and Country Planner, Haryana Urban Development Authority alleging that opposite parties had obtained their signatures on various blank papers and format and they have also realised EDC and IDC at excessive rate. The complainants applied under Right to Information Act, 2005 to the competent authority seeking information in respect of the amount EDC and IDC deposited by the opposite parties. On coming to know about the complaint made by the complainants, the opposite parties vide letter dated 06.03.2014, cancelled the allotment of the complainants and wrote a letter to the Citibank for sending the amount of dues so that it can be paid by the opposite parties. The Citibank also gave a notice dated 29.03.2014 to the complainants in this respect that total loan amount of Rs.20611344.34 (comprising of Rs.19826596.39 towards principal amount Rs.228023.22 towards interest till 10.04.2014 and Rs.556712.91 towards other charges) was payable. Then this complaint was filed on 15.04.2014.

5. The opposite parties filed its written reply on 04.06.2014 in which material facts have not been disputed. It has been stated by the opposite parties that Apartment Buyer’s Agreement included a “No Objection” from the allottees from revision of the building plan, if required, A draft of Tripartite Agreement and an Application Form for Enrolment as Member of Association in view of Clause 6 of Apartment Buyers Agreement. On 12.05.2013, i.e. after about one year of the signing of Apartment Buyer’s Agreement without protest or demur, the complainants made a complaint to Town and Country Planner, Haryana Urban Development Authority alleging that his signatures had been obtained fraudulently on blank papers and he prayed for taking action against the opposite parties in this respect. A copy of this letter was also forwarded to Competition Commission of India and the Vigilance Cell of Haryana Development Authority. Without disclosing the fact relating to the complaint dated 12.05.2013, the complainants signed the tripartite agreement on 20.07.2013 and mortgaged the flat in favour of Citibank. The complainant also raised issues relating to payment relating to EDC and IDC and consistently requested for return of the alleged excess payment. The allegations made by the complainants created a serious ramifications on the Apartment Buyer’s Agreement between the complainants and the opposite parties. The complainants, themselves questioned fairness of Apartment Buyer’s Agreement alleging that the substantive part of it were blank sheets and their signatures has been obtained on it without disclosing its contents. In these circumstances, exercising the power under Clause 10 (g) of Apartment Buyer’s Agreement, it has been cancelled vide letter dated 06.03.2014. Taking notice of the cancellation letter, Citibank submitted final statement of account payable by the complainants on 29.03.2014.The opposite parties paid entire dues of Rs.20535105/- through cheque on 25.04.2014 to Citibank. The balance amount of Rs.13933125/- was returned to the complainants, through cheque dated 02.05.2014 which was encashed by the complainant on 31.07.2014. On encashment of cheque the relationship between the complainants and the opposite parties has come to an end and no relief can be granted in the complaint.

6. The complainants filed rejoinder reply on 28.08.2014 in which the facts stated in the complaint were reiterated. However, it has not been denied that the cheque issued by the opposite parties has been encashed by the complainants. The complainants filed Affidavit of Evidence of Mohanesh Malik and the opposite parties files Affidavit of Evidence of Ashok Singh Rawat and Affidavit of Evidence of Surya Puri. Both the parties file their written submissions.

7. I have considered the argument of the counsel for the parties and examined the record. Clause 10(g) of the Apartment Buyer’s Agreement is quoted below:-

“10 (g) Apartment Allottee is aware of the terms and conditions contained in this Agreement and that he/she/they/it has/have clearly read and understood his/her//their/its rights, duties, responsibilities, obligations under each and all the clauses of this Agreement and undertakes to abide by and adhere to the same at all times. The Apartment Allottees warrants not to act in breach of the Agreement.”

8. The opposite parties cancelled the allotment vide le

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tter dated 06.03.2014 as according to them, the complainants were acting against aforementioned warrantee. After cancellation of the allotment, the entire loan taken by the complainants from Citibank was returned to the bank and remaining amount was returned to the complainants. Encashment of cheque dated 02.05.2014 issued by the opposite parties relating to Rs.13933125/- on 31.07.2014 has not been denied. This Commission in Adarsh Developers Vs. Dr. Geetha Bhat & anr. II (2015) CPJ 382 (NC) held that on accepting the amount deposited by the complainants by way of refund, the term of contact between the parties had come to an end. Therefore, the allegation relating to deficiency of service could not be examined. In view of the law laid down by this Commission, the relationship of buyer and builder between the parties does not exist. The complaint cannot be decided on merit. ORDER The complaint is dismissed.
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